A. Media standing to challenge closure
The Supreme Court recognizes that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)). The Tenth Circuit has consistently found that the press has standing to challenge closure orders on the basis that the “order impeded its ability to gather news” and that such “impediment is within the zone of interest sought to be protected by the first amendment.” Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir. 1986).
As surrogates of the public, news agencies have standing to challenge protective orders in cases of public interest. Importantly, motions to intervene and unseal may be made at any time. See, e.g., In re Pineapple Antitrust Litig., No. 04 MD. 1628 RMB MHD, 2015 WL 5439090, at *2 (S.D.N.Y. Aug. 10, 2015) ("There is no legal authority of which we are aware … to the effect that there is a deadline by which such a journalistic request for access to documents must be asserted, and certainly no requirement that the application be made before the lawsuit is closed.") Therefore, a member of the media may seek to intervene in a case that has been dismissed or settled for the purpose of unsealing records.
News organizations have standing to intervene in actions in which they were not otherwise parties to challenge a district court’s order restricting access to judicial proceedings or records. See Doe v. Pub. Citizen, 749 F.3d 246, 262–63 (4th Cir. 2014) (citing Stone v. Univ. of Md. Med. Sys., 855 F.2d 178 (4th Cir.1988); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252–54 (4th Cir.1988)); see also Hutchins v. Garrison, 724 F.2d 1425, 1432 (4th Cir. 1983) (“[A]s they have abundantly proved in like situations, the news media have both the resources and the ability to vindicate their and the public's rights of access to court proceedings. They have not been reluctant to do so.”); In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, *2 (W.D. Va. July 23, 2018) (“Moreover, media outlets ‘unquestionably have standing to challenge access to court documents.’”) (quoting United States v. James, 663 F. Supp. 2d 1018, 1020 (W.D. Wash. 2009)). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 (1982) (“[R]epresentatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’”).
Media intervenors were held to have constitutional standing to challenge an order sealing judicial records and restricting extrajudicial statements by litigants, potential participants and court personnel because the order infringed on the public’s rights under the First Amendment to gather news and receive speech from willing speakers. See In re The Wall St. Journal, 601 F. App'x 215, 218 (4th Cir. 2015).
Nonparty, non-intervenor public advocacy groups were held to have standing to appeal a sealing order because they had sufficiently participated in the underlying action by objecting to the sealing motion and moving to unseal after the motion was granted, albeit without formally seeking leave to intervene, and because the public’s presumptive right of access under the First Amendment provided an interest in the underlying litigation. See Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014).
In the Fifth Circuit, the media, even when not parties to a litigation, have standing to challenge a closure order either by appeal or by writ of mandamus. United States v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983). The media can appeal court closure or confidentiality orders under the “collateral order” doctrine, which allows appeals before the resolution of the trial. Closure orders are appealable because they are (a) conclusive (final); (b) important and (c) separable from the merits of the underlying litigation itself. Davis v. Capital City Press, 78 F.3d 920, 924 (5th Cir. 1996). News organizations have standing in that they show an injury in fact that is fairly traceable to the challenged act (the closure) and is likely to be redressed by the requested remedy. Id.
In the Fifth Circuit, it is not necessary for the media to demonstrate the existence of a willing speaker in order to establish that they have standing to challenge a confidentiality order. Many courts will presume that a willing speaker exists, else there would be no need for a confidentiality order. Id. at 927.
“In order to ensure the right of access—of ‘immediate and contemporary’ access—our case law has recognized that those who seek access to such material have a right to be heard in a manner that gives full protection of the asserted right.” In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (citing Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994) (noting that press has standing to challenge a protective order)).
In Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009), the Seventh Circuit held that a journalist intervenor lacked standing to challenge the terms of a protective order limiting dissemination of unfiled discovery materials, in a case that had been settled and dismissed. Vacating an order that lifted the protective order in its entirety, the Court held that no live controversy existed and the intervenor could not show “an actual or imminent invasion of a legally protected interest”—because there was “no constitutional or common-law right of public access to discovery materials exchanged by the parties but not filed with the court.” Id. at 1065-66. Acknowledging that the Court has “previously held that permissive intervention is a procedurally appropriate device for bringing a third-party challenge to a protective order,” the Court noted that those cases involved requests for access to sealed records in the court file and requests for intervention made during ongoing litigation. “Here, in contrast, the litigation was over, the case was dismissed, and [intervenor] wanted to intervene in order to press a claimed right of access to unfiled discovery material; as such, the question of his standing should have been addressed.” Id. at 1068.
