5th Circuit
Author
Thomas S. Leatherbury
Marc A. Fuller
Lindsey D. Pryor
Vinson & Elkins LLP
Trammell Crow Center
2001 Ross Avenue, Suite 3900
Dallas, TX 75201
tleatherbury@velaw.com
mfuller@velaw.com
lpryor@velaw.com
*With thanks to Paul Hill, The University of Texas Law School – J.D. anticipated 2020
Last updated October 9, 2019
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
The Fifth Circuit has affirmed that there is a constitutionally-embedded presumption of openness in judicial proceedings. Doe v. Jackson Nat’l Life Ins. Co., 944 F. Supp. 488 (S.D. Miss. 1995), aff’d sub nom., Deramus v. Jackson Nat’l Life Ins. Co., 92 F.3d 274 (5th Cir. 1996). Therefore, the news media is entitled to observe, investigate, and report on all public proceedings involved in a trial. United States v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983); see also United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The judiciary, like the legislative and executive branches, is a branch of democratic government, and the public has no less right under the First Amendment to receive information about judicial proceedings than it has to know how other governmental agencies work and to receive other ideas and information. In re Express-News Corp., 695 F.2d 807, 809 (5th Cir. 1982).
But the right of access to judicial proceedings is not absolute. While the First Amendment guarantees the press and public a right of access, it only guarantees access to information that is available to any other member of the general public. United States v. Brown, 250 F.3d 907, 914 (5th Cir. 2001). The First Amendment right does not provide journalists with special privileges denied other citizens. United States v. Harrelson, 713 F.2d 1114, 1116-17 (5th Cir. 1985). Furthermore, the First Amendment right of public access to trials will yield to an accused’s Sixth Amendment right to a fair trial in certain circumstances. Id. at 1116.
The media’s right to know the identities of the parties in a case does not equal the right to attend and observe trials. Anonymity of parties is thus permissible in certain instances where a complete closure o the courtroom would not be acceptable. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). This is because the public right to scrutinize governmental functioning is not so impaired by a grant of anonymity to a party as it is by closure of the trial itself, and the assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name. Id. Nevertheless, there remains a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Id.
Even when a competing interest merits closure or anonymity, it is unlikely to justify prior restraints on the media (gag orders). Under the First Amendment, prior restraints on publication are constitutionally disfavored nearly to the point of extinction. Brown, 250 F.3d at 914.
The Fifth Circuit has held that in addition to the First Amendment right, there is a right of public access derived from common law that creates a presumption of access, but the right is also not absolute. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993); Belo Broad. Corp. v. Clark, 654 F.2d 423, 429 (5th Cir. 1981). The decision as to access is one left to the discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Belo Broad.Corp., 654 F.2d at 430. Furthermore, every court has supervisory power over its own records, and access can be denied where court files and records might become a vehicle for improper purposes. Van Waeyenberghe, 990 F.2d at 848. In exercising its discretion to seal judicial records, the court must balance the public’s common-law right of access against the interests favoring nondisclosure. Id.
The common-law right of access will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007).
CompareB. Overcoming a presumption of openness
The Fifth Circuit has held that the presumption of access can be overcome and a trial closed so long as (a) there is an overriding interest based on court findings that closure is essential to preserve higher values (generally a Sixth Amendment right to a fair trial), and (b) so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
While trials and records can be closed in certain circumstances, it is far more difficult to establish a sufficient justification for a prior restraint on publication. This can be achieved only if the government can establish that publication either poses a clear and present danger or a serious or imminent threat to a protected competing interest. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). In determining whether pretrial publicity is a sufficient reason to justify a prior restraint, a court will review (a) the nature and extent of pretrial news coverage; (b) whether other measures would mitigate the effects of unrestrained pretrial publicity; and (c) the effectiveness of a restraining order to prevent the perceived danger. Id. at 916.
The media’s right to attend trials and the right to know the identity of the parties to a trial are not necessarily equivalent. This is because the public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). The assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name. Id. Nevertheless, there remains a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Id. The presumption of openness can be overcome by the need to balance a party’s privacy in certain circumstances, and thus a party may be permitted to proceed under an alias. Doe v. Jackson Nat’l Life Ins. Co., 944 F. Supp. 488 (S.D. Miss. 1995), aff’d sub nom., Deramus v. Jackson Nat’l Life Ins. Co., 92 F.3d 274 (5th Cir. 1996). But see Doe v. Merritt Hosp., L.L.C., 353 F. Supp. 3d 472, 482 (E.D. La. 2018) (holding that the concern of possible future harm to a HIV-affected employment discrimination plaintiff was “outweighed by the public's interest in an open judicial forum and basic fairness to the [defendant’s] employees accused of undertaking discriminatory actions”).
CompareC. Procedural prerequisites to closure
The Fifth Circuit has held that in order to justify closure, a court must make findings that there is an overriding interest that closure is essential to preserve higher values, and the closure order must be narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
In the Fifth Circuit, the media, even when not parties to a litigation, have standing to challenge a closure order either by appeal or by writ of mandamus. United States v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983). The media can appeal court closure or confidentiality orders under the “collateral order” doctrine, which allows appeals before the resolution of the trial. Closure orders are appealable because they are (a) conclusive (final); (b) important and (c) separable from the merits of the underlying litigation itself. Davis v. Capital City Press, 78 F.3d 920, 924 (5th Cir. 1996). News organizations have standing in that they show an injury in fact that is fairly traceable to the challenged act (the closure) and is likely to be redressed by the requested remedy. Id.
In the Fifth Circuit, it is not necessary for the media to demonstrate the existence of a willing speaker in order to establish that they have standing to challenge a confidentiality order. Many courts will presume that a willing speaker exists, else there would be no need for a confidentiality order. Id. at 927.
CompareB. Procedure for requesting access in criminal cases
In the Fifth Circuit, the media can challenge a closure order either by appeal or by writ of mandamus. United States v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983).
CompareC. Procedure for requesting access in civil matters
The Fifth Circuit has not specified how access should be requested, but media have, at times, sought access to closed proceedings by filing a motion to intervene in district court. Davis v. Capital City Press, 78 F.3d 920, 923 (5th Cir. 1996). But unlike in some jurisdictions, the Fifth Circuit does not require that the media formally intervene. United States v. Chagra, 701 F.2d 354, 360 (5th Cir. 1983).
