Skip to content
Skip over table of contents to continue reading article

Overview

Open Courts Compendium

Compare

Author

Reporters Committee attorneys authored this chapter with special thanks to legal intern Alexandra Bass.

Last updated June 2021.

Compare

I. Introduction: Access rights in the jurisdiction

Compare

A. The roots of access rights

The First Amendment

The U.S. Supreme Court has consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448  U.S. 555, 573 (1980) (plurality opinion). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though six of the eight sitting justices at the time indicated that the right of public access would also apply to civil trials. Id. at 580 n. 17 (Burger, C.J.) (plurality opinion) (“Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.”); id. at 596 (Brennan, J., concurring) (referring to the value of open proceedings in civil cases); id. at 599 (Stewart, J., concurring) (“[T]he First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.”).

Every federal court of appeals to have considered whether the First Amendment guarantees a qualified right of access to civil trials and to their related proceedings and records has concluded that it does. N.Y.C.L.U. v. N.Y. City Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (citing Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir.1984);. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253–54 (4th Cir.1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983)).

Some circuits have also recognized a constitutional right of access to court records, with one noting that “the public and press have a [F]irst [A]mendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983). When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” also called the “Press-Enterprise test.” The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) (citations omitted).

The Common Law

In addition to the constitutional right – and even where it does not apply – “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, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). Indeed, the Third Circuit found that in both civil and criminal cases “the existence of a common law right of access to … inspect judicial records is beyond dispute.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3rd Cir. 1984). Courts declining to extend a constitutional presumption of access to particular proceedings often likewise conclude that the proceedings are open “by force of tradition.” In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992).

Statutes and Court Rules

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

Compare

B. Overcoming a presumption of openness

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 Co. v. Superior Court 478 U.S. 1, 13-14 (1986); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510-11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest”). The party seeking access restrictions bears the burden of showing the procedure is “strictly and inescapably necessary.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

The common-law right of access generally is less absolute than the constitutional right – at times bowing, for example, to the less-than-compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted). The Supreme Court found it “difficult to distill … a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 598-99.

Courts will consider whether the party seeking to seal court records has shown some countervailing interest that outweighs the strong public interest in access. The U.S. Court of Appeals for the D.C. Circuit, for example, has identified six factors in making this assessment: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property or privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. United States v. Hubbard, 650 F.2d 293, 317–21 (D.C. Cir. 1980).

Compare

C. 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 Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986). Lower courts have specified the procedure that should be followed. In a criminal case, for example:

First, the district court must give the public adequate notice that the closure of a hearing or the sealing of documents may be ordered. In particular, closure motions must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court. Moreover, although individual notice is generally not necessary, when the district court has been made aware of the desire of specific members of the public to be present, reasonable steps to afford them an opportunity to submit their views should be taken before closure. Second, the district court must provide interested persons an opportunity to object to the request before the court ma[kes] its decision. Third, if the district court decides to close a hearing or seal documents, it must state its reasons on the record, supported by specific findings. Its findings must be specific enough to enable the reviewing court to determine whether closure was proper. In addition, the court must state its reasons for rejecting alternatives to closure. 

In re Wash. Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (citations and quotations omitted). Failing to observe the procedural prerequisites to closure constitutes error even if the closure might otherwise be proper, and appellate courts generally will “remand the issue to the district court for a second consideration using correct procedures and correct substantive standards.” Id. at 393.

Compare

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

Compare

A. Media standing to challenge closure

In a Supreme Court concurrence, Justice Powell noted that the public and the press have a right to challenge closure of court records and proceedings, stating that "representatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion.'" Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)). Other courts agree, with the Ninth Circuit finding that “those excluded from the proceeding must be afforded a reasonable opportunity to state their objections.”  United States v. Brooklier, 685 F.2d 1162, 1167‑68 (9th Cir. 1982). Likewise, the Second Circuit in In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir. 1988) found that “news agencies have standing as recipients of speech” to challenge gag orders. Many court rules specify the procedures by which a member of the press can object to closures or move to unseal documents.

Compare

B. Procedure for requesting access in criminal cases

The Supreme Court has declined to specify the proper method for requesting access. Practices vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Pub. Citizen v. Liggett Grp., 858 F.2d 775, 783 (1st Cir. 1988)); see also In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (intervention is the “most appropriate procedural mechanism” for challenging closure orders); Hertz v. Times-World Corp., 528 S.E. 2d 458, 463 (Va. 2000) (mandamus was erroneously granted because intervention provided adequate remedy at law). A minority of courts prefers mandamus – and some have questioned whether the media may properly intervene to request access, especially in criminal trials, with the First Circuit relying on the All Writs Act “because the right of a non-party to intervene in a criminal proceeding is doubtful.” In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (citation omitted).

Many courts, by rule or practice, allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.

Compare

C. Procedure for requesting access in civil matters

The Supreme Court has declined to specify the proper method for requesting access. Jurisdictions vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783 (1st Cir. 1988)); see also In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (intervention is the “most appropriate procedural mechanism” for challenging closure orders); Hertz v. Times-World Corp., 528 S.E. 2d 458, 463 (Va. 2000) (mandamus was erroneously granted because intervention provided adequate remedy at law). A minority of courts prefer mandamus.

Many courts allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.

Compare

D. 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 vary by jurisdiction. But 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.” Grove Fresh Distribs. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994). As the Supreme Court noted in another context, “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

Compare

III. Access to criminal proceedings

Compare

A. In general

The Supreme Court consistently has 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) (recognizing that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602‑03 (1982) (recognizing First Amendment access right and striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 505 (1984) (recognizing constitutional presumption of openness to voir dire proceedings); Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) (recognizing right of access to preliminary hearings); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (same); Waller v. Georgia, 467 U.S. 39, 47 (1984) (recognizing that “any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors”).