In short, the “procedural propriety” of intervention “does not answer the separate question of whether the requirements of Article III [standing] must be or have been satisfied.” Id. at 1068 n. 5 (criticizing Grove Fresh for “broadly stat[ing] without analysis that ‘the press does have standing to challenge a protective order for abuse or impropriety’”). While the Court holds that post-judgment intervention should “generally be disfavored,” it declined to address “whether a permissive intervenor must establish standing to challenge a protective order in an ongoing case. " Id. at 1071. Compare United States ex rel. Jayakar v. Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *3 (N.D. Ind. Sept. 6, 2016) (intervenors had standing to assert motion to unseal in closed case; distinguishing Bond because intervenors did not seek unfiled discovery but documents that “were filed on the docket” and “are judicial records”).
In Carlson v. United States, 837 F.3d 753 (7th Cir. 2016), the court held that plaintiff, along with a number of scholarly, journalistic, and historic organizations, had standing to seek access to sealed grand-jury materials concerning an Espionage Act investigation of the Chicago Tribune’s reporting on military codebreaking during World War II. Plaintiff’s “injury-in-fact is the denial of access to government documents that he has a right to seek”; he had a colorable claim of a right to obtain access; and he did not have to “show that he has any particular connection to the grand jury proceeding. . . . To hold otherwise would raise First Amendment concerns.” Id. at 759. The court held its decision in Bond was “not to the contrary,” emphasizing that “[t]he grand-jury transcripts that Carlson seeks are not like privately produced civil discovery that never makes it through the courthouse door. They are created under the authority of the grand jury, and they remain at all times under the power of the court.” Id. at 760.
The Eighth Circuit has not specifically addressed whether media organizations have standing to challenge court closures when they are not otherwise a party to an action, although the court has heard appeals by media organizations, who intervened in cases in order to seek access, without questioning the media’s standing. See, e.g., United States v. McDougal, 103 F.3d 651, 659 (8th Cir. 1996). However, a trial court in the Eighth Circuit distinguished news media organizations from non-news media organizations when it denied an application for release of videotaped testimony filed by non-profit group Citizens United due to lack of standing because the organization was “not a party” to the action and “not a news media organization.” United States v. McDougal, 940 F. Supp. 224, 225 (E.D. Ark.), aff’d on other grounds, 103 F.3d 651 (8th Cir. 1996). The Eighth Circuit did not reach this standing question on appeal, but the trial court ruling may suggest the Eighth Circuit is willing to grant some flexibility to news media organizations on questions of standing when they are not otherwise a party to an action. McDougal, 103 F.3d at 659.
The news media generally have standing to intervene in a criminal proceeding to object to a motion to “seal” court records that would otherwise be a matter of public information. Ex parte Balogun, 516 So. 2d 606, 611 (Ala. 1987) (citing United States v. Cianfrani, 573 F. 2d 835 (3rd Cir. 1978)). With regard to obtaining access to public documents, the Supreme Court of Alabama has held that “a newspaper has a right equal to, but no greater than, that of the general public.” Id. at 613 (citing In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982)).
“Members of the news media, as members of the public, have the necessary standing to judicially question” an order restricting access to a preliminary hearing in a criminal trial. Phoenix Newspapers v. Jennings, 107 Ariz. 557, 561, 490 P.2d 563, 567 (1971).
In Phoenix Newspapers, Inc. v. Otis, 413 P.3d 692, 969 (Ariz. Ct. App. 2018), the court found that a group of news organizations had standing to challenge a court order limiting what information could be published about a prosecutor in a capital case.
In KPNX-TV Channel 12 v. Stephens, 340 P.3d 1075 (Ariz. Ct. App. 2014), the court recognized the right of news organizations to challenge a court order closing the courtroom for a witness’s testimony during the sentencing phase of the Jodi Arias trial).
California courts have recognized that the media have standing to challenge orders closing court proceedings and sealing court records. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999) (recognizing that press has standing to challenge orders closing court proceedings and sealing court records); Estate of Hearst, 67 Cal. App. 3d 777, 782, 136 Cal. Rptr. 821 (1977) (same).