CompareD. Obtaining review of initial court decisions
In the Fifth Circuit, access decisions have been reviewed both on appeal and by petition for a writ of mandamus. United States v. Brown, 250 F.3d 907, 912 (5th Cir. 2001); see also United States v. Brown, 218 F.3d 415, 420 (5th Cir. 2000); Davis v. Capital City Press, 78 F.3d 920, 924 (5th Cir. 1996).
Appeals are possible under the “collateral order doctrine” if the initial decision at issue is “final in effect” even if it does not dispose of the entire litigation. Henry v. Lake Charles Am. Press, 566 F.3d 164, 171 (5th Cir. 2009). For this to be applicable, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. Id.; see also Vantage Health Plan v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448–50 (5th Cir. 2019) (determining that an order that unseals a document is effectively unreviewable on appeal); Brown, 250 F.3d at 913; Davis, 78 F.3d at 923.
CompareIII. Access to criminal proceedings
CompareA. In general
The First Amendment guarantees the press a right of access to observe criminal trials, just as members of the public have such a right: to attend, listen, and report. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997); United States v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983). But this does not include a right to televise, record, or otherwise broadcast trials. United States v. Edwards, 785 F.2d at 1294.
The Fifth Circuit has declared that there is a presumption of openness that attaches to a criminal trial, but that it can be closed if there is an overriding interest based on court findings that closure is essential to preserve higher values, and so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
There is also a Sixth Amendment right to a public criminal trial, exercisable by a defendant. By subjecting criminal trials to “contemporaneous review in the forum of public opinion,” the Sixth Amendment prevents the abuse of judicial power, discourages perjury, encourages unidentified potential witnesses to come forward and instills in the public the perception that its courts are acting fairly. Rovinsky v. McKaskle, 722 F.2d 197, 198 (5th Cir. 1984). This right attaches only to the defendant in a criminal trial, and thus does not provide the media with any additional rights of access.
CompareB. Pretrial proceedings
The Fifth Circuit has noted that the presumption of openness and the right to a public trial are not limited to issues that arise after a jury is sworn or to times when the jury is present. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984). The presumption applies at least to those pretrial hearings and other proceedings that are an integral part of the trial, such as jury selection and motions to suppress evidence. Id. Openness is vital to the criminal justice system because it encourages witnesses to come forward, discourages perjury, insures that the judge and prosecutor act responsibly, and lends credibility by allowing the public to see that an accused is dealt with fairly. These objectives are frustrated if pre-trial hearings are closed. United States v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986). A pre-trial hearing can thus generally be closed to the public only if it satisfies the First Amendment tests set out in Press-Enterprise: i.e., that there is an overriding interest that is likely to be prejudiced if the proceeding is not closed and that the closure is no broader than necessary to protect the interest, and that reasonable alternatives to closure have been considered and found wanting. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987).
Limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the defendant’s interest in public scrutiny of the proceedings. Rovinsky, 722 F.2d at 200. The right to a public trial does not turn on whether a hearing is examining an issue that is factual or doctrinal, substantive or procedural, but rather on the relationship of the issue to the merits of the underlying charge, the outcome of the prosecution, and the integrity of the administration of justice. Id. at 201. But no government interest can sustain the exclusion of the press and public from a trial or pre-trial proceeding absent findings of necessity articulated on the record. Id.
In order to achieve total closure, (1) a party 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 closure; and (4) the court must make findings adequate to support closure. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).
Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since at least some audience remains to observe the fairness of the proceedings. Therefore, for partial closure (evicting some members of the audience, for example) a court must only find a “substantial reason” for the closure. Id.
However, the right of access to some pre-trial hearings, such as a bail hearing, is not as strong as the right of access to the trial itself. United States v. Chagra, 701 F.2d 354, 364 (5th Cir. 1983). Closure of a pre-trial bail hearing is thus permissible if the defendant shows that (1) his right to a fair trial will likely be prejudiced by conducting the hearing in public; (2) alternatives to closure cannot adequately protect his fair trial right; and (3) closure will probably be effective in protecting against the perceived danger. Id.
Meanwhile, not all aspects of trials or pre-trial hearings are considered public property. Private “sidebar” conferences about technical legal matters, whether pre-trial or during trial, do not violate the right to a public trial, nor do they violate the press and public’s right to observe and attend a trial. Rovinsky, 722 F.2d at 200.
CompareC. Criminal trials
The First Amendment guarantees the press and public a right of access to criminal trials to attend, listen and report. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The Fifth Circuit has cited Press-Enterprise for the proposition that there is a presumption of openness for a criminal trial, but this can be overcome if there is an overriding interest based on court findings that closure is essential to preserve higher values, and so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
In addition to the First Amendment right of the public and press to access a trial, the Sixth Amendment guarantees a defendant the right to a public trial. The Sixth Amendment right to a public proceeding invokes the same considerations raised implicitly in the First Amendment right of the press and public to attend an accused’s trial. Thus, any closure of a public trial over the objections of the defendant must first meet the First Amendment tests set out in Press-Enterprise. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987).
Neither the First Amendment nor Sixth Amendment rights are absolute, however, and must be balanced against other interests that are essential to the administration of justice (and often against each other). United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).
In order to outweigh the right to a public trial and achieve total closure, (1) a party seeking to close a court proceeding 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) the court must make findings adequate to support closure. Id.
Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since an audience remains to ensure the fairness of the proceedings. Therefore, for partial closure a court must only find a “substantial reason” for the closure. Id.
CompareD. Post-trial proceedings
The “public and press have a First Amendment right of access to sentencing proceedings.” In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176–77 (5th Cir. 2011). The Fifth Circuit reasoned that the rule especially makes sense in the context of a guilty plea. Id. at 177. Because a trial occurs in only a small fraction of criminal cases, it would not make sense to recognize public access for a trial but not to the sentencing phase. Id.
CompareE. Appellate proceedings
Nothing found specific to the Fifth Circuit although, of course, a motion to seal all or a portion of a brief may be filed for the Court’s determination.
