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.

Neither the Supreme Court nor the Tenth Circuit have directly addressed whether constitutional access rights extend to civil trials. However, a Supreme Court 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).

In Wilson v. American Motors Corp., the Eleventh Circuit recognized that "absent some exceptional circumstances, trials in civil cases are public proceedings. 759 F.2d 1568, 1570 (11th Cir. 1985); see also Deman Data Sys. v. Schessel, No. 8:12–cv–2580–T–24 EAJ, 2017 WL 1331377, *1 (M.D. Fla. Apr. 11, 2017). Similarly, in Kearney v. Auto-Owners Insurance Company, a district court in the Eleventh Circuit emphasized that "the operation of the courts and the judicial conduct of judges are matters of the utmost public concern and reaffirmed the holding in American Motors Corp. that "absent some exceptional circumstances, trials are public proceedings." No. 8:06–cv–00595–T–24 TGW, 2009 WL 10664317, *1-2 (M.D. Fla. Sept. 8, 2009) (citing Am. Motors Corp., 759 F.2d at 1570).

The court in American Motors Corp. provided a caveat to this general rule: "we do not hold that every hearing, deposition, conference or even trial of this kind must be open to the public." 759 F.2d at 1571. Rather, if the court attempts to deny access or inhibit disclosure of information, "it must be shown that denial is necessitated by a compelling governmental interest, and is narrowly tailored to that interest.”  Id. (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606­–607 (1982)).

It is well established that the public has a right to attend civil trials and to access information presented at trial.  See Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993) (“[O]nly the most compelling showing can justify post-trial restriction on disclosure of testimony or documents actually introduced at trial.”).  The public has a “presumptively paramount right . . . to know” the content of judicial records in civil cases, which may be overcome for “only the most compelling reasons.”  Federal Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); In re Providence Journal Co., Inc., 293 F.3d 1, 13, n.5 (1st Cir. 2002) (“[T]he common-law right of access extends to judicial records in civil proceedings.”); cf Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion) (“[H]istorically both civil and criminal trials have been presumptively open.”).

Court rules also mandate openness.  For example, Fed. R. Civ. Proc. 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. Proc. 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.

In Westmoreland v. CBS, Inc., 752 F.2d 16, 22–23 (2d Cir.1984), the Second Circuit recognized a First Amendment right of public access to civil trials.  See also Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013) ("We have extended that principle and held that the First Amendment right applies ‘to civil trials and to their related proceedings and records.’") (quoting N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. (“NYCTA”), 684 F.3d 286, 298 (2d Cir. 2012)).  The Second Circuit has explained that the "First Amendment does not distinguish between criminal and civil proceedings, but rather protects the public against the government's arbitrary interference with access to important information." Id. (internal quotation marks omitted); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (right of access applied to summary judgment motions in civil matter); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004) (applying qualified right of access to civil and criminal court docket sheets).

Finally, in at least one instance, the right of access has been extended to some administrative hearings.  See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 301 (2d Cir. 2012) (holding there was a qualified right of public access to Transit Adjudication Bureau (TAB) hearings conducted by New York City Transit Authority.)

The Supreme Court has not directly addressed whether there is a First Amendment or common law right of access to civil trials, though a plurality of the Court recognized 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).

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 Federal Rule of Civil Procedure 43(a) provides that “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.”

The Third Circuit has held that there is a presumption of public access to civil trials, citing a tradition of openness and finding that openness supports the functioning of the civil judicial process.  Publicker Indus. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984).  The Court determined that civil proceedings had traditionally been open to the public at common law and that functional considerations similarly supported a right of public access “inherent in the nature of our democratic form of government.”  Id. at 1069.  Thus, the court concluded, “[p]ublic access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.”  Id. at 1070.  Although Publicker was decided on the issue of civil trial records, it explicitly states that the public has a presumptive right of access to all civil proceedings unless the trial court makes a finding on the record that articulates a particular countervailing interest.  Id.

Although the Third Circuit has not analyzed whether the public has a presumptive right of access to bench conferences in civil proceedings, it has held that the First Amendment right of access attaches to bench conferences in the criminal context.  See United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986).  Therefore, considering the language in Publicker—stating that the right of access to civil proceedings is “no less than” the right of access to criminal proceedings—the presumptive right of access likely would attach to bench conferences in the civil context as well.  See Publicker, 733 F.2d at 1069.