Media organizations are entitled to notice and a hearing before a typical court proceeding is closed. In California state court, a trial court must provide notice of closure either by the formal announcement that a hearing on closure will be held or by publicly docketing a written filing requesting closure. The court then must hold a hearing before it can close proceedings, and the media may participate if they are adversely affected. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).
The media has standing to challenge a closure order. See Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028 (Colo. 1979) (adjudicating an original proceeding filed by the media to challenge an order of closure in a criminal case); see also Order Re: Motion to Unseal Court File, People v. Holmes, No. 12CR1522, at *2 (Dist. Court, Cnty. of Arapahoe Aug. 13, 2012) (pdf) (“the Court FINDS that Media Petitioners have standing to assert the right of public access to court records”).
In civil cases, any member or the public may move the court to review an order limiting access to court files. C.R.C.P. 121, § 1-5(4); see also Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996) (“the rule . . . grants to every member of the public the right to contest the legitimacy of any limited access order”).
In criminal cases, any person may request to inspect criminal justice records, including court records, and bring an action based on the denial of access, under the Colorado Criminal Justice Records Act. C.R.S. §§ 24-72-301(2), 24-72-305(7).
District of Columbia
The Supreme Court has noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)). Federal courts in D.C. have found that “[m]embers of the news media may properly intervene for the purpose of seeking to unseal judicial records.” Dhiab v. Obama, 2014 U.S. Dist. LEXIS 140684 at *8 (D.D.C. Oct. 3, 2014). The D.C. Court of Appeals has reached the same conclusion. Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988). Other courts agree, with the Ninth Circuit finding that “those excluded from the proceeding must be afforded a reasonable opportunity to state their objections.” U.S. v. Brooklier, 685 F.2d 1162, 1167‑68 (9th Cir. 1982). Likewise, the Second Circuit in In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2nd Cir. 1988) found that “news agencies have standing as recipients of speech” to challenge gag orders. Many court rules specify the procedures by which a member of the press can object to closures or move to unseal documents.
The news media have standing to intervene and challenge closures of court proceedings and records. See, e.g., Sarasota Herald-Tribune v. Talley, 523 So. 2d 1163 (Fla. 2d DCA 1988); Times Publ’g Co. v. Pennick, 433 So. 2d 1281 (Fla. 2d DCA 1983); News-Press Publ’g Co. v. State, 345 So. 2d 865 (Fla. 2d DCA 1977).
The right of the media to intervene in legal actions where newsgathering rights are burdened by court orders is well established. See, e.g., R.W. Page Corp v. Lumpkin, 249 Ga. 576, 577 (1982) (recognizing the right of the press to challenge order excluding the public and press from criminal proceedings and instituting procedure where the news media must be provided with notice and an opportunity to be heard prior to consideration of motions seeking restrictions on access to court proceedings); Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170 (2004) (holding that the media had standing to challenge a gag order entered against trial participants and witnesses); Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (finding that newspapers had standing to challenge order sealing court records).
The qualified right of access to criminal proceedings extends to the entire public, including the media. Oahu Publ’ns v. Ahn, 133 Hawai’i 482, 495–96, 331 P.3d 460, 473–74 (2014). In Ahn the court indicated the media has standing in a criminal trial to challenge a courtroom closure via a petition for a writ of mandamus and/or prohibition. Id. at 494, 331 P.3d at 471. Ahn also indicates that a courtroom closure may be challenged after the fact and does not become moot when the proceeding in question has concluded, because “the likely evasion of full review and the public interest criteria of the public nature of the issue, the likelihood of recurrence, and the desirability of an authoritative determination are demonstrably evident.” Id. at n.13.
Idaho courts routinely grant the media standing to appear in cases for the limited purpose of opposing efforts to restrain their First Amendment rights. See, e.g., State v. Compher, Order on Intervening Non-Parties’ Motion to Quash Subpoena Duces Tecum at 3, Case No. CR-2014-12727-FE, Sixth Judicial District, Magistrate Div. (Bannock Co., Idaho, March 13, 2015); Saint Alphonsus Med. Grp. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd., 2013 WL 5883736 (D. Idaho Oct. 18, 2013); Castillon v. Corrections Corp. of America, 2013 WL 4039478, *1 (D. Idaho Aug. 6, 2013); Riggs v. Valdez, 2011 WL 1598630, *8 (D. Idaho Apr. 27, 2011).
