Does the First Amendment Guarantee Public Access to Trials and Court Proceedings?

The court further noted that press access helps provide for the accountability of police, prosecutors and others in government: “A trial courtroom is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.”

In 1986, the Supreme Court extended the right of public access to the jury selection process and to most preliminary motions and hearings.

The Supreme Court has never explicitly said there is a First Amendment-based right to access civil trials, but that is simply because it has not taken up such a case. It is generally accepted, as federal appeals court decisions show, that such a right exists, and this extends to documents related to the case as well.

But what about access for people who aren’t physically in the courtroom? Can they listen to or watch trials via broadcast radio, television or internet streams? It depends on the court:

• The Supreme Court provides same-day audio of arguments, transcripts and limited seating for the public but does not allow any camera coverage of its proceedings.
• Federal appeals courts and District Courts can set their own rules.
• The same is true for the various state courts: The Supreme Court has said states can adopt rules for the public to access trials through live audio and video, now including live streaming (Chandler v. Florida, 1981). And some state courts allow for public access via cameras in both criminal and civil proceedings.

When have courts closed public access to trials?

Criminal and civil trials may be closed to the public for various reasons. Before closing a court proceeding or restricting access to court documents, a judge must hold a hearing and find — on the record — that there is an overriding interest in closing the trial.

Closing a courtroom or limiting access to court documents should be no more extensive than necessary, for example, clearing the courtroom only for certain witnesses rather than closing the entire trial, or redacting case documents to hide confidential information rather than sealing them entirely.

The most common interests supporting closure are to:

• Avoid interfering with the ability of a defendant in a criminal trial to have a fair trial.

• Avoid intimidation of a witness or where a public presence might encourage perjury.
• Protect witnesses or confidential informants from outside pressure or threats from individuals or from organized crime.
• Spare rape and abuse victims from public exposure of private details of the assault.
• Protect minors who are involved in trials, either from exposure of private details about themselves or simply from the pressure of having to testify in front of a room of strangers at a young age.
• Preserve confidential information such as commercial chemical formulas or private production methods.

Beyond these examples, certain court proceedings, listed below, are always or sometimes closed to the public.

Grand jury trials

In 1979, the Supreme Court said that grand jury proceedings — including the transcripts of jury sessions — must be kept closed to the public (Douglas Oil Co. v. Petrol Stops Northwest).

During these trials, grand jury members consider whether there is sufficient evidence presented by the government to warrant the filing of criminal charges. The court said that such secrecy is needed to protect witnesses, to avoid alerting suspects to potential criminal charges, and to avoid damaging people’s reputations where criminal charges did not result.

Juvenile and family matters

Many juvenile or family court proceedings are not open to the public. Groups such as the Reporters Committee for Freedom of the Press maintain state-by-state guides as to whether all or some of those court sessions are public.

Among the reasons courts close such hearings is to avoid the stigmatizing of a youthful offender for life, to prevent reputational damage to family members, and to avoid discouraging others from reporting abuse or assaults due to public disclosure of intimate details.

National security

Trials or hearings involving national security can result in closed court proceedings. To close such actions, the government must show — often in a hearing closed to the public or the press — that sensitive information or names of confidential sources or agents could be disclosed.

Similarly, there is no public access under any circumstances to the U.S. Foreign Intelligence Surveillance Court, a specialized federal court in Washington, D.C.  The FISC was set up in 1978 to review government actions involving foreign intelligence operations or counterterrorism work. The FISC has 11 federal district judges, all designated by the chief justice of the United States, and even their names and the court’s weekly schedule are not made public.

Immigration court proceedings

U.S. immigration courts are not part of the judiciary, the third branch of government. They are administrative bodies within the U.S. Department of Justice. While the DOJ says, “With certain exceptions, hearings before Immigration Judges are open to the public,” this access isn’t guaranteed. Exceptions include cases involving spousal or child abuse, potential criminal charges, and protective orders.

The DOJ further notes: “The Immigration Judge may limit attendance or close a hearing to protect parties, witnesses, or the public interest, even if the hearing would normally be open to the public.”

In recent months, there have been instances in which federal authorities have denied public access, citing security concerns or because the hearings were being conducted in commercial buildings, not courthouses.

The bottom line on access to trials and the First Amendment

In the Supreme Court’s 1980 decision, Chief Justice Warren Burger linked a long history of public access to criminal trials — reaching back to early law in England — to First Amendment freedoms. He said open trials serve other purposes, in addition to guaranteeing a fair process.

“[W]hen a shocking crime occurs, a community reaction of outrage and public protest often follows,” Burger wrote. Trials open to the public provide “an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated, and may manifest themselves in some form of vengeful ‘self-help,’ as indeed they did regularly in the activities of vigilante ‘committees’ on our frontiers.”

And while exceptions to this access may exist, courts have generally allowed the public this “outlet for community concern, hostility, and emotion,” rooting this access in First Amendment freedoms.

Gene Policinski is a senior fellow for the First Amendment at Freedom Forum. He can be reached at [email protected].