Compare

B. Pretrial proceedings

Courts have extended “the First Amendment right of access to preliminary hearings, suppression hearings, bail and detention hearings, competency hearings, and plea hearings. Today, almost all pretrial proceedings are presumptively open.” Dienes, Levine & Lind, Newsgathering and the Law § 3.01[1] (5) (collecting cases).

The Supreme Court has repeatedly recognized the right of access to preliminary hearings in criminal cases. See Press-Enterprise Co. v. Superior Court (), 478 U.S. 1, 13 (1986); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (finding that rule requiring probable cause hearings to be closed is irreconcilable with Press Enterprise II); Waller v. Georgia, 467 U.S. 39, 47 (1984) (finding that “under 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”).

The lower courts have as well. See, e.g., United States v. Criden, 675 F.2d 550, 557 (3d Cir. 1982) (“We believe that, under the reasoning adopted by the Court in Richmond Newspapers, the public has a First Amendment right of access to pretrial suppression, due process, and entrapment hearings”); In re Herald Co., 734 F.2d 93, 99 (2d Cir. 1984) (concluding that “the First Amendment extends some degree of public access to a pretrial suppression hearing”); In re Nat’l Broad. Co., 828 F.2d 340, 345 (6th Cir. 1987) (concluding “that there is a qualified right of access to documents and records that pertain to a proceeding in which one or more parties seek to disqualify a judge for bias pursuant to 28 U.S.C. § 144”); Seattle Times Co. v. District Court, 845 F.2d 1513, 1517 (9th Cir. 1988) (finding that “the press and public have a right of access to pretrial release proceedings and documents filed therein”).

Compare

C. Criminal trials

The constitutional presumption of access extends to trials themselves. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion), the court found that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 60203 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” 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 these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim’s future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences.” Id. at 609 n.25.

Compare

D. Post-trial proceedings

The Supreme Court has not addressed the right of access to post-trial proceedings, though the U.S. Court of Appeals for the Ninth Circuit extended the presumption of access to post-trial proceedings and records because it saw “no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters. The primary justifications for access to criminal proceedings . . . apply with as much force to post-conviction proceedings as to the trial itself.” CBS, Inc. v. U.S. , 765 F.2d 823, 825 (9th Cir. 1985). Other appellate courts followed suit.

In United States v. Soussoudis, 807 F.2d 383, 389 (4th Cir. 1986), for example, the court found that the First Amendment right of access extends to plea hearings and sentencing hearings, noting that “[b]ecause the taking of a guilty plea serves as a substitute for a trial, it may reasonably be treated in the same manner as a trial for First Amendment purposes. Sentencing may also be viewed as within the scope of the criminal trial itself.” The court added that “even if plea hearings and sentencing hearings are not considered a part of the trial itself, they are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public’s First Amendment right of access.”

Compare

E. Appellate proceedings

The U.S. Supreme Court has not addressed directly the issue of access to appellate proceedings. However public access to appellate records extends far back in the nation’s history. In Ex parte Drawbaugh, 2 App. D.C. 404 (1894), the court that would later become the U.S. Court of Appeals for the D.C. Circuit rejected an appellant’s attempt to seal the records in a patent appeal because an “attempt to maintain secrecy, as to the records of this court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access, and to its records, according to long established usage and practice.” Id. at 407–08.

Similarly, in In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition.” And in United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

Compare

IV. Access to criminal court records

Compare

A. In general

The Supreme Court has recognized a qualified common-law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). The U.S. Court of Appeals for the Third Circuit agreed, finding that in both civil and criminal cases “the existence of a common law right of access to … inspect judicial records is beyond dispute.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984).

Many lower courts have recognized a constitutional right to court records as well. For example, the U.S. Court of Appeals for the Second Circuit noted that it was following other circuits in “constru[ing] the constitutional right of access to apply to written documents submitted in connection with judicial proceedings that themselves implicate the right of access.” In re N.Y. Times Co., 828 F.2d 110, 114 (2d Cir. 1987) (citations omitted); see also In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002) (finding that “this constitutional [access] right . . . extends to documents and kindred materials submitted in connection with the prosecution and defense of criminal proceedings”) (quoting Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir. 1989)); Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (finding that “the public and press have a [F]irst [A]mendment right of access to pretrial documents in general”).

Compare

B. Arrest records

This varies by jurisdiction.

Compare

C. 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, with the U.S. Court of Appeals for the Second Circuit ruling that “the press and public possess a qualified First Amendment right of access to docket sheets” in part because “the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”  Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 86, 93 (2d Cir. 2004). Likewise, in United States v. Valenti, the Eleventh Circuit found that the district court’s “maintenance of a dual-docketing system is an unconstitutional infringement on the public and press’s qualified right of access to criminal proceedings.” 987 F.2d 708, 715 (11th Cir. 1993).

The D.C. Circuit has held that although judges do not always rely upon dockets themselves in reaching decisions, dockets are nonetheless judicial records because they are “created and kept [by courts] for the purpose of memorializing or recording . . . matter[s] of legal significance.” In re Leopold to Unseal Certain Elec. Surveillance Applications & Ords., 964 F.3d 1121, 1129 (D.C. Cir. 2020) (citing Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 905 (D.C. Cir. 1996)).