Illinois courts have held specifically that media have standing to challenge denials of access to court proceedings. See People v. Kelly, 397 Ill. App. 3d 232, 243, 921 N.E.2d 333, 345, 336 Ill. Dec. 719, 731 (Ill. App. Ct. 1st Dist. 2009) (holding that press clearly had right to intervene to challenge closure of pretrial criminal proceedings); see also Bryan v. Mercy Health Corp., 2011 IL App (2d) 101020-U ¶ 36 (finding citizens’ right to bring access to court claim sufficed for standing to intervene) (non-precedential except in the limited circumstances described in Illinois Supreme Court Rule 23). In In re M.B., the trial court entered a protective order that purported to prohibit a newspaper from publishing certain details about the trial. The appellate court held that the newspaper was not required to violate the order and be held in contempt before having standing to challenge the order. 137 Ill. App. 3d 992, 996, 484 N.E.2d 1154, 1157, 92 Ill. Dec. 299, 302 (Ill. App. Ct. 4th Dist. 1985). The newspaper had filed “a motion to vacate the protective order, and that motion was denied by the trial court. Such order of denial was obviously directed squarely at the [newspaper] and the others who filed similar motions. In this sense, the [newspaper was] not an interloper but was specifically aggrieved by the trial court’s order.” Id. at 996–97, 484 N.E.2d at 1157, 92 Ill. Dec. at 302.
Under Indiana Administrative Rule 9, “[a]ll persons have access to Court Records as provided in this rule.” Admin. Rule 9(B). The Commentary specifies that this rule includes the media. Because the media has the same rights as other “persons,” the media presumably has standing to challenge closure of records. See Evansville Courier v. Prosecutor, 499 N.E.2d 286, 287 (Ind. Ct. App. 1986) (newspaper appealing a trial court decision denying access to public documents under the Indiana Access to Public Records Act); see also Ind. Code § 5-14-2-8(b) (stating that the general public has standing to bring an original action before the Supreme Court contesting a ruling on exclusion from criminal proceedings).
In Iowa, representatives of the media may utilize intervention as a procedure to challenge closure of court records and proceedings. See generally Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920 (Iowa 1983); Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142 (Iowa 1988); see also In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 572 (8th Cir. 1988). Depending upon the court or presiding judge, a representative of the press may be allowed to appear informally to make an access motion. The Eighth Circuit Court of Appeals has also held that “[w]henever an objection to closure is made, the [c]ourt must allow the objecting parties a reasonable opportunity to state their objections.” In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983) (citing United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982)). The Eighth Circuit further held that a reasonable opportunity “need not take the form of an evidentiary hearing or encompass extended legal argument.” Id. (citing Gannett Co. v. DePasquale, 443 U.S. 368, 445–46 (1979) (Blackmun, J., concurring in part and dissenting in part). In Iowa Freedom of Information Council, the court declined to announce standards with respect to giving prior notice of motions for closure to the press and the public. Id. at 663. However, when a representative of the media was present when the motion that the hearing be closed was made in open court, the Eighth Circuit deemed that to be sufficient notice to enable the media to object. Id.
In Kansas City Star Co. v. Fossey, 630 P.2d 1176 (1981), when the Kansas Supreme Court adopted a presumption that courts are open, the media’s standing to intervene and object to a trial judge’s closure order was not disputed. In Fossey, the media had filed a motion to intervene, asking the judge to vacate his order to close a suppression hearing and also requesting a copy of the transcript of the proceeding. After a hearing on the motion, the judge declined to vacate his closure order but granted the media’s request for a transcript of the closed proceeding. The media then petitioned the state supreme court for mandamus, seeking a declaration that the judge’s closure of proceedings had violated the First Amendment. Although the supreme court denied the newspaper’s petition for mandamus, the supreme court ruled that the presumption of openness that would apply in future cases.
In Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), the Kansas Supreme Court reviewed Fossey and affirmed the media’s standing to intervene and challenge a restriction on access to court proceedings and records. In Owens, the media had challenged a judge’s order that sealed records in five high-profile criminal cases, which were primarily related to two quadruple homicides. The state supreme court said:
"We believe an integral part of the rule announced in Fossey . . . is the need for a trial court, when considering the sealing of a record or the closure of a proceeding, to consider also the societal interest the public has in open criminal proceedings and records. . . . The news media, as a member of the public, should be permitted to intervene in a criminal case for the limited purpose of challenging a pretrial request, or order, to seal a record or close a proceeding in that case, even without an express statutory provision allowing such intervention."
