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What to do if Access to Court Proceedings is Denied

The U.S. Supreme Court has held that a judge considering closing a judicial proceeding must follow certain procedures to ensure that closing the proceeding will not infringe upon First Amendment rights. See Press-Enterprise v. Superior Ct., 464 U.S. 501 (1984).

The judge must hold a hearing on the need for closure, and allow the media and others to argue against closure. A presumption of disclosure under the First Amendment right of access requires courts to grant access unless confidentiality is “necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Thus, if a compelling interest is at stake (e.g., criminal defendant’s right to a fair trial) the judge must consider alternatives to court closure (e.g., change of venue, sequestering the jury, postponing the trial until the effects of publicity have diminished). A judge who determines that no alternative will work must also determine that closure will protect the party’s interest and must tailor the closure order to protect that interest without unduly restricting public access. Finally, the judge must present written findings supporting the closure decision in order to allow appellate review.

If a judge orders the media to leave a hearing that has so far been public:

• If a news organization is prepared to send a lawyer to argue against closure, politely ask the judge for permission to speak for a moment.
  
  
• If allowed, tell the judge that the news organization objects to the closure and would like an opportunity to argue against it. Ask for a brief recess so that the organization’s lawyer may come to court to argue the case and ask that an objection be made part of the court record.
  
  
• If not allowed to address the court, do not refuse to leave or shout an objection. Leave the courtroom and write a brief note to the judge. Explain that the news organization wants to oppose the closure and that the editor or lawyer will be contacted immediately. Ask a court officer to give the note to the judge and get in touch with superiors immediately.

If a closed court proceeding is in progress or has already taken place, try to determine:

• Who sought closure and on what grounds
  
  
• The nature of the proceeding (i.e., criminal, civil, pre-trial, trial, etc.)
  
  
• Whether a hearing was held on the closure order and, if so, what findings the judge made justifying the closed proceeding
  
  
• Whether the proceeding is still going on
  
  
• Consult an editor about challenging the order; a challenge may be as simple as requesting a meeting with the judge to point out the procedural requirements mandated by the Supreme Court. Be sure to ask for access to future proceedings and transcripts of past proceedings (note: be prepared to pay for past transcripts). If a judge does not agree to resolve the issue informally, a motion to intervene in the matter can be filed for purposes of formally challenging the closure order (including a possible appeal).