01C

C. Overcoming a presumption of openness

C. Overcoming a presumption of openness

Overview

Pennsylvania

The Pennsylvania Superior Court explained what is required to overcome the presumption of access:

There are two methods for analyzing requests for closure of judicial proceedings, each of which begins with a presumption of openness--a constitutional analysis and a common law analysis. Under the constitutional approach, which is based on the First Amendment of the United States Constitution and Article I, Section 11 of the Pennsylvania Constitution, the party seeking closure may rebut the presumption of openness by showing that closure serves an important governmental interest and there is no less restrictive way to serve that interest. Under the common law approach, the party seeking closure must show that his or her interest in secrecy outweighs the presumption of openness.

PA Childcare, LLC v. Flood, 887 A.2d 309, ___ (Pa. Super. Ct. 2005).

C. Overcoming a presumption of openness

Overview

Maryland

On a number of occasions, Maryland’s appellate courts have considered the First Amendment right in the context of criminal proceedings and have consistently required that parties seeking closure demonstrate that the public’s right to access is overridden by a compelling state interest that cannot be protected by alternative means. E.g., Baltimore Sun Co. v. Colbert, 323 Md. 290, 302-03, 593 A.2d 224, 230 (1991) (the “presumption that pretrial proceedings are open to the public can be overcome only by an ‘overriding interest,’ such as an accused’s right to a fair trial”); id. (to overcome the presumption, “[t]he trial court must find specifically that no reasonable alternative short of closure of the courtroom will protect the defendant’s right to a fair trial”); Buzbee v. Journal Newspapers, Inc., 297 Md.

C. Overcoming a presumption of openness

Overview

Kansas

The presumption that courts are open in Kansas can be overcome only if the trial judge “‘affirmatively concludes’” that “‘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 that “‘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, 1182-1183 (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)).

C. Overcoming a presumption of openness

Overview

Alabama

In Alabama, in order for a presumptively open criminal proceeding to be closed, a court must make “specific, on-the-record findings demonstrating that closure is essential to preserve higher values and the closure order is narrowly tailored to serve those interests.” Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. Crim. App. 1993).

C. Overcoming a presumption of openness

Overview

Arkansas

Recognizing that the “right of public access is not absolute,” the Supreme Court of Arkansas adopted a two-part test in Arkansas Television Co. v. Tedder, 662 S.W.2d 174, 176 (Ark.

C. Overcoming a presumption of openness

Overview

Louisiana

The Louisiana Supreme Court ordered a motion to suppress hearing closed on the defendant’s motion, over a vigorous dissent by then-Justice Dennis (who now serves on the United States Fifth Circuit Court of Appeals), in State v. Birdsong, 422 So.2d 1135 (La. 1982). The Court held that, to justify closing a pre-trial hearing, the defendant “should only have to show a reasonable likelihood of substantial prejudice to his right to a fair trial.” Id. at 1136 (emphasis in original).

C. Overcoming a presumption of openness

Overview

New York

See Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 446-47, 399 N.E.2d 518, 527-28 (1979) (citations omitted):