The Fourth Circuit has also acknowledged that the public has a First Amendment right of access to docket sheets in criminal matters. In re State–Record Co., 917 F.2d 124 (4th Cir. 1990) (per curiam) (vacating order sealing docket and remanding, explaining that it could “not understand how the docket entry sheet could be prejudicial” and finding that “[s]uch overbreadth violates one of the cardinal rules that closure orders must be tailored as narrowly as possible”). But the Fourth Circuit has held that pre-indictment investigative matters, such as access orders under the Stored Communications Act, need not be publicly docketed. In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 295 (4th Cir. 2013).

As the Tenth Circuit noted, "federal court cases have recognized that dockets are generally public documents." United States v. Mendoza, 698 F.3d 1303, 1308 (10th Cir. 2012) (collecting cases).

Compare

The Supreme Court has not ruled on the public right of access to applications for search warrants, supporting affidavits, or returns.

Federal appellate courts disagree about whether the public has a right of access to these documents. See, e.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1211 (9th Cir. 1989) (finding that “members of the public have no right of access to search warrant materials while a pre-indictment investigation is under way”); In re Application and Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir. 1991) (holding that “a newspaper has a common law right of access to affidavits supporting search warrants, although not a First Amendment right of access”); In re Search Warrant for Secretarial Area-Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (finding that “the [F]irst [A]mendment right of public access does extend to the documents filed in support of search warrant applications”). However, even courts recognizing a presumption of access to search warrant materials will often find the need to protect the integrity of an ongoing investigation to override the presumption of access. 855 F.2d at 574.

The Supreme Court has not ruled on public access to wiretap materials. The Seventh Circuit noted, however, that the First Amendment permits limiting public access to wiretap materials “unless and until admitted into evidence at a trial or other public proceeding.” United States v. Dorfman, 690 F.2d 1230, 1234 (7th Cir. 1982).

The D.C. Circuit has recognized that electronic surveillance orders and related materials entered with the court are judicial records, and the common-law presumption of access applies to warrants issued under the Stored Communications Act and orders issued under § 2703(d) of that Act. In re Leopold, 964 F.3d 1121, 1131 (D.C. Cir. 2020). The court also held that while Congress displaced the common-law presumption of access with respect to orders issued under the Pen Register Act – which allows the government to collect metadata regarding phone calls, emails, and text messages – courts must still apply a six-factor balancing test to determine whether continued sealing is appropriate, albeit “without a thumb on the scale” in favor of access. Id. at 1130–31.

Compare

E. Discovery materials

Although there is little case law on this topic in the criminal context, in the civil context, the Supreme Court ruled that “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984).

Compare

F. Pretrial motions and records

 The Supreme Court has not ruled on the issue, but the U.S. Court of Appeals for the Ninth Circuit has held that in determining “the [F]irst [A]mendment right of access,” there “is no reason to distinguish between pretrial proceedings and the documents filed in regard to them.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

Federal circuit courts have recognized a right of access to a variety of pretrial documents. Seee.g.United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (finding that “the First Amendment right of access recognized in Richmond Newspapers and the common law right of access . . . extend to bills of particulars because we think them more properly regarded as supplements to the indictment than as the equivalent of civil discovery”);United States v. Anderson, 799 F.2d 1438, 1442 (11th Cir. 1986) (agreeing that indictments are public documents, but “declin[ing] to apply a mechanical rule whereby a bill of particulars is automatically accorded the status of a supplement to an indictment”); Seattle Times Co. v. U.S. District Court, 845 F.2d 1513, 1517 (9th Cir. 1988) (finding that “the press and public have a right of access to pretrial release proceedings and documents filed therein”); United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) (holding that the First Amendment provides a “right of access to suppression hearings and accompanying motions,” but this right “does not extend to the evidence actually ruled inadmissible in such a hearing”); Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) (“In accord with the rulings of our sister Second, Fourth, and Ninth Circuits, we now find that plea agreements have traditionally been open to the public, and public access to them ‘enhances both the basic fairness of the criminal [proceeding] and the appearance of fairness so essential to public confidence in the system.’ Therefore, there is a [F]irst [A]mendment right of access to them.”).

Compare

G. Trial records

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

Federal circuit courts differ on how they interpret the common-law presumption of access to trial records. The Ninth Circuit noted that “[t]wo circuits have adopted tests that contain built-in biases for or against disclosure. The middle-ground stance … requires that the trial court start with ‘a strong presumption’ in favor of access, to be overcome only ‘on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.’” Valley Broad. v. U.S. District Court, 798 F.2d 1289, 1293 (9th Cir. 1986) (citations omitted).

Some lower courts also have recognized a First Amendment presumption of access to documents admitted into evidence and other trial records.  The Fourth Circuit noted that “[i]t is undisputed that there is a right of access to judicial records filed in connection with criminal proceedings.” Although the Supreme Court has stated no more than that this right is grounded in the common law, the Fourth Circuit has explicitly identified the right as arising from the First Amendment. In re Associated Press, 172 F. App’x 1, 3 (4th Cir. 2006) (citations omitted). But see In re Providence J. Co., Inc., 293 F.3d 1, 16 (1st Cir. 2002) (Nixon “did not confer the right to replicate evidentiary materials in the custody of the court …. By affording interested members of the media ample opportunity to see and hear the tapes as they are played for the jury, the court has fulfilled its pertinent First Amendment obligations.”).

Compare

H. Post-trial records

The Supreme Court has not addressed the right of access to post-trial records, though the U.S. Court of Appeals for the Ninth Circuit has extended the First Amendment presumption of access to post-trial proceedings and records because it found “no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters. The primary justifications for access to criminal proceedings . . . apply with as much force to post-conviction proceedings as to the trial itself.” CBS, Inc. v.  U.S. District Court, 765 F.2d 823, 825 (9th Cir. 1985).

