11th Circuit
Author
Jennifer Mansfield
50 North Laura Street
Suite 3900
Jacksonville, FL 32202
Judith M. Mercier
Holland & Knight LLP
200 South Orange Avenue
Suite 2600
Orlando, FL 32801
Scott D. Ponce
701 Brickell Avenue
Suite 3300
Miami, FL 33131
with assistance from Cynthia Gierhart and Chiara Kalogjera-Sackellares.
Last updated April 2020
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
The Eleventh Circuit has recognized that the public and press have a presumptive, qualified, First Amendment right of access to judicial proceedings in criminal cases. Simmons v. Conger, 86 F.3d 1080, 1086 (11th Cir. 1996); see also United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th Cir. 2005); see also Comm’r, Ala. Depart’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1166-1167 (11th Cir. 2019). This right is grounded both in the First Amendment and in the common law.
First Amendment. The U.S. Supreme Court and the Eleventh Circuit have consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). Though the right of access to criminal trials is not "explicitly mentioned in terms in the First Amendment [the U.S. Supreme Court has] long eschewed any ‘narrow, literal conception’ of the Amendment’s terms." Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 604 (1982). The Eleventh Circuit has also extended this right to some civil proceedings. See, e.g., Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001); see also Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (granting right of access in a civil proceeding pertaining to the release or incarceration of prisoners and their confinement.).
Additionally, "it is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." United States v. Sajous, 749 F. App’x. 943, 944 (11th Cir. 2018) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). When determining whether the public has a First Amendment right of access to a particular governmental proceeding, reviewing courts must inquire into two "complementary considerations" articulated by the Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986) (“Press-Enterprise II”). This test requires the court to consider both (1) whether the documents "have historically been open to the press and general public" and (2) whether "public access plays a significant positive role in the functioning of the particular process in question." Wellons v. Comm’r, Ga. Dept. of Corr., 754 F.3d 1260, 1266 (2014) (citing Press–Enterprise II, 478 U.S. at 8–9).
The presumption of access under the First Amendment is not absolute. Perez-Guerrero v. U.S. Atty. Gen., 717 F.3d 1224, 1235 (11th Cir. 2013) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Once the court finds that a qualified, First Amendment right of access to certain judicial documents exists, documents may still be sealed, but only if the requesting party establishes that sealing the records "is essential to preserve higher values and is narrowly tailored to serve that interest." United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018) (citing Press–Enterprise II, 478 U.S. at 8–9).
Common Law. Historically, at common law, "both civil and criminal trials have been presumptively open" Newman v. Graddick, 696 F.2d 796, 802 (11th Cir. 1983) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580 n.17 (1980)); see also Wilson v. Am. Motors Corp., 759 F.2d 1568, 1570 (11th Cir. 1985) (per curiam) ("[A] common law right of access exists as to civil proceedings."). The right of the public to access judicial records is grounded in the common-law right of access. Perez-Guerrero v. U.S. Atty. Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). Material filed in connection with any substantive pretrial motion, unrelated to discovery, is subject to the common law right of access. Romero v. Drummond Co., Inc., 480 F.3d 1234, 1245 (11th Cir. 2007) (citing Chicago Tribune, 263 F.3d at 1312).
To determine the scope of the common-law right of access, which applies in both criminal and civil proceedings, we "traditionally distinguish between those items which may properly be considered public or judicial records and those that may not; the media and public presumptively have access to the former, but not to the latter." Perez-Guerrero, 717 F.3d at 1235 (citing Chicago Tribune, 263 F.3d at 1311). For example, there is no common-law right of access to discovery material because these materials are neither public documents nor judicial records. Chicago Tribune, 263 F.3d at 1311; see also F.T.C. v. AbbVie Prods., 713 F.3d 54 (11th Cir. 2013) ("The holding in Chicago Tribune established a bright-line rule exempting discovery materials from the common-law right of access."). To determine whether a document is subject to the common-law right of access, a court is not required to locate "the exhibit on a continuum by determining the actual role the document played…instead, we determine whether a document is a judicial record depending on the type of filing it accompanied." AbbVie Prods., 713 F.3d at 64 ("A complaint and its exhibits, which are integral to the "judicial resolution of the merits" of any action, are surely "subject to the common-law right."). Simply filing the document does not turn it into a judicial record. Id.
CompareB. Overcoming a presumption of openness
The presumption of access is a baseline presumption. Newman v. Graddick, 696 F.2d 796, 802 (11th Cir. 1983). The party seeking closure has the burden of proving that closure is justified. The standard required to overcome the presumption is similar between the common law and the First Amendment right.
Where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise II, 478 U.S. at 13–14; see also United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018).
First Amendment. The First Amendment right of access may only be overcome by a showing "that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest." Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001). The court’s findings that closure is essential must be articulate findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise II, 478 U.S. at 510 ("Proceedings cannot be closed unless specific, on the record findings are made demonstrating that ‘closure is essential to preserve higher values and is narrowly tailored to serve that interest.’"). The court must provide members of the public and press, who are present, with notice and an opportunity to be heard on a proposed closure. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1030 (11th Cir. 2005); see also United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018); Mathis v. U.S. Gov’t, 2:18-CV-417-WKW, 2018 WL 2305705 at *1 (M.D. Ala. May 21, 2018); see also Mitchell v. Hunt, No. 8:15–CV–2603–T–23TGW, 2016 WL 7437122 at *1 (M.D. Fla. Oct. 27, 2016).
Common Law. The common law right of access may be overcome if the party who moved for the protective order shows good cause why the documents should not be unsealed. Chicago Tribune Co., 263 F.3d at 1310. In evaluating a party's assertion of good cause, a court will balance the competing interests of the parties seeking to seal the record against the parties seeking to unseal the record. Id. at 1311. This analysis requires balancing the asserted right of access against the other party’s interest in keeping the information confidential. Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1169 (11th Cir 2019) (citing Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007)). The court will only apply the apply the compelling government interest standard in this analysis, under narrow circumstances, where heightened scrutiny is required. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) ("In certain narrow circumstances, the common-law right of access demands heightened scrutiny of a court’s decision to conceal records from the public and the media."). In conducting its analysis, a court will determine which documents are judicial documents, and thus potentially open to access, and which are not. Id. at 1312. Courts look to the nature and character of the information in question to determine whether good cause exists. Id. The court considers the following factors: whether the records are sought for such illegitimate purpose as to promote public scandal or gain unfair commercial advantage, whether access is likely to promote public understanding of historically significant events, and whether the press has already been permitted substantial access to the contents of the records. Id. (citing Newman v. Graddick, 696 F.2d 796, 803 (11th Cir. 1983).
