Neither the Supreme Court nor the Tenth Circuit have directly addressed whether constitutional access rights extend to civil trials. However, a Supreme Court plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion).
In Westmoreland v. CBS, Inc., 752 F.2d 16, 22–23 (2d Cir.1984), the Second Circuit recognized a First Amendment right of public access to civil trials. See also Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013) ("We have extended that principle and held that the First Amendment right applies ‘to civil trials and to their related proceedings and records.’") (quoting N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. (“NYCTA”), 684 F.3d 286, 298 (2d Cir. 2012)). The Second Circuit has explained that the "First Amendment does not distinguish between criminal and civil proceedings, but rather protects the public against the government's arbitrary interference with access to important information." Id. (internal quotation marks omitted); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (right of access applied to summary judgment motions in civil matter); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004) (applying qualified right of access to civil and criminal court docket sheets).
Finally, in at least one instance, the right of access has been extended to some administrative hearings. See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 301 (2d Cir. 2012) (holding there was a qualified right of public access to Transit Adjudication Bureau (TAB) hearings conducted by New York City Transit Authority.)
The Fifth Circuit has not specifically addressed the press and public’s right to attend civil trials, but the presumption is that such proceedings are open, and the Fifth Circuit has noted a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
“[L]ong embedded in our case law . . . is the strong presumption that all trial proceedings should be subject to scrutiny by the public.” United States v. Ladd, 218 F.3d 701, 703-704 (7th Cir. 2000).
However, “‘the First Amendment question cannot be resolved solely on the label we give the event, i.e., “trial” or otherwise’”; while “there is generally a right of public access to a trial, the public can properly be excluded from conferences between the court and counsel even during a trial.” B.H. v. Ryder, 856 F. Supp. 1285, 1291-92 (N.D. Ill. 1994) , aff’d sub. nom. B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7, 106 S. Ct. 2735, 2740 (1986)).
Alabama Rule of Civil Procedure 77(b) provides as follows:
(b) Trials and hearings; orders in chambers. All trials upon the merits shall be conducted in open court, except as otherwise provided by statute, and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk of other court officials and at any place within the state either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit without the consent of all parties affected thereby.
Ala. R. Civ. P. 77 (b).
The Supreme Court of Alabama has also stated that “[g]enerally, trials are open to the public.” Balogun, 516 So. 2d at 610. Citing Newman v. Graddick, 696 F. 2d 796 (11th Cir. 1983), the Supreme Court of Alabama further noted, however, that “public access must be balanced with the effect on the parties.” Id.
The press and public’s right of access to trials in Georgia criminal cases is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated likewise that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).
“All trials upon the merits of every court of justice shall be conducted in open court and so far as convenient in a regular courtroom.” Idaho R. Civ. Pro. 77(b); see also Idaho R. Civ. Proc. 43(a) (“In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by these rules, the Idaho Rules of Evidence, or other rules adopted by the Supreme Court of Idaho”); Saint Alphonsus v. St. Luke’s Health Sys., Ltd., Case Nos. 1:12-CV-00560-BLW and 1:13-CV-00116-BLW (D. Idaho) (discussing issue of access to civil court proceedings where confidential documents are offered as exhibits and used by testifying witnesses).
The Mississippi Rules of Civil Procedure mandate that “[a]ll trials upon the merits shall be conducted in open court, except as otherwise provided by statute.” Miss. R. Civ. P. 77(b). Further, Miss. R. Civ. P. 43(a) states that in all trials, “the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Mississippi Rules of Evidence.”
Rule 77(b) of the Nevada Rules of Civil Procedure provides:
“All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room, except private trial may be had as provided by statute. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the district; but no hearing, other than one ex parte, shall be conducted outside the district without the consent of all parties affected thereby.” (emphasis added).
Rule 43(a) of the Nevada Rules of Civil Procedure provides that: “In every trial, the testimony of witnesses shall be taken in open court, unless otherwise provided by these rules or by statute. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.”
Rule 1-104 NMRA mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in NMSA 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625. An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Rule 1-104. Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id.
Pennsylvania courts have recognized both a constitutional and common law right of access to civil proceedings generally. See PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (“Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”).
See Bloomer v. Bloomer, 197 Wis. 140, 221 N.W. 734 (Wis. 1928) (Under predecessor to Wis. Stat. § 757.14, the trial court did not abuse its discretion by excluding minors and the news media from the courtroom during “salacious” testimony concerning sexual relations):
If the court may impound the testimony after it has been taken so that news gatherers may not spread its salacious details before the public, the court must of necessity have the power to make such purpose effective by preventing the spread of such details before the public during the trial by excluding news gatherers from the courtroom or by temporarily holding court in some other room during the time that such proof is being offered.
The cases on which the husband relies are those on which the entire trial was conducted before a referee or behind closed doors. They do not decide that a court may not proceed as the trial court did in this case while testimony was being taken that was of such a nature that the protection of the public morals required that it should be taken out of the hearing of minors or such other persons as might be in the courtroom.
See State ex rel. Ampco Metal, Inc. v. O’Neill, 273 Wis. 530, 78 N.W.2d 921 (Wis. 1956):
For the protection of the complainant, the usual course is to take the evidence as to the [trade] secret in camera….
This we do by holding that the taking of certain evidencein camera, in those rare situations where justice cannot be properly administered without so doing, does not violate the public trial concept of such statutes.
As pointed out earlier in this opinion, unless the testimony as to plaintiff’s claimed trade secrets be taken in camera, Ampco will be denied any effective remedy for the wrong it has sustained, assuming the truth of the allegations in its complaint.
See Wiedenhaupt v. Hoelzel, 254 Wis. 39, 35 N.W.2d 207 (Wis. 1948):
As to the last contention, it is the well-settled rule in this state that all proceedings in a case shall be open and public; that any communication with the jury, after the case is submitted to them and they have retired for deliberation on their verdict, by any person, shall be in open court, and in the presence of the parties or their representatives, where practicable.
We hold that the communication had between the jury and the judge, through the reporter, is sufficient ground for setting aside the verdict and for ordering a new trial.