Some courts have carved out exceptions, however. The Ninth Circuit wrote that “[o]ur opinion is not to be read to disapprove the practice of keeping presentence reports confidential. We do not reach that issue, for this case is distinguishable. The Federal Rules of Criminal Procedure expressly provide for limited access to information contained in presentence reports.” Id. at 826 (citations omitted).

Compare

I. Appellate records

The U.S. Supreme Court has not addressed the issue.  In In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the U.S. Court of Appeals for the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition.” And in United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

Compare

J. Other criminal court records issues

This will vary by jurisdiction.

Compare

V. Access to civil proceedings

Compare

A. In general

The Supreme Court has not directly addressed whether the public and the press have a constitutional right of access to civil proceedings, though a plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion). And six of the eight sitting justices at the time indicated that the right of public access would also apply to civil trials. Id. at 580 n. 17 (Burger, C.J.)  (“Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.”); id. at 596 (Brennan, J., concurring) (referring to the value of open proceedings in civil cases); id. at 599 (Stewart, J., concurring) (“[T]he First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.”).

Many federal and state courts subsequently have recognized a public right of access to proceedings and documents in civil cases, though they have differed on the origin and scope of the right. See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984) (finding that “the First Amendment does secure a right of access to civil proceedings”); Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir. 1984) (agreeing "with the Third Circuit in Publicker Industries . . . that the First Amendment does secure to the public and to the press a right of access to civil proceedings in accordance with the dicta of the Justices in Richmond Newspapers”); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1984) (finding the First Amendment right of access extends to contempt proceedings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983) (finding that the First Amendment and common law limit judicial discretion to seal documents in civil litigation); Newman v. Graddick, 696 F.2d 796, 801‑03 (11th Cir. 1983) (recognizing a constitutional right of access to proceedings and common-law right of access to documents in civil case involving prison conditions).

A unanimous California Supreme Court found universal support for a constitutional right of access to civil proceedings, saying that “[a]lthough the high court’s opinions in Richmond NewspapersGlobePress-Enterprise I, and Press-Enterprise II all arose in the criminal context, the reasoning of these decisions suggests that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). It added that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” Id. (internal citations omitted). Likewise, the District of Columbia's high court noted that “[n]o court has expressly concluded that the [F]irst [A]mendment does not guarantee some right of access to civil trials.” Mokhiber v. Davis, 537 A.2d 1100, 1107 n.4 (D.C. 1988).

Court rules also mandate openness. For example, Federal Rule of Civil Procedure 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Rule 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.” Many states have similar rules codifying the presumption of access to civil trials.

Compare

B. Pre-trial proceedings

The Supreme Court in 1984 noted that deposition proceedings “are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 389 (1979)). The Court has not directly addressed access to other pretrial civil proceedings, but lower courts have extended the presumption of access to a variety of pretrial civil proceedings.

The U.S. Court of Appeals for the Third Circuit extended the presumption of access to a preliminary injunction hearing in a civil case. Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3rd Cir. 1984). And the Eleventh Circuit recognized a constitutional right of access to pretrial and post-trial proceedings in a civil case dealing with prisoners’ rights because “[t]he reasons for a right of access to the trial in a case of this kind seem to apply equally to proceedings other than the trial itself.” Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983).

Compare

C. Trials

The Supreme Court has not directly addressed this, though, as set forth above, a plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448  U.S. 555, 580 n.17 (1980) (plurality opinion).

Lower courts have extended the presumption of access to civil trials, with the California Supreme Court noting that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Likewise, the District of Columbia's high court noted that “[n]o court has expressly concluded that the [F]irst [A]mendment does not guarantee some right of access to civil trials.” Mokhiber v. Davis, 537 A.2d 1100, 1107 n.4 (D.C. 1988).

Court rules also mandate openness. For example, Federal Rule of Civil Procedure 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Rule 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.” Many states have similar rules codifying the presumption of access to civil trials.

Compare

D. Post-trial proceedings

The Supreme Court has not directly addressed this subject, but lower courts have extended the presumption of access to post-trial civil proceedings. In Newman v. Graddick, for example, the U.S. Court  of Appeals for the Eleventh Circuit recognized a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights. 696 F.2d 796, 801 (11th Cir. 1983).

Compare

E. Appellate proceedings

The U.S. Supreme Court has not addressed the issue. In In re Krynicki, the U.S. Court of Appeals for the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition.” 983 F.2d 74, 75 (7th Cir. 1992) (Easterbrook, Cir. J.). And in United States v. Moussaoui, the Fourth Circuit recognized that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.” 65 F. App’x 881, 890 (4th Cir. 2003).

Compare

VI. Access to civil records

Compare

A. In general

As the Supreme Court held, “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, Inc., 435 U.S. 589, 597 (1978).

The U.S. Court of Appeals for the Third Circuit has held that in both civil and criminal cases “the existence of a common law right of access to . . . inspect judicial records is beyond dispute.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3rd Cir. 1984); see also Newman v. Graddick, 696 F.2d 796, 801‑03 (11th Cir. 1983) (constitutional right of access to proceedings and common-law right of access to documents in civil case involving prison conditions).

Some lower courts also have recognized a constitutional right of access to proceedings and documents in civil cases. The Sixth Circuit, for example, found that the First Amendment and common law limit judicial discretion to seal documents in civil litigation. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983).

Compare

B. Dockets

The Supreme Court has not ruled on whether the constitutional presumption of access applies to civil or criminal court dockets. However, federal appellate courts have generally recognized that the right does attach.

The Second Circuit, for example, explained that “the press and public possess a qualified First Amendment right of access to docket sheets” in part because “the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”  Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 86, 93 (2d Cir. 2004); see also Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (recognizing that "docket sheets are public records of which the court could take judicial notice"); Nunez v. Pachman, 578 F.3d 228, 230 (3d Cir. 2009) (noting that a New Jersey statute requires “expungement of a criminal record from all public documents, including police blotters and court dockets”).

