| Judicial Access: The Reporter's Right of Access To The Judicial System by Sanford L. Bohrer and Karen Williams Kammer Updated September 2004 I. Summary
B. Answer: Only if the person seeking to deny access produces evidence that satisfies each part of the following three-part test: III. Access To Federal Court Proceedings And Records IV. What You Can Do:
B. If You Are Denied Access To Court Records C. If A "No Print" Order Is Entered D. If A Judge Orders Trial Participants Not To Discuss The Case With The Press Footnotes About the Authors I. Summary. A. Question: When may a party or the court deny the press or public access to judicial proceedings or records? B. Answer: Only if the person seeking to deny access produces evidence that satisfies each part of the following three-part test: 1. There is a compelling need for closure, such as imminent danger to the administration of justice in a criminal case; 2. There are no reasonable alternatives to a denial of access; and 3. The denial of access is no broader than necessary to satisfy the need for closure. In short, judicial proceedings and records are presumed to be open, and the person trying to deny access bears a heavy burden of overcoming the presumption. Although Florida's Constitution and statutes grant broad access to most governmental meetings and the records of the executive, legislative, and judicial branches, it has been left to the courts to determine the narrow circumstances under which court proceedings and records may be kept from public view.1 (For more information on Florida's open meetings and public records acts, see those chapters elsewhere in this Handbook). II. Access To Florida State Court Proceedings And Records. The Florida Supreme Court first articulated the right of the press to attend all judicial proceedings in State ex rel. Miami Herald Publishing Co. v. Mclntosh,2 a case involving the trial of three mortgage brokers and three brokerage firms accused of securities fraud. The defendants succeeded in convincing the trial judge to enter an order (a) preventing the press from publishing what it learned in open court but in the absence of the jury and (b) "gagging" all trial participants. The Florida Supreme Court reversed the order as an invalid "prior restraint" on the press. In so doing, it recognized the right of the press to gather news and to have access to all judicial proceedings: It has been recognized in Florida and elsewhere that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed. This is so, because the public and press have a right to know what goes on in a courtroom whether the proceeding be criminal or civil. A member of the press or newspaper corporation may be properly considered as a representative of the public insofar as enforcement of public right of access to the court is concerned; and the public and press have a fundamental right of access to all judicial proceedings. In determining restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interest of the parties to litigation with those of the public and press.3 The court found that even the temporary withholding of information from the press could not be justified: The inconvenience suffered by jurors who are sequestered to prevent exposure to excluded evidence which may be published in the press is a small price to pay for the public's right to timely knowledge of trial proceedings guaranteed by freedom of the press. It is argued that a temporary withholding of news from the public may aid in assuring a fair trial and that if the State and defendant agree to muzzling the press no one else has a right to object. We firmly reject any suppression of news in a criminal trial except in those rare instances such as national security and where a news report would obviously deny a fair trial as stated above in Federal cases. Freedom of the press is not, and has never been a private property right granted to those who own the news media. It is a cherished and almost sacred right of each citizen to be informed about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people, and the Nation. News delayed is news denied. To be useful to the public, news events must be reported when they occur. Whatever happens in any courtroom directly or indirectly affects all the public. To prevent star chamber injustice the public should generally have unrestricted access to all proceedings.4 But the court made clear the right of access was not absolute. Thus, while "the public and press have a fundamental right of access to all judicial proceedings, . . . [i]n determining restrictions to be placed upon access to judicial proceedings, the Court must balance the rights and interests of the parties to litigation with those of the public and press."5 After McIntosh, the Florida Supreme Court adopted a simple three-part test for trial courts. In Miami Herald Publishing Co. v. Lewis,6 the Florida Supreme Court held that those seeking closure of a pretrial hearing in a criminal case must make the following evidentiary showing:7 1. Closure is necessary to prevent a serious and imminent threat to the administration of justice; 2. No alternatives are available, other than change of venue, which would protect a defendant's right to a fair trial; and 3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.8 The press must be given prior notice of such a hearing. Six years later in a civil case, Barron v. Florida Freedom Newspapers, the Florida Supreme Court made it clear the "strong presumption of public access" applies to "all trials, civil and criminal." The court held that in a civil case, "subject to certain narrowly defined exceptions," the public's right of access to judicial proceedings and records cannot be denied.9 The court emphasized the "heavy burden" on the party seeking closure, and held that, as in criminal