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10th Circuit

Open Courts Compendium

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Author

Jeffrey J. Hunt, Esq.
April M. Medley, Esq.

PARR BROWN GEE & LOVELESS
101 South 200 East, Suite 700
Salt Lake City, Utah 84111
jhunt@parrbrown.com
amedley@parrbrown.com

(801) 532-7840

The authors gratefully acknowledge the assistance of Olivia Ortiz, a Law Clerk at Parr Brown Gee & Loveless, in preparing this compendium.

Last updated August 2019

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

The Supreme Court and Tenth Circuit have consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (plurality opinion) (“[A] presumption of openness inheres in the very nature of a criminal trial under our system of justice.”); United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) (recognizing presumptive right). The rationale for recognizing such right is rooted in the “centuries-old history of open trials” and implicit in the First Amendment’s “core purpose” of assuring freedom of public discussion. Richmond Newspapers, 448 U.S. at 573. A corresponding constitutional right of access to civil proceedings, however, has never been specifically upheld by either the Supreme Court or the Tenth Circuit. Nor is there any definitive Supreme Court or Tenth Circuit “ruling on whether there is a constitutional right of access to court documents and, if so, the scope of such a right.” United States v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997) (“McVeigh II”). Instead, when analyzing whether a constitutional presumption of access extends to particular proceedings or records, the Tenth Circuit applies the two-pronged “experience and logic” analysis, also referred to as the Press-Enterprise II analysis. United States v. Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1998) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (“Press–Enterprise II”)) (assuming without deciding that the Press-Enterprise II analysis applies). Under the experience prong, courts must first ask “whether the place and process have historically been open to the press and general public.” Gonzales, 150 F.3d at 1256 (citing Press-Enterprise II, 478 U.S. at 8) (internal quotation marks omitted). Under the logic prong, courts are to consider “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. (citing Press-Enterprise II, 478 U.S. at 8–9) (internal quotation marks omitted). In this prong of the analysis, the Tenth Circuit considers the following six structural interests: “informing the public discussion of government affairs, assuring the public perception of fairness, promoting the community-therapeutic effect of criminal justice proceedings, providing a public check on corrupt practices, intimidating potential perjurers, and generally enhancing the performance of all involved in the process.” U.S. v. Gonzales, 150 F.3d 1246, 1259 n.18 (citing McVeigh I, 106 F.3d at 336).

In addition to the constitutional right of access—and even where it does not apply—“the courts of this country recognize a general [common law] right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted); see also United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (acknowledging “the axiom that a common law right exists to inspect and copy judicial records”). As the Tenth Circuit has held, “[i]t is clearly established that court documents are covered by a common law right of access.” McVeigh II, 119 F.3d 806 (10th Cir. 1997)) (citing Nixon v. Warner Commc’ns, 435 U.S. 589, 599 (1978)).

Beyond constitutional and common law public access rights, public access to court proceedings and records often will be governed by statute or court rule. For example, Rule 77(b) of the Federal Rules of Civil Procedure provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Rule 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”

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B. Overcoming a presumption of openness

Neither the qualified constitutional right of access nor the common law right of access is absolute. Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982) (noting constitutional right of access “is not absolute”); United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (noting common law right of access “is not absolute”). Rather, the presumption of openness can be overcome. The burden of proving that closure is justified falls on the party seeking closure, and the standard to overcome the presumption depends on the source of the right.

First, the presumption of a qualified First Amendment right of access can be overcome “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” United States v. Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1998) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press-Enterprise I”). “The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Id. (citing Press-Enterprise I, 464 U.S. at 510).

To overcome the strong common law presumption of public access to documents, the party seeking closure “bears the burden of showing some significant interest that outweighs the presumption.” United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013). “[J]udicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.” McVeigh II, 119 F.3d 806, 811 (10th Cir. 1997). The common-law right of access generally is less absolute than the constitutional right — at times bowing, for example, to the less-than-compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted).

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C. Procedural prerequisites to closure

The Tenth Circuit has recognized that “[w]hether judicial records and other case-related information should be sealed or otherwise withheld from the public is a matter left to the sound discretion of the court.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978)). From this holding, the Tenth Circuit has further held that in order to overcome a presumption of access, “countervailing interests [must] heavily outweigh the public interests in access.” Id. (citations and quotations omitted).

The party seeking to overcome the presumption of public access must do more than “point[] out that the records are subject to a protective order in the district court.” Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011). The Tenth Circuit has held that for parties to overcome the presumption of public access, “the parties must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process.” Id.

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II. Procedure for asserting right of access to proceedings and records

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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).

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B. Procedure for requesting access in criminal cases

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C. Procedure for requesting access in civil matters

The Tenth Circuit has noted that “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)). If intervention is required, practitioners should consult the forum’s local rules on motion practice.

