Doors to remain open during business hours: maintaining the media's (and public's) First Amendment right of access in the face of changing technology.

• Author: Coppock, Paul

In Rapid City Journal v. Delaney, the South Dakota Supreme Court held that, under the First Amendment of the United States Constitution and common law principles, the media has a qualified right of access to civil litigation similar to that of criminal litigation. In so holding, the South Dakota Supreme Court upheld a common law tradition of presumptive openness, as well as a long line of United States Supreme Court holdings. While no United States Supreme Court holding directly implicates press access to civil litigation, the Supreme Court's holdings concerning criminal trial access have been interpreted as extending to civil proceedings. The media "s First Amendment right of access to judicial proceedings, however, is not absolute. A party seeking to bar the media can successfully do so by demonstrating that there is an overriding interest that can only be satiated by the media 's exclusion. In the event of exclusion, the trial court must produce a record specific enough that a reviewing court can clearly see the trial court's rationale behind barring the media. Furthermore, any alternatives the trial court considered against outright media exclusion must be included in the record

1. INTRODUCTION

   The Freedom of the Press provision of the First Amendment (1) safeguards the media's right of access to trials. (2) While the First Amendment does not explicitly pronounce that the media, or the public, have a right to attend trials, the founders drafted the provision against the backdrop of the common law presumption of openness. (3) Open trials play an important role in the administration of justice. (3) Openness in the judicial system is meaningful because it allows for members of the public not in attendance to remain confident that proper courtroom procedure is being followed. (5) Without the public's freedom to attend trials, "important aspects of freedom of speech and 'of the press could be eviscerated.'" (6) Additionally, values inherent in the First Amendment right of access would be promoted were the media granted greater flexibility with regard to cameras in courtrooms. (7) Specifically, were cameras afforded a greater role in the courts, a larger percentage of the public would be exposed to the system. (8) Cameras would enable a greater number of citizenry to better educate themselves about and assess the legitimacy of the public court system. (9)

   United States Supreme Court cases dealing with the issue of public access have been in the context of criminal proceedings. (10) However, many federal courts--including the Court of Appeals for the Eighth Circuit--and state supreme courts have extended the media's right of access to civil trials. (11) In Rapid City Journal v. Delaney, (12) South Dakota became yet another jurisdiction to embrace the First Amendment's and the common law's principle of the media's right of access in civil trials. (13) Additionally, two months prior to the Delaney decision, the South Dakota Supreme Court granted the media greater latitude regarding cameras in the courtroom. (14) Taken as a whole, it is evident that the South Dakota Supreme Court is attempting to harmonize First Amendment values with modem technology. (15)

   The Delaney Court held that trials have always been presumptively open to the public, and that the media's First Amendment right of access should not be limited to criminal trials, but should also extend to civil trials. (16) The Court stated that the rationale for allowing access to civil proceedings is that "openness enhances both the basic fairness of ... trials and the appearance of fairness so essential to public confidence in the system." (17) The Court, however, held that the media's right of access is not absolute and may be overcome by a countervailing interest. (18)

   The United States Supreme Court developed the "experience and logic" test that the South Dakota Supreme Court seemed to have applied in Delaney. (19) However, inferences must be drawn to conclude that the South Dakota Supreme Court utilized the "experience and logic" test. (20) This article argues that the test should be used in all public access cases, civil or criminal, due to the test's practical utility and capacity of being overridden when necessary to preserve superior interests. (21) Moreover, the "experience and logic" test is valuable to courts when analyzing whether cameras belong in the courtroom. (22)

   This article will first review the facts and procedure of Delaney. (23) Second, this article will review the long line of United States Supreme Court case law addressing media access to criminal trials, as well as a growing number of lower courts that have interpreted that case law, and argue that trial openness is within the purview of both the common law and First Amendment. (24) This article will then apply the facts of Delaney to United States Supreme Court and lower courts case law, and argue that Delaney was correctly decided because the media retains a qualified right of access to civil trials. (25) Lastly, this article will discuss the current debate surrounding cameras in the courtroom and advocate that cameras could play an important role in the right of access to civil trials. (26)

