Though the First Amendment to the Constitution appears to afford no right of access to official proceedings, the Supreme Court decided in a string of cases from 1979 to 1986 that the public and media have a presumptive constitutional right to witness criminal judicial proceedings, independent of the Sixth Amendment right of the accused to a public trial.
In Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), the keystone case, a plurality ruled improper a trial closure upon the defendant’s motion. Under the Court test, a right of public access depends first on an ‘‘uncontradicted history,’’ or experience, of open proceedings, and second on a logical ‘‘function’’ served by openness, such as building public confidence in the judiciary or fostering community catharsis.
If the test is met, then any closure order must be narrowly tailored to achieve a compelling state interest, such as ensuring a fair trial. A judge must consider alternatives to closure, such as careful voir dire, change of venue, or sequestration, and must make written findings on the record in support of closure.
The Court held that the test satisfied for criminal jury selection and a criminal pretrial suppression hearing. Lower courts have extended Richmond Newspapers to civil cases. Federal courts have divided over access to administrative deportation hearings and have held that access does not entail a right to photograph or videotape.
A common-law right of access to judicial proceedings may pertain when the constitutional right does not, but the common-law right may be outweighed by countervailing interests.
RICHARD J. PELTZ
Cases and Statutes Cited