CompareIV. Access to criminal court records
CompareA. In general
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
CompareB. Arrest records
Nothing found specific to the Fifth Circuit.
CompareC. Dockets
Nothing found specific to the Fifth Circuit.
CompareD. Warrants, wiretaps and related materials
The Fifth Circuit extended the same “case-by-case approach previously used by [the] Court for assessing the common law qualified right of access to judicial records to situations involving an individual's request to access pre-indictment warrant materials such as . . . affidavits. . . . In cases involving a request to unseal affidavits in support of pre-indictment search warrants, district courts should exercise their discretion by balancing the public's right to access judicial documents against interests favoring nondisclosure.” United States v. Sealed Search Warrants, 868 F.3d 385, 396 (5th Cir. 2017).
CompareE. Discovery materials
The Fifth Circuit has held that evidence material filed along with motions in limine to exclude such evidence from trial can be sealed for a temporary period of time if there is concern that disclosure could prejudice the defendant’s right to a fair trial. In re Gannett News Serv., 772 F.2d 113, 115 (5th Cir. 1985).
CompareF. Pretrial motions and records
The Fifth Circuit has held that the presumption of openness applies with nearly equal force to pre-trial hearings. This is because the basis for public criminal trials is that they encourage witnesses to come forward, discourage perjury, insure that the judge and prosecutor act responsibly, and lend credibility by allowing the public to see that an accused is dealt with fairly. These objectives are frustrated if pre-trial hearings are closed. United States v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986). The right to a public trial is thus not limited to issues that arise after a jury is sworn or times when the jury is present. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984). This right extends at least to those pretrial hearings and other proceedings that are an integral part of the trial, such as jury selection and motions to suppress evidence. Id. A pre-trial suppression hearing can be closed only if it satisfies the First Amendment tests set out in Press-Enterprise, that there is an overriding interest that is likely to be prejudiced absent closure and that the closure is no broader than necessary to protect the interest, and that reasonable alternatives to closure have been considered and found wanting. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987). Protecting a confidential informant may satisfy that test. Id.
However, the right of access to some pre-trial hearings, such as a bail hearing, is not as strong as the right of access to the trial itself. United States v. Chagra, 701 F.2d 354, 364 (5th Cir. 1983). Closure of a pre-trial bail reduction hearing is permissible if the defendant shows that (1) his right to a fair trial will likely be prejudiced by conducting the hearing in public; (2) alternatives to closure cannot adequately protect his fair trial right; and (3) closure will probably be effective in protecting against the perceived danger. Id.
Furthermore, a court can prohibit the media from inspecting evidence that is not a matter of public record. Therefore, the media has no right of access to exhibits produced under subpoena but not yet admitted into evidence. United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977).
CompareG. Trial records
The Fifth Circuit has held that the media has no First Amendment right to view or inspect trial exhibits beyond that enjoyed by the public. Belo Broad. Corp. v. Clark, 654 F.2d 423, 427 (5th Cir. 1981). Therefore, physical access to tapes played in court or trial exhibits is not covered by the constitutional right to access since the public would not have that right. A court can also prohibit the media from inspecting evidence that is not a matter of public record. United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977). It is also permissible for a court to condition the media’s access to exhibits on the court clerk’s availability. Id. at 1210. Meanwhile, transcripts or access to bench conferences between judge and counsel do not fall under the First Amendment. It falls within the judge’s discretion to deny access to these, and to deny access to the written communications between judge and jury. Id.
The Fifth Circuit has recognized a common-law right of access to courtroom exhibits, but this right is not absolute. Belo Broad. Corp., 654 F.2d at 429.
The decision as to access is one left to the discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Id. Only a severe abuse of that discretion will merit reversal. Id. at 431. The rights of the defendant to a fair trial can trump the common-law right of access to exhibits. Id. Additionally, other factual considerations, such as preferential trial seating provided for journalists, and access to transcripts of tape recordings played for the jury, can be weighed by the court when considering whether the media has been provided adequate access under the common-law right. Id. at 432.
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
The media have standing to challenge an order denying a request to view evidence because the media are the direct targets of the court’s order. Thus, the two requirements for standing have been met: (1) there is a claim of injury in fact; and (2) the interest sought to be protected is within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Gurney, 558 F.2d at 1206.
While many closure orders require hearings and findings by the judge, mere denial of the media’s requests for access to evidence does not require such actions every time. Id. at 1211.
CompareH. Post-trial records
Nothing found specific to the Fifth Circuit.
CompareI. Appellate records
Nothing found specific to the Fifth Circuit.
CompareJ. Other criminal court records issues
Nothing found specific to the Fifth Circuit.
CompareV. Access to civil proceedings
CompareA. In general
The right to public access extends to civil matters, in order to “assure the public that procedural rights are respected and that justice is afforded equally.” B.P. Explorat. & Prod. v. Claimant ID 100246928, 920 F.3d 209, 210 (5th Cir. 2019) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595 (1980) (Brennan, J. concurring)). The issue revolves around public confidence in the judicial system. “Sealing a record undermines that interest, but shutting the courthouse door poses an even greater threat to public confidence in the justice system.” Id. at 211. The Fifth Circuit has not specifically addressed the press and public’s right to attend civil trials, but the presumption is that such proceedings are open, and the Fifth Circuit has noted a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
However, the public’s right to attend trials and the public’s right to know the identity of the parties in civil proceedings are not treated the same. Courts have reasoned that the public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself. Id. Courts have held that the assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name. Id. But see Doe v. Merritt Hosp., L.L.C., 353 F. Supp. 3d 472, 482 (E.D. La. 2018) (holding that the concern of possible future harm to a HIV-affected employment discrimination plaintiff was “outweighed by the public's interest in an open judicial forum and basic fairness to the [defendant’s] employees accused of undertaking discriminatory actions”).
CompareB. Pre-trial proceedings
Nothing found specific to the Fifth Circuit, but many of the holdings relating to criminal trials may be applicable.
CompareC. Trials
The Fifth Circuit has not specifically addressed the press and public’s right to attend civil trials, but the presumption is that such proceedings are open, and the Fifth Circuit has noted a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
CompareD. Post-trial proceedings
Nothing found specific to the Fifth Circuit.