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D. Obtaining review of initial court decisions

The Tenth Circuit has concluded that mandamus review is the “proper vehicle” for the press to obtain relief from closure orders. United States v. McVeigh, 119 F.3d 806, 810 (10th Cir. 1997) (“[M]andamus is the proper vehicle for reviewing court orders sealing or redacting court documents in criminal proceedings.”); see also Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986) (concluding mandamus is proper vehicle for press to utilize in challenging bar orders directed toward trial participants when press is not a party to bar order).

Other circuits have taken the view that “press challenges to orders sealing documents in criminal cases are reviewable under the collateral order doctrine.” Id. However, the Tenth Circuit has stated that it “takes a ‘narrow[] view’ of the applicability of the collateral order doctrine in criminal cases.” Id. (quoting D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1445 (10th Cir. 1984)) (noting collateral order appellate review would be unusual where the press were not parties to the underlying proceeding and were not themselves directly enjoined by the sealing orders), cf. United States v. Gonzales, 150 F.3d 1246, 1251 (10th Cir. 1998) (treating press cross-appeals as petitions for writs of mandamus while acknowledging that there may be a strong argument in favor of reviewing the cross-appeals as appeals from a collateral order).

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III. Access to criminal proceedings

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A. In general

The Supreme Court and Tenth Circuit have consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (“a presumption of openness inheres in the very nature of a criminal trial under our system of justice”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602–03 (1982) (recognizing First Amendment access right and striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505 (1984) (“Press-Enterprise I”) (constitutional presumption of openness to voir dire proceedings); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986) (“Press-Enterprise II”) (recognizing right of access to preliminary hearings); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (same); Waller v. Georgia, 467 U.S. 39, 47 (1984) (“any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors”); United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) (recognizing presumptive right).

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B. Pretrial proceedings

The First Amendment guarantees the right of the press and the public to attend “certain preliminary proceedings in criminal cases.” United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998). The right extends to those “pre-trial proceedings in criminal cases which historically have been, and logically should be, open to the public.”  United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“McVeigh II”).

In McVeigh II, the Tenth Circuit acknowledged without deciding that the constitutional right of access likely extends to suppression hearings and accompanying motions under the Supreme Court’s Press-Enterprise II analysis. Id. at 813.

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C. Criminal trials

The constitutional presumption of access extends to criminal trials themselves. See United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) (citing Press-Enterprise II, 478 U.S. 1, 13 (1986)). In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion), the Court found that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” (emphasis added). In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602–03 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” (emphasis added). It added that the presumption of public access

[D]oes not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim’s future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences.

Id. at 609 n.25 (emphasis added).

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D. Post-trial proceedings

The Tenth Circuit has not definitively addressed whether the qualified constitutional right to attend criminal trials extends to post-trial proceedings. But see United States v. Gonzales, 150 F.3d 1246, 1257 n.15 (10th Cir. 1998) (noting another jurisdiction extended the right to post-trial proceedings).

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E. Appellate proceedings

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IV. Access to criminal court records

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A. In general

The Tenth Circuit has acknowledged “that a common law right exists to inspect and copy judicial records.” United States v. Hickey, 767 F.2d 705 (10th Cir. 1985). The court explained that this common law right “is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes.” Id. But this right, however important, is not absolute. Id. “[A] court, in its discretion, may seal documents ‘if the public’s right of access is outweighed by competing interests.’” Id. (quoting In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984)).

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B. Arrest records

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C. Dockets

The Tenth Circuit has not definitively decided whether the First Amendment or common law right of access extends to dockets. But, in another context, it has acknowledged that “dockets are public records” and “our ‘national heritage’ suggests that dockets are open to public inspection.” United States v. Mendoza, 698 F.3d 1303, 1306 (10th Cir. 2012) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 94 (2d Cir. 2004) (concluding Second Circuit First Amendment right of access extends to docket sheets). The Tenth Circuit further noted that the common law right of access likely extends to dockets, noting “[h]istory therefore demonstrates that docket sheets and their equivalents were, in general, expected to remain open for public viewing and copying.” Id. at 1307 (quoting Hartford Courant Co., 380 F.3d at 95) (internal quotation marks omitted).

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E. Discovery materials

The Tenth Circuit has not definitively extended access rights to discovery materials. See, e.g., United States v. Gonzales, 150 F.3d 1246, 1260 (10th Cir. 1998) (“Discovery proceedings are fundamentally different from other proceedings to which courts have recognized a First Amendment right of access.”).

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F. Pretrial motions and records

In United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (“McVeigh II”), the Tenth Circuit provided that the First Amendment includes a “right of access to suppression hearings and accompanying motions,” but this right “does not extend to the evidence actually ruled inadmissible in such a hearing.” McVeigh II, 119 F.3d at 813–14 (rejecting press's request for access to suppressed evidence).