Recently, in Commissioner, Alabama Department of Corrections v. Advance Local Media, the Eleventh Circuit affirmed a grant of public access to the state’s lethal injection protocol, finding it constituted a "judicial record" subject to common law right of access. 918 F.3d 1161, 1169 (11th Cir. 2019). In the case, a death row inmate challenged Alabama’s attempt to execute him by submitting a lethal injection protocol to the district court. Id. at 1164. Even though the protocol was never formally filed with the court, the court held that it was a judicial record subject to the common law right of access because it was subject to expert testimony, debated at hearings, and relied upon by the court. Id. at 1164. The court then conducted a balancing test, considering the nature and character of the information in the lethal injection protocol, finding that the protocol and its related records were a matter of public concern and would promote understanding of a historically significant event such that the fact that Alabama was zealously guarding this information did not outweigh the interest in disclosure. Id. at 1166-1170.
CompareC. Procedural prerequisites to closure
Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise II, 478 U.S. at 13–14. The district court has "discretion to determine which portions of the record should be placed under seal, but [that] discretion is guided by the presumption of public access to judicial documents.” United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018) (citing Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). In determining whether to close a historically open process where public access plays a significant role, a court may restrict the right of the public and the press to criminal proceedings only after (1) notice and an opportunity to be heard on a proposed closure; and (2) articulated specific "findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." United States v. Valenti, 987 F.2d 708, 713 (11th Cir. 1993) (citing Press-Enterprise Co. v. Super. Court, 464 U.S. 501, 510 (1984) (“Press-Enterprise I”), stating that lower courts must articulate "findings specific enough that a reviewing court can determine whether the closure order was properly entered").
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
The press has standing to intervene in actions to which it is otherwise not a party in order to petition for access to court proceedings and records. Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1983); see also United States v. Hernandez, No. 98-0721-CR-LENARD/DUBÉ, 2000 WL 36741162, *1 (S.D. Fla. Dec. 19, 2000). A newspaper has standing to intervene in a criminal proceeding for purposes of challenging its denial of access to the litigation. United States v. Valenti, 987 F.2d 708 (11th Cir. 1993); see also BASF Corp. v. SNF Holding Co., No.: 4:17-cv-251, 2019 WL 2881594, *9 (S.D. Ga Jul. 3, 2019).
Newspapers do not need to be parties to an action to have standing to appeal a closure order. In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559, 1562 (11th Cir. 1989); see also Wolff v. Cash Titles, 351 F.3d 1348, 1354 (11th Cir. 2003).
An order denying access is immediately reviewable regardless of the pendency of the action. In re Tribune Co., 784 F.2d 1518, 1521 (11th Cir. 1986); see also Comm’r, Alabama Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1170 (11th Cir. 2019) (quoting In re Tribune Co., 784 F.2d 1518, 1521 (11th Cir. 1986) ("The press has standing to intervene in actions to which it is otherwise not a party in order to petition for access to court proceedings and records."). The court must provide members of the public and press, who are present, with notice and an opportunity to be heard on a proposed closure. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1030 (11th Cir. 2005); see also United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018); Mathis v. U.S. Gov’t, 2:18-CV-417-WKW, 2018 WL 2305705 at *1 (M.D. Ala. May 21, 2018); see also Mitchell v. Hunt, No. 8:15–CV–2603–T–23TGW, 2016 WL 7437122 at *1 (M.D. Fla. Oct. 27, 2016).
CompareB. Procedure for requesting access in criminal cases
The Eleventh Circuit has recognized in a criminal case that “[t]he press has standing to intervene in actions to which it is otherwise not a party in order to petition for access to court proceedings and records.” In re Tribune Co., 784 F.2d 1518, 1521 (11th Cir. 1986)
Depending on the court’s local rules, and the individual rules of the judge, the movants-intervenors may be scheduled for oral argument. A court may grant a motion to intervene but deny the motion to unseal. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1026 (11th Cir. 2005) (where the court granted a motion to intervene but denied a motion to unseal). In such a case, the movants-intervenors may appeal.
CompareC. Procedure for requesting access in civil matters
“The press has standing to intervene in actions to which it is otherwise not a party in order to petition for access to court proceedings and records.” In re Tribune Co., 784 F.2d 1518, 1521 (11th Cir. 1986) (quoting Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1982) (civil case)).
The Eleventh Circuit has also recognized that the correct procedure for a non-party to challenge a protective order is through intervention. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1308 (11th Cir. 2001).
Under Rule 24(a) of the Federal Rules of Civil Procedure, a court must allow timely intervention by anyone who "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties represent that interest. Fed. R. Civ. P. 24(a)(2). Rule 24(b) allows courts to permit timely intervention by anyone with "a claim or defense that shares with the main action a common question of law or fact," id. at 24(b)(1)(B), but courts must exercise discretion and consider whether the intervention will "unduly delay or prejudice the adjudication of the original parties’ rights," id. at 24(b)(3).
An intervention must be timely filed. Comm’r, Alabama Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1171 (11th Cir. 2019). A court may consider the intervention to be timely filed even if it occurs after a case has concluded. See Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278 (11th Cir. 2017) (finding intervention timely even though the contested order was entered 33 years earlier); see also Chicago Tribune, 263 F.3d at 1308 (noting timely intervention by members of the media "in the months following settlement" of the original case).
CompareD. Obtaining review of initial court decisions
The procedure for reviewing a trial court’s determination on closure – and for obtaining expedited or emergency review – will depend on the jurisdiction. An order denying access is immediately reviewable regardless of the pendency of the action. In re Petition of Tribune Co., 784 F.2d 1518, 1521 (11th Cir. 1986); see also Comm’r, Alabama Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1170 (11th Cir. 2019). Courts have emphasized the need to resolve conflicts over access quickly, noting that "access should be immediate and contemporaneous" because "[e]ach passing day may constitute a separate and cognizable infringement of the First Amendment." Royalty Network, Inc. v. Harris, 756 F.3d 1351 (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (stating that forcing a defendant to wait until the conclusion of a proceeding to appeal the denial of a motion to dismiss would imperil important First Amendment interests)).
CompareIII. Access to criminal proceedings
CompareA. In general
The Supreme Court and the Eleventh 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"); see also 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"); see also Simmons v. Conger, 86 F.3d 1080, 1086 (11th Cir. 1996); see also United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th Cir. 2005); see also Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1166-1167 (11th Cir. 2019).
When determining whether the public has a First Amendment right of access to a particular governmental proceeding, reviewing courts must inquire into two "complementary considerations": (1) "whether the place and process have historically been open to the press and general public" and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266 (11th Cir. 2014) (citing Press-Enterprise II, 478 U.S. at 8–9).
CompareB. Pretrial proceedings
The Eleventh Circuit has recognized that some pretrial proceedings enjoy First Amendment protection. United States v. Ochoa-Vasquez, 428 F.3d 1015, (11th Cir. 2005) (citing Press-Enterprise I, 464 U.S. at 501 (stating that the right extends, not only to the criminal trial itself, but also to other integral parts of the trial process such as voir dire proceedings and preliminary hearings.).
