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).

Mississippi

The Mississippi Supreme Court has stated that “Freedom of the press and speech are fundamental rights guaranteed by the First Amendment,” and that “this constitutional right of speech and the press is satisfied by allowing the press to attend the trial and report what they have heard.” Associated Press v. Bost, 656 So. 2d 113, 117 (Miss. 1995). However, the court continued, “there is no constitutional right to have testimony recorded and broadcast.” Id.

The Mississippi Supreme Court has also stated that there is a presumption of openness to the criminal process, and that this presumption includes the pretrial setting. See Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987). However, the court explained that this presumption may be qualified and that the right to a public trial “belongs to the accused and no one else.” Id.