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G. Trial records

The Tenth Circuit has noted “there is no general First Amendment right in the public to access criminal justice records.” Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511–12 (10th Cir. 1994) (holding that the First Amendment right of access to certain criminal proceedings does not extend to law firm’s commercially motivated request for the names, addresses, and telephone numbers of persons charged with misdemeanor driving offenses).

In a case dealing with access to tapes admitted into evidence during a criminal trial, the Supreme Court recognized a common-law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).

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H. Post-trial records

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I. Appellate records

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J. Other criminal court records issues

The common law right to access court records does not extend to sealed plea bargains and separate court files of co-conspirators. United States v. Hickey, 767 F.2d 705, 709 (10th Cir. 1985), cert. denied, 474 U.S. 1022 (1985) (concluding concerns for witness safety outweigh common law right of access).

The press has no common law, First Amendment, or statutory right of access to fees, costs, and expense applications and related information filed by court-appointed criminal defense attorneys or to any transcripts of hearings and court orders concerning those applications under the Criminal Justice Act. See United States v. Gonzales, 150 F.3d 1247 (10th Cir. 1998). Subject to certain conditions, the court may permit the inspection of fee application forms without supporting background documents upon completion of sentencing. Id.

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V. Access to civil proceedings

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A. In general

The Supreme Court has not directly addressed whether the public and the press have a constitutional right of access to civil proceedings, though a 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).

Beyond the constitutional right of access, the Supreme Court and Tenth Circuit acknowledge “the axiom that a common law right exists to inspect and copy judicial records” in civil proceedings. United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985); see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (acknowledging common law right of access to civil judicial documents).

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B. Pre-trial proceedings

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C. Trials

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).

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D. Post-trial proceedings

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E. Appellate proceedings

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VI. Access to civil records

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A. In general

The Tenth Circuit has noted that “[c]ourts have long recognized a common-law right of access to judicial records.” United States v. Apperson, 642 Fed. Appx. 892, 898 (10th Cir. 2016) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (internal quotation marks omitted). The Court goes on to acknowledge that “[t]he right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes.” Id. at 899 (quoting United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (internal quotation marks omitted). Further, “[c]onsistent with this presumption that judicial records should be open to the public, the party seeking to keep records sealed bears the burden of justifying that secrecy.” Id. (quoting United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (internal quotation marks omitted)).

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B. Dockets

The Tenth Circuit recognizes a “qualified First Amendment right of access to docket sheets.” United States v. Mendoza, 698 F.3d 1303, 1306 (10th Cir. 2012). The Court states that “dockets are open to public inspection” and there has been a “long pedigree” that “dockets are public records.” Id.

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C. Discovery materials

The Tenth Circuit has followed the United States Supreme Court holding that found that “pre-trial depositions and interrogatories are not public components of a civil trial.” Oklahoma Hosp. Ass’n v. Oklahoma Publ’g Co., 748 F.2d 1421, 1425 (10th Cir. 1984) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984)) (internal quotation marks omitted). Further, the Tenth Circuit has agreed with the U.S. Supreme Court’s reasoning for this holding, and has found that such pre-trial proceedings are not available to the public “because ‘[m]uch of the information that surfaces during pre-trial discovery may be unrelated or only tangentially related, to the underlying cause of action.’” Id. (quoting Seattle Times, 467 U.S. at 31).

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D. Pre-trial motions and records

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E. Trial records

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).

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F. Settlement records

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G. Post-trial records

The Tenth Circuit has noted that there is generally a “right of access to judicial records.” United States v. Apperson, 642 Fed. Appx. 892, 898 (10th Cir. 2016) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (internal quotation marks omitted)).

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H. Appellate records

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I. Other civil court records issues

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VII. Jury and grand jury access

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A. Access to voir dire

The Supreme Court has held that the First Amendment right of access to criminal trials applies to voir dire of jury. Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise I”), 464 U.S. 501, 510–511 (1984).

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B. Juror identities, questionnaires and other records

The Supreme Court indirectly addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 512 (1984) (“Press-Enterprise I”).

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C. Grand jury proceedings and records

“Since the 17th century, grand jury proceedings have been closed to the public.” United States v. Maravilla, 566 Fed. Appx. 704, 707 (10th Cir. 2014) (citing Douglas Oil Co. of Cal. V. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979)). Likewise, “records of such proceedings have been kept from the public eye.” Id. (citing Douglas Oil Co. of Cal. V. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979)).

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D. Interviewing jurors

The Tenth Circuit has recognized that trial courts cannot “issue a sweeping restraint forbidding all contact between the press and former jurors without a compelling reason.” Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1237 (10th Cir. 1986) (noting that a narrowly tailored order instructing “jurors not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room” would be acceptable).