The Supreme Court recognized the right of access to preliminary hearings in criminal cases in Press-Enterprise II). 478 U.S. at 13 (holding the right of public access attaches to preliminary hearings based on these considerations); see also El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (rule requiring probable cause hearings to be closed is irreconcilable with Press-Enterprise II); Waller v. Georgia, 467 U.S. 39, 47 (1984) ("[U]nder the Sixth Amendment, any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.").
A more definitive rule was issued by the Supreme Court in Press-Enterprise II, which concerned a motion by members of news media to gain access to transcripts of preliminary hearing in criminal prosecution. 478 U.S. at 13. The Court reviewed a determination of the Supreme Court of California that had determined that the right of access to criminal proceedings that was recognized in Press-Enterprise I extended only to criminal trials and therefore that there was no general right of access to preliminary hearings. Id. The U.S. Supreme Court reversed, saying, the qualified First Amendment right of access attached to preliminary hearings and that “proceedings cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. at 13-14.
More recently in Fugua v. Pridgen, the United States District Court of Georgia, Middle District recognized that the First Amendment right of access also attaches "to various pre-trial proceedings, including preliminary hearings, guilty plea hearings, motions to suppress and voir dire." No.: 1:12-CV-93(WLS), 2013 WL 12212365, *8 (M.D. Ga 2013).
CompareC. Criminal trials
The constitutional presumption of access extends to trials themselves. Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1983); see also United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018); see also United States v. Gilmore, No. 3:99-cr-73-J-34TEM, 2009 WL 10697091 at *1 (M.D. Fla. 2009). In Richmond Newspapers, Inc. v. Virginia, the court found that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice." 448 U.S. 555, 573 (1980) (plurality opinion). In Globe Newspaper Co. v. Superior Court, 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." 457 U.S. 596, 602-03 (1982). It added that the presumption of public access "does not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying them access to sensitive details concerning the victim and the victim’s future testimony.” Id. at 609 n.25. "Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences." Id.
If closure is warranted, the restriction on access must be narrowly drawn with only that part of the proceeding as is necessary closed. Newman, 696 F.2d at 802.
CompareD. Post-trial proceedings
The qualified constitutional right of the public and press to attend to criminal trials extends to post-trial proceedings. United States v. Ellis, 90 F.3d 447, 450 (11th Cir. 1996). The Eleventh Circuit will apply a "compelling interest" standard to determine whether a party can access the transcript, papers, and docket in relation to a post-trial settlement. Wilson v. Am. Motors Corp., 759 F.2d 1568, 1570-72 (11th Cir. 1985). The court will apply the same standard to the question of access to the transcript as well as to the issue of access to the court papers. Id.
CompareE. Appellate proceedings
There is no Eleventh Circuit case law on the First Amendment right of access to appellate proceedings.
CompareIV. Access to criminal court records
CompareA. In general
There is a presumptive common law right to inspect and copy judicial records. Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). Before providing access to criminal court records, courts will first determine whether the documents in question are "judicial documents." Perez-Guerrero v. U.S. Atty. Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). To determine the scope of the common-law right of access, which applies in both criminal and civil proceedings, the court will "traditionally distinguish between those items which may properly be considered public or judicial records and those that may not; the media and public presumptively have access to the former, but not to the latter." Id. at 1235 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001). To determine whether a document is subject to the common-law right of access, a court is not required to locate "the exhibit on a continuum by determining the actual role the document played . . . instead, we determine whether a document is a judicial record depending on the type of filing it accompanied." F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 64 (11th Cir. 2013).
The right of access, however, is not absolute. Newman v. Graddick, 696 F.2d 796, 803 (11th Cir. 1983) (citing Nixon, 435 U.S. at 598). The district court has the discretion to determine which portions of the record should be placed under seal, but that discretion is guided by the presumption of public access to judicial documents. See also United States v. Sajous,749 F. App’x. 943, 944 (11th Cir. 2018) (citing Perez-Guerrero, 717 F.3d at 1235). The presumption favoring public access to trial documents may be overcome if a party establishes that his rights are undermined by publicity. Press-Enterprise II, 478 U.S. at 9. To rebut the presumption in favor of public access, the requesting party must establish that sealing the records "is essential to preserve higher values and is narrowly tailored to serve that interest." Id. (quoting Press-Enterprise I, 464 U.S. at 510).
CompareB. Arrest records
Neither the Supreme Court nor the Eleventh Circuit have issued a definitive ruling as to public access to arrest records.
CompareC. Dockets
The Supreme Court has declined to address whether the constitutional presumption of access applies to civil or criminal court dockets. However, federal appellate courts have recognized that the right does attach. In United States v. Valenti, the Eleventh Circuit held that a dual-docketing system or secret dockets are "an unconstitutional infringement on the public and press’s qualified right of access to criminal proceedings" and "is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings." 987 F.2d 708, 715 (11th Cir. 1993). Consequently, because a secret docket is unconstitutional for interfering with public and press access to criminal proceedings, it naturally follows that a docket should be open to the public and press. Id. Thus, the press and public have a qualified First Amendment right to access criminal proceedings, which extends to the proceedings’ docket sheets. United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005).
Recently, in Commissioner, Alabama Department of Corrections v, Advance Local Media, LLC, the Eleventh Circuit held that "materials submitted by litigants – whether or not they are formally filed with the district court – that are ‘integral to the judicial resolution of the merits’ in any action taken by that court are subject to the common law right of access and the necessary balancing of interests that the right entails.” 918 F.3d 1161, 1167 (11th Cir. 2019).
CompareD. Warrants, wiretaps and related materials
One district court in the Eleventh Circuit has held that there is no First Amendment right of access to search warrant affidavits. In re Four Search Warrants, 945 F. Supp. 1563, 1567 (N.D. Ga. 1996). However, the court did recognize a qualified, common law right to inspect and copy search warrants. Id. at 1567. The court explained that if access to the search warrants interferes with the administration of justice, this might warrant curtailing access to those documents. Id. Thus, in determining whether to grant access to search warrants, the court engaged in a balancing test, considering factors such as "whether access is likely to promote public understanding of historically significant events, and whether the press has already permitted substantial access to the contents of the records." Id.
In In re Four Search Warrants, a district court within the Eleventh Circuit held that the public interest "in understanding the legal process, the preservation of the integrity of the fact-finding process, and the furtherance of the appearance of fairness" all outweighed the government interest in jeopardizing an ongoing investigation and media scrutiny of witnesses. Id. at 1568-569.
