01A

A. The First Amendment presumption of access

A. The First Amendment presumption of access

Overview

Pennsylvania

The Pennsylvania Supreme Court has held that both the United States Constitution and the Pennsylvania Constitution grant the public and the press a presumptive right of access to criminal proceedings.  See U.S. Const. Amend. I; Pa. Const. Art. I, §11 (“All courts shall be open.”); Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226, 232 (1985) (“[T]he First Amendment to the Federal Constitution is broad enough to encompass the right of access to criminal trials to the public and media.”); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318, 321 (1980) (“[I]n addition to providing a right to the accused for ‘a speedy public trial,’ Art.

A. The First Amendment presumption of access

Overview

Maryland

The Maryland Court of Appeals has recognized the public’s right of access to criminal trials and criminal pretrial proceedings predicated on the First Amendment and on the state constitutional analogue, Article 40 of the Maryland Declaration of Rights. Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 76, 465 A.2d 426 (1983); see Patuxent Publ’g Corp. v. State, 48 Md. App. 689, 429 A.2d 554 (Ct. Spec. App. 1981) (First Amendment right applies to pretrial “gag order” hearing); see also Hearst Corp. v. State, 60 Md. App. 651, 657, 484 A.2d 292, 295 (Ct. Spec. App. 1984) (right to intervene to oppose closing of court file in criminal case was grounded in the First Amendment). While the Court of Appeals has never considered the question of whether the First Amendment right applies outside the context of criminal court proceedings, Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md.

A. The First Amendment presumption of access

Overview

Kansas

Closure of Kansas court proceedings is allowed “‘only if (i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and (ii) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’  Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981), quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association's Standing Committee on Association Standards for Criminal Justice (August, 1978).

The state supreme court said:

A. The First Amendment presumption of access

Overview

MASTER

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).

A. The First Amendment presumption of access

Overview

D.C. Cir.

The D.C. Circuit has not itself expanded the holding in Richmond Newspapers and its progeny to provide for a First Amendment presumption of access beyond criminal proceedings. In re Application of New York Times Co. for Access to Certain Sealed Court Records, 585 F.Supp.2d 83, 87 n. 4 (D.D.C. 2008)(applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001).

A. The First Amendment presumption of access

Overview

Oklahoma

Even before Richmond Newspapers, the Oklahoma Court of Criminal Appeals had recognized the presumptive openness of judicial proceedings and the functional values served by openness in Lyles v. State, 1958 OK CR 79, 330 P.2d 734 (rejecting claim of appellant that television coverage of trial had denied him a fair trial), and Neal v. State, 86 OK CR 283, 192 P.2d 294 (exclusion of public from trial was prejudicial error). Richmond Newspapers and the Press Enterprise cases have been cited and applied by the Oklahoma courts in a variety of contexts.