The First Amendment right of access extends to civil trials. Am. Civil Liberties Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (citations omitted); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 n.4 (4th Cir. 1988).

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).

The Sixth Circuit, on multiple occasions, has noted that the First Amendment right of access generally attaches to civil proceedings.  For example, in Brown & Williamson Tobacco Corp. v. FTC, the court explained that “[t]he historical support for access to criminal trials applies in equal measure to civil trials.”  710 F.2d 1165, 1178 (6th Cir. 1983) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 386 (1979)). Similarly, the court has explained that

[t]he Supreme Court has not yet had occasion to address whether there is a First Amendment right to attend civil proceedings, but a number of circuits, including ours in Brown & Williamson, have addressed the issues.  All have agreed the governing test is the two-part Richmond Newspapers test and have further agreed that the press and public have a First Amendment right to attend civil proceedings under that test.

Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 n.11 (6th Cir. 2002) (citations omitted).

“[L]ong embedded in our case law . . . is the strong presumption that all trial proceedings should be subject to scrutiny by the public.”  United States v. Ladd, 218 F.3d 701, 703-704 (7th Cir. 2000).

However, “‘the First Amendment question cannot be resolved solely on the label we give the event, i.e., “trial” or otherwise’”; while “there is generally a right of public access to a trial, the public can properly be excluded from conferences between the court and counsel even during a trial.”  B.H. v. Ryder, 856 F. Supp. 1285, 1291-92 (N.D. Ill. 1994) , aff’d sub. nom. B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7, 106 S. Ct. 2735, 2740 (1986)).

There appears to be no Eighth Circuit case law discussing the right of access to civil trials.

Alabama Rule of Civil Procedure 77(b) provides as follows:

(b) Trials and hearings; orders in chambers. All trials upon the merits shall be conducted in open court, except as otherwise provided by statute, and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk of other court officials and at any place within the state either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit without the consent of all parties affected thereby.

Ala. R. Civ. P. 77 (b).

The Supreme Court of Alabama has also stated that “[g]enerally, trials are open to the public.” Balogun, 516 So. 2d at 610. Citing Newman v. Graddick, 696 F. 2d 796 (11th Cir. 1983), the Supreme Court of Alabama further noted, however, that “public access must be balanced with the effect on the parties.” Id.

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records but would only be enforceable to the extent that they are not unconstitutional. The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).  Citing Press-Enterprise I, the court in Renkel held that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the general public during testimony of minor victims is reversible error. Id. at 1089, 1092.

The Arizona Supreme Court has held that “[t]here is no doubt that there exists a common law right of access to civil trials.”  Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986).

The common-law right of access applies to civil proceedings. IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013).

The seminal California Supreme Court case on open access to civil proceedings, NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), addressed the question of whether, in a jury trial, the trial court had properly “issued orders excluding the public and the press from all courtroom proceedings held outside the presence of the jury, and sealing the transcripts of those proceedings.” It was in this civil trial context that the California Supreme Court announced the rule that “substantive courtroom proceedings in ordinary civil cases are presumptively open.” Id. at 1217; see also In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1070, 37 Cal. Rptr. 3d 805 (2006) (“[t]he First Amendment provides a right of access to court records in divorce proceedings, just as in other ordinary civil cases”). Certain types of trials, however, such as involuntary conservatorship proceedings, may be closed. See, e.g., Sorenson v. Superior Court, 219 Cal. App. 4th 409, 416, 161 Cal. Rptr. 3d 794 (2013) (finding that there is no presumptive right of access to trials in involuntary conservatorship proceedings under California’s Lanterman-Petris-Short Act, because such proceedings are not “ordinary civil trials and proceedings”); see also Gerawan Farming, Inc. v. Agric. Labor Relations Bd., 40 Cal. App. 5th 241, 244, 253 Cal. Rptr. 3d 136 (2019) (no presumptive right of access to mandatory mediation and conciliation process under California Labor Code because MMC proceedings are part of the collective bargaining process and public was not historically given access to such proceedings).

Colorado appellate courts have not addressed the constitutional or common law right of access to civil trials.

Civil proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal court, civil trials to which a First Amendment right of access applies (which is most), are open unless “the Court . . . make[s] particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).

“Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom.” Fed. R. Civ. P. 77(b); Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972) (citing Rule 77(b) that “[a]ll trials upon the merits shall be conducted in open court”). “Courts have found a legitimate public interest in access to civil trials . . . .” Nat’l Ass'n of Waterfront Emp’rs v. Chao, 587 F. Supp. 2d 90 (D.D.C. 2008).

D.C. courts have endorsed the unanimous view of other appellate courts that a tradition of public access to civil trials has deep roots in American legal history, from English common law to the modern day.  See, e.g., In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1 (D.D.C. 2009); see also In re Reporters Comm. for Freedom of Press, 773 F.2d 1325 (D.C. Cir. 1985) (noting that the Supreme Court has intimated a public right to access civil trials) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580, n.17 (1980)); Mokhiber v. Davis, 537 A2d 1110, 1123 n.4 (D.C. 1988) (“No court has expressly concluded that the first amendment does not guarantee some right of access to civil trials.”).

Civil trials in Florida are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test.

The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id.

The press and public’s right of access to trials in Georgia criminal cases is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated likewise that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).

“All trials upon the merits of every court of justice shall be conducted in open court and so far as convenient in a regular courtroom.”  Idaho R. Civ. Pro. 77(b); see also Idaho R. Civ. Proc. 43(a) (“In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by these rules, the Idaho Rules of Evidence, or other rules adopted by the Supreme Court of Idaho”); Saint Alphonsus v. St. Luke’s Health Sys., Ltd., Case Nos. 1:12-CV-00560-BLW and 1:13-CV-00116-BLW (D. Idaho) (discussing issue of access to civil court proceedings where confidential documents are offered as exhibits and used by testifying witnesses).

An Illinois appellate court extended the U.S. Supreme Court’s analysis of the constitutional right of access in criminal cases to civil cases. Johnson, 232 Ill. App. 3d at 1074, 598 N.E.2d at 410 (citing Nixon, 435 U.S. at 597). Johnson established the rule that in order to overcome a presumption of access, a party must demonstrate that a compelling governmental interest exists and that the restrictions on access are narrowly tailored to meet this governmental interest. Id.

Indiana Trial Rule 72(B) provides that “[a]ll trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom in or outside the county seat.”

Although the Iowa Supreme Court has not specifically addressed rights of access in civil matters, it is likely that an analysis of rights of access in civil matters would follow what has been employed by the court to analyze criminal proceedings.

Kansas civil procedure provides that “[a]ll trials on the merits must be conducted in open court.”  K.S.A. 60-104.  Judges must conduct trials “in a regular courtroom” or may use alternative, “suitable facilities.”  K.S.A. 60-104 and K.S.A. 20-347.

Civil trials are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988).

The Louisiana Constitution also provides a right of access to civil judicial proceedings. Article 1, § 22 states: “All courts shall be open.” The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” Copeland v. Copeland, 930 So.2d 940, 941 (La. 2006).

The Louisiana Supreme Court explicitly recognized this right of access in Plaquemines Parish Commission Council v. Delta Development Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access in a civil suit by the Parish against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. “The freedom of the press to report matters of public interest, and especially trial proceedings, is so great that it outweighs almost any governmental restraints.”

The Maine Rules of Civil Procedure provide for public access to civil trial proceedings. The Maine rules, which are modeled on the federal rules, provide, “All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room.” M. R. Civ. P. 77(b). However, “All other acts or proceedings may be done or conducted by a justice or judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the county or division where the action is pending.” Id. The Maine Rules also provide that “[i]n every trial, the testimony of witnesses shall be taken in open court, unless a statute, these rules or the Rules of Evidence provide otherwise.” M. R. Civ. P. 43(a). It is common to hold chambers conferences and bench conferences to resolve preliminary issues, such as jury instructions, motions in limine, and procedural matters during trial.  In high profile matters, interested members of the public or the news media should make known to the presiding judge or justice their interest in attending all proceedings; otherwise for convenience only (and not for the purpose of excluding the public per se), some matters may take place in chambers.