2. FACTS AND PROCEDURE

   Rapid City Journal v. Delaney involved family member shareholders of Bear Country USA, Inc. ("Bear Country"), a South Dakota corporation, involved in a dispute regarding the corporation's management and control. (27) The family shareholders were split into two factions, neither of which could agree on how to resolve the dispute. (28) Because the two factions could not reconcile their differences, the family submitted their dispute to Judge John J. Delaney of the Seventh Judicial Circuit to determine Bear Country's value in order to facilitate a sale by one faction to the other. (29) Both factions anticipated submitting sensitive information as evidence. (30) As a result, the parties moved to close the courtroom to the media while the financial evidence and expert testimony was being presented in an effort to protect Bear Country's "confidential business information." (31) Judge Delaney imposed a gag order on the parties and closed the trial and court records. (32) The order was to protect Bear Country's financial records, trade secrets, and other proprietary information. (33)

   The Rapid City Journal, The Associated Press, and the South Dakota Newspaper Association (collectively, "the Media") then moved to intervene, asserting that it was improper to impose the gag order and bar the Media from the trial proceedings and court records. (34) Judge Delaney rejected the Media's contentions; the Media then petitioned the South Dakota Supreme Court for a writ of mandamus or prohibition. (35) The Media argued that Judge Delaney violated the Media's First Amendment and common law right of access to courts, court records, and participants. (36) The South Dakota Supreme Court reviewed the Media's petition and granted a writ of prohibition "because the Media did not have 'a plain, speedy and adequate remedy in the ordinary course of law."' (37) The Court held that Judge Delaney erroneously applied the principles intrinsic to common law, the First Amendment, and the applicable United States Supreme Court holdings. (38)

3. BACKGROUND

   1. COMMON LAW TRIALS

      Throughout its evolution, the trial has always "been open to all who care to observe." (39) A historical review indicates that nearly every culture that has influenced Anglo-American criminal law has had public trials. (40) Commentators agree that openness in the courts has been the rule in England since ancient times. (41) English courts later called this presumptive openness "one of the essential qualities of a court of justice." (42)

      Although any contemporary recordation of early trial openness is scant, (43) the recorded history of open trials pre-dates the Norman Conquest of England, when cases were brought before "moots." (44) "Moots" were a body of individuals similar to that of a town meeting. (45) Attendance of these proceedings was largely obligatory for the citizenry of the community who represented the "country" in rendering judgment. (46) The public component was incidental to jury trials because the jury presence insured that the public would also be in attendance. (47) Based on the open nature of these early trials, members of the community who were unable to attend could rest assured that other community members were permitted to witness the proceedings, which enhanced public confidence in this early judiciary system. (48)

   2. TRIALS IN THE AMERICAN COLONIES AND THE DEVELOPMENT OF THE BILL OF RIGHTS

      Evidence suggests that the presumption of openness was also an attribute of the American Colonies. (49) In some instances, courts explicitly recognized trial openness as a part of the fundamental law of the individual Colony. (50) When "moots" became too unwieldy, courts decided instead to select twelve members of the community to act as representatives. (51) A community member's right to attend a trial, however, was not negated by this new representative form of trial. (52) The community retained a "right of visitation." (53) In the event that the atmosphere of the courts lacked decorum, the response was not to restrict access to judicial proceedings, but to establish rules for those attending them. (54) Thus, the Bill of Rights was drafted with these historical underpinnings of presumptive openness for public trials. (55)

      Although open access to trials is not explicitly mentioned in the First Amendment, by guaranteeing the freedoms of speech and press, the First Amendment protects the right of citizens to attend trials in order to give meaning to the provisions' explicit guarantees. (56) Furthermore, courts have avoided any "narrow, literal conception" of the First Amendment's language. (57) The Framers drafted the Amendment with broad principles in mind, and against a framework of shared values and practices. (58)...