cases, the trial court must find there is "no reasonable alternative" to closure and must use the "least restrictive closure necessary."10 One exception to the general rule is depositions. Neither the press nor the public has a right of access to pretrial discovery depositions nor to the unfiled transcripts of such depositions in civil or criminal cases.11 Beyond that, public access rarely has been denied. It is important to note that in ruling on the access question a court may not inquire as to the purpose for which access is sought.12 With respect to judicial records, in 1992 the Florida Supreme Court adopted a new rule, Rule 2.051 of the Florida Rules of Judicial Administration, which expressly grants the public access to materials in the custody of the court clerk and any other member of the judicial branch subject to certain enumerated exceptions, either listed in the Rule itself or elsewhere. Although Rule 2.051 says the public must be given "reasonable notice" of any order closing judicial records, unfortunately the Supreme Court has said prior notice is not mandatory.13 This contrasts sharply with the procedure for the closure of court proceedings. III. Access To Federal Court Proceedings And Records. As with access to Florida courts and their records, federal judicial proceedings and records are presumed to be open to the public except in very narrowly prescribed circumstances. The United States Supreme Court has devised a test to determine when such proceedings and records lawfully may be closed. Not surprisingly, it is very similar to the test Florida courts use: The circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.14 The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.15 Again, as in Florida courts, the person seeking to deny access must produce evidence meeting each part of the test. Also, not unlike Florida law, our federal courts have held the right to access to judicial records and proceedings does not extend to "information collected through (pretrial) discovery which is not a matter of public record," that is, not yet filed with the court.16 In other words, the press and public have no right to attend depositions or get copies of unfiled deposition transcripts. The right of access to judicial records has been found under the First Amendment and the common law. Regardless of the source, the courts have held the right of access is presumptive and, absent the required evidentiary showing, access will be granted.17 IV. What You Can Do: A. If A Judicial Proceeding Is Closed Or About To Be Closed An attorney or judge proposes closing a hearing or other judicial proceeding just as it is to begin, or a judge tells the press not to print what it just heard or go to jail for contempt. In an emergency, there's little time for reading books or research. The Florida First Amendment Hotline is available at 1-800-337-3518, but there may not be time even for that. Here are some practical tips on what to do: As noted above, Florida and federal court decisions have recognized that access to judicial proceedings is a fundamental right of the press and public. As to what constitutes a "judicial proceeding," there is some controversy, but for your purposes, you should consider any trial, hearing, or other proceeding which is conducted as part of any lawsuit to be a judicial proceeding. While under certain circumstances a hearing or other pre-trial or post-trial judicial proceedings may be closed to the press and public, such situations are extremely limited. There are virtually no situations in which a trial lawfully can be closed. 1. About To Be Closed Regardless of whether you are in state or federal court, if a court proceeding has not been closed yet, but closure has been proposed: 1. If there is time to do so, notify your editor or news director and, through her, your lawyer. Even 15 or 30 minutes may be enough for your lawyer to get involved and prevent closure or at least assert your rights. 2. If there is no time, as, for example, where the judge literally is about to rule on a closure request, do not leave the courtroom. Instead have someone else make the call to your editor (for example, if there is more than one reporter present, one can make the call and the rest stay), and take the following steps: a. On behalf of yourself, your paper or station, and the public, object to the closure on the record (that is, before the judge's court reporter) and ask for the right to be heard through counsel before the closed proceedings begin. You might say something like the following: I am ___________, a reporter for ___________________, and a citizen of this community. On behalf of myself, my paper [or station], and the rest of the public I object to the proposed closure of this proceeding to the press and public and request an opportunity to be heard through counsel. If asked the basis for your objection, you should state: I am not an attorney, but I understand the public has a constitutional and common law right of access to this and all other court proceedings. At the very least, the law requires that a hearing be held, with the press and public having an opportunity to be heard through counsel, prior to closure. I therefore request such a hearing so our attorney can be heard on our behalf. b. In Florida state courts -- If you have the time, opportunity, and presence of mind, you might advise the court that the Florida Supreme Court in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) and Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988) held there can be no closure until after a hearing, with an opportunity to be heard by the press through counsel, and that the party seeking closure must show: |
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.
[Revised: 9/1/2004]
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