I. COVID-19 courtroom protocols and the public trial right
United States v. James David Allen, II (United States Court of Appeals for the Ninth Circuit, 2022). The Ninth Circuit determined that a California district court’s COVID protocols violated the defendant’s Sixth Amendment right to a public trial. At issue was a rule enacted during the pandemic that prevented the public from having any sort of visual access to a trial, whether in-person or virtually. Although the protocol permitted audio access, the appellate court found that it effectively resulted in a total closure to the public because everyone other than witnesses, court personnel, counsel, and the parties were excluded from attending the trial.
United States v. Babichenko (United States District Court for the District of Idaho, 2020). This case dealt with changes to a court’s trial plan due to COVID-19. At issue were defendants’ concerns about their public trial right and their objections to the court’s plan to livestream the trial proceedings. To preserve defendants’ right to a public trial while protecting public health and safety, the court decided that it would not livestream proceedings on YouTube as previously planned and would instead livestream proceedings to a viewing room inside the courthouse where the public and the press could watch the trial in real time. Additionally, the court would set up cameras in the courthouse viewing room so that a video of that room would also be displayed in the courtroom in real time. The court also authorized a limited number of people to access the trial remotely upon a showing of particularized need concerning the pandemic.
United States v. Smith (United States Court of Appeals for the Fourth Circuit, 2024). The Fourth Circuit considered whether a federal district court’s COVID-19 trial protocol that closed the courtroom to the public and streamed a live video feed from the courtroom into a public viewing room, but omitted views of the jurors, violated the public trial clause of the Sixth Amendment. The court rejected the challenge, holding that the protocol provided a “nearly complete public visual access to the trial,” including views of the lectern used by the lawyers, the witness box, trial exhibits, and the presiding judge. It also agreed with other courts’ conclusion that the importance of jury observation lies with the trial judge, defendants, and defense counsel.
United States v. Veneno (United States Court of Appeals for the Tenth Circuit, 2024). The Tenth Circuit held that a federal district court’s decision driven by COVID-19 to provide audio-only feed for the first two hours of jury selection, in alleged violation of the defendant’s public trial right, was not plain error. The court did not conduct a de novo review of the issue because it was not timely raised at trial.
United States v. Ansari (United States Court of Appeals for the Fifth Circuit, 2022). The Fifth Circuit found that a federal district court’s decision during COVID-19 to restrict the public to an overflow room featuring a live audio and video stream of the defendant’s trial did not violate his public trial right.
People v. Zemek (Court of Appeal, Fourth District, Division I, California, 2023). A California appellate court found that the trial court’s decision to close the courtroom to the public during COVID-19 and to instead allow the public to view the trial via livestream did not violate the defendant’s public trial right. Further, no exception existed for the defendant’s husband and sister because they were a part of the public and enjoyed the same access to the trial.
State v. Brimmer (Supreme Court of Iowa, 2022). In this case, the Supreme Court of Iowa came to the opposite conclusion. It found that the trial court unreasonably rejected alternatives to full closure of the defendant’s trial to the public and that the trial court’s exclusion of the defendant’s family from trial was not narrowly tailored enough to the overriding interest of preventing the spread of COVID-19. What distinguishes this case from Zemek is that while the trial court there permitted a livestream of the proceeding, the trial court here neither provided a video nor an audio feed. Additionally, all members of the public were excluded from participation. Regarding the defendant’s family’s attendance – particularly that of his mother – the Iowa Supreme Court noted that there was space for her to sit while still complying with COVID-19 protocols.
State v. Bell (Supreme Court of Minnesota, 2023). Here, the Supreme Court of Minnesota found that the trial court had not made sufficient findings regarding reasonable alternatives to closure of defendant’s trial to the public. Like many other courts during the pandemic, the trial court prohibited any spectators from attending the trial and provided a live feed for the public to view. While this was a closure, the Minnesota Supreme Court held that it could not assess whether the trial court had considered reasonable alternatives under Waller because the trial court had made an insufficient inquiry into those alternatives. For example, there was no indication that the trial court had considered holding trials somewhere other than a courtroom that would have allowed members of the public to attend in a manner that adhered to COVID-19 standards.