CompareE. Appellate proceedings
The presumption of public access extends to appellate arguments in civil matters. B.P. Expl. & Prod. v. Claimant ID 100246928, 920 F.3d 209, 210, 212 (5th Cir. 2019) (denying the Tampa Bay Buccaneers’ request to seal the courtroom for oral argument of their appeal in the BP oil spill litigation).
In June 2008, the Fifth Circuit began making recordings of oral arguments available on its website.
CompareVI. Access to civil records
CompareA. In general
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
The right of access to judicial records is greater than a right to the information in the records. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). Therefore, merely providing the public with details and information about what transpired in court proceedings or settlements is not equivalent to allowing access to the actual records. Id.
CompareB. Dockets
The Fifth Circuit “repeatedly refuse[s] to [] characterize the public access presumption as ‘strong’ or require a strong showing of proof.” Vantage Health Plan v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448–50 (5th Cir. 2019) (citing United States v. Sealed Search Warrants, 868 F.3d 385, 393–95 (5th Cir. 2017); Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 848 n.4 (5th Cir. 1993); Belo Broad. Corp. v. Clark, 654 F.2d 423, 433–34 (5th Cir. 1981)). Instead, “the decision to seal or unseal records is to be analyzed on a case-by-case basis. Id. (citing Sealed Search Warrants, 868 F.3d at 390).
CompareC. Discovery materials
There is little specific to the Fifth Circuit with respect to discovery materials in civil cases.
CompareD. Pre-trial motions and records
There is little specific to the Fifth Circuit with respect to pre-trial motions and records in civil cases, but Fifth Circuit holdings in criminal cases may be applicable.
CompareE. Trial records
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
In criminal cases, the media has no constitutional right to trial exhibits beyond that enjoyed by the public, Belo Broad. Corp. v. Clark, 654 F.2d 423, 427 (5th Cir. 1981), but the court has not specifically addressed civil trial exhibits.
CompareF. Settlement records
Once a settlement agreement is filed in district court, it becomes a judicial record and thus is presumptively accessible to the media and the public. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993). In certain circumstances, particularly those involving public entities, the process of creating a settlement is itself newsworthy and thus implicates First Amendment concerns. Davis v. Capital City Press, 78 F.3d 920, 929 (5th Cir. 1996).
The right of access to judicial records is greater than a simple right to the information in the records. Van Waeyenberghe, 990 F.2d at 848. Therefore, merely providing the media with details and information about what transpired in court proceedings or settlements is not equivalent to allowing access to the actual records themselves. Id. The subject matter of some cases, however, may present a public interest in accessing the settlement agreement that outweighs the parties’ interests in confidentiality. Urbino v. Associated Bldg. Servs., L.L.C., No. 18-4006 Section: "E" (2), 2019 U.S. Dist. LEXIS 16992, at *2–3 (E. D. La. Feb. 4, 2019) (denying a joint motion to seal an FLSA settlement due to the “strong presumption in favor of keeping the settlement agreements in FLSA wage-settlement cases unsealed and available for public review”).
CompareG. Post-trial records
Nothing found specific to the Fifth Circuit.
CompareH. Appellate records
Nothing found specific to the Fifth Circuit. Although, anecdotally, the Fifth Circuit has received and granted motions to seal briefs in extraordinary circumstances. See B.P. Expl. & Prod. v. Claimant ID 100246928, 920 F.3d 209, 210, 212 (5th Cir. 2019) (noting that “the Buccaneers succeeded in keeping the record and briefs sealed based on its concerns that the amount of revenue it receives from the NFL . . . is proprietary”). And generally, records that have been sealed in the trial court will remain sealed on appeal.
CompareI. Other civil court records issues
Nothing found specific to the Fifth Circuit.
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
The right to a public trial is not limited to issues that arise after a jury is sworn or to times when the jury is present. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984). This right extends at least to those pretrial hearings and other proceedings that are an integral part of the trial, such as jury selection and motions to suppress evidence. Id. Jury selection is a critical part of a trial and should not be considered a preliminary or secondary part for purposes of openness. United States v. Ford, 824 F.2d 1430, 1436 (5th Cir. 1987).
The Fifth Circuit has, however, upheld the right to a closed voir dire. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). But closed voir dire must be rare and only when it has been shown that a particular interest outweighs the value of openness. A court cannot order a closed voir dire without consideration of alternatives to closure. In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990). Furthermore, the Fifth Circuit has held that a court cannot close voir dire only on the expectation that prospective jurors may be less than candid in their responses because of privacy concerns. Id. Rather, a prospective juror must make an affirmative request that he or she be questioned in private. Id. Before closing voir dire, a trial court should first inform the prospective jurors in advance that if any of them wish to be questioned privately they may do so. Transcripts of closed voir dire sessions must be created, with the court then making a determination as to whether portions should be released in full or redacted for public dissemination. Id.
CompareB. Juror identities, questionnaires and other records
The Fifth Circuit has upheld the right to anonymous juries in certain situations, and the First Amendment does not entitle the press to a list of jurors’ names and addresses. United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977). A court may refuse to allow the media to inspect documents not a matter of public record, including records that indicate jurors’ names and addresses. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). Unlike with general court closure orders, a court does not have to make specific findings that support juror anonymity if the reasons are obvious. Id. at 919. However, the use of an anonymous jury should still be viewed as a “drastic measure” to be undertaken only in limited and carefully delineated circumstances, such as the need to ensure against a serious threat to juror safety. United States v. Sanchez, 74 F.3d 562, 563 (5th Cir. 1996).
Factors that may justify use of an anonymous jury include: (1) the defendant’s involvement in organized crime; (2) the defendant’s participation in a group with the capacity to harm jurors; (3) the defendant’s past attempts to interfere with the judicial process; (4) the potential that the defendant will get a long jail sentence or substantial fines if convicted; and (5) extensive publicity that could expose jurors to intimidation or harassment. Id. at 564.