Additionally, federal court dockets are publicly available through the Public Access to Court Electronic Records (“PACER”) service.

 

Compare

C. Discovery materials

In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court ruled that “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.”

Though that case dealt with the ability of a party to release information obtained in discovery, other courts have cited it in approving protective orders keeping discovery material confidential under Rule 26(c) of the Federal Rules of Civil Procedure if a party can show “good cause” – for example, protecting a trade secret or other confidential information. See, e.g., In re Alexander Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987) (newspaper “possess[ed] no First Amendment rights to the protected information which override the provisions of Fed. R. Civ. P. 26(c)” because “[t]he discovery process, as a ‘matter of legislative grace,’ is a statutorily created forum not traditionally open to the public”) (quoting Rhinehart).

However, the Sixth Circuit Court of Appeals has held that a protective order was invalid where it barred public entities from sharing opioid data with the public and press that the public entities had received from the federal government through discovery. In re Nat’l Prescription Opiate Litig., 927 F.3d 919 (6th Cir. 2019).

Once discovery documents are filed in court, the analysis changes. Thus, in Leucadia, v. Applied Extrusion Technologies, the Third Circuit found that “there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not, but no such right as to discovery motions and their supporting documents.” 998 F.2d 157, 165 (3rd Cir. 1993). And in Joy v. North, the Second Circuit agreed, noting that “[a]n adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny. . . . Indeed, any other rule might well create serious constitutional issues.” 692 F.2d 880, 893 (2nd Cir. 1982)

Compare

D. Pre-trial motions and records

The Supreme Court has not directly addressed the presumption of access to pretrial records in civil cases, but the U.S. Court of Appeals for the Ninth Circuit noted that “the public and press have a [F]irst [A]mendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983). Likewise, in Under Seal v. Under Seal, 27 F.3d 564, 564 (4th Cir. 1994) (unpublished), the Fourth Circuit found that a lower court acted within its discretion in “refusing to impose a permanent seal on a qui tam complaint” in part because of the “long-established common law right of access to judicial records filed in court.” And in Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir. 1984), the Third Circuit found that “[i]n order for a reviewing court to uphold the trial court’s decision to exclude the public from proceedings or transcripts of proceedings, the record must demonstrate ‘an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” (citation omitted).

Dispositive motions and records

Lower courts have been particularly likely to recognize a right of access to court records related to dispositive motions – such as a motion to dismiss or a summary judgment motion. In Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 164 (3d Cir. 1993), for example, the Third Circuit found “a presumptive right of public access to pretrial motions of a non-discovery nature, whether preliminary or dispositive, and the material filed in connection therewith.” Likewise, in Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988), the Fourth Circuit recognized a constitutional right of access to “documents filed in connection with a summary judgment motion in a civil case, provided that the documents “play a role in the adjudicative process or adjudicate substantive rights.” In re U.S. for an Or. Pursuant to 18 . U.S.C. Sec. 2703(D), 707 F.3d 283, 290 (4th Cir. 2013). And in In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1309 (7th Cir. 1984), the Seventh Circuit recognized a presumption of access to evidence supporting a dispositive motion in a civil case.

Compare

E. Trial records

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). The Supreme Court has not addressed the constitutional presumption in civil cases, though the U.S. Court of Appeals for the First Circuit noted that “[t]he presumption that the public has a right to see and copy judicial records attaches to those documents which properly come before the court in the course of an adjudicatory proceeding and which are relevant to the adjudication.” F.T.C. v. Standard Fin. Mngmt. Corp., 830 F.2d 404, 412-13 (1st Cir. 1987). The Third Circuit has also held “that ‘there is a strong presumption that material introduced into evidence at trial should be made’ available for public access.” Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988) (citations omitted).

Compare

F. Settlement records

The Supreme Court has not addressed the issue, though lower courts have distinguished between settlement agreements that are “filed with, interpreted or enforced by the district court” and those that are not. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994). In Pansy case, the settlement agreement “was never filed with, interpreted or enforced by the district court," so the court held that there was no right of access to it. But the court contrasted that case with another where “we found that the settlement agreement was a judicial record because it had been filed with and enforced by the district court.” Id. (citing Bank of Am. Nat’l Trust and Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986)).

The Fifth Circuit reversed and vacated a lower court’s order sealing a court recording of a post-settlement conference meeting where the settlement amount was read into the court record, as well as sealed minutes regarding the meeting. A.J.W. v. Ackal, 954 F.3d 216, 225–26 (5th Cir. 2020). The court noted that the settlement agreement involved "public officials or parties of a public nature" and concerned matters of "legitimate public concern." Id. at 232.

Compare

G. Post-trial records

The Supreme Court has not directly addressed this subject, but it has noted that “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, Inc., 435 U.S. 589, 597 (1978).

Compare

H. Appellate records

The Supreme Court has not addressed the issue, but the Seventh Circuit noted that parties to a civil appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition.” In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992).

Compare

I. Other civil court records issues

This will vary by jurisdiction.

Compare

VII. Jury and grand jury access

Compare

A. Access to voir dire

The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984). Despite the agreement of the parties, the Supreme Court found the closure unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505. A state appellate court applied the same standards to closure of post-trial civil voir dire. Barber v. Shop-Rite of Englewood & Associates, Inc., 923 A.2d 286, 293 (N.J. Super. App. Div. 2007).

Federal appellate courts have made clear that a generalized interest in juror privacy is insufficient to close voir dire. In In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990), for example, the court noted that “the better practice is for the district court, rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.”

