A. The First Amendment presumption of access

Overview

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). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though the California Supreme Court noted 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.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Some circuits also have recognized a constitutional right of access to court records, with one noting that “the public and press have a first amendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” also called the “Press-Enterprise test.” The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted).

Florida

The Florida Supreme Court has, of course, acknowledged that the Richmond Newspapers decision established a First Amendment right to attend criminal trials. Most Florida decisions discussing access to judicial proceedings, however, are grounded in Florida’s strong common law rights of access to all stages of criminal and civil proceedings and that common law right is discussed in greater detail below. The Florida Supreme Court has expressly stated that “there is no first amendment right of access to pretrial discovery material.” Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 36 (Fla. 1988). There is also no First Amendment right of access to criminal depositions or deposition transcripts that are not filed with the court. Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 382 (Fla. 1987) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). The Florida Supreme Court has also disclaimed a First Amendment right to attend pretrial suppression hearings or other pretrial hearings. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983). The open meetings provision found in Article I, Section 24 of the Florida Constitution does not include meetings of the judiciary, so there is no Florida Constitutional right of access to attend judicial proceedings.

There is a constitutional right of access under the Florida Constitution to judicial branch records, encompassing both court administrative records and civil and criminal judicial records. See Art. I, § 24 (a), Fla. Const. Without grounding its holding on the constitutional arguments, the court in Sarasota Herald-Tribune v. State, 924 So.2d 8 (Fla. 2d DCA 2005), acknowledged that, once exhibits are admitted as evidence in a criminal trial, the First Amendment right of access likely attaches.