A court’s decision to use an anonymous jury is entitled to significant deference and will be reviewed by appellate courts only for abuse of discretion. United States v. Salvatore, 110 F.3d 1131, 1143 (5th Cir. 1997). But a court must base its decision on more than mere allegations or inferences of potential risk. In certain circumstances, the use of an anonymous jury will be grounds for reversal if it was unnecessary. Sanchez, 74 F.3d at 563.
Pretrial publicity is less likely to be deemed prejudicial to a defendant’s ability to get a fair trial if considerable time has elapsed since the publicity, and if the news reports in question were “factual accounts” and “straight news reports” rather than the “sensational” type that tend to inflame ill will. Willie v. Maggio, 737 F.2d 1372, 1387 (5th Cir. 1984). The constitutional standard of fairness requires only that the accused have a panel of impartial and “indifferent” jurors who base their decision solely on the evidence produced in court; it does not require that jurors be wholly ignorant of the case. Id. It is thus very difficult to establish that pretrial publicity creates a presumption of prejudice, which is confined to those extreme situations where a party can demonstrate inflammatory pretrial publicity that literally saturates the community. Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980).
While a court may order an anonymous jury, a court order that the media not attempt to “circumvent” its anonymous jury order will generally amount to an unlawful prior restraint on the media because it blocks the press from reporting certain kinds of independently gathered stories relating to the trial. Brown, 250 F.3d at 914–15. Prior restraints are disfavored and will be upheld only if the government can establish that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest. Id. at 915. Therefore, while a court can order an anonymous jury, an order that the media not report jurors’ identities should they unearth them through other means would be constitutionally suspect.
The Fifth Circuit has held that a court, with proper justification, may refuse to allow the media to inspect jury records and documents that are not a matter of public record, including jurors’ names and addresses. Id. at 915. Intimidation of venire members and jurors by the press and/or the defendants can be a valid justification for such an order. Id. Although the media generally have a right to publish information that they obtain, they do not have a right of access to government information or sources of information within the government’s control. Id. at 915.
While a denial of access to confidential court information may hamper newsgathering, this burden is outweighed by strong governmental interests in ensuring that jurors are entitled to privacy and protection against harassment, even after their jury duty has ended. Id. at 918. The Fifth Circuit has noted that the judge’s power to prevent harassment and protect juror privacy does not cease when the case ends, and the usefulness of releasing jurors’ names is “highly questionable.” Id. at 919 n.17. Specific findings are not required where the reasons for the court’s decisions are obvious and compelling, and in a highly publicized case, the reasons are obvious. Id. at 919.
When individual voir dire has been closed at the request of a juror, a transcript must be made of the questioning. The judge must then make a determination as to whether to redact portions of the questioning before making the transcript public. In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990).
The First Amendment does guarantee the media a limited right of access to the record of closed proceedings concerning potential jury misconduct. United States v. Edwards, 823 F.2d 111, 118 (5th Cir. 1987).
CompareC. Grand jury proceedings and records
In general, courts have little authority over the proceedings of a grand jury. In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th Cir. 1997).
Under both federal and state law, a general rule of secrecy shrouds the proceedings of grand juries. Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004). Maintaining the confidentiality of grand jury proceedings protects several important interests of the government and private citizens. First, it prevents individuals under potential indictment from fleeing the jurisdiction or tampering with jurors or witnesses appearing before the grand jury. Second, people with information about crimes would be less willing to appear and speak frankly. Third, the rule avoids injuring the reputation of persons accused of a crime whom the grand jury does not indict. And fourth, secrecy encourages grand jurors to investigate suspected crimes without inhibition and to engage in unfettered deliberations. In re Grand Jury Investigation, 610 F.2d 202, 213 (5th Cir. 1980).
However, both federal and state law permit discovery of grand jury material when the party seeking discovery demonstrates a “particularized need” for the material. Shields, 389 F.3d at 147; see also In re Grand Jury Testimony, 832 F.2d 60, 62 (5th Cir. 1987) (stating that grand jury materials can be released where a party demonstrates with particularity a “compelling” necessity for the materials.) The party seeking discovery has the burden of showing (1) that the material is needed to avoid a possible injustice in another judicial proceeding; (2) that the need for disclosure is greater than the need for secrecy; and (3) that its request is structured to cover only the material so needed. Shields, 389 F.3d at 147. A party should also show that the information cannot readily be acquired through some other means. In re Petition for Disclosure of Evidence Taken Before the Special Grand Jury Convened on May 8, 1978, 650 F.2d 599, 600 (5th Cir. 1981). These requirements must be satisfied even if the grand jury whose materials are sought has concluded its operations. United States v. Miramontez, 995 F.2d 56, 58 (5th Cir. 1993). Ordinarily, the media will not be able to obtain grand jury testimony unless it is a party to the case (and even then only in rare circumstances).
The desire to use grand jury testimony to impeach defendants and refresh their recollections in a related civil case has been held to be a “particularized need” sufficient to overcome the presumption of secrecy, Texas v. U.S. Steel Corp., 546 F.2d 626, 631 (5th Cir. 1977), but the party seeking disclosure must first demonstrate a witness’s actual inability to recall or inconsistent testimony in order to overcome the interest in protecting the secrecy of grand jury proceedings, In re Grand Jury Testimony, 832 F.2d at 63. In general, depositions of witnesses must be taken in a civil case before a party can seek the witnesses’ grand jury testimony. Id.
Appellate review of decisions regarding disclosure of grand jury materials applies an abuse of discretion standard. Id. at 62.
The Freedom of Information Act does not include federal courts, so grand jury records cannot be obtained from courts through FOIA requests. U.S. v. Miramontez, 995 F.2d at 59 n.3.
Matters occurring before a grand jury can be disclosed when so directed by a court before or in connection with a judicial proceeding. But the policy of grand jury secrecy must be given great weight. In re Petition for Disclosure of Evidence Taken Before the Special Grand Jury Convened on May 8, 1978, 650 F.2d at 600. Allegations of public interest alone will not usually constitute sufficient need. Id. at 602.
If the media reveals information about secret grand jury proceedings, it is possible for parties to the proceedings to be held in contempt. Importantly, however, this does not apply to witnesses who testify before the grand jury proceedings. In re Grand Jury Investigation, 610 F.2d at 217.
