Civil courts -- Cameras and recording equipment

Civil courts

The U.S. Supreme Court has never decided whether the public has a First Amendment right of access to civil proceedings. However, most federal appeals courts and state courts have held that civil cases are presumed to be public under the First Amendment.24  Nonetheless, civil litigants often argue that publicity will jeopardize their fair-trial rights. Parties in civil cases also may argue that open proceedings would reveal trade secrets, confidential business information or other private matters. They may argue that the court should close the proceeding or seal documents to prevent competitors or others from acquiring this sensitive information.

Secret settlements in civil cases have also become more common. Often parties to litigation make confidentiality a condition to settlement. This is particularly true in cases where a defendant must pay damages. As a result, cases of great interest to the public are settled secretly and the public never learns the terms of the resolution.25  In response, some jurisdictions have enacted rules that prohibit secret court settlements.26

Issues litigated by private parties often have implications for the general public. Parties in civil litigation involving Enron’s collapse, the Catholic Church’s priest abuse scandals, Bridgestone/Firestone’s allegedly defective tires, and many other controversies had tried to seal important evidence that would let the public know the extent of an important problem. In Minnesota, insurance companies seeking a declaratory judgment that they were not responsible for 3M company’s potential liability for damages caused by injuries from silicon-gel breast implants obtained a broad protective order sealing most court documents. Two publishers who challenged the secrecy order were unsuccessful, despite their argument that the public had a legitimate interest in both skyrocketing insurance costs and unsafe consumer products.27

A number of courts also have ruled that the First Amendment creates a right of access to civil court documents, particularly those placed in evidence or filed with the court.28 Correspondingly, the use of pseudonymous civil filings (documents filed under “John Doe” or another pseudonym) has not been allowed in many cases because it represents a fundamental threat to access by denying the public right to know who is using the public courts to resolve a dispute.29

State and federal legislatures also have enacted statutes with specific application to certain kinds of judicial proceedings and records. When a legislature passes a law that governs court access, the statute will delineate the scope of the access right, but it must do so in a way consistent with First Amendment case law and any applicable state constitutional right of access.

Some court rules also govern access to judicial proceedings and records. Federal Rule of Civil Procedure 26(c), for example, permits federal courts to issue protective orders sealing civil discovery materials to prevent “annoyance, embarrassment, oppression, or undue burden or expense,” but only on a finding of “good cause.”30 Similarly, Federal Rule of Criminal Procedure 16(d)(1) allows federal courts to seal criminal discovery materials “upon a sufficient showing.” Most states have identical or similar rules of procedure.

Civil discovery documents not entered as evidence present access problems because they are not part of the official court record. Some federal appeals courts have held that discovery documents filed with the court are presumed public under the Federal Rules of Civil Procedure, rather than the First Amendment.31 Many courts do not require parties to file discovery materials, and in those jurisdictions you may have great difficulty gaining access to them.

Courts also have ruled that the media do not have a right of access to copies of videotaped depositions.32

Several states have adopted rules that are intended to prevent wholesale secrecy of discovery materials filed in civil cases.33

You may encounter problems gaining access to documents and exhibits used in a case but returned to the parties at the conclusion of the litigation.34 Therefore, do not delay in asking to examine evidence.

The Supreme Court has ruled that the media do not have a First Amendment right to copy exhibits.35 Some courts have read this decision broadly to mean that you do not have a First Amendment right even to examine exhibits, ruling that the right of access to evidence and other documents is based in common law. This makes it much easier for a party advocating secrecy to overcome a media request for access.

 

Cameras and recording equipment

The U.S. Supreme Court held in 1981 that states may adopt rules permitting cameras and recording equipment in their courts.36 Since then, all 50 states have done so, but the rules vary widely. In some states visual and audio coverage is permitted in all types of court proceedings that are public, and in others such coverage is permitted only in appellate courts.

The Judicial Conference of the United States, which makes policy and rules for the federal courts, allows federal circuit courts to permit cameras in appellate arguments. Only two circuits, the Second Circuit in New York City and the Ninth Circuit in San Francisco, have voted to allow camera recording of oral arguments. In 1999, the American Bar Association endorsed the idea of camera access to the U.S. Supreme Court.

Bills to allow cameras in federal trial and appellate courts on an experimental basis have been introduced repeatedly in Congress, but have never passed.

The Judicial Conference of the United States announced in September 2010 a pilot project to allow cameras in some federal district courtroom proceedings. The conference said that only civil cases will be included in the program. Although details of the program were still being developed at the end of 2010, participation in the program was to be at the discretion of the trial judge, with the parties to the court proceedings having the opportunity to veto cameras. The cameras would be set up and operated by court personnel, however; the new policy bars recordings by others, including the news media.