In Baltimore Sun v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Court of Appeals found a common law right of access to civil proceedings, including trials and documents. Id. at 1134. In Doe v. Shady Grove Adventist Hospital, 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991), the Court of Special Appeals found a First Amendment right of access to civil trials. There, it considered an application by the plaintiff in an action for breach of confidentiality of patient medical records and invasion of privacy arising from dissemination of his AIDS diagnosis for an order “‘sealing’ the record to the extent necessary to protect the confidentiality of his identity.” Id. at 514. The court found that although civil and criminal proceedings are presumptively open, redacting the name of the plaintiff served a compelling government interest in protecting the plaintiff’s right to privacy and the legislative judgment that medical information should be kept private. Id. at 365–66. In addition, redacting the plaintiff’s name would serve the compelling governmental interest of encouraging others whose privacy has been violated to pursue vigorous enforcement of their rights in court. Id. at 362. The court declined though to “seal the record,” and instead ordered that all papers filed identify the plaintiff as “John Doe,” or, to the extent they lead to or contain his true identity, that they be redacted. Id. at 365–66, 369–70.

There is a general presumption of open access to civil trials. See, e.g., Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 156 (Mass. 1995) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 386–387 & n.15 (1979)) (“The Supreme Court has not yet said whether the First Amendment protects public access to civil trials. However, free access to civil trials is well established under the common law.”); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”).

Trials are presumed open to the public pursuant to M.C.L. 600.1420. Courts do, however, have some discretion in closing proceedings. Michigan Court Rules state that courts may not limit access by the public to a court proceeding unless a (1) a party files a written motion that identifies the specific interest to be protected, or the court identifies a specific interest to be protected and the interest outweighs the right of access, (2) denial of access is narrowly tailored to accommodate the interest to be protected, and there is no less restrictive means to adequately and effectively protect the interest, and (3) the court states on the record specific reasons for the limitation of access. M.C.R. 8.116(D).

Michigan courts have not expressly ruled on whether and to what extent civil trials are open to the public, but the Michigan Supreme Court has noted that “the public’s right of access at common law extended to both civil and criminal trials.” In re Midland Publ’g Co., Inc., 362 N.W.2d 580 n 22 (Mich. 1984). The Sixth Circuit has recognized the public’s right to attend civil trials, and has acknowledged that, both civil and criminal trials have been historically open. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6^th Cir. 1983).

Although the Minnesota Supreme Court has not addressed whether the public has a constitutional right of access to civil court proceedings, it has, however, generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness. In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)). In addition, Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings.

The Mississippi Rules of Civil Procedure mandate that “[a]ll trials upon the merits shall be conducted in open court, except as otherwise provided by statute.” Miss. R. Civ. P. 77(b). Further, Miss. R. Civ. P. 43(a) states that in all trials, “the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Mississippi Rules of Evidence.”

“All judicial proceedings of all courts established in this state must be open to the attendance of the public unless otherwise specially provided by statute.” Neb. Rev. Stat. § 24-1001 (Reissue 2008).

The purposes section of the Nebraska Guidelines provides that:

[A]s a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party’s right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.

Rule 77(b) of the Nevada Rules of Civil Procedure provides:

“All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room, except private trial may be had as provided by statute. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the district; but no hearing, other than one ex parte, shall be conducted outside the district without the consent of all parties affected thereby.” (emphasis added).

Rule 43(a) of the Nevada Rules of Civil Procedure provides that: “In every trial, the testimony of witnesses shall be taken in open court, unless otherwise provided by these rules or by statute. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.”

The right of access, discussed in “Overcoming a presumption of openness” above, applies to trials.

Rule 1-104 NMRA mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in NMSA 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625. An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Rule 1-104. Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id.

New York courts recognize that “the public, as well as the press, is generally entitled to have access to court proceedings” under both the First Amendment and common law rights of access.  Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6, 711 N.Y.S.2d 419, 423 (N.Y. App. Div. 2000).  Although the right of access is not absolute, “any order denying access must be narrowly tailored to serve compelling objectives, such as a need for secrecy that outweighs the public's right to access.” Id. (citing Globe Newspaper Co. v Superior Ct., 457 U.S. 596, 609 (1982)). New York has memorialized this right under Judiciary Law § 4:

The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.

Adoption proceedings are closed under N.D.C.C. § 14-15-16(3) to the media and members of the public.  Juvenile proceedings are closed under N.D.C.C. § 27-20-51.  However, general information not identifying any juvenile, witness, or victim can be requested and released under N.D.C.C. § 27-20-51(7). N.D.C.C. § 25-03.1-43 provides that all records in connection with a mental health commitment proceeding are confidential.

