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).

Georgia

The Supreme Court of Georgia has consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. See Rockdale Citizen Publishing Co. v. State, 266 Ga. 579, 581 (1996) (“We must do our very best to hold fast to the values embodied by the First Amendment even in extreme and painful cases, because we cannot suspend it and remain all that we strive to be.”). In R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), the Supreme Court of Georgia declared: “This court has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua non of an effective and respected judicial system which, in turn, is one of the principal cornerstones of a free society.”

The public and the press may be denied access to the courtroom only if a party seeking to close the hearing demonstrates that an overriding public interest is likely to be prejudiced by public access to the proceedings, and the closure is narrowly tailored to protect that interest. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support such closure. See generally Presley v. Georgia, 130 S. Ct. 721 (2010);Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 13-15 (1986); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (1982) (holding that a motion for closure “must be supported at the hearing by the movant by evidence constituting ‘clear and convincing proof’ that no means available other than closure of the hearing will serve to protect the right of the movant.”).

The public also has a presumptive right to court records. SeeAtlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“There is a presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.”).

In Georgia, the press and public’s First Amendment right of access to judicial records and proceedings is codified in Uniform Superior Court Rules (“U.S.C.R.”) 21 and 22. U.S.C.R. 21 provides that: “All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].” SeeAtlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“In designing U.S.C.R. 21, this court and the council of superior court judges . . . incorporated the presumption that the public will have access to all court records.”). U.S.C.R. 22 provides that: “Unless otherwise provided by a rule of the Supreme Court or otherwise ordered by the assigned judge after appropriate hearing (conducted after notice to all parties and counsel of record) and findings, representatives of the print and electronic public media may be present at and unobtrusively make written notes and sketches pertaining to any judicial proceedings in the superior courts.” U.S.C.R. Rule 21 and 22 are repeated in the uniform rules of Georgia’s other trial courts. See, e.g., Uniform Magistrate Court Rule 11; Uniform Probate Court Rule 18; Uniform Juvenile Court Rule 26.

The Eleventh Circuit has made clear that in criminal cases the right of access to criminal proceedings rests on a constitutional foundation. See generally United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th Cir. 2005). In United States v. Valenti, 987 F.2d 708, 711 (11th Cir. 1993) the Court of Appeals for the Eleventh Circuit stated that: “The Supreme Court has emphasized the following two considerations for determining whether a First Amendment right of access attaches to a particular process within a criminal proceeding: (1) ‘whether the place and process have historically been open to the press and general public’; and (2) ‘whether public access plays a significant positive role in the functioning of the particular process in question.’” (quoting Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 8-9 (1986)).

A federal court in Georgia may only seal court records if a party can overcome the presumption of openness by showing “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1030 (11th Cir. 2005) (quoting Press-Enterprise, 464 U.S. at 510). See also Brown v. Advantage Eng’g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992) (“Once a matter is brought before a court for resolution, it is no longer solely the parties’ case, but also the public’s case. Absent a showing of extraordinary circumstances . . . the court file must remain accessible to the public.”).