A. The First Amendment presumption of access

Overview

The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though the California Supreme Court noted that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Some circuits also have recognized a constitutional right of access to court records, with one noting that “the public and press have a first amendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” also called the “Press-Enterprise test.” The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted).

5th Cir.

The 5th Circuit has affirmed that there is a constitutionally-embedded presumption of openness in judicial proceedings. Doe v. Jackson National Life Insurance Co., 944 F. Supp. 488 (S.D. Miss. 1995), aff’d sub nom. Deramus v. Jackson National Life Insurance Co., 92 F.3d 274 (5th Cir. 1996). Therefore the news media is entitled to observe, investigate, and report on all public proceedings involved in a trial. U.S. v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983);see also U.S. v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The judiciary, like the legislative and executive branches, is an agency of democratic government, and the public has no less right under the First Amendment to receive information about judicial proceedings than it has to know how other governmental agencies work and to receive other ideas and information. In re The Express-News Corp., 695 F.2d 807, 809 (5th Cir. 1982).

But the right of access to judicial proceedings is not absolute. While the First Amendment guarantees the press and public a right of access, it only guarantees access to information that is available to any other member of the general public. U.S. v. Brown, 250 F.3d 907, 914 (5th Cir. 2001). The First Amendment right does not provide journalists with special privileges denied other citizens. U.S. v. El Paso Times, Inc. 713 F.2d 1114, 1116 (5th Cir. 1985). Furthermore, the First Amendment right of public access to trials will yield to an accused’s Sixth Amendment right to a fair trial in certain circumstances. Id.

The media’s right to know the identities of the parties in a case does not equal the right to attend and observe trials. Anonymity of parties is thus permissible in certain instances where a complete closure would not be acceptable. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). This is because the public right to scrutinize governmental functioning is not so impaired by a grant of anonymity to a party as it is by closure of the trial itself, and the assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name. Id. Nevertheless, there remains a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Id.

Even when a competing interest merits closure or anonymity, it is unlikely to justify prior restraints on the media (gag orders). Under the First Amendment, prior restraints on publication are constitutionally disfavored nearly to the point of extinction.U.S. v. Brown, 250 F.3d 907, 914 (5th Cir. 2001).