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. Davis v. Capital City Press, 78 F.3d 920, 927 (5th Cir. 1996).
“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 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).
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).
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.
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).
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.
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 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.’”).
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.