Owens, 27 P.3d at 883.
The supreme court listed several benefits of allowing intervention by the media in a criminal case. As the supreme court said:
"Allowing the news media to intervene in a criminal case . . . may provide a trial court with the benefit of argument on the question of closure by an advocate of First Amendment and common-law interests. Such an argument would not necessarily be made by the State or the defense and might otherwise go entirely unnoticed. The news media may identify, or at least be the strongest proponent of an argument that there are . . . 'reasonable alternative means' to closure that would avoid the prejudicial effect on the defense or prosecution of the dissemination of information contained in the record or revealed during a proceeding. Other benefits to be derived from permitting the news media to intervene include: (1) allowing the court that is most familiar with events that may be unfolding rapidly in the case and in the community in which the case is pending to make a fully informed closure decision in the first instance, (2) less disruption in the processing of the criminal case because an appellate court would not be called upon prematurely to resolve a challenge by the news media while the criminal case is stayed pending the appellate court’s decision, (3) an increase in judicial economy, and (4) a more efficient use of judicial resources."
Owens, 27 P.3d at 883.
When court records or court proceedings are closed from the public and the news media in a civil or criminal case, the Kentucky Supreme Court has held that news media entities have the “fundamental right” to intervene and to have “a hearing to decide whether the hearing should be closed or the record sealed from access to the public and the media.” Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 129 (Ky. 1988). A special exception to the normal rules of standing applies to the news media in such cases, permitting news media entities to intervene and demand access even though a nonparty, and, if denied intervention or refused a hearing, to attack the decision in the appellate court by immediate use of a writ of prohibition or mandamus in the Court of Appeals. Id. at 127–28. Over more than a quarter century, the Kentucky Supreme Court has consistently reaffirmed the news media’s fundamental right to intervene for the purpose of seeking access on behalf of the public. See Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011); Cent. Ky. News-Journal v. George, 306 S.W.3d 41, 44–45 (Ky. 2010); Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 847 (Ky. 2009); Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 728 (Ky. 2002).
The Kentucky Supreme Court has emphasized, however, that “[t]he only exception in our law for intervention by someone without an interest in the litigation is for news media attempting to examine court records.” Bailey v. Bertram, 471 S.W.3d 687, 691–92 (Ky. 2015) (emphasis added). However, Kentucky’s appellate courts have not provided any criteria or legal test for who may qualify as “news media” for purposes of standing to seek access.
Standing to challenge closure orders is not usually an issue in Louisiana. The news media typically files a motion to intervene. The Courts have given full consideration to motions by the news media for access even without granting intervention, however, and have allowed intervention in criminal cases even though there is no express authority to do so.
Thus, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court issued an order sealing the entire record of a divorce proceeding. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application; the Supreme Court granted writs and vacated and remanded. On remand, the District Court then issued another less-extensive sealing order; the Court of Appeal denied a new writ application; and the Supreme Court again granted writs and ordered almost the entire record opened. In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted explicitly.
In Chicago Tribune Co. v. Mauffray, 996 So.2d 1273, 1279 (La. App. 2008), the Court of Appeal held that the news media had standing to challenge closure of courtroom proceedings and request access to records of juvenile adjudication proceedings even though the “News Media may not be acting as ‘intervenors’ in the strictest sense.” The Court stated: “The media is often in the best position to champion the important interests that both the media and the public share in the rights and freedoms discussed above. In order to give meaning to these rights and freedoms, representatives of the press and general public must generally be given an opportunity to be heard on the question of their exclusion.”
In State v. Walden Book Co., 386 So.2d 342, 343 n. 1 (La. 1980), an obscenity prosecution against Penthouse magazine, the Supreme Court allowed the magazine publisher to intervene, although noting that the state was correct in arguing “the absence of statutory provisions permitting intervention in a criminal case.”
There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
The Maine Supreme Judicial Court has implicitly recognized the media’s standing to challenge closure of criminal cases. See State v. Strong (In re MaineToday Media), 2013 ME 12, 59 A.3d 499 (“MaineToday”). By contrast, the Supreme Judicial Court has ruled that a party to a child protection proceeding lacked standing to assert the public’s First Amendment rights to access such proceedings. In re. Bailey M., 2002 ME 12, ¶ 11, 788 A.2d 590.
