THE LOGIC OF EXPERIENCE: THE ROLE OF HISTORY IN RECOGNIZING PUBLIC RIGHTS OF ACCESS UNDER THE FIRST AMENDMENT.

• Author: Poliak, Shira

INTRODUCTION 1561 I. THE SUPREME COURT'S RIGHT OF ACCESS JURISPRUDENCE 1566 II. LOWER COURTS' APPLICATION OF THE EXPERIENCE PRONG 1573 III. REASONS FOR AND AGAINST RELYING ON HISTORY TO RECOGNIZE A 1590 FIRST AMENDMENT RIGHT OF ACCESS A. Why Is History Relevant? 1590 B. Why Not Rely on History? 1591 IV. ANALYZING WHETHER THE TAXONOMIES ARE IN LINE WITH OR DEPART 1594 FROM THE SUPREME COURT'S CONSTRUCTION AND REASONING CONCLUSION 1600 INTRODUCTION

"It is gratifying... to see the Court now looking to and relying upon legal history in determining the fundamental public character of the criminal trial," Justice Blackmun wrote in his concurrence in Richmond Newspapers, Inc. v. Virginia, in which the Supreme Court first recognized a First Amendment public right of access. (1) "The Court's return to history is a welcome change in direction." (2) History is central to the Supreme Court's recognition of a constitutional right of access. The use of history in this context also raises questions about why history should play a role in recognizing constitutional rights and what types and durations of historical traditions should be required to justify constitutional protection. These questions underlie circuit and district courts' application of Richmond Newspapers and its progeny.

In Richmond Newspapers, the Court held that a public right to attend criminal trials is implicit in the First Amendment, based on the longstanding history of public trials and the positive value of their openness. (3) This seminal case, decided in 1980, departed from three cases decided in the 1970s, in which the Court found that journalists do not have a First Amendment right to enter prisons to interview inmates. (4) The Court subsequently extended its holding in Richmond Newspapers to grant a right of access to criminal trials at which juvenile victims of sexual assault testify, (5) to voir dire proceedings (6) and to preliminary hearings. (7)

In Press-Enterprise Co. v. Superior Court, the Court synthesized its prior case law and articulated a two-part test to determine if the First Amendment recognizes a right of access to a particular proceeding. (8) First, courts are to consider "whether the place and process have historically been open to the press and general public." (9) Second, courts are to evaluate whether "public access plays a significant positive role in the functioning of the particular process in question." (10) If the particular proceeding "passes these tests of experience and logic," a qualified First Amendment right attaches. (11) A court must then evaluate if the countervailing interests favoring closure override the First Amendment right of access. (12)

Lower courts have applied this test, dubbed the "experience and logic test," to evaluate rights of access to a variety of proceedings beyond criminal trials and different government documents. (13) The test has been applied inconsistently by many courts, even when different courts evaluated a right of access to the same proceeding. As a result, diverging case law has emerged on whether the First Amendment grants a right of access to deportation hearings (14) and executions, (15) for example.

Scholarship on the application of the Supreme Court's First Amendment right of access jurisprudence has addressed the topic from both broad and narrow perspectives. (16) Analyzing the issue holistically, some scholars have criticized the experience and logic test and charted its inconsistent application by lower courts. (17) Some judges and academics maintain that the test--and its use of history to justify a right of access--is not a sound analytical framework in light of the evolving nature of judicial and governmental proceedings (18) and, in particular, the increasing movement of some government affairs from public court-like fora to private proceedings. (19) The majority of scholars analyzing the First Amendment right of access have taken a more narrow approach, focusing on whether a First Amendment right of access should attach to a particular proceeding or assessing how different courts have addressed access to a specific proceeding or judicial document. (20)

