FAN 200 (First Amendment News) Kelli L. Sager & Selina MacLaren “First Amendment Rights of Access”

As a partner at Davis Wright Tremaine LLP, Kelli L. Sager regularly represents media outlets requesting access to proceedings in high-profile trials. Selina MacLaren recently joined Davis Wright’s media group after completing a fellowship with the Reporters Committee for Freedom of the Press.


Kelli L. Sager

When one thinks about First Amendment rights, “speech” typically is the first thing that comes to mind.  But particularly in light of current events, the constitutional right of access to court proceedings and records that derive from the First Amendment are more important than ever.

Case in point:  On April 16, 2018, Davis Wright partner Robert Balin went to court for a hearing involving a search warrant executed against President Trump’s personal attorney, Michael Cohen. When it appeared that the judge was going to keep the identity of one of Mr. Cohen’s clients secret, Rob politely interrupted, and with the judge’s permission, argued on behalf of the public and press that the First Amendment right of access to court proceedings required the information to be publicly disclosed.  His arguments were not novel – media lawyers across the country regularly argue for these kinds of access rights – but unlike the average civil or criminal case, the public’s interest in this case is far more fundamental, given the individuals and allegations involved.  When the judge agreed that the information could not be kept secret – and Mr. Cohen’s client was revealed to be Fox News personality Sean Hannity, an ardent supporter of the President – there were audible gasps from the spectators.  As NPR’s Miles Parks put it, “[a]ll the air got sucked out of the room.”

The court proceedings involving Mr. Cohen are only one of many civil and criminal matters now playing out in courtrooms across the country, as President Trump’s former and current associates are criminally prosecuted (like Paul Manafort), subjected to government investigations (like Mr. Cohen), or sued civilly (like former RNC Chair Elliott Broidy).  Even the President himself is engaged in litigation, both as a defendant and as a plaintiff.

Imagine if all of these proceedings were taking place behind closed doors, where the public had no idea what was taking place until a result was announced (if it was announced at all).  History teaches us that such secrecy sows public mistrust and allows abuses of power, while openness promotes public understanding and acceptance of the adjudicative process. This unique – perhaps unprecedented – moment in history reinforces the critical importance of constitutional rights of access, and presents both a challenge and an opportunity for the media to vigorously advocate for these rights.

Selina MacLaren

The Constitutional Right of Access

The principle of open access to the courts predates American democracy. As the United States Supreme Court has noted, the concept of permitting public scrutiny of judicial proceedings has been recognized in the English justice system “from time immemorial” (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566-67 (1980) (quotations and citation omitted)), and traces back to the “days before the Norman Conquest,” when free men were required to attend court cases as an early form of jury duty.  (Id. at 565)

In that seminal case, the parties agreed to close the courtroom during a high-profile criminal trial, negating any concern about the criminal defendant’s Sixth Amendment right to a “public” trial.  But reporters argued that their constitutional rights also were at issue – under the First Amendment.  The Court agreed, finding that open access to criminal trials was historically permitted, and that such access served an important public purpose, namely, to instill confidence in the judicial process.  As Chief Justice Warren Burger summarized for the majority:  “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” ( 572)

This recognized constitutional right of access has since been expanded from criminal trials to jury selection (Press-Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984)), preliminary hearings (Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986)), and civil court proceedings (ACLU v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (collecting cases)), among other proceedings.  To determine whether the First Amendment right of access applies to a particular proceeding or document, courts apply a two-part test:  (1) Has the proceeding historically been open to the public? (2) Does public access play a significant positive role in the functioning of that proceeding? Where both questions are answered affirmatively, courts have found a constitutional access right, which may only be overcome if closure is necessary to serve a “compelling government interest,” and the limit on public access rights is “narrowly tailored to serve” that interest.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982).

Given changes in judicial proceedings over the last two centuries, this “experience and logic” test is not always a perfect fit, and much of the law has developed in lower state and federal courts, without direct rulings by the Supreme Court.  For example, in one seminal case, the California Supreme Court held that the constitutional rights of access under the First Amendment apply equally to civil court proceedings, even though the United States Supreme Court has not directly reached this issue.  NBC Subsidiary v. Superior Court20 Cal.4th 1178 (1999).  Courts remain divided on some significant issues, including the extent to which the constitutional right of access applies to court records (a question that may be presented to the Supreme Court in a petition for certiorari this Fall).