Maryland courts have recognized the right of the press to intervene to assert its right to attend trials and pretrial proceedings in both criminal and civil cases. News Am. Div. (Hearst Corp.) v. State, 447 A.2d 1264 (Md. 1982) (press has right to intervene to oppose pre-trial gag order; gag order is a “final judgment” collateral to the criminal case from which an interlocutory appeal may be taken); Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991) (press may intervene to assert access rights in civil cases, including access to pretrial proceedings); Hearst Corp. v. State, 484 A.2d 292, 294 (Md. Ct. Spec. App. 1984) (“the press may intervene . . . for the limited purpose of asserting First Amendment rights,” even when such intervention occurs after the jury has retired to deliberate).
Prior to the adoption of the Maryland Rules governing access to court documents, the courts had implicitly recognized the right of the press to intervene to assert its right to inspect court documents. E.g., Mayor & City Council of Baltimore, 755 A.2d 1130, 1135 (Md. 2000) (allowing press to intervene for purposes of seeking access to civil settlement documents within court file); Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (allowing press to intervene for purposes of asserting First Amendment right to inspect presentence investigation report entered into evidence at trial). The Rules similarly envision intervention as the appropriate means of allowing the press and public to assert their access rights. E.g., Rule 16-912(a)(1) (permitting any party “including a person who has been permitted to intervene as a party” to move to inspect Case Records); see State v. WBAL-TV, 975 A.2d 909, 917 (Md. Ct. Spec. App. 2009) (under prior version of Rule 16-912, intervention in a criminal trial is appropriate judicial avenue to gain access to court records that are presumed open to the public for inspection and copying and for which access has been denied).
In Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 1986), the Minnesota Supreme Court recognized that a member of the press who is not a party to the original action may move to intervene as of right under Minn. R. Civ. P. 24.01 in order to challenge a trial court’s order sealing a civil file. In Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 558 (Minn. 1983), the court held that under the First Amendment, before a judge closes criminal proceedings, a public hearing must be held to allow the members of the press and the public to object to closure and to suggest alternatives. Thus, the Minnesota Supreme Court has recognized that the members of the press have standing to challenge the closure of court proceedings and may intervene as of right to seek the disclosure of sealed court files and records.
The Eightth Circuit has also recognized the media’s right to challenge closure of courtrooms, stating in In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1983), that when a member of the news media objects to limits on his or her access to judicial proceedings, “the court must give him or her a reasonable opportunity to state the objection.” A motion is the preferred procedural mechanism for objecting to limitations upon access. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 570 (8th Cir. 1988).
The U.S. Supreme Court noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).
The Mississippi Supreme Court has acknowledged that “[i]t is well settled that representatives of the news media have standing to contest court orders restricting public access to legal proceedings.” Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1164-65 (Miss. 1987).
There are no Nebraska cases or statutes on the topic of media standing to challenge closure generally. The Nebraska Guidelines require the clerk of a court to give notice of any hearing on a request to close a hearing to any person who has filed a request for such notice with the clerk. Neb. S. Ct. R. § 6-203. The Nebraska Guidelines require the courts to “afford all interested persons, including the general public, a reasonable opportunity to be present and prepare for such a hearing.” Id.
The media, like any other interested member of the public, has standing to file a written response to any motion to close court proceedings or seal court records. Further, “[m]edia organizations, persons, and entities that have requested to receive notice of proposed courtroom closures shall be given timely notice of the date, time, and place of any [such] hearing.” Rule 1-104 (D)(1) NMRA. The media, however, has no right to intervene as a party in a criminal case. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303.
Under the N.C. Public Records Act, "[a]ny person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders if the person has complied with G.S. 7A-38.3E [relating to voluntary and mandatory mediation of public records disputes]. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts." N.C.G.S. 132-9(a).
In Goldsmith v. Henderson County Bd. of Pub. Ed., 2003 WL 23341192 (N.C. Super. 2003), the court held that a third-party newspaper had standing to bring a right of access motion, motion to unseal and motion to require filing by virtue of N.C.G.S. 1-72.1, explaining that "[b]y its terms, this statute gives any member of the public standing to move for access to documents, testimony, or other information in a judicial proceeding. Here, [the newspaper] is well-positioned to advocate for the interests of the public in gaining access to the documents, testimony, or other information sought in this matter. This case involves issues of significant public importance to the citizens of Henderson County." Id. at *3.
In Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449 (1999), a third-party newspaper moved to intervene in order to challenge certain trial court rulings on closure of proceedings and sealing of documents. The North Carolina Supreme Court rejected the newspaper’s argument that it was entitled to intervention as a matter of right. The Court noted that intervention in North Carolina is governed by statute (N.C.G.S. §1A-1, Rule 24), which specifies two circumstances in which a party may intervene as a matter of right. If there is no statute granting a party an unconditional right to intervene, then North Carolina laws require that the party seeking intervention have a direct, substantial interest in the litigation that will not be adequately protected unless the third party is permitted to intervene. See Virmani, 350 N.C. at 458-59.
In Virmani, the Court found the newspaper’s interest in the litigation was indirect and contingent—an interest it called “common to all persons—in seeing matters relating to all civil actions made public.” Virmani at 459. In that case, the newspaper’s claim for permissive intervention was at the trial court’s discretion. The Court did note that the newspaper’s argument for intervention “would [have been] more compelling if it could not raise the substantive issue of whether the court proceedings and records must be made public by any reasonable manner other than intervention as a party.” Id. at 461 (emphasis added). The trial court’s denial of the motion to intervene did not preclude the newspaper from “presenting full briefs and argument and obtaining a timely ruling on the questions of its right of access to the proceedings and documents [at issue].” Id. Finally, the Court listed alternative means of raising the right of access, including by extraordinary writ practice, a declaratory judgment action, or equitable remedies. Id. The Court indicated a preference for these approaches, writing that “these represent the legal methods by which questions of public access to courts and their records are most frequently and successfully raised.” Id.
The media’s right to open proceedings comes from its status as a member of the public. Therefore, it possesses the same rights as members of the public to challenge the closure of a preliminary proceeding through application for a supervisory writ, but has no greater privilege or standing to do so.
Oklahoma courts have implicitly recognized the standing of the media to challenge closure of proceedings or denial of access to judicial documents in both civil and criminal proceedings without detailed analysis of the procedure involved. See, e.g., Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506 (reversing decision of trial court to permit television coverage of preliminary hearing without any discussion of media’s standing to request electronic coverage). The media have sometimes been permitted to intervene as in Shadid v. Hammond, 2013 OK 103, 315 P.3d 1008 (intervention permitted to seek access to divorce records), and World Publishing Co. v. White, 2001 OK 48, 32 P.3d 835 (intervention permitted to seek disclosure of juvenile records).
As a practical matter, in most cases the media pressing for access have relied on the following federal cases for their standing argument: United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (media had standing to move for order unsealing court documents, and to have order denying motion reviewed by mandamus); Journal Pub. Co. v. Mechem, 801 F.2d 1233 (10th Cir. 1986) (media had standing to seek mandamus from trial court’s denial of informal request for post-trial interviews of jurors); U.S. v. McVeigh, 918 F. Supp. 1452 (W.D. Okla. 1996) (media motions to unseal court records recognized even though media not parties to suit). In numerous unreported cases, primarily at the district court level, the courts have shown little concern for procedural niceties and have allowed the media to raise the access issue by motion.
The media has standing to challenge closure. Oregonian Publ’g Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987) (“Members of the media and public may benefit from, and assert in court in their own behalf, the prohibition [of the Oregon Constitution] on secret courts . . . .”).
The right of access is a “legally enforceable interest,” and, therefore, the media has standing to intervene and challenge a closure order. Hutchison v. Luddy, 581 A.2d 578, 581-82 (Pa. Super. 1990), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991); see also, e.g., Commonwealth v. Long, 922 A.2d 892, 895 n.1 (Pa. 2007); Commonwealth v. Davis, 635 A.2d 1062, 1064 n.5 (Pa. Super. 1993) (citing Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984)).
The media or other non-parties may challenge a closure order in two ways:
First, . . . the nonparty could move to intervene as a party in the case and would be entitled to challenge the classification of court records through direct appeal of the district court’s order.. . .
Second, as a nonparty, the [media] could seek a writ of mandamus to challenge the classification of the record . . . [because] only a party to an action can challenge the classification of a record on appeal, while a nonparty cannot.