Nevertheless, while the balancing test weighed in favor of disclosure in that case, the Eleventh Circuit has held that protecting an ongoing law enforcement investigation can be a sufficiently compelling reason to block access to judicial documents like search warrants. See United States v. Valenti, 986 F.2d 708 (11th Cir. 1996); see also Bennett v. United States, No. 12–61499–CIV., 2013 WL 3821625, *4 (S.D. Fla. July 23, 2013).
In Bennett v. United States, a district court within the Eleventh Circuit denied a common-law right of access to judicial records in the form of sealed search-warrant affidavits at the pre-indictment stage but declined to decide whether that holding will apply in all cases. 2013 WL 3821625, *7.
The Eleventh Circuit has recognized a qualified, common law right of access to inspect and copy judicial records, which it has extended to wiretap materials. United States v. Rosenthal, 763 F.2d 1291, 1293 (11th Cir. 1985) (citing Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 597 (1978). In Rosenthal, the Eleventh Circuit held that Title III of Federal Omnibus Crime Control and Safe Streets Act creates no independent bar to the public’s right of access to judicial materials with respect to wiretap materials legally intercepted and admitted into evidence pursuant to the statute. 763 F.2d at 1294. There, the Eleventh Circuit cited United States v. Dorfam, with approval, which stands for the proposition that "wiretap communications remain beyond the public access unless they are disclosed through testimony during a Court proceeding.” See Rosenthal, 763 F.2d at 1293 (citing United States v. Dorfman, 690 F.2d 1230, 1232-35 (7th Cir. 1982)). Thus, once wiretap materials are admitted into evidence, the Eleventh Circuit recognizes a right of access to those materials. Id. at 1293. The Act does prevent public access to wiretap evidence that the district court lawfully sealed in order to protect the privacy of defendants. Id. Additionally, a trial court may consider whether the administrative difficulties in providing access would disrupt the progress of the trial when deciding whether to release wiretap materials. Id. at 1295.
In United States v. Nelson, the U.S. District Court for the Middle District of Florida reaffirmed Rosenthal and denied access to wiretap materials "unless and until their contents are released at trial." No. 3:10–cr–23–J–32TEM., 2011 WL 305005, *1-2 (M.D. Fla. 2011).
CompareE. Discovery materials
In United States v. Atesiano, a district court in the Southern District of Florida denied access to materials produced during discovery in an unreasonable search and seizure case reasoning that "documents collected during discovery . . . are not 'judicial records.'" No. 18-20479-CR-MOORE/SIMONTON, 2018 WL 5831092, *4 (S.D. Fla. 2018) ("Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private.") (quoting United States v. Anderson, 799 F2d 1438 (11th Cir. 1986)).
CompareF. Pretrial motions and records
In United States v. Miller, 579 F. Supp. 862, 866 (S.D. Fla. 1984), a district court held:
There is no reason to distinguish between pretrial proceedings and the documents filed in regard to them. Indeed, the two principal justifications for the first amendment right of access to criminal proceedings apply, in general, to pretrial documents ... pretrial documents ... are often important to a full understanding of the way in which “the judicial process and the government as a whole” are functioning.
Id. (quoting Associated Press v. U.S. Dist. Court, 705 F.2d 1143, 1145 (9th Cir. 1983)).
CompareG. Trial records
The public has a presumptive right under the common law to monitor criminal trials. This right extends to trial records. See generally Nixon v. Warner Commc’ns, 435 U.S. 589, 597 (1978) (finding that the public has a common law right to inspect and copy judicial records and documents).
CompareH. Post-trial records
A district court in the Eleventh Circuit has recognized a common law and First Amendment right of access to records of post-trial proceedings. See United States v. Miller, 579 F. Supp. 862, 865 (citing with approval United States v. Carpentier, 526 F. Supp. 292, 295 (E.D.N.Y. 1981)). In United States v. Ignasiak, the Eleventh Circuit recognized that this access to records extends to post-trial pleadings when it granted access to a post-trial notice of an in camera proceeding due to concerns about the rationale for keeping the document sealed. 667 F.3d 1217, 1237-239 (11th Cir. 2012); see also Jackson v. Deen, No. CV412–139., 2013 WL 2027398, *14 (S.D. Ga 2013).
CompareI. Appellate records
The Eleventh Circuit has not, as of yet, held that the First Amendment right extends to appellate records generally. The Eleventh Circuit has generally recognized that the right of access, which extends to public records accessible in criminal cases, also extends to civil cases. F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013) (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001). Thus, where, as here, a lower court in the Eleventh Circuit has extended access to appellate briefs (e.g. a type of appellate record) in a civil case, it can be understood that they would also be made available in a criminal case. See City of Rome, Georgia, No. 4:05-CV-249-HLM at *4; see also AbbVie Prods. LLC, 713 F.3d at 62.
CompareJ. Other criminal court records issues
CompareV. Access to civil proceedings
CompareA. In general
In Richmond Newspapers, Inc. v. Virginia, a plurality opinion of the Supreme Court found that historically, both civil and criminal trials have been “presumptively open." 448 U.S. 555, 580 n.17 (1980). The Eleventh Circuit has recognized a constitutional right of access to certain civil trials, pertaining to the release or incarceration of prisoners, without addressing whether a First Amendment right of access applies to civil trials generally. Newman v. Graddick, 696 F.2d 796, 800-801 (11th Cir. 1983). The Eleventh Circuit has also stated that there is a common-law right of access to civil proceedings. Wilson v. Am. Motors Corp., 759 F.2d 1568, 1570 (11th Cir. 1985); see also Perez-Guerrero v. U.S. Atty. Gen., 717 F.3d 1224, 1235 (11th Cir. 2013) (quoting Chicago Tribune, 263 F.3d at 1311.); see also United States v. Almengo, No. 2:14–cr–29–FtM–29DNF., 2014 WL 7014519 ,*2 (M.D. Fla. December 11, 2014). Any denial of openness to civil proceedings must be narrowly tailored to serve a compelling government interest. United States v. McCorkle, 78 F. Supp. 2d 1311, 1313 (M.D. Fla. 1999) (citing Am. Motors Corp., 759 F.2d at 1570).
CompareB. Pre-trial proceedings
The Eleventh Circuit has recognized a right of access to pretrial proceedings in civil trials pertaining to release or incarceration of prisoners and the conditions of their confinement. Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983).
In Gilliam v. HBE Corp., a district court in the Eleventh Circuit stated that "the common-law right of access to judicial proceedings does not extend to information collected through discovery which is not a matter of public record." No. 6:99–CV–596–ORL–22C. 2000 WL 33996253, *3 (M.D. Fla. October 25, 2000) (citing In re Alexander Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987)). But the district court characterized the openness to civil proceedings as including most proceedings, except discovery." Id.
District courts have expanded this First Amendment right of access to include nearly all civil and quasi-civil proceedings. See e.g., United States v. Valenti, 987 F.2d 708 (11th Cir.1993) (bench conferences); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) (parole release hearings).