An experiment with camera access was previously conducted from 1991 to 1994 by the Judicial Conference, but was not made permanent.

For detailed information about visual and audio coverage of courts in a particular state, contact the Reporters Committee.


Notes:

24. See, e.g., Publicker Indus. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) (preliminary injunction hearing); In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984) (hearing on motion to dismiss); In re Iowa Freedom of Info. Council, 724 F.2d 658 (8th Cir. 1984) (contempt hearing); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) (pre- and post-trial hearings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983) (vacating the district court’s sealing of documents filed in a civil action based on common law and First Amendment right of access to judicial proceedings); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (stating that “though its original inception was in the realm of criminal proceedings, the right of access [to judicial proceedings] has since been extended to civil proceedings because the contribution of publicity is just as important there, ” for proposition that “the right of access belonging to the press and the general public also has a First Amendment basis”); Doe v. Santa Fe Indep. School Dist., 933 F. Supp. 647, 648-50 (S.D. Tex. 1996) (concluding that the right of the public to attend civil trials is grounded in the First Amendment as well as the common law).

25. See, e.g., United States v. Town of Moreau, 979 F. Supp. 129 (N.D.N.Y. 1997) (denying a newspaper’s request for access to settlement conferences and related documents under seal in a federal environmental lawsuit against General Electric).

26. See, e.g., South Carolina Dist. Court Rule 5.03.

27. First State Insurance Co. v. Minnesota Mining & Manufacturing Co, No. C4-97-1872 (Minn. Feb. 26, 1998) (petition for review denied); see also Procter & Gamble Co. v. Bankers Trust, 78 F.3d 219 (6th Cir. 1996) (where a trial judge had given the parties broad authority to voluntarily seal any documents they chose, the court criticized the trial judge’s expansive protective order by noting that he had not engaged in the requisite inquiry prior to closing court documents to the public).

28. See, e.g., Stone v. University of Maryland Medical Sys. Corp., 948 F.2d 128 (4th Cir. 1991) (documents filed as exhibits in civil court actions may be subject to the First Amendment right of access); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983) (First Amendment right of access to documents introduced in civil cases); Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986) (limited First Amendment right of access to filed discovery documents); Barron v. Florida Freedom Newspapers, 531 So.2d 113 (Fla. 1988).

29. See Reznick v. Hofield, 282 Ill. App. 3d 1078, appeal denied, 169 Ill. 2d 565 (1996) (holding that absent exceptional circumstances, parties must identify themselves in court documents and that privacy interests outweigh the public’s access rights only in “exceptional” circumstances); Doe v. Shakur, 164 F.R.D. 359 (S.D.N.Y. 1996) (refusing to allow a victim of sexual assault to prosecute a civil suit for damages under a pseudonym because “fairness requires that she be prepared to stand behind her charges publicly”). But see Doe v. Nat’l Railroad Passenger Corp., No. 94-5064, 1997 U.S. Dist. LEXIS 2620 (E.D. Pa. Mar. 11, 1997) (upholding sealing of rape victim’s name because the crime is a “serious violation of a person’s body as well as dignity” and in a civil case, the proceedings did “not appear to involve issues of a public nature”).

30. In 1995, the Judicial Conference of the United States struck language from a proposed amendment to Rule 26(c) that would have allowed courts to seal civil documents at the request of both parties.

31. See, e.g., Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988).

32. See Jones v. Clinton, 12 F. Supp. 2d 931 (E.D. Ark. 1998) (holding that the videotape of President Clinton’s deposition in Paula Jones’ lawsuit against him would remain under seal, although a transcript would be released); United States v. McDougal, 103 F.3d 654 (8th Cir. 1996) (holding that district court did not abuse its discretion by finding that media do not have common law or First Amendment right of access to copies of President Clinton’s videotaped deposition in Whitewater trial).

33. See, e.g., Tex. R. Civ. P. Ann. 76a; N.C. Gen. Stat. § 132-1.

34. See, e.g., In re Agent Orange Product Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984), aff’d, 818 F.2d 945 (2d Cir. 1987); Public Citizen v. Liggett, 858 F.2d 775 (1st Cir. 1989), cert. denied, 488 U.S. 1030 (1989) (access to discovery documents filed with the court granted under Fed. R. Civ. P. 5(d)).

35. Nixon v. Warner Communications, 435 U.S. 589 (1978) (holding that common-law right of access does not require disclosure of Nixon tapes played before jury during criminal trial of aides charged with obstructing Watergate investigation).

36. Chandler v. Florida, 449 U.S. 560 (1981).