To establish a violation of grand jury secrecy rules based on media reports about grand jury proceedings, a party must show that the news reports contained information about matters occurring before the grand jury which was disclosed by a party to the grand jury proceedings. In re Grand Jury Investigation, 610 F.2d 202, 214 (5th Cir. 1980). “Matters occurring” before the grand jury include not only information drawn from transcripts of grand jury proceedings, but also anything which may reveal what transpired before the grand jury or what will transpire, such as statements which reveal the identity of persons who will be called to testify, or a report that indicates when the grand jury will return an indictment. Id. at 216-17.
However, the disclosure of information obtained from a source independent of the proceedings does not violate the rule, nor does a general statement of opinion about an individual’s criminal liability, even if such statement is based on knowledge of the grand jury proceedings. In re Grand Jury Investigation, 610 F.2d at 217. In order for a party to be held in contempt, the news reports must indicate that the source of the information is one whose disclosure would violate the federal rule of grand jury secrecy, such as a grand juror, an interpreter, a typist transcribing the proceedings, or an attorney for the government. As noted above, the rule does not forbid disclosure by a witness who testifies before the grand jury. Id. However, it is not necessary for the media report to expressly identify the source of the information if the nature of the information disclosed furnishes the connection. Id. at 218.
CompareD. Interviewing jurors
The federal courts have generally disfavored post-verdict interviews of jurors. Haeberle v. Texas Int’l Airlines, 739 F.2d 1019, 1020 (5th Cir. 1984). This disfavor is primarily directed at counsel and not at journalists, since counsel are not seeking interviews in order to serve the public’s right to know. Id. But see Benson v. Tyson Foods, Inc., 889 F.3d 233, 235 (5th Cir. 2018) (arguing that Haberle’s distinction between the First Amendment rights of the press and those of the public at large “finds no support in either constitutional text or precedent,” and further advising district courts to “consider seriously whether there exists any genuine government interest in preventing attorneys from conversing with consenting jurors”). However, the accused’s right to a fair trial and jurors’ interest in privacy and protection from harassment can outweigh the press’s First Amendment rights in certain circumstances. Haeberle, 739 F.2d at 1020.
Jurors, even after completing their service, are entitled to privacy and to protection against harassment. United States v. Harrelson, 713 F.2d 1114, 1116 (5th Cir. 1985). For these and other reasons, the Fifth Circuit has upheld various restrictions on interviewing jurors. Among these are that a court could order jurors not to speak about jury deliberations, United States v. Brown, 250 F.3d 907, 920-21 (5th Cir. 2001); a court could ask jurors if they wished to remain anonymous and instruct them that they were under no obligation to discuss the case with the media, id. at 921; a court could ban the media from repeatedly requesting (“wheedling and importuning”) interviews after a juror had expressed his or her desire not to be interviewed, Harrelson, 713 F.2d at 1117; a court could prohibit media inquiries into the specific vote of any juror other than the juror being interviewed, id.;and a court could forbid counsel from interviewing jurors post-verdict without the court’s permission. Haeberle, 739 F.2d at 1020.
Despite these decisions, not all restrictions on juror interviews are permissible in the Fifth Circuit. Restrictions must be limited in scope. Therefore while, a court could order jurors not to discuss deliberations (deliberations being defined as discussions and debates about the case that occurred within the sanctity of the jury room—United States v. Cleveland, 128 F.3d 267, 270 (5th Cir. 1997))—a court cannot order jurors not to discuss any aspect of the case or the verdict with the media. United States v. Brown, 250 F.3d 907, 920–21 (5th Cir. 2001). Prohibiting any and all discussion would be overbroad, and a violation of the jurors’ and the media’s First Amendment rights, as would an order that prohibits relatives, friends, and associates from talking to the media. In re Express News Corp., 695 F.2d 807, 810 (5th Cir. 1982); cf. Benson, 889 F.3d at 236 (Graves, J., concurring) (arguing that the local rule was “very likely impermissibly overbroad” since the rule “bars all speech on any subject in perpetuity between an attorney and any juror on a case previously tried by that attorney without first seeking leave of court”).
Unlike most trial closure orders, a court does not have to conduct an evidentiary hearing or make fact-findings in order to impose limitations on the media’s ability to question a jury post-verdict. Harrelson, 713 F.2d at 1116. This is because the court considered it relatively obvious that, in particularly newsworthy cases, reporters are persistent in pursuing information regarding the nonpublic portions of legal proceedings. Id.
As for grand jury interviews, the Fifth Circuit has not specifically addressed the question, but the Circuit has repeatedly affirmed the general rule of secrecy for grand jury proceedings. The Fifth Circuit has also noted that it is doubtful that a court should ever order that grand jury members submit to examinations, even in civil cases where it might be of considerable value to one or both of the parties. Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004).
CompareVIII. Proceedings involving minors
CompareA. Delinquency
“Throughout and upon the completion of the juvenile delinquency proceeding, the records shall be safeguarded from disclosure to unauthorized persons.” 18 U.S.C. § 5038. This includes both the name and the picture of the minor. United States v. Doe, 801 F. Supp. 1562, 1566 n.1 (E.D. Tex. 1992). These records may be inspected only by certain individuals and agencies designated by the statute. 15 U.S.C. § 5038.
CompareB. Dependency
Nothing found specific to the Fifth Circuit.
CompareC. Other proceedings involving minors
The Fifth Circuit has noted that the special status and vulnerability of child litigants can be a factor considered in overcoming the general presumption of openness. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981); see also A.L. v. Miss. Dep’t of Child Prot. Servs., No. 1:18-CV-00076-LG-RHW, 2018 U.S. Dist. LEXIS 119590, at *2–3 (S.D. Miss. July 18, 2018) (sealing two photographs of minor plaintiffs in order to protect their identities from the public); C.K. v. Delta State Univ., No. 4:18-CV-060-DMB-JMV, 2018 U.S. Dist. LEXIS 55489, at *2–3 (N.D. Miss. Apr. 2, 2018) (determining that Plaintiff’s status as a minor provided a clear and compelling reason to seal the docket and change the style of the case to reflect only his initials). The Doe v. Stegall case involved the question of whether the name of a minor could be withheld out of concern over reprisals after a parent sued over the perceived endorsement of religion in public schools.
