From the Fall 2001 issue of The News Media & The Law, page 24.
The Reporters Committee operates a toll-free hotline (800-336-4243) for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, answer questions we get from journalists.
Q: Can reporters obtain access to military courts?
A: There is a general right of access to military courts, but to provide more detail on the extent of access, we turned to an attorney who has a great deal of experience in this area. Don Betzold is a Colonel in the Judge Advocate General’s Corps, Army Reserves, and a Minnesota lawyer in private practice and State Senator. His answer:
Yes, but it depends on the circumstances.
The Uniform Code of Military Justice is the criminal code for the U.S. armed forces. The military must operate worldwide, including in hostile areas, and adjudicate legal matters in the areas where witnesses and evidence are located. Therefore, it does not rely on the judicial branch for its justice system. Instead, the military commands appoint and convene the appropriate panels to adjudicate guilt or innocence of the accused at places convenient for the military. Trial by courts martial is the process used for the most serious offenses. There are other proceedings for lesser offenses.
Our military trials are public trials, with the same basic constitutional guarantees that all U.S. citizens have. There may be limitations on the members of the public who may be present for a trial. Major military installations in the U.S. and overseas have courtrooms on post, and military members would certainly be allowed to be present. The rights of civilians to be present at a trial would depend on whether they are allowed on the post or base; the installation commander determines that. However, even if civilians are restricted or banned from a military installation, accredited journalists would likely be allowed on the installation and would thus be allowed to witness the trial.
A military trial could be held in a combat area, or a remote area such as on a ship, where the public could not possibly attend. However, even in such areas, it is unlikely that an accredited journalist, who otherwise has access to the military units, would be barred.
As with any public trial, there could be a motion to close the portions of trial for a particular reason (such as the disclosure of national security information). However, the military judge or president of the panel would have to proceed with extreme caution before granting such a motion.
Rule 806 (Public Trials) of the Rules for Courts-Martial specifically cites cases where it may be permissible to bar all spectators except the press.
There are other types of military discipline that are not open to the public.
Q: Why do journalists such as Vanessa Leggett have less of a right to withhold confidential information from a grand jury than from a trial court?
A: In the landmark 1972 case of Branzburg v. Hayes, the Supreme Court ruled that requiring journalists to testify before state or federal grand juries does not abridge the First Amendment. Because of this ruling, reporters face a contempt citation if they refuse to testify before grand juries when they have witnessed criminal activity, or when their news sources are implicated in a crime or possess information relevant to a grand jury.
The Supreme Court reasoned that a grand jury must have broad investigatory powers because its role is to determine whether enough evidence of a crime exists to return an indictment. The authority to subpoena witnesses is “essential to its task” and is rooted in the principle that the public “has a right to every man’s evidence,” the court said.
However, a journalist’s qualified privilege against testifying was recognized in separate opinions by justices who dissented in Branzburg. The qualified privilege requires the government to meet a three-part test before issuing a subpoena to a reporter. The government must show that the reporter has relevant information, that the information can’t be obtained by alternative means, and that the government has a compelling and overriding interest in the information.
Following Branzburg, most state and federal courts have acknowledged that a qualified reporter’s privilege exists, at least in civil cases and criminal trials, once a case is out of the grand jury’s hands.
Q: Is a government agency in violation of the open meetings law when it effectively restricts the number of people in attendance at an open public meeting by hosting it in a small room?
A: Since most state open meetings laws do not usually address the issue of overflow crowds at open meetings, courts are forced to construe the statutory intent behind the legislation. Courts have generally concluded, as the New Mexico Supreme Court did, that the law does not compel governmental entities subject to the open meetings laws to always conduct the meetings in places most advantageously suited for public viewing. Courts have generally held that the purpose behind the open meetings acts was not to unduly burden the government decision-making or ability to act. (Gutierrez v. City of Albuquerque)
However, governmental entities are required to allow reasonable public access for those who wish to attend and listen to the deliberations and proceedings. Compliance with the spirit of the open meetings law rather than its strict construction may require providing audio or visual equipment so that those who cannot gain entrance to the proceedings may still be able to “attend and hear” the meeting through the aid of the technology provided. Substantial compliance generally occurs when the actions serve the purpose of the statute and the intent for which it was adopted.
Ultimately, since governmental entities are not forced to host public meetings in areas large enough so that everyone can be in the same room as the members of those entities, the determination of whether accommodations are sufficient under the open meetings law depends on the type of meeting held and the leniency of the judge reviewing the case.
Fire codes may prohibit the gathering of large numbers of people in a small room; however, accommodations by audio visual access in overflow rooms may demonstrate an effort to comply with openness requirements.