A. The First Amendment presumption of access


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).


The Maryland Court of Appeals has recognized the public’s right of access to criminal trials and criminal pretrial proceedings predicated on the First Amendment and on the state constitutional analogue, Article 40 of the Maryland Declaration of Rights. Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 76, 465 A.2d 426 (1983); see Patuxent Publ’g Corp. v. State, 48 Md. App. 689, 429 A.2d 554 (Ct. Spec. App. 1981) (First Amendment right applies to pretrial “gag order” hearing); see also Hearst Corp. v. State, 60 Md. App. 651, 657, 484 A.2d 292, 295 (Ct. Spec. App. 1984) (right to intervene to oppose closing of court file in criminal case was grounded in the First Amendment). While the Court of Appeals has never considered the question of whether the First Amendment right applies outside the context of criminal court proceedings, Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 659-62, 755 A.2d 1130, 1133-35 (2000) (declining to reach the constitutional question and instead finding that a right to access to civil proceedings and records existed under the common law), the Court of Special Appeals has held that the First Amendment right of access is not limited to criminal trials, but extends both to civil trials and to access to court records, State v. Cottman Transmission Systems, Inc., 75 Md. App. 647, 656, 542 A.2d 859, 863 (Ct. Spec. App. 1988) (right of access to civil trials is “predicated on the First and Fourteenth Amendments of the Constitution of the United States and Article 40 of the Maryland Declaration of Rights.”); Baltimore Sun v. Thanos, 92 Md. App. 227, 233-34, 607 A.2d 656, 567-68 (Ct. Spec. App. 1992) (First Amendment right of access applies to redacted presentence report that had been entered into evidence in criminal trial, but First Amendment right might be overcome by compelling state interest in maintaining confidentiality of such reports); Doe v. Shady Grove Adventist Hosp., 89 Md. App. 351, 360, 598 A.2d 507, 511 (Ct. Spec. App. 1991) (“The right of access guaranteed by the First Amendment and Article 40 of the Maryland Declaration of Rights applies to pretrial proceedings, trial proceedings, and court records.”) (citations omitted). But see Group W Television Inc. v. State, 96 Md. App. 712, 716, 626 A.2d 1032, 1034 (Ct. Spec. App. 1993) (finding no First Amendment right of the press to copy trial evidence).

While the Maryland courts typically refer to both the First Amendment and Article 40 of the Maryland Declaration of Rights, the Court of Appeals has held that “the legal effect of the guarantee of freedom of speech and press ordained in Art. 40 is substantially the same as that enunciated in the First Amendment,” Sigma Delta Chi v. Maryland House of Delegates, 270 Md. 1, 4, 310 A.2d 156, 158 (1973), and the courts have treated the rights under the state and federal constitutions as being coextensive for purposes of considering the right of public access to court proceedings and documents.