But scholars have not analyzed the role of history in the Supreme Court and lower courts' First Amendment right of access doctrine in depth. Professors Raleigh Hannah Levine and David Ardia both acknowledge that history is applied and used in different ways, and Levine argues that some of the problems posed by the test are rooted in the Supreme Court's development of the doctrine. (21) But they do not chart different taxonomies of uses of history in the cases or analyze which approaches are in line with the Supreme Court's jurisprudence. This focus deserves attention for two reasons. First, some scholars have argued that the experience prong is the determinative factor. (22) For example, in reviewing the lower courts' application of the experience and logic test, Levine claimed that no court has held that a proceeding that passed the experience prong failed the logic prong. (23) Second, using history as a basis for constitutional rights raises interpretative questions. As Professor Jack Balkin articulated, "Appeals to tradition are complicated by the fact that consensus in practice and belief often disappears when we inspect history more closely." (24) Balkin continued, "To argue from tradition or ethos, one must make interpretive judgments about what aspects of American history are central and... what aspects are peripheral... or have been... repudiated as time has passed." (25) Using history as a basis for a constitutional right also raises questions about "what kind of history counts, [and] how unequivocal the history must be...." (26) These challenges are demonstrated by this area of law because close examination of the case law reveals that lower courts have interpreted the Supreme Court's mandate to evaluate history to recognize a constitutional right of access in different ways.

This Comment addresses this dearth in scholarship by identifying eight ways lower courts use history to analyze the experience prong of the experience and logic test. I identified these taxonomies by reviewing 185 federal circuit court opinions in Westlaw that cited Press-Enterprise II, seventy-six of which applied the experience and logic test. I also reviewed some federal district court and state court opinions cited in the circuit court opinions and scholarly articles. I focus on the range of ways courts have handled "mixed history"--a proceeding that is replete with examples of both open and closed practices. This Comment analyzes to what degree these different taxonomies are in line with, or depart from, the Supreme Court's jurisprudence on the topic. Like Levine, I argue that some of the different approaches reflect uncertainty and unanswered questions in the Supreme Court's opinions. This analysis demonstrates that lower courts have little direction regarding how to conceptualize historical traditions that are beset by open and closed practices, or proceedings that lack a historical tradition of access because they are relatively new. Nevertheless, while this Comment shows that a range of approaches to the experience prong are in line with the Supreme Court's jurisprudence, analyzing the different uses of history by lower courts in detail underscores scholars' critiques of the doctrine. In particular, it shows that the experience prong is not suited to address new practices when there may be no history of openness or closure, and that the emphasis on history does not allow the right of access doctrine to accommodate changes in governmental practice and innovation. (27)

This Comment proceeds in four parts. Part I analyzes the Supreme Court's right of access jurisprudence. Part II surveys lower courts' application of the experience prong by identifying eight ways courts apply this part of the experience and logic test. Part III articulates reasons for and against the use of history as a basis for constitutional protection. Part IV analyzes the degree to which the practices of lower courts are in line with or depart from the reasoning of, and the historical constructions in, the Supreme Court jurisprudence. The Comment concludes by assessing what the varied ways courts use history in this context demonstrates about the foundations of this right.

1. THE SUPREME COURT'S RIGHT OF ACCESS JURISPRUDENCE

   The Supreme Court's jurisprudence on the First Amendment public right of access includes two lines of cases: one recognizing a First Amendment public right of access to observe criminal trials and other aspects of the criminal process in court, (28) and an earlier line of cases holding that members of the press do not have a First Amendment public right of access to interview inmates in prison. (29)

   Less than a decade before recognizing a First Amendment public right of access to criminal trials, the Supreme Court decided three cases rejecting journalists' First Amendment challenges to various prison regulations limiting journalists' abilities to interview inmates. In Pell v. Procunier, journalists and inmates challenged a California law that prohibited members of the press from conducting face-to-face interviews with prisoners who they requested to interview. (30) In Saxbe v. Washington Post Co., journalists argued that the Federal Bureau of Prison's policy precluding journalists from interviewing prisoners violated the First Amendment. (31) Four years later, in Houchins v. KQED, Inc., a California prison denied journalists' request to inspect and take pictures of a jail facility after they reported on the suicide of a prisoner. (32) The journalists claimed that the prison's refusal to provide a means for the public to be informed about the conditions in the jail violated the First Amendment. (33)

   Garnering a full majority of the Court in Pell and Saxbe and a splintered Court in Houchins, the Supreme Court rejected the three...