CompareC. Trials
In Wilson v. American Motors Corp., the Eleventh Circuit recognized that "absent some exceptional circumstances, trials in civil cases are public proceedings. 759 F.2d 1568, 1570 (11th Cir. 1985); see also Deman Data Sys. v. Schessel, No. 8:12–cv–2580–T–24 EAJ, 2017 WL 1331377, *1 (M.D. Fla. Apr. 11, 2017). Similarly, in Kearney v. Auto-Owners Insurance Company, a district court in the Eleventh Circuit emphasized that "the operation of the courts and the judicial conduct of judges are matters of the utmost public concern and reaffirmed the holding in American Motors Corp. that "absent some exceptional circumstances, trials are public proceedings." No. 8:06–cv–00595–T–24 TGW, 2009 WL 10664317, *1-2 (M.D. Fla. Sept. 8, 2009) (citing Am. Motors Corp., 759 F.2d at 1570).
The court in American Motors Corp. provided a caveat to this general rule: "we do not hold that every hearing, deposition, conference or even trial of this kind must be open to the public." 759 F.2d at 1571. Rather, if the court attempts to deny access or inhibit disclosure of information, "it must be shown that denial is necessitated by a compelling governmental interest, and is narrowly tailored to that interest.” Id. (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–607 (1982)).
CompareD. Post-trial proceedings
The Eleventh Circuit recognized a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners' rights. See Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983).
CompareE. Appellate proceedings
The Eleventh Circuit has not, as of yet, held that the First Amendment right of access extends to appellate records generally.
VI. Access to civil records
CompareA. In general
The Eleventh Circuit has held that there is a common law right of access, which establishes a general presumption that civil actions should be conducted publicly and includes the right to inspect and copy public records and documents. F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013) (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)).
For example, in Brown v. Advantage Engineering, the Eleventh Circuit held that where pleadings, motions, and evidence are filed with the court, they are open to the public, and absent a court's decision, after weighing competing interests, that the record should be sealed, the common law presumption in favor of access prevails. 960 F.2d 1013, 1016 (11th Cir. 1992). This rule prevails even where "the sealing of the record is an integral part of a negotiated settlement between the parties.” Id.
In order to withhold a judicial record from the public, an Eleventh Circuit court will first employ a balancing test that weighs the competing interests of the parties to determine whether there is a good cause to deny the public the right to access the document. Id. (citing Chicago Tribune Co., 263 F.3d at 1312).
CompareB. Dockets
The Eleventh Circuit has not held outright that the First Amendment or common law right of access extends to trial dockets. However, in Wilson v. American Motors Corp., the Eleventh Circuit applied the standard set out in Newman v. Graddick, where the Eleventh Circuit held that denial of access to trial records is only warranted where "denial is necessitated by a compelling governmental interest and is narrowly tailored to that interest." 759 F.2d 1568, 1571 (11th Cir. 1985) (citing Newman v. Graddick, 696 F.2d 796, 802 (11th Cir. 1983)). Under this standard, the court found nothing in the record to support sealing the record, reversed the district court's sealing of the records, and thereby ordered disclosure of the record, which included the docket. Wilson, 759 F.2d at 1570-572.
A district court more recently applied this analysis in Keemar v. AVCO Corp., where, upon finding insufficient grounds to overcome the public's right to access the documents, directed that the documents be unsealed and filed in the public docket. No. 6:06-cv-448-Orl-22DAB., 2007 WL 2696571, *3 (M.D. Fla. Sept. 11, 2007); see also Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001).
CompareC. Discovery materials
Although the Eleventh Circuit does not recognize a common law right of access to discovery materials that have not been filed with the court or have been filed in connection with discovery motions, it does recognize a right of access to such materials if they are filed with pretrial motions "that require judicial resolution of the merits." Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1167 (11th Cir. 2019) (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001)).
The court in Chicago Tribune, held that there is no common-law right of access to discovery material when it is filed in connection with a discovery motion (as opposed to a motion that could resolve the merits of the case). 263 F.3d at 1311; see also F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 64 (11th Cir 2013) ("The holding in Chicago Tribune established a bright-line rule exempting discovery materials from the common-law right of access.").
In fact, where unfiled discovery materials are concerned, the press’ constitutional right of access “is limited by Rule 26(c) of the Federal Rules of Civil Procedure,” which permits courts to issue protective orders upon a finding of “good cause.” McCarthy v. Barnett Bank, 876 F.2d 89, 91 (11th Cir. 1989). In order to access unfiled discovery material that has been covered by a protective order, the journalist seeking the information must seek to modify the protective order to permit its disclosure, and a party in the case who holds the information must be willing to disclose it. Id.
CompareD. Pre-trial motions and records
The Eleventh Circuit generally recognizes a common law right of access to pretrial motions because they qualify as judicial records. Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1167 (11th Cir. 2019). Although the Eleventh Circuit does not recognize a common law right of access to discovery materials that have not been filed with the court or have been filed in connection with discovery motions, it does recognize a right of access to such materials if they are filed with pretrial motions "that require judicial resolution of the merits." Id. (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001)). The Eleventh Circuit holds that courts generally should not permit public access to discovery materials that are not filed with substantive motions because discovery is "essentially a private process" meant to "assist trial preparation." Id. (citing United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)). Material filed in connection with any substantive motion, unrelated to discovery, is subject to the common law right of access. Romero v. Drummond Co., Inc., 480 F.3d 1234, 1245 (11th Cir. 2007) ("There is a presumptive right of public access to pretrial motions of a nondiscovery nature, whether preliminary or dispositive, and the material filed in connection therewith.") (quoting Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993)).
The complaint is itself a judicial record. The Eleventh Circuit has recognized that "a complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision." F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013).
CompareE. Trial records
"A 'strong common law presumption of public access' applies to trial records." Braggs v. Dunn, 276 F. Supp. 3d 1253, 1254 (11th Cir. 2017) (citing Wilson v. Am. Motors Corp., 759 F.2d 1568 1571 (11th Cir. 1985)). The common law right of access may be overcome by a showing of good cause, which requires "balancing the asserted right of access against the other party’s interest in keeping the information confidential." Romero v. Drummond Co., 480 F.3d 1234 (11th Cir. 2007). The court will consider "whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials, or public concerns, and the availability of a less onerous alternative to sealing the documents. Id.
"The 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, 435 U.S. 589, 597 (1978) (footnote omitted). The Eleventh Circuit has held that the public and press have a qualified common law right of access to trial records, including documents submitted as evidence during trial. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 n.7 (11th Cir. 2001) (citing Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988)); see also Wilson v. Am. Motors Corp., 759 F.2d 1568, 11571 (11th Cir. 1985) ("A strong common law presumption of public access applies to trial records").