Tillotson v. Van Nederveen Meerkerk, 2015 UT App 142, ¶ 8, 353 P.3d 165 (citations omitted); see also Supernova Media, Inc. v. Shannon’s Rainbow, LLC, 2013 UT 7, ¶¶ 55-61, 297 P.3d 599 (reversing denial of media’s motions to intervene as of right and setting aside sealing order because district court failed to make requisite findings on record); Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1168 n.1 (Utah 1987) (noting that “the Society’s pursuit of an extraordinary writ [was] procedurally correct” because it had “no alternative course to follow” as a nonparty without right to directly appeal order sealing records).
The Vermont Rules for Public Access to Court Records provide the media with standing to challenge a denial of access to court records. Rule 6(h) provides that “[a]ny person aggrieved by a decision made by a case record custodian with respect to a request for access to a physical or electronic case record or a part thereof . . . has a right to appeal that decision to the presiding judge within the time limit specified in 1 V.S.A. § 318(a)(3).” Vt. Pub. Acc. Ct. Rec. Rule 6(h); see also State v. Rooney, 2008 VT 102, ¶ 3, 965 A.2d 481, 483 (Vt. 2008) (analyzing media’s appeal of denial of access to certain audio and video tapes admitted into evidence at a suppression hearing). Moreover, Rule 7, which allows a presiding judge to “seal from public access a record to which the public otherwise has access or may redact information from a record to which the public has access” also provides that “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs, have a right to notice and hearing before such order is issued, except that the court may issue a temporary order to seal or redact information from a record without notice and hearing until a hearing can be held.” Vt. Pub. Acc. Ct. Rec. Rule 7(a).
The Vermont Supreme Court has also recognized the media’s standing to challenge the closure of court proceedings, holding that “direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media’s voice is heard in a timely manner.” State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422, 424 (Vt. 1987); see also State v. Schaefer, 157 Vt. 339, 344, 599 A.2d 337, 342 (Vt. 1991) (“We have held that the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”). Moreover, “[o]nce representatives of the media intervene, . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.” Schaefer, 157 Vt. at 344, 599 A.2d at 342.
“The press does not have a right of access greater than the public at large under the First Amendment, or under Article I, Section 12 of the Constitution of Virginia.” Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002) (internal citations omitted). Rather, the news media’s right of access is derivative of the general public’s. Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 256, 368 S.E.2d 253, 254 (1988). Thus, the media, as part of the general public, has standing to intervene in judicial proceedings for the limited purpose of asserting the public’s right of access. See Hertz v. Times-World Corp., 259 Va. 599, 609, 528 S.E.2d 458, 463 (2000) (“We recognized in Richmond Newspapers the right of a newspaper to intervene in a criminal proceeding for the sole purpose of challenging a circuit court's ruling which closed criminal proceedings.”). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 (1982) (“[R]epresentatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’”).
The United States Supreme Court noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).
See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974) (reporter had standing to challenge closure of court proceedings under former state statute):
[Former] Sec. 256.14, Stats., says, “The sittings of every court shall be public and every citizen may freely attend the same . . .” We have no trouble construing those words; their meaning is clear. It means any citizen has the right to attend immunity hearings arising out of a John Doe proceeding. Where such right of attendance is denied, any citizen, including the petitioner [reporter] in this case, has a right to bring an action to enforce the right which the statute so clearly gives.
State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (Wis. 1983):
The petitioners do not argue that, by virtue of [open courts law, Wis. Stat. Sec.§ 757.14], Rindfleisch, a reporter, is to be given some special privileges because he represents the press. It is merely their contention that Rindfleisch, as one member of the public, was entitled to the presumptive requirement of openness mandated by the statute. In light of the conclusions heretofore reached in this opinion, Rindfleisch is entitled to the presumption of openness of court proceedings.
See also State ex rel. Storer Broadcasting Co. v. Gorenstein, 131 Wis.2d 342, 388 N.W.2d 633 (Wis. App. 1986) (footnotes omitted):
The Wisconsin supreme court has stated that “the right of public access to the courts is not a right to be taken lightly.” The purpose of sec. 757.14, Stats., is to protect the right of the people to an open and responsible government. It is true that the media have no special right in this regard. As representatives of the public, however, the media have the right to public access to the courts. It is irrelevant that, as the court stated, “[t]here hasn’t been any group that has rushed forward with [the media’s] tenacity ... on behalf of the public.” The right of public access exists for the public, of which the media are a part. The trial court was mistaken in treating this matter lightly.