And in United States v. Brooklier, 685 F.2d 1162, 1169 (9th Cir. 1982), the court rejected the concern that jurors “might be less candid if questioned in public” because “if this general theory of potential prejudice were accepted as sufficient justification for closure without the necessity for finding potential prejudice based upon the circumstances of the particular case, all testimony could be taken in secret.”

Compare

B. Juror identities, questionnaires and other records

Anonymous Juries

 “Most federal and state courts which have addressed this issue have articulated a limited or qualified right” to juror names and addresses, “premised on the Press-Enterprise rationale that openness in all aspects of our justice system promotes fairness to litigants and promotes public faith in our jurisprudence.” In re Disclosure of Juror Names and Addresses, 592 N.W.2d 798, 799 (Mich. App. 1999).

In In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. 1990), the court found that “[k]nowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system.”

The court in United States v. Wecht, 537 F.3d 222, 239-40 (3rd Cir. 2008), found that “a presumption of openness exists at the latest at the time of the swearing and empanelment of the jury” and added that although press coverage during trial “might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process.”

In addition, the Jury Selection and Service Act of 1968, 28 U.S.C. Section 1863(b)(7), provides for the disclosure of juror names once the jurors have been summoned and either appeared or failed to appear, unless secrecy is in the “interest of justice.” The First Circuit interpreted “interest of justice” narrowly, as “a finding of exceptional circumstances peculiar to the case” such as “a credible threat of jury tampering, a risk of personal harm to individual jurors, and other evils affecting the administration of justice, but [not] the mere personal preferences or views of the judge or jurors.” In re Globe Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990).

Most federal appellate courts have based the decision for an anonymous jury on some combination of the following five factors: (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. See, e.g., United States v. Sanchez, 74 F.3d 562, 564 (5th Cir. 1996) (citing cases).

Jury records

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

The Third Circuit expanded on this in United States v. Antar, 38 F.3d 1348, 1360 (3rd Cir. 1994), noting “[i]t would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?” In addition to the First Amendment access right, the court found that “the transcript at issue is a public judicial document, covered by a presumptive right of access” under the common law. Id. at 1360 (citing Nixon v. Warner Commc'ns, Inc., 435  U.S. 589, 597 (1978)).

The Supreme Court has not addressed whether jury questionnaires are subject to the same presumption of openness as is voir dire, but the Ohio Supreme Court reasoned that “[t]he fact that a lawyer elicits juror responses from written questions rather than oral questions has no bearing on whether the responses are considered in accepting or rejecting a juror.” State ex rel. Beacon Journal Publ'g v. Bond, 781 N.E.2d 180, 188 (Ohio 2002). The court added that “virtually every court having occasion to address this issue has concluded that such questionnaires are part of voir dire and thus subject to a presumption of openness.” Id. at 188 & n.3 (collecting cases).

Courts may – and sometimes must under local rules – redact highly personal information such as a Social Security numbers or telephone numbers that do “nothing to further the objectives underlying the presumption of openness.” Id. at 195.

The Fourth Circuit has similarly recognized a right of access to jury listsIn re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988).

Compare

C. Grand jury proceedings and records

Grand jury proceedings

“Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.” Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979). Courts applying the Press-Enterprise test have made clear that there is no First Amendment right of public access to grand jury proceedings.  For example, the court in United States v. Smith, 123 F.3d 140, 148 (3d Cir. 1997), found that “grand jury proceedings are not subject to a First Amendment right of access under the [Press-Enterprise] test of ‘experience and logic.’” Participants, except witnesses, generally are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.

The Federal Rules also provide: "Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury." Fed. R. Crim. P. 6(e)(5). Such ancillary proceedings often involve matters such as motions to quash grand jury subpoenas, motions requesting immunity from prosecution and motions to compel testimony. If a court “can allow some public access without risking disclosure of grand jury matters . . . Rule 6(e)(5) contemplates that this shall be done.” In re Dow Jones & Co., 142 F.3d 496, 502 (D.C. Cir. 1998).

Exceptions to this secrecy exist in some states. California Penal Code Section 939.1, for example, provides that where the court “finds that the subject matter of the investigation affects the general public welfare” it “may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public.”

Grand Jury Records

Records of federal grand jury proceedings remain confidential “to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.” Fed. R. Civ. P. 6(e)(6). It is left to the court to determine when to release such records, and the Third Circuit noted that there is no presumptive First Amendment or common law right of access to court documents involving materials presented before a grand jury. United States v. Smith, 123 F.3d 140, 143 (3d Cir. 1997). Access to state grand jury transcripts varies. California Penal Code Section 938.1, for example, provides that the grand jury “transcript shall not be open to the public until 10 days after its delivery to the defendant or the defendant’s attorney,” but “[t]hereafter the transcript shall be open to the public unless the court orders otherwise.”

The federal circuits are split on whether federal courts have inherent authority to disclose historic grand jury records.  Compare McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019) (finding that courts lack such inherent authority) and Pitch v. United States, 953 F.3d 1226 (11th Cir. 2020) (en banc) (same) with Carlson v. United States, 837 F.3d 753 (7th Cir. 2016) (recognizing courts’ authority to release grand jury records) and  In re Petition of Craig, 131 F.3d 99, 106 (2d Cir. 1997) (same).

Compare

D. Interviewing jurors

Petit jurors. The court’s interest in the administration of justice generally trumps any speech interests during trial, and courts have the authority to prevent the press from interviewing jurors about the proceedings. For example, the court in In re Stone, 703 P.2d 1319, 1322 (Colo. App. 1985), held that “once the trial process had begun, [the media’s] First Amendment rights did not extend to permit communication with prospective jurors who had been admonished not to discuss the pending case.” But “the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial.” Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986).