In Braggs v. Dunn, a district court within the Eleventh Circuit upheld the common law right of access to the trial record where the interest in public access outweighed the minimal privacy concerns of the defendants. 276 F. Supp. 3d 1253, 1254–1255 (M.D. Ala. 2017).
CompareF. Settlement records
The Eleventh Circuit permits records of sensitive information to be sealed when such sealing is narrowly tailored and serves a compelling interest. Even if the record has been sealed according to a settlement agreement, this sealing may be contested by a non-party and vacated by the court. See Brown v. Advantage Eng’g Inc., 960 F.2d 1013 (11th Cir. 1992). As a matter of practice, most district courts within the Eleventh Circuit will not retain jurisdiction to enforce the terms of a settlement unless the settlement agreement is filed in the court record, but that reason alone is not sufficient to support filing the settlement agreement under seal.
CompareG. Post-trial records
Although the Eleventh Circuit has not held that the First Amendment or common law right of access extends to post-trial records in civil cases, it has held that the First Amendment right of access extends to “post-trial” enforcement proceedings in a civil case pertaining to the release or incarceration of prisoners and the conditions of their confinement. Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983). This suggests that related court records would also be presumptively open.
In addition, courts in the Eleventh Circuit have recognized a right of access to post-trial records in criminal cases. See United States v. Miller, 579 F. Supp. 862, 865 (citing with approval United States v. Carpentier, 526 F. Supp. 292, 295 (E.D.N.Y. 1981)); see also United States v. Ignasiak, 667 F.3d 1217, 1237-239 (11th Cir. 2012); see also Jackson v. Deen, No. CV412–139., 2013 WL 2027398, *14 (S.D. Ga 2013). The Eleventh Circuit has also recognized that the right of access to a court record in a criminal proceeding also extends to a civil proceeding. See F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013) (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)). Thus, while there is no definitive Eleventh Circuit recognition of the right of access to post-trial records in civil cases, it can be inferred that this right likely exists.
CompareH. Appellate records
The Eleventh Circuit has not held generally that the First Amendment right extends to appellate records.
CompareI. Other civil court records issues
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
In Press-Enterprise I, the United States Supreme Court recognized a presumption in favor of public access to the voir direexamination of potential jurors in criminal trials. 464 U.S. 501 (1984). In Presley v. Georgia, the Supreme Court held that the defendant’s Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. 558 U.S. 209 (2010). The Eleventh Circuit later recognized, in an unpublished decision, that closure of voir dire to the public violates the Supreme Court’s decision in Presley. See Capshaw v. United States, 618 F. App’x 618, 623 (11th Cir. 2015).
The district courts in the Eleventh Circuit have repeatedly recognized that the voir dire phase is included in the guarantee of open public proceedings. See United States v. Steinger, 626 F. Supp. 2d 1231, 1234 (S.D. Fla. 2009) (recognizing First Amendment right of access to "integral parts of the trial process such as voir dire proceedings and preliminary hearings, as well as docket sheets") (citing United States v. Ochoa-Vasquez, 428 F.3d 1015, 1029 (11th Cir. 2005)); see also Brown v. United States, Nos. 407CV085, 403CR001, 2008 WL 4593386, *1 (S.D. Ga. 2008); see also United States v. Sami Amin al-Arian, et al., No. 8:03-cr-77-T-30TBM, 2005 WL 8166946, *2 (M.D. Fla. 2005).
CompareB. Juror identities, questionnaires and other records
Generally, the Eleventh Circuit will grant access to the identities of the jurors. While, under some circumstances, juror identities will be kept anonymous, the Eleventh Circuit warned in United States v. Ross that "empanelment of an anonymous jury is a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances." 33 F.3d 1507, 1519 (11th Cir. 1994). The Eleventh Circuit reaffirmed this principle in United States v. Ochoa-Vasquez, where the court expanded upon the circumstances under which an anonymous jury may be appropriate. 428 F.3d 1015, 1034–1035 (11th Cir. 2005). These are known as the Ross factors, and they maintain that an anonymous jury may be appropriate if: (1) the defendant is involved in organized crime, (2) the defendant participated in a group with the capacity to harm jurors, (3) the defendant has previously attempted to interfere with the judicial process, (4) there is the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) there is extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment. Id.
Nevertheless, while public access to voir dire proceedings is protected by the First Amendment, the court may maintain the confidentiality of the juror identities where such restrictions are in the interests of justice. United States v. Sami Amin Al-Arian, No. 8:03-cr-77-T-30TBM, 2005 WL 8166946, *2 (M.D. Fla. 2005).
The Eleventh Circuit Court of Appeals has not yet recognized a right of access to juror questionnaires. However, in Jackson v. Deen, a district court in Georgia’s Southern District, cited with approval the District of Columbia Court of Appeals’ decision, which found a First Amendment right of access to written juror questionnaires. No. CV412–139, 2013 WL 2027398, *14 (S.D. Ga 2013) (citing In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. App. 2012)).
CompareC. Grand jury proceedings and records
The right of access does not extend to grand jury proceedings. Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211 (1979). The public also has no right to a statement of reasons or a hearing on the closure of grand jury proceedings. In re Subpoena, 864 F. 2d 1559 (11th Cir. 1989). Rule 6(e) of the Federal Rules of Criminal Procedure prohibits the disclosure of grand jury material by certain people (e.g., the grand jurors and government attorneys), except under the limited circumstances provided by Rule 6(e)(3). This prohibition means that "records, orders and subpoenas relating to grand jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury." Jane Doe #1 v. United States, No. 08-80736-CIV-MARRA, 2013 WL 12080929, *2 (S.D. Fla. 2013). That district court held that courts are not compelled to adopt the least restrictive means to protect secrecy of pending grand jury proceedings. Id.
On grounds of compelling necessity, a court may prohibit disclosure of materials prepared for or statements presented in grand jury proceedings that would reveal the investigation’s direction, the identity of those being investigated or those who may testify, or any other secret aspect of the proceedings. Id.; see also United States v. Aisenberg, 358 F.3d 1327, 1346 (11th Cir. 2004). In United States v. Sierra, the Eleventh Circuit affirmed the trial court holding that secrecy interests in grand jury and jury selection outweighed the public’s rights where the contested transcripts contained references to then pending grand jury proceedings and investigations. 784 F.2d 1518 (11th Cir. 1986).
In deciding whether or not to disclose grand jury testimony, the Eleventh Circuit relies on the Supreme Court's Douglas Oil balancing test. Aisenberg, 358 F.3d at 1348. The test requires parties seeking disclosure to show (1) that the material they seek is needed to avoid a possible injustice in another judicial proceeding; (2) that the need for disclosure is greater than the need for continued secrecy; and (3) that their request is structured to cover only material so needed. Id.
In Pitch v. United States, the full Eleventh Circuit held that district courts lack inherent, supervisory power to authorize the disclosure of grand jury records outside of Rule 6(e)’s enumerated exceptions. 953 F.3d 1226 (11th Cir. 2020) (en banc).