The Ohio Supreme Court has ruled the public has a “qualified right of access … to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.”  In re T.R., 556 N.E.2d 439, 446 (Ohio 1990).  This does not extend to all court proceedings which are historically closed, such as “petit jury deliberations, conferences in chambers, the issuance of search warrants, and the conferences of collegial courts.”  Id. at 447.  Moreover, the Rules of Superintendence for the Courts of Ohio require the judge to “inform the victims and witnesses of their right to object to being filmed, videotaped, recorded, or photographed.”  Sup.R. 12(C)(2).  This does not automatically ban recording or photographing witnesses; rather, “all parties affected must have the opportunity to respond to the possibility of any restriction, and any finding must be based upon evidence in the record.”  State ex rel. Dispatch Printing Co. v. Geer, 873 N.E.2d 314, 319 (Ohio 2007).

Civil trials are open via the force of article I, section 10 of the Oregon Constitution.

Pennsylvania courts have recognized both a constitutional and common law right of access to civil proceedings generally. See PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (“Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”).

“[T]he traditional openness of public trials ‘evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today.’”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *10, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 676 (Conn. 2009)).  “Though its original inception was in the realm of criminal proceedings, the right of access has since been extended to civil proceedings because the contribution of publicity is just as important there.”  Id. (quoting Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)).

Article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of free speech and freedom of the press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).

Information about the structure of South Carolina courts, contact information for court personnel, rules governing the administration of justice (and practice of law), dockets for cases, and court case records can be found at https://www.sccourts.org/index.cfm.

The inside of the courthouse is subject to government regulation of a person’s First Amendment rights and is more likely to be regulated than the area immediately outside the courthouse, such as the public sidewalk. Article 1, section 9 of the South Carolina Constitution provides “all courts shall be public . . .”, but that does not mean that reasonable requests by bailiffs, clerks of court, or judges can be ignored. If courthouse or courtroom access is unreasonably denied, the affected individual should contact the South Carolina Press Association at (803) 750-9561 or a licensed attorney.

In Rapid City Journal v. Delaney, 2011 S.D. 55, 804 N.W.2d 388, the Supreme Court of South Dakota recognized a First Amendment right of access to civil trials.

The procedures for seeking access to civil trials in Tennessee mirror those governing access in criminal trials.  King v. Jowers, 12 S.W.3d 410, 411-12, 412 n.2 (Tenn. 1999) (noting that “historically both civil and criminal trials have been presumptively open and citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

The Supreme Court of Texas has recognized the press and the public’s right to attend civil court proceedings, including trials.  See Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 657, 660 (Tex. 1992) (recognizing that the press and public have the “right to be present at all proceedings in the trial of the underlying case, and to report what they observe”); Star-Telegram, Inc. v. Walker 834 S.W.2d 54, 56 (Tex. 1992) (recognizing that its test prohibiting prior restraints in civil proceedings preserves “the press’ constitutionally sanctioned right of access to the judicial process”).  Dallas Morning News was an original proceeding before the Texas Supreme Court where the “relators” sought a writ of mandamus to challenge an appellate court order that limited public access to documents used in a civil trial.  See 842 S.W.2d at 657.  The defendant in the underlying case, after losing its motion before the trial court, obtained an order from an appellate court limiting public disclosure of documents entered into evidence during trial.  See id.  The relators, a media outlet and an advocacy group, sought a writ of mandamus from the Texas Supreme Court to compel the appellate court to withdraw that order.  See id.  While explaining in its opinion that the case is about public access to documents filed in open court, the Court states that the press and the public have the “right to be present at all proceedings in the trial of the underlying case, and to report what they observe.”  Id.

One federal district court in Texas has determined that there is a presumption of the public’s right to access civil trials grounded in both the First Amendment and the common law.  See Doe v. Santa Fe Indep. Sch. Dist., 933 F. Supp. 647, 649–50 (S.D. Tex. 1996).  That court based its decision on the Fifth Circuit’s suggestion to that effect in Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981), and the express holdings of the Third, Second, Sixth, and Seventh Circuits.  See id.  The Third Circuit, in particular, explained the historic functioning of the civil trial in the English and American judicial systems when arriving at the conclusion that the public right of access extends to civil trials.  See id.

The general presumption in favor of the right of public access presumably applies equally to trials in civil proceedings.  See Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, 297 P.3d 599 (Utah 2013).

Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.”  State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception).  Although most of the case law discussing the public’s right of access to court proceedings involves criminal cases, the Vermont Supreme Court has also recognized that “in the civil context that ‘the general rule is that trials should be public, with chamber proceedings the exception . . .’”  State v. Mecier, 145 Vt. 173, 185, 488 A.2d 737, 745 (Vt. 1984) (quoting Sunday v. Stratton Corp., 136 Vt. 293, 306, 390 A.2d 398, 405 (Vt. 1978).

To date, neither the Supreme Court of Virginia nor the Supreme Court of the United States has squarely held that the public enjoys a qualified right of access to civil trial. See, e.g., Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 256, 368 S.E.2d 253, 254 (1988) (recognizing public’s right of access to records in civil proceedings while observing that “[t]he public’s right to attend and observe the conduct of a civil trial is not in issue in this appeal.”).  However, most federal circuit courts of appeal, including the Fourth Circuit, have recognized that the First Amendment right of access extends to civil trials. See Am. Civil Liberties Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (citations omitted).  Furthermore, the Virginia Supreme Court has acknowledged the public’s constitutional and statutory presumptive right of access to records in civil proceedings. See Perreault v. The Free Lance–Star, 276 Va. 375, 390, 666 S.E.2d 352, 360 (2008); Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 258, 368 S.E.2d 253, 256 (1988); see also Va. Code §§ 16.1-69.54:1(E) and17.1–208(B).  Given the public’s qualified right of access to records in civil proceedings, it follows, both logically and as a practical matter, that the right extends to hearings and the trial itself.  Indeed, the Virginia Supreme Court has observed, in the context of a civil lawsuit, that “[a] trial is a public event.... There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Am. Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 362, 542 S.E.2d 377, 384 (2001) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)).

The state constitution “mandates an open public trial in a civil case” absent an applicable statutory exception or compelling reasons for closure.  Cohen v. Everett City Council, 85 Wn.2d 385, 388–89, 535 P.2d 801 (1975).

As set forth above, the West Virginia Constitution guarantees a qualified constitutional right of access to civil court proceedings.  See “Access to civil proceedings/In general” above.  This right applies to trials.  State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 617, 520 S.E.2d 186, 191 (1999).

See Bloomer v. Bloomer, 197 Wis. 140, 221 N.W. 734 (Wis. 1928) (ruling that under the predecessor to Wis. Stat. § 757.14, the trial court did not abuse its discretion by excluding minors and the news media from the courtroom during “salacious” testimony concerning sexual relations):

If the court may impound the testimony after it has been taken so that news gatherers may not spread its salacious details before the public, the court must of necessity have the power to make such purpose effective by preventing the spread of such details before the public during the trial by excluding news gatherers from the courtroom or by temporarily holding court in some other room during the time that such proof is being offered.

…

The cases on which the husband relies are those on which the entire trial was conducted before a referee or behind closed doors.  They do not decide that a court may not proceed as the trial court did in this case while testimony was being taken that was of such a nature that the protection of the public morals required that it should be taken out of the hearing of minors or such other persons as might be in the courtroom.

See State ex rel. Ampco Metal, Inc. v. O’Neill, 273 Wis. 530, 539–40, 78 N.W.2d 921 (Wis. 1956):

For the protection of the complainant, the usual course is to take the evidence as to the [trade] secret in camera . . . .

This we do by holding that the taking of certain evidencein camera, in those rare situations where justice cannot be properly administered without so doing, does not violate the public trial concept of such statutes . . . .

As pointed out earlier in this opinion, unless the testimony as to plaintiff’s claimed trade secrets be taken in camera, Ampco will be denied any effective remedy for the wrong it has sustained, assuming the truth of the allegations in its complaint.

See Wiedenhaupt v. Hoelzel, 254 Wis. 39, 41–42, 35 N.W.2d 207 (Wis. 1948):

As to the last contention, it is the well-settled rule in this state that all proceedings in a case shall be open and public; that any communication with the jury, after the case is submitted to them and they have retired for deliberation on their verdict, by any person, shall be in open court, and in the presence of the parties or their representatives, where practicable.

…

We hold that the communication had between the jury and the judge, through the reporter, is sufficient ground for setting aside the verdict and for ordering a new trial.

Wyoming has no case law specific to civil trials, but they are generally open to the public.