The standard for access

From the Summer 2009 issue of The News Media & The Law, page 5.

The Supreme Court has carved out and refined a First Amendment-based public right of access to criminal cases where the nation’s “experience” and “logic,” or the good health of the system, favor openness.

In its 1980 decision in Richmond Newspapers Inc. v. Virginia, the Court found a broad range of values in open courtrooms, and threats where justice is handled in secret. Under a closed system, the Court said, the public is denied the cathartic experience of knowing how a case has been resolved, and hampered in its ability to discuss government affairs. Under an open system, the public places a check on corruption in the judicial system, and all players — lawyers, witnesses and judges — are more likely to play their roles dutifully.

Two years later, in Globe Newspaper Co. v. Superior Court, the Court began to pare down the meaning of that First Amendment right. Striking down a state law that mandated courtroom closure when a child victim’s testimony would be heard in a sex abuse case, the Court framed a test for closure: The party seeking to bar the public must show that denial of access serves a compelling interest, and that the denial of access is no broader than necessary to serve that interest.

From Globe through the 1986 case Press-Enterprise Co. v. Superior Court, the Court determined that a wide spectrum of criminal proceedings are presumptively open — starting with jury selection and preliminary hearings. The Press-Enterprise decision — actually the second access decision involving the Riverside, Calif., newspaper and thus commonly known as “Press-Enterprise II” — determined that any aspect of criminal proceedings would be presumptively open if the “experience and logic” of access supported openness.

Courts would look at the history of public access to the particular type or stage of proceeding to determine if there was “experience” with openness, and would examine the risks and benefits of access to decide the “logic” of allowing that openness.

That presumption could be overcome only where a judge found an overriding interest in favor of closure. Even then, the Court said, closure must be “narrowly tailored” and deemed “essential to preserve higher values.”

The Court has never explicitly extended this articulation of a First Amendment-based right of access to the civil arena. But in many areas, the lower courts have.