CompareD. Interviewing jurors
In National Broadcasting Co., Inc. v. Cleland, a U.S. district court in Georgia’s Northern District adopted the 5th, 9th and 10th Circuit holdings that "trial court orders preventing the media from interviewing jurors regarding their verdicts and deliberations violate the First Amendment rights of the press and the jurors themselves.” 697 F. Supp. 1204, 1214-215 (N.D. Ga 1988) (citing with approval In re Express News Corp., 695 F.2d 807, 808 (5th Cir. 1982); Journal Publ’g Co. v. Mecham, 801 F.2d 1233 (10th Cir. 1986); United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978)).
CompareVIII. Proceedings involving minors
CompareA. Delinquency
The Eleventh Circuit has not issued a definitive opinion regarding right of access to delinquency proceedings.
CompareB. Dependency
The Supreme Court has not recognized a right of access to juvenile dependency proceedings or records. The Eleventh Circuit has not issued a definitive rule on the right of access to juvenile dependency proceedings.
The confidentiality of proceedings involving minors varies from state to state. In Mayer v. State, a Florida state court held that a statute requiring that a custody hearing remain confidential and closed to the public did not violate First Amendment freedom of the press rights. 523 S.2d 1171, 1174-1175 (Fla. 2d DCA 1988); see also Natural Parents of J.B. v. Fla. Dept. of Children & Family Servs., 780 So. 2d 6, 11-12 (Fla. 2001) (upholding a statute requiring mandatory closure of all hearings in termination of parental rights proceedings).
CompareC. Other proceedings involving minors
CompareD. Prohibitions on photographing or identifying juveniles
The Eleventh Circuit has not issued a definitive ruling on photographing or identifying juveniles. This will vary by jurisdiction.
CompareE. Minor testimony in non-juvenile courts
Under Globe Newspaper Co. v. Superior Court, the press and public have a presumptive right of access to a minor’s testimony during trial. 457 U.S. 596, 607-08 (1982). A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Id. at 608. A court will consider the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of the parents and relatives. Id.
In Waller v. Georgia, the Supreme Court set forth four factors to consider when a court determines whether closure of testimony is warranted. First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; second, the closure must be no broader than necessary to protect that interest; third, the trial court must consider reasonable alternatives to closing the proceedings; and fourth, it must make findings adequate to support the closure. 467 U.S. 39 (1984).
In LaPlante v. Crosby, the Eleventh Circuit affirmed the state trial court’s closure of the courtroom during the testimony of the victim (a six-year-old child who had suffered sexual battery) based on an analysis of the four Waller factors. 133 F. App’x. 723, 725-726 (2005).
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
The Eleventh Circuit has not issued a ruling regarding whether the First Amendment or common law right of access extends to tribal courts. While the Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that "[n]o Indian tribe exercising power 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," there is no Eleventh Circuit case which addresses this topic.
The Eleventh Circuit has recognized that a tribe is subject to suit only where Congress has authorized the suit, such as under the Indian Civil Rights Act of 1968, or where the tribe has waived its sovereign immunity. See Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200 (11th Cir. 2012).
CompareB. Probate
The Eleventh Circuit has not issued a definitive ruling regarding probate court materials.
CompareC. Competency and commitment proceedings
The Eleventh Circuit has not issued a definitive ruling regarding access to competency and commitment proceedings.
CompareD. Attorney and judicial discipline
The Eleventh Circuit has not issued a definitive ruling regarding access to attorney and judicial discipline proceedings.
CompareE. Immigration proceedings
CompareF. Other proceedings
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
While the Eleventh Circuit Court of Appeals has not issued an opinion on whether the press has standing to challenge a third-party gag order, a lower court within the Eleventh Circuit has. A district court in Florida’s Southern District addressed the issue of whether the media has standing bring a lawsuit challenging a gag order in Dow Jones & Co., Inc. v. Kaye, 90 F.Supp.2d 1347 (S.D. Fla. 2000). The court held that to demonstrate standing, a party must show that it has been injured or threatened with injury and that the lawsuit is likely to redress that injury. Id. The court held that the newspaper publishers had standing to bring the lawsuit challenging the gag order because they demonstrated an injury to their First Amendment rights by showing that, but for the judge's gag order, parties to the litigation would talk to their reporters. Id. at 1352.
CompareB. Gag orders on the press
A gag order is a prior restraint on speech. United States v. McGregor, 838 F. Supp. 2d 1256, 1260 (M.D. Ala 2012) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976)). The Supreme Court views prior restraints directed to the press with a heavy presumption against their constitutionality. Neb. Press Ass'n, 427 U.S. at 570. In Nebraska Press Association, the Court held that an order restraining the news media from publishing or broadcasting accounts of confessions or admissions made by defendant to law enforcement officers or third parties did not meet the heavy burden imposed as a condition to securing a prior restraint and was therefore invalid. Id. at 539.
CompareC. Gag orders on participants
A gag order is a prior restraint on speech. United States v. McGregor, 838 F. Supp. 2d 1256, 1260 (M.D. Ala 2012) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976). The Eleventh Circuit has recognized that the speech of participants in pending cases may be regulated under a less demanding standard than that established for the press. See News-Journal Corp. v. Foxman, 939 F.2d 1499, 1512 (11th Cir. 1991) (citing Gentile v. State Bar, 501 U.S. 1030 (1991).
In News-Journal Corp. v. Foxman, the Eleventh Circuit affirmed a restrictive order imposed on trial participants, where the court found that because the media was given its constitutional right to attend and to report all information regarding the case, and because interviews and subsequent reporting regarding the case evidenced the potential inability of impaneling an impartial jury, it was proper to impose a gag order on the trial participants. Id. at 1515.
When determining whether a gag order is properly granted, a court will engage in a rigorous First Amendment inquiry where it considers whether extrajudicial comments create a substantial likelihood of material prejudice to the proceedings. McGregor, 838 F.Supp.2d at 1267. If the court finds there is a substantial likelihood of material prejudice to the proceedings, a gag order must be narrowly tailored and can only be granted if less burdensome alternatives are ineffective. Id.
Also, the Eleventh Circuit has held—and the Supreme Court has affirmed—that grand jury witnesses may not be absolutely prohibited from disclosing their own testimony after termination of the investigation. See Smith v. Butterworth, 866 F.2d 1318 (11th Cir. 1989), aff’d, 494 U.S. 624 (1990).
CompareD. Interviewing judges
There are no Eleventh Circuit opinions on this topic. Whether a judge agrees to give an interview will vary by judge and jurisdiction.
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
Protection of Undercover Officers or Witnesses
The Eleventh Circuit does not address this topic, although district judges are likely to protect the identity of such witnesses.