CompareD. Prohibitions on photographing or identifying juveniles
Nothing found specific to the Fifth Circuit.
CompareE. Minor testimony in non-juvenile courts
The Fifth Circuit has held that the goal of protecting the privacy interests and psychological well-being of a minor can be sufficient for closure, particularly if there is evidence that the minor has been suffering from emotional trauma. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006).
Partial closure of the courtroom for the testimony of a minor has also been upheld in the Fifth Circuit with a lesser standard of review. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since an audience remains to ensure the fairness of the proceedings. Therefore, for partial closure a court must only find a “substantial reason” for the closure. Id.
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
Nothing found specific to the Fifth Circuit.
CompareB. Probate
Nothing found specific to the Fifth Circuit.
CompareC. Competency and commitment proceedings
Nothing found specific to the Fifth Circuit.
CompareD. Attorney and judicial discipline
Nothing found specific to the Fifth Circuit.
CompareE. Immigration proceedings
Nothing found specific to the Fifth Circuit.
CompareF. Other proceedings
Nothing found specific to the Fifth Circuit.
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
The Fifth Circuit has held that media organizations have standing to challenge gag orders on third parties because such orders can impede the news agencies’ ability to discover newsworthy information from potential speakers. Davis v. Capital City Press, 78 F.3d 920, 927 (5th Cir. 1996). Furthermore, it is not necessary in every case to demonstrate the existence of a willing speaker in order to establish standing. A willing speaker will often be presumed, else there would be no need for a gag order. Id.
The media does not have standing to challenge closure as a violation of a defendant’s right to a fair trial; that is a right that belongs solely to the defendant. Rovinsky v. McKaskle, 722 F.2d 197, 198 (5th Cir. 1984).
CompareB. Gag orders on the press
A gag order is a prior restraint that bears a heavy presumption against its constitutional validity. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). Prior restraints on the media are constitutionally disfavored nearly to the point of extinction. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). Such restraints on the media will be upheld only if the government can establish that the activity restrained either poses a clear and present danger or a serious or imminent threat to a protected competing interest. Id.
On rare occasions, a gag order may be upheld based on a defendant’s Sixth Amendment right to a fair trial, since this right can trump the media’s First Amendment right of access and openness. McKenzie, 697 F.2d at 1226. In order for a gag order based on the defendant’s right to a fair trial to prevail, a court must determine from the evidence before it (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unconstrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. Id. The trial court must also consider the precise terms of the requested restraining order and craft the order so that it does not suppress more free speech than requested. Id. An order without any findings whatsoever is likely to be overturned.
In determining whether pretrial publicity is a sufficient reason to justify a prior restraint, a court will review (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent threatened danger. Brown, 250 F.3d at 916.
Trial courts should employ methods short of prior restraints if possible, and gag orders on trial participants are preferred to gag orders on the press. United States v. Brown, 218 F.3d 415, 425–26 (5th Cir. 2000).
Change of venue, jury sequestration, ‘searching” voir dire, and “emphatic” jury instructions should be viewed as court tools for ensuring a fair trial that are preferable to a gag order on the press. Id. at 431.
Pretrial publicity is less likely to be deemed inherently prejudicial to a defendant’s ability to get a fair trial if considerable time has elapsed since the public reports, and if the news reports are “factual accounts” and “straight news reports” rather than the sensational type that tend to “inflame ill will.” Willie v. Maggio, 737 F.2d 1372, 1387 (5th Cir. 1984). The constitutional standard of fairness requires only that the accused have a panel of impartial and “indifferent” jurors who base their decision solely on the evidence produced in court; it does not require that the jurors be wholly ignorant of the case. Id
In an appeal of a gag order, the media must show either that it will probably succeed on the merits in its appeal or that it has presented a substantial case on the merits and that the balance of the equities weighs heavily in favor of granting a stay of the order. McKenzie, 697 F.2d at 1226.
CompareC. Gag orders on participants
Intense publicity surrounding a criminal proceeding that amounts to “trial by newspaper” is considered a significant and well-known danger to a fair trial. United States v. Brown, 218 F.3d 415, 423 (5th Cir. 2000). Courts have an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Id. The Fifth Circuit has thus held that in cases of intense media interest, preventing the taint of the jury pool can be a valid justification for a gag order that prohibits parties, lawyers, and potential witnesses from speaking to the media about anything that could interfere with a fair trial or prejudice any defendant, the government or the administration of justice. Id. at 423; see also United States v. Aldawsari, 683 F.3d 660, 666 (5th Cir. 2012) (upholding a district court’s order barring the parties, their representatives, and their attorneys of record from communicating with the news media about the case because of the possibility that extrajudicial commentary could compromise the defendant’s right to a fair trial); Davis v. Capital City Press, 78 F.3d 920, 928 (5th Cir. 1996). Such a gag order would include a ban on making a statement of innocence or a comment on the merits of the case but would not prevent discussions about the general nature of the allegations or defenses, information contained in the public record, scheduling information, any decision or order by the court that is a matter of public record, or the contents of any motion filed. Brown, 218 F.3d at 423.
In the Fifth Circuit there is a clear distinction between gag orders on the press and gag orders on trial participants, and the latter are evaluated under a less stringent standard. Therefore, instead of the “clear and present danger” standard applied to prior restraints on the media, the Fifth Circuit applies the standard that a gag order on participants may be justified if there is a “substantial likelihood of material prejudice” from a trial participant’s extrajudicial comments. Id. at 427. The order must still be narrowly drawn to eliminate only that speech having a meaningful likelihood of materially impairing the court’s ability to conduct a fair trial, and so that it is the least restrictive means to protect the interest. Id. at 429-31.
Change of venue, jury sequestration, ‘searching” voir dire, and “emphatic” jury instructions should be viewed as alternatives to gag orders, but a court does not have to consider and officially make findings regarding each option before imposing a gag order on participants. Id. at 431.