The importance of public access to court records and proceedings, however, can hardly be questioned.  At every level of the judiciary, important public rights are being adjudicated; not only in criminal trials, where an individual’s freedom is directly at stake, but in civil proceedings that determine property rights, personal autonomy, and civil liberties, among many other things.  The ability of the public to scrutinize the participants at every level of these proceedings, and evaluate the decisions that result, is critical to the functioning of our democracy.

Securing Access Today

In the current political climate, access to judicial proceedings and records is even more important.  Although it has long been recognized that access to court proceedings improves public understanding of the judiciary and “promote[s] trustworthiness of the judicial process” (Doe v. Public Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (quotation and citation omitted)), there is an additional benefit to access to the current slate of high-profile court proceedings:  improved public understanding of and trust in the democratic process.

Paul Manafort (credit: CBS News)

The Special Counsel investigation and related proceedings involving the politically powerful already have resulted in dozens of indictments and guilty pleas.  Proceedings involving Mr. Cohen, and disclosures about his conduct on behalf of the President, have resulted in accusations about serious campaign-finance law violations. The trial of former Trump campaign chairman Paul Manafort, while not directly involving campaign finance law, allowed the public to learn about Trump campaign affiliates and raised additional questions, particularly in light of testimony from a former Trump campaign deputy manager detailing an extensive criminal conspiracy.

Mr. Manafort, who was found guilty of federal banking and tax crimes, is now facing separate charges in a new court, which will likely result in another newsworthy trial.  Other civil and criminal cases are pending, including lawsuits brought by alleged Trump mistress Stormy Daniels, a lawsuit brought by a former Playboy Playmate who allegedly had an affair with RNC Chair Broidy, and others.  In each of these cases, the public’s right of access to proceedings and records has been challenged by individuals seeking to keep the sordid allegations secret, and in each case, the public and press must vigorously fight for their constitutional rights of access, rather than allowing allegations of wrongdoing to be swept under the rug.

As one court noted, “the public’s right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch.” FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987).  The public’s and press’ constitutional access rights thus are at their apex where, as here, court proceedings involve the very processes by which the leader of the executive branch has been elected.

Advancing Access by Electronic Media

(credit: Thought Co.)

Even where there is intense public interest in a particular court case, logistical obstacles prevent most people from personally attending court proceedings or culling through voluminous court records. But technological advances allow us to overcome the physical limitations of the courtroom, and democratize access in previously unimaginable ways.  The availability of electronic records makes it possible to access them from anywhere in the world; and where proceedings are televised (or live-streamed), anyone interested in observing a particular proceeding can do so, even from distant locations and despite physical limitations on space in a particular courtroom.

Unfortunately, there is no public audio or video of the moment when Sean Hannity’s name was announced in a crowded courtroom, or footage showing key testimony during Paul Manafort’s criminal trial, because cameras generally are not permitted in federal courts.  Indeed, even the United States Supreme Court does not permit its proceedings to be televised, and although audio recordings of key arguments are available, there is often a significant delay.  The rationale for these restrictions on electronic coverage vary: concerns that lawyers or witnesses will grandstand, that prospective jurors will avoid service (or seek it out), and even the excuse offered by one current member of the Supreme Court – the concern that parties will hire photogenic lawyers, rather than experienced advocates.

These excuses have been refuted by empirical evidence, including widespread experience in states like Florida, where electronic access has been allowed for decades without causing the parade of horribles suggested by opponents of courtroom cameras.  Certainly empirical evidence does not support the claim that electronic coverage will threaten the defendant’s fair trial right:  Despite televised trial coverage, O.J. Simpson was acquitted of murdering his ex-wife and Ronald Goldman, even though a civil jury later found that he was responsible for the crimes.

On the other hand, the televising of proceedings like the criminal trials of O.J. Simpson [in which Ms. Sager represented the news media] and Oscar Pistorius, and, recently, the sentencing proceedings involving Larry Nassar, generated tremendous public interest. But even these high-profile cases pale in comparison to the importance of and public interest in the proceedings involving the current administration and associates of the President.

Providing complete public access to court proceedings, through electronic media, is long overdue.  Given the undeniable importance of the issues that will be decided in the many proceedings associated with the current administration, now is the moment.

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