A. Media standing to challenge closure
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).
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 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.