Post-verdict limitations on interviewing jurors are presumptively invalid prior restraints on speech, and the party seeking a no-contact order “must show that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest; the restraint must be narrowly drawn and no reasonable alternatives, having a lesser impact on First Amendment freedoms, must be available.” United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978) (internal citations omitted).

Courts have occasionally approved narrowly tailored orders in unusual cases, especially limitations on repeated requests for interviews or discussions of jury deliberations or other juror’s votes. The court in Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986), for example, held that a trial court could permissibly tell “jurors not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room.” And in United States v. Harrelson, 713 F.2d 1114, 1118 (5th Cir. 1983), the court upheld an order that prohibited repeated requests for interviews or inquiries “into the specific vote of any juror other than the juror being interviewed.” The court is also free to instruct them that “[a] juror may speak or remain silent as he desires.” United States v. Sherman, 581 F.2d 1358, 1361, 1362 (9th Cir. 1978).

Grand jurors. The rule governing federal grand jury secrecy, Federal Rule of Criminal Procedure 6(e), places no restriction on witnesses. These rules recognize the Supreme Court’s admonition in Butterworth v. Smith, 494 U.S. 624, 626 (1990), that witnesses have a First Amendment right to publish the details of their grand jury testimony. In that case, the Court held that “insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment,” reasoning that “the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent’s First Amendment right to make a truthful statement of information he acquired on his own.” Id. at 626, 636.

Some courts, however, have narrowly interpreted Butterworth to permit grand jury witnesses to divulge only what they knew before they testified, drawing a line “between information the witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process.” Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003).

Compare

VIII. Proceedings involving minors

Compare

A. Delinquency

The Supreme Court has not recognized a right of access to juvenile proceedings or records. In an early case, In re Gault, 387 U.S. 1, 25 (1967), the Court found that “[t]here is no reason why, consistently with due process, a state cannot . . . provide . . . for the confidentiality of records of police contacts and court action relating to juveniles.” Jurisdictions vary widely in allowing access to juvenile delinquency proceedings. However, the Third Circuit suggested that under some circumstances “an across-the-board ban on access to juvenile proceedings . . . would pose a substantial constitutional issue.” United States v. A.D., 28 F.3d 1353, 1358 (3d Cir. 1994).

Compare

B. Dependency

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

Compare

C. Other proceedings involving minors

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

Compare

D. Prohibitions on photographing or identifying juveniles

 Even where juvenile proceedings are closed, the Supreme Court has made clear that a court may not “punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.” Smith v. Daily Mail Publ’g Co., 443 U.S.97, 105-06 (1979). In Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 308 (1977), the Court likewise reversed an order that “enjoined members of the news media from ‘publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor child’ in connection with a juvenile proceeding involving that child then pending in that court.”

Compare

E. Minor testimony in non-juvenile courts

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

Compare

IX. Special proceedings

Compare

A. Tribal Courts in the jurisdiction

The Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that “[n]o Indian tribe in exercising powers of self-government shall . . . make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances.” 25 U.S.C. §1302. However, tribal courts interpret the ICRA in a variety of ways, and tribes retain the right to exclude nonmember journalists from tribal property. Read the Reporters Committee's Press Freedom on Tribal Lands guide.

Compare

B. Probate

The Supreme Court has not addressed whether probate records are presumptively open, but lower courts have extended a presumption of access. For example, the court in In re Estate of Campbell, 106 P.3d 1096, 1105 (Haw. 2005), held that “[a]lthough we have never expressly held that probate proceedings are accompanied by a presumption of openness, the reasons underlying openness in the criminal context . . . are equally compelling in the civil context, including probate proceedings.” And the court in Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 376 (1998) agreed, finding that ”[p]robate proceedings … are not closed proceedings.”

Compare

C. Competency and commitment proceedings

Compare

D. Attorney and judicial discipline

This will vary by jurisdiction.

Compare

E. Immigration proceedings

The Supreme Court has not addressed the issue, and lower courts are split on whether immigration proceedings are presumptively open. For example, the court in Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002) ruled that “[u]nder the two-part ‘experience and logic’ test from Richmond Newspapers, we conclude that there is a First Amendment right of access to deportation proceedings. Deportation hearings, and similar proceedings, have traditionally been open to the public, and openness undoubtedly plays a significant positive role in this process.” But the Third Circuit in North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 201 (3d Cir. 2002), found itself “in disagreement with the Sixth Circuit. In our view, the tradition of openness of deportation proceedings does not meet the standard required by Richmond Newspapers, or even its Third Circuit progeny.”

Compare

F. Other proceedings

This will vary by jurisdiction, though some courts have held that arbitration awards and records filed with the court are presumptively open court documents. For example, the Sixth Circuit held that “settlement agreements and arbitrations are private documents subject to a right of access only when filed in the court record.” United States v. Miami Univ., 294 F.3d 797, 822-23 (6th Cir. 2002) (citing Jessup v. Luther, 277 F.3d 926, 928-29 (7th Cir. 2002)).

False Claims Act Proceedings 

The False Claims Act, 31 U.S.C. § 3730(b), allows individuals to bring qui tam actions on behalf of the government. The statute provides that “[t]he complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” Still, the statute contemplates that the suits will eventually become public. In Under Seal v. Under Seal, 27 F.3d 564, 564 (4th Cir. 1994) (unpublished), the Fourth Circuit found that a trial court acted within its discretion in “refusing to impose a permanent seal on a qui tam complaint” in part because of the “long-established common law right of access to judicial records filed in court.”