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VIII. Proceedings involving minors

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A. Delinquency

The Supreme Court has not recognized a right of access to juvenile delinquency proceedings or records. In an early case, the Supreme Court found that “[t]here is no reason why, consistently with due process, a state cannot . . . provide . . . for the confidentiality of records of police contacts and court action relating to juveniles.” In re Gault, 387 U.S. 1, 25 (1967).

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B. Dependency

The Supreme Court has not recognized a right of access to juvenile dependency proceedings or records, and in “abuse, neglect, dependency, and custody matters . . . courts have hesitated to extend a First-Amendment-based right of access.” Dienes, Levine & Lind, Newsgathering and the Law § 7.01[2] (3d Ed. 2005) (collecting cases).

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C. Other proceedings involving minors

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D. Prohibitions on photographing or identifying juveniles

Even where juvenile proceedings are closed, the Supreme Court has made clear that a court may not “punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 105–106 (1979). In Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 308 (1977), the Supreme Court likewise reversed an order that “enjoined members of the news media from ‘publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor child’ in connection with a juvenile proceedings involving that child then pending in that court.”

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E. Minor testimony in non-juvenile courts

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id. (footnotes omitted).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

The Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that “[n]o Indian tribe in exercising powers of self-government shall . . . make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances.” 25 U.S.C. § 1302. However, tribal courts interpret the ICRA in a variety of ways, and tribes retain the right to exclude nonmember journalists from tribal property. See, generally, Reporters Committee for Freedom of the Press, A Reporter’s Guide to American Indian Law, https://www.rcfp.org/wp-content/uploads/imported/AMERINDIAN.pdf.

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B. Probate

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C. Competency and commitment proceedings

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D. Attorney and judicial discipline

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E. Immigration proceedings

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F. Other proceedings

The False Claims Act, 31 U.S.C. § 3730(b), allows individuals to bring qui tam actions on behalf of the government. The statute provides that “[t]he complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” Still, the statute contemplates that the suits will eventually become public.

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

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B. Gag orders on the press

The Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976), that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such a gag order is a “most extraordinary remedy” that may be used only in “exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property . . . [t]hose who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).

In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”

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C. Gag orders on participants

The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), and the cases which preceded it.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). In Gentile, the Court allowed a Nevada rule providing that “[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

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D. Interviewing judges

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

When determining whether the court should allow access to certain judicial proceedings, the Tenth Circuit has held that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). The Tenth Circuit has noted that even if a court agrees that there is a presumption of access to proceedings or records, the presumption may be rebutted “if countervailing interests heavily outweigh the public interests in access.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). The following interests are often cited in opposing a presumption of access.

First, parties opposing access often cite “fair trial interests at stake.” United States v. McVeigh, 119 F.3d 806, 815 (10th Cir. 1997).

Second, a government’s interest in denying access in order to continue anonymity of a witness in the witness protection program is a “compelling” interest. United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). “If the common law right of access were absolute . . . the efficacy of the witness protection program would be substantially at risk.” Id. at 709.

Fourth, the Tenth Circuit has recognized that among the compelling interests that may rebut the presumption of access, “a strong national-security interest” may require sealing of records. United States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d 729 n.22 (10th Cir. 2019).

Finally, the Tenth Circuit has recognized that among the compelling interests that may rebut the presumption of access is protecting a sexual assault victim’s privacy.  See, e.g., United States v. Galloway, 963 F.2d 1388, 1390 (10th Cir. 1992).

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B. Cameras and other technology in the courtroom

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C. Tips for covering courts in the jurisdiction

The federal courts of appeals are the intermediate appellate courts between the district (trial) courts and the Supreme Court of the United States. The Tenth Circuit, and the other numbered circuits, provide appellate review of all cases tried in the district courts within the geographic area of their jurisdiction. The Tenth Circuit is made up of six states including Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. It also includes “those portions of the Yellowstone National Park extending into Montana and Idaho.” 2019 Practitioner’s Guide to the U.S. Court of Appeals for the Tenth Circuit, available at https://www.ca10.uscourts.gov/sites/default/files/clerk/2019PracGuideUpdateCorrected-3-12-2019.pdf.

“To order necessary transcripts in the Tenth Circuit, parties must complete a Transcript Order Form approved by this court and distributed by the district clerk; must serve copies on the court reporter, the district clerk, and all other parties to the appeal, and file a copy in the court of appeals. The ordering party must make satisfactory arrangements with the court reporter for payment of the cost of the transcript. On completion of the transcript order, the court reporter must acknowledge its receipt, estimate the completion date and the number of pages in the completed transcript, and file a completed copy with this court and with the district clerk. 10th Cir. R. 10.2(B)(2).” 2019 Practitioner’s Guide to the U.S. Court of Appeals for the Tenth Circuit, available at https://www.ca10.uscourts.gov/sites/default/files/clerk/2019PracGuideUpdateCorrected-3-12-2019.pdf.

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