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

5th Cir.

The 5th Circuit has held that the presumption of access can be overcome and a trial closed so long as (a) there is an overriding interest based on court findings that closure is essential to preserve higher values (generally a Sixth Amendment right to a fair trial), and (b) so long as the closure order is narrowly tailored to serve that interest. U.S. v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.

C. Overcoming a presumption of openness

Overview

Florida

To overcome the presumption of openness in criminal proceedings, a proponent of closure must satisfy the three-part test set forth in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983).

C. Overcoming a presumption of openness

Overview

Mississippi

The Mississippi Supreme Court, quoting Press-Enterprise I, has held that the presumption of access to a trial can be overcome only by demonstrating that closure “is essential to preserve higher values and is narrowly tailored to serve that interest.” Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163, 1165 (Miss. 1987) (emphasis added).

C. Overcoming a presumption of openness

Overview

Georgia

In R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982) the Supreme Court articulated the standard that a motion for closure must meet before being given any consideration by the court: