Media coalition: Supreme Court should rule that First Amendment right of access applies to judicial records in criminal cases

Editor’s note: The Supreme Court has denied the Colorado Independent’s cert petition on February 19, 2019.

Staff Attorney Caitlin Vogus said, “We’re disappointed the Supreme Court has denied the Colorado Independent’s request to review the Colorado Supreme Court’s decision denying it access to certain criminal court records. Access to criminal court records by the news media plays a central role in ensuring the accountability of the court system and public trust in the judiciary. The Colorado Supreme Court’s decision is an unfortunate outlier that we hope will be corrected by legislation or future holdings of the Court.”

Many important stories have only been possible because people have used the First Amendment right to access documents in criminal cases.

Court records were crucial in this Pulitzer Prize-winning investigation into the corruption of the Virgin Islands’ criminal justice system by journalists Melvin Claxton. Similarly, in the podcast Serial, reporters used records entered into evidence, witness statements, court transcripts, and party disclosure statements to help reveal serious issues in the case of a man convicted of murdering his ex-girlfriend. And in an examination of the “Central Park Five” trial, documentarians Ken Burns, Sarah Burns, and David McMahon relied on court documents to shed light on how the criminal justice system allowed five innocent men to be imprisoned.

However, in response to The Colorado Independent’s request to unseal documents related to allegations of prosecutorial misconduct in a murder case, the Colorado Supreme Court ruled that there is no First Amendment qualified right of access to court documents in criminal cases. The Colorado Independent has asked the U.S. Supreme Court to grant review of the case and then reverse that ruling, and the Reporters Committee has filed a friend-of-the-court brief on behalf of a media coalition urging the Court to do so.

The Supreme Court has repeatedly held that there is a First Amendment right of access to judicial proceedings in criminal cases — like trials, jury selection, and pre-trial hearings — and to the transcripts of criminal proceedings. It has also recognized the news media’s role as the primary conduit through which the public accesses court proceedings.

While the Supreme Court hasn’t addressed whether the First Amendment right of access also specifically applies to criminal court records (other than transcripts), every federal circuit court of appeals that has considered this question has ruled that it does.

“It is only through such access that the media can report on the workings of the criminal justice system both in individual cases and at a system-wide level,” the Reporters Committee and 47 organizations wrote in a friend-of-the-court brief filed Oct. 26. “Among other things, access to court records can shed light on past cases that inform the public about the history of our nation’s courts and development of important jurisprudence.”

By declining to recognize the public’s right to court documents in criminal cases, the Colorado Supreme Court “jeopardizes the media’s ability to bring accurate and detailed reporting to the public” — information that helps people understand what is happening in criminal cases and hold the judicial system accountable. Without the ability to rely on the news media to keep them informed, many would not be able to follow the goings-on of court cases.

This lack of access to documents has the potential to erode public confidence in the judicial process and could leave the court system more open to abuses of power, the coalition argues. It could also force journalists to rely on parties with inherent biases — such as attorneys, law enforcement, plaintiffs, and defendants — for information about cases.

Read the full brief here.