On jurors: A court can order jurors not to speak to anyone about jury deliberations, but likely cannot order jurors not to discuss the case or the verdict itself. United States v. Brown, 250 F.3d 907, 920–21 (5th Cir. 2001). Such an order would be considered overbroad. A court can, however, ask the jurors if they wish to remain anonymous and can instruct jurors that they are under no obligation to discuss the case with anyone. Id. at 921. Protecting jurors from post-verdict harassment and invasion of privacy is a legitimate concern, and thus narrowly tailored restrictions intended to prevent real threats to the administration of justice and subsequent prosecutions can be valid justifications. Id.
A gag order is appealable under the collateral order doctrine since it is (a) conclusive, (b) important and divorced from the merits of the underlying trial, and (c) unreviewable upon conclusion of the trial since a party would be unable to argue that the trial’s outcome was altered because of the order. Brown, 218 F.3d at 420.
CompareD. Interviewing judges
Nothing found specific to the Fifth Circuit.
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
The right to a fair trial is the most common interest cited in opposing a presumption of access. See United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The Fifth Circuit has held that the presumption of openness can be overcome if there is an overriding interest based on court findings that closure is essential to preserve higher values, and so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006).
One such interest is that of privacy. Doe v. Jackson Nat’l Life Ins. Co., 944 F. Supp. 488 (S.D. Miss. 1995), aff’d sub nom., Deramus v. Jackson Nat’l Life Ins. Co., 92 F.3d 274 (5th Cir. 1996). For example, the “inherent privateness” of religious beliefs can contribute to overcome the presumption of openness. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981).
Privacy is also a concern during a juror’s individual voir dire—when the court asks questions of a juror outside the presence of other jurors. This process can be closed at the request of that juror on account of privacy concerns. When this occurs, a transcript must be made of the questioning, and the judge should make a determination as to whether to redact portions of the questioning before making the transcript public. In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990). Also, protecting jurors from harassment and invasion of privacy is a legitimate concern, and thus narrowly tailored restrictions intended to prevent real threats to the administration of justice and subsequent prosecutions can be valid justifications for denial of access. United States v. Brown, 250 F.3d 907, 921 (5th Cir. 2001).
Along the same lines as privacy, the interests of a minor may overcome the presumption of access. For example, in sexual assault cases, protection of a minor’s privacy interests and psychological wellbeing can override the presumption of openness, and therefore closing the courtroom for such testimony will not necessarily violate the Constitution. Hitt, 473 F.3d at 154; see also United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).
Besides privacy, the protection of a confidential government informant may, in certain circumstances, overcome the presumption of openness. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987). Other confidential information includes information such as trade secrets or sensitive business information.
The public and media’s right to know the identity of parties to litigation, while powerful, is not as strong as its right of access to attend, observe, and report on trials. This is because the public right to scrutinize governmental functioning is less hindered by a grant of anonymity to a party than it is by closure of the trial itself. Stegall, 653 F.2d at 185. The Fifth Circuit does not apply a rigid test for party-anonymity, but some factors in cases permitting parties to proceed anonymously include (1) plaintiffs seeking anonymity were suing to challenge governmental activity; (2) prosecution of the suit compelled plaintiffs to disclose information of the utmost intimacy; and/or (3) plaintiffs were compelled to admit theirintention to engage in illegal conduct, thereby risking criminal prosecution. Id. The threat of hostile public reaction to a lawsuit, alone, will rarely warrant anonymity. But threats of violence, in conjunction with other factors (such as the youth of a party) can provide justification for anonymity. The decision will always require a balancing of considerations calling for privacy against the constitutionally-embedded presumption of openness. Id. at 186.
CompareB. Cameras and other technology in the courtroom
While the First Amendment guarantees the press a right of access to attend and observe criminal trials, the Fifth Circuit has held that this does not include a right to televise, record, or otherwise broadcast them. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). Indeed, the federal rules prohibit the taking of photographs and radio broadcasting from the courtroom during a criminal trial. Fed. R Crim. P. 53. But television coverage of a trial does not necessarily violate a defendant’s right to due process. Edwards, 785 F.2d at 1296.
Whether television broadcasting in proceedings other than criminal proceedings will depend on the localrules of the court. For example, in the Eastern District of Louisiana, television broadcasting of federal trials is prohibited by local rule. Id. at 1294. With regard to executions, the Fifth Circuit has held that there is no constitutional right to televise an execution. Garrett v. Estelle, 556 F.2d 1274, 1277 (5th Cir. 1977).
How the Fifth Circuit treats activities such as webcasting, liveblogging, or tweeting is not yet clear as the Fifth Circuit has not given any direction to reporters. But one reporter’s personal experience in the Northern District of Texas is recounted in a New York Times article. Mike Isaac, A Trial and a Twitterstorm: On Live-Tweeting From a Federal Courthouse, N.Y. Times (Jan. 24, 2017), https://www.nytimes.com/2017/01/24/insider/a-trial-and-a-twitterstorm-on-live-tweeting-from-a-federal-courthouse.html.
CompareC. Tips for covering courts in the jurisdiction
Each district court within the Fifth Circuit has court-specific rules. For example, the Northern District of Texas Civil Rule 83.18 specifies that no person “may photograph, electronically record, televise, or broadcast a judicial proceeding.” Below are links to each of the district court’s local rules that contain court-specific guidelines:
If the local rules do not address your concern, calling the chambers of a specific judge is often an easy way to get a question answered. Links to the main court pages or directories are below for easy navigation.
| Louisiana | |
| Eastern | http://www.laed.uscourts.gov/court-information/court-directory |
| Middle | http://www.lamd.uscourts.gov/court-info/court-locations |
| Western | http://www.lawd.uscourts.gov/ |
| Mississippi | |
| Northern | http://www.msnd.uscourts.gov/court-info/court-locations |
| Southern | http://www.mssd.uscourts.gov/ |
| Texas | |
| Eastern | http://www.txed.uscourts.gov/?q=court-info |
| Northern | http://www.txnd.uscourts.gov/court-info |
| Southern | https://www.txs.uscourts.gov/page/district-magistrate-judges-procedures-schedules |
| Western | https://www.txwd.uscourts.gov/ |
Ordering Transcripts: The chart below links to each court’s instructions on how to order transcripts.
Compare