Compare

X. Restrictions on participants in litigation

Compare

A. Media standing to challenge third-party gag orders

The Supreme Court has not addressed the issue, but lower courts have found that media organizations have standing to challenge gag orders on third parties. Thus, the court in CBS, Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975), was “not persuaded by the argument that petitioner lacks standing because it is not a party to the civil litigation. The fact remains that its ability to gather the news concerning the trial is directly impaired or curtailed. The protected right to publish the news would be of little value in the absence of sources from which to obtain it.” Likewise, the court in In re Dow Jones & Co., Inc., 842 F.2d 603, 607-08 (2nd Cir. 1988), found that “news agencies have standing as recipients of speech to prosecute this appeal,” in part because the record showed they were “potential recipients of speech.”

Compare

B. Gag orders on the press

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

Indeed, courts have refused to gag coverage of court proceedings even when a media organization is a party to the underlying case. The court in Freedom Communications v. Superior Court, 167 Cal. App. 4th 150, 152 (2008), thus overturned “an order enjoining [a media company] from reporting on trial testimony in a case in which it is the defendant.” But in Seattle Times Company v. Rhinehart, 467 U.S.20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”

Compare

C. Gag orders on participants

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

The Supreme Court has not addressed proper standard for a gag order to issue on trial participants in general, and jurisdictions have adopted several different standards. For example, the Ninth Circuit held that in order to gag a criminal trial participant, a court must find “that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest; (2) the order is narrowly drawn; and (3) less restrictive alternatives are not available.” Levine v. District Court, 764 F.2d 590, 595 (9th Cir. 1985) (citations omitted).

The Fourth Circuit has held that gag orders must survive strict scrutiny,  supported by reasoning that is “specific enough” to enable appellate review. In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018).

Compare

D. Interviewing judges

This will vary by jurisdiction and judge.

Compare

XI. Other issues

Compare

A. Interests often cited in opposing a presumption of access

Even where a court finds a constitutional presumption of access to proceedings or records, that presumption can be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at 510.

Privacy

Privacy rights can limit the presumptive right of access to judicial records where “specific, severe harm” would result from disclosure.  Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1180 (6th Cir. 1983); see also Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (protective orders for discovery materials); In Re Knoxville News-Sentinel Co., Inc., 723 F.2d 470 (6th Cir. 1983) (personal financial records of innocent third parties); Megapulse Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) (trade secrets); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (national security secrets); Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731 (1888) (libelous statements); In Re Caswell, 18 R.I. 835, 29 A. 259 (1893) (details of a divorce).” State v. Cottman Transmission, 542 A.2d 859, 864 (Md. App. 1988).

National Security

Courts have closed proceedings in whole or in part citing national security. In M.K.B. v. Warden, 540 U.S. 1213 (2004), for example, an Algerian-born Florida resident named Mohamed K. Bellahouel was secretly jailed by U.S. authorities for five months between late 2001 and early 2002. Bellahouel filed a habeas corpus petition challenging his captivity, but the courts kept the case entirely secret. Twenty-three media and public interest organizations asked to intervene in the case in order to challenge the sealing of Supreme Court records. But the Court denied Bellahouel’s petition for review, denied the news media’s motion to intervene, and even allowed the government to file a completely secret brief, all without comment.

Trade Secrets and Proprietary Business Information

Parties sometimes claim secrecy is necessary to protect trade secrets or sensitive business information.  See, e.g., United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (“[A] proprietary interest in a document, in combination with the privacy interests implicated by the facts and circumstances of the seizure, may give rise to a protectable interest in preventing indiscriminate public access to the records of which the document has become a part.”); see also Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014) (reasoning that a corporation may possess a strong interest in preserving the confidentiality of its proprietary and trade-secret information, which in turn may justify partial sealing of court records).

Compare

B. Cameras and other technology in the courtroom

Constitutional concerns neither mandate, nor prohibit, televising of trials. The Supreme Court ruled in 1978 that “there is no constitutional right to have [live witness] testimony recorded and broadcast. . . . Nor does the Sixth Amendment require that the trial – or any part of it – be broadcast live or on tape to the public.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978). But in Chandler v. Florida, 449 U.S. 560, 583 (1981), the Court confirmed that “the Constitution does not prohibit a state from experimenting with” cameras in the courtroom, and all states have done so to one extent or another. Jurisdictions vary widely, and the issue is governed by state law rather than a constitutional access right.

Judges often rely on Standard 8-3.8 of the American Bar Association’s Criminal Justice Section Standards. It provides that “under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings . . . consistent with the right to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract or otherwise adversely affect witnesses or other trial participants, and will not otherwise interfere with the administration of justice.”

In federal criminal trials, Federal Rule of Criminal Procedure 53 provides that generally “the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Some federal districts allow broadcasting in civil cases. See S.D.N.Y. R. 1.8; E.D.N.Y. R. 1.8. But others follow the admonition of the Judicial Conference that “it would not be appropriate to require . . . non-ceremonial proceedings to be subject to media broadcasting.” In re Sony BMG Music Entmt., 564 F.3d 1, 7 (1st Cir. 2009) (quoting Guide to Judiciary Policies and Procedures, Vol. 1, Ch. 3, Pt. E.4., in overturning decision of district court to allow webcast of hearing).

The Judicial Conference allows federal appellate courts to permit cameras in appellate arguments if they choose to do so. The Second, Third, and Ninth Circuits have voted to allow recording of some oral arguments.

Trial courts increasingly also allow live-blogging or tweeting of proceedings. See Ahnalese Rushmann, Courtroom coverage in 140 characters, 33 News Med. & L. 2 at 28. These rules vary between (and often within) jurisdictions.

Compare

C. Tips for covering courts in the jurisdiction

This will vary by jurisdiction.

Compare