Trade Secrets and Protected Information
The Eleventh Circuit has held that information disclosed during discovery that qualifies as a "trade secret" (and subject to a protective order) may be exempt from the common law right of access if the information is filed in connection with a discovery motion as opposed to a motion that could decide the merits of the case. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312–1314 (11th Cir. 2001). Under Federal Rule of Civil Procedure 26(c), courts can enter protective orders requiring that confidential research, development, or commercial information not be revealed or to be revealed only in a designated way. Chicago Tribune Co., 263 F.3d at 1313. In order for a protective order to be granted on these grounds, the party seeking protection must make a showing of "good cause," which the court will analyze by balancing the interests in question. Id. In order for information to be considered a trade secret, the party seeking protection must have treated the information as closely guarded secrets, show that the information represents substantial value to them, show that the information would be valuable to their competitors, and that it derives its value by virtue of the effort of its creation and lack of dissemination. Id. at 1313.
National Security and State Secrets
There is no First Amendment guarantee of a right of access to all sources of information within governmental control. Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978). In Wilson v. American Motors Corp., the Eleventh Circuit acknowledged but did not decide to accept or reject the Sixth Circuit’s holding that certain privacy rights of participants or third parties, trade secrets, and national security are virtually the only reasons which would justify total closure of public records. 759 F.2d 1568, 1570-1571 (11th Cir. 1985) (citing Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983)).
In M.N.C. of Hinesville, Inc. v. U.S. Dep't of Defense, the Eleventh Circuit recognized that the location where a speaker conveys or wishes to convey its message is relevant in deciding whether government regulation of that speech is permissible. 791 F.2d 1466, 1472 (11th Cir. 1986). The court held that the restrictions on First Amendment access on military base for a military base newspaper were reasonable because the forum was not public and because of national security interests. Id. at 1473, 1476.
Sexual Assault Issues
In Globe Newspaper Co. v. Superior Court, the Supreme Court reversed a court order excluding the press and public from the courtroom during the trial of a defendant charged with rape of three minor girls. 457 U.S. 596, 600 (1982). The Court reasoned that while a court may deny right of access to inhibit the disclosure of sensitive information, like the information in the Globe Newspaper case, "it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. Id. at 606-607.
In LaPlante v. Crosby, the Eleventh Circuit held, in an unpublished decision, that the exclusion of the public during a six-year-old child's testimony regarding sexual battery was appropriate under the four-factor test established in Waller v. Georgia. 133 F. App’x. 723, 724-726 (11th Cir. 2005) (citing Waller v. Georgia, 467 U.S. 39 (1984)). The four factors are:
[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.
The Court in Waller “determined that the closure in that case was plainly not justified because (1) ‘the State's proffer was not specific’; (2) ‘the trial court's findings were broad and general’; (3) ‘[t]he court did not consider alternatives to immediate closure of the entire hearing"; and (4) "the closure was far more extensive than necessary.’" LaPlante, 133 F. App’x at 725 (quoting Waller, 467 U.S. at 48–49).
More recently, in Enriquez v. Secretary, Department of Corrections, the Eleventh Circuit, in an unpublished opinion, upheld a partial closure of the courtroom in a case about the sexual battery of a minor. 662 F. App’x. 650, 656 (11th Cir. 2016). The court reasoned that the Waller test was inapplicable in cases of partial closure and that the standard for partial closures was to find a substantial reason justifying the partial closure of the court room. Id.
Privacy
In Cochran v. United States, the Eleventh Circuit addressed the issue of an individual's right to protection of privacy against the public's right to disclosure. 770 F.2d 949, 955 11th Cir. (1985). The Eleventh Circuit employed a balancing test to address this issue. Id.
CompareB. Cameras and other technology in the courtroom
The Eleventh Circuit holds that the First Amendment right of access does not include the right to televise, photograph, record, and broadcast federal criminal trials. See United States v. Hastings, 695 F.2d 1278, 1280 (11th Cir. 1983); see also McDonough v. Rundle, No. 15-20038–CIV–ALTONAGA/O’Sullivan, 2015 WL 13594407, *4 (S.D. Fla. 2015). In United States v. Hernandez, a district court in Florida’s Southern District held that the First Amendment right is to attend trial rather than a license allowing cameras or tape recorders into the courthouse. 124 F. Supp. 2d 698, 702 (S.D. Fla. 2000).
For specific authorization regarding the use of cameras and other technology in the courtroom, consult the local rules of the court in question (links to each court's website are provided below and may provide additional information regarding authorization, circumstances where cameras are permitted, limitations on use of footage, still cameras, webcasting, liveblogging and tweeting). For example, Federal Rule of Criminal Procedure 53, provides, "The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court," and Southern District of Florida Local Rule 77.1 provides:
Other than required by authorized personnel in the discharge of official duties, all forms of equipment or means of photographing, tape-recording, broadcasting or televising within the environs of any place of holding court in the District, including courtrooms, chambers, adjacent rooms, hallways, doorways, stairways, elevators or offices of supporting personnel, whether the Court is in session or at recess, is prohibited.
Most district courts within the Eleventh Circuit follow the United States Supreme Court’s rules banning video recording of proceedings to not allow such coverage. However, during the COVID-19 pandemic, the Eleventh Circuit continued oral arguments via telephone and provided access to the general public via an audio-only YouTube channel.
CompareC. Tips for covering courts in the jurisdiction
History: The United States Court of Appeals for the Eleventh Circuit was established by Congress in 1981, partitioned off from the former Fifth Circuit. Consequently, all decisions rendered by the Fifth Circuit prior to the close of the business day on September 30, 1981, are binding precedent unless overruled en banc by the Eleventh Circuit. Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (en banc). The Eleventh Circuit has jurisdiction over federal cases originating in the states of Alabama, Florida, and Georgia. The Circuit includes nine district courts with each state divided into Northern, Middle, and Southern Districts. About the Court, United States Court of Appeals for the Eleventh Circuit (July 22, 2019), http://www.ca11.uscourts.gov/about-court.
Contact Information: The Court has locations in the following cities:
Atlanta, Georgia:
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
Phone: (404) 335-6100
Miami, Florida:
99 N.E. 4th Street
Miami, Florida 33132
Phone: (305) 579-4430
Jacksonville, Florida:
300 N. Hogan St.
Jacksonville, Florida 32202
Phone: (904) 301-5665 (unattended)
Montgomery, Alabama:
15 Lee Street, 3rd Floor Courtroom
Montgomery, Alabama 36104
Phone: (334) 954-3790
Suggested Resources:
Interested individuals and media representatives can register with the court to receive notices in cases of interest in the Eleventh Circuit. For more information, click here.
The District Rules for each of the district courts in the Eleventh Circuit can be found here.
Websites for each District Court
The Middle District of Florida has a webpage devoted to information for the media.
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