A. In general

Overview

The Supreme Court has not directly addressed whether the public and the press have a constitutional right of access to civil proceedings, though a plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion). And many federal and state courts subsequently have recognized a public right of access to proceedings and documents in civil cases, though they have differed on the origin and scope of the right.See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3rd Cir. 1984) (“the First Amendment does secure a right of access to civil proceedings”); Westmoreland v. CBS, 752 F.2d 16, 23 (2nd Cir. 1984) (“we agree with the Third Circuit in Publicker Industries … that the First Amendment does secure to the public and to the press a right of access to civil proceedings in accordance with the dicta of the Justices in Richmond Newspapers”); In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1984) (First Amendment access rights extend to contempt proceedings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983) (First Amendment and common law limit judicial discretion to seal documents in civil litigation); Newman v. Graddick, 696 F.2d 796, 801‑03 (11th Cir. 1983) (constitutional right of access to proceedings and common-law right of access to documents in civil case involving prison conditions).

Indeed, a unanimous California Supreme Court found universal support for a constitutional right of access to civil proceedings, saying that “[a]lthough the high court’s opinions in Richmond Newspapers, Globe, Press-Enterprise I, and Press-Enterprise II all arose in the criminal context, the reasoning of these decisions suggests that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). It added 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.” Id. (internal citations omitted). Likewise, the District of Columbia high court noted that “[n]o court has expressly concluded that the first amendment does not guarantee some right of access to civil trials.” Mokhiber v. Davis, 537 A.2d 1100, 1107 n.4 (D.C. 1988).

Court rules also mandate openness. For example, Fed. R. Civ. Proc. 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Fed. R. Civ. Proc. 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.” Many states have similar rules codifying the presumption of access to civil trials.

6th Cir.