Chapter §21.4 Access to Federal Courts

• Jurisdiction: Washington

§21.4 ACCESS TO FEDERAL COURTS

The U.S. Supreme Court has consistently held that the public and press have a constitutional right to open court proceedings under the First and Fourteenth Amendments.

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), the Court recognized that criminal trials are presumptively open to the press and the public unless an "overriding" showing is made that "closure is required to protect the defendant's superior right to a fair trial." In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-07, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982), the Court reaffirmed Richmond Newspapers, holding that "the press and general public have a constitutional right of access to criminal trials" and that this right may be denied only when it is shown that closure "is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest."

In Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 501-02, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984), the Court held that voir dire proceedings are presumptively open to the public and press and that to overcome the presumption, a trial court must make specific findings that (1) closure is essential to preserve a higher value, (2) the order of closure is no broader than necessary, and (3) no less-restrictive alternatives would adequately protect the specified interests.

In Press-Enterprise v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986), the Court specifically applied these rules to preliminary hearings, allowing closure only if there is a "substantial probability that the defendant's right to a fair trial would be prejudiced," and requiring "specific, on the record findings" demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 13-14.

The U. S. Supreme Court has also recognized that the policies favoring open justice apply regardless of the nature of the proceeding, and that "historically both civil and criminal trials have been presumptively open." Richmond Newspapers, 448 U.S. at 580 n.17. A majority of the federal circuits have followed this reasoning and found a First Amendment right to open proceedings and court records in a wide variety of civil cases.

The U.S. Court of Appeals for the Ninth Circuit, which includes Washington and most of the western states, has...