II. Confidentiality of juror questionnaires
United States v. Elizabeth Holmes (United States District Court for the Northern District of California, 2021). In this case, the media sought to unseal completed juror questionnaires for both seated and alternate jurors in the trial of Elizabet Holmes. The press maintained that they had a First Amendment right of access to the completed juror questionnaires as a key part of voir dire. Holmes and the Government asserted that the motion should be denied based on Holmes’ Sixth Amendment right and jurors’ privacy interests. The district court agreed and stated that the high-profile nature of the case had already resulted in members of the public engaging in efforts to influence the jury. Further, because of the upcoming holiday season during the midst of the pandemic, the court was concerned that jurors would contract COVID-19. For these reasons, the court concluded it was appropriate to keep the completed questionnaires under seal for the remainder of the trial. After the trial was over, the court agreed to partially unseal the questionnaires with limited redactions reflecting individual jurors’ concerns regarding their privacy.
Daily News, L.P. v. Wiley (Supreme Court, Appellate Division, First Department, New York, 2015). This New York appellate court allowed the press to access a blank jury questionnaire but denied the press’ request to observe pre-screening of potential jurors and to obtain completed juror questionnaires containing jurors’ personal information. The court explained that releasing a blank questionnaire to the press appropriately balanced the privacy interests of the jurors with the qualified right of public access.
III. Right to access jurors’ identifying information
United States v. Brown (United States Court of Appeals for the Fifth Circuit, 2001). A group of media organizations challenged an anonymous jury order implemented by a federal district court and its refusal to grant the media’s motion for post-verdict access to juror information. The Fifth Circuit found that part of the anonymous jury order was an unconstitutional prior restraint but rejected the media’s request that the lower court be ordered to release jurors’ identifying information and questionnaires. The court explained that the lower court’s order denying the request for juror identifying information was sufficiently narrow; the order provided that the court would not release juror information without the juror’s consent. However, a juror could voluntarily decide to relinquish confidentiality.
Morgan v. Dickerson in and for County of Cochise (Supreme Court of Arizona, 2022). At issue in this case was whether the First Amendment prohibited the superior court in Cochise County from using innominate juries. The underlying matter stemmed from two criminal cases in which a journalist sought access to prospective and impaneled jurors’ names before and after trial. He argued that the First Amendment provided a qualified right of public access to jurors’ names during voir dire. The Arizona Supreme Court held that neither the press nor the public had a qualified right to jurors’ names under the First Amendment. It explained that public access’ to jurors’ names did not promote either fairness or the perception of fairness during voir dire proceedings.
IV. Restraints on publishing
United States v. Blankenship (United States District Court, S.D., West Virginia, 2015). In this case, news organizations sought to intervene in a criminal case for the purpose of challenging a court’s order barring the parties, counsel, victims and their family members, and investigators from making any statements to the media. The court held that the defendant’s Sixth Amendment right to a fair trial outweighed the media’s presumptive right of access under the First Amendment. However, on appeal in In re The Wall Street Journal, the U.S. Court of Appeals for the Fourth Circuit overturned the district court’s sealing order.
United States v. Quattrone (United States Court of Appeals for the Second Circuit, 2005). Several media organizations appealed a federal district court’s order prohibiting them from publishing – during the pendency of trial – jurors’ names that were disclosed in open court. The Second Circuit held that the order violated the First Amendment and found that the order violated the press’ right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom.
Project Veritas v. New York Times Company (Supreme Court, Westchester County, New York, 2021). In this case, the court held that legal memoranda that Project Veritas’ outside counsel had provided were not a matter of public concern; therefore, prohibiting The New York Times from publishing the memoranda was not an impermissible prior restraint.
V. Under the First Amendment, the press has a presumed right of access to court proceedings and documents
Civil Beat Law Center for Public Interest, Inc. v. Maile (United States Court of Appeals for the Ninth Circuit, 2024). At issue in this case was a Hawaii Court Records rule applying to both civil and criminal proceedings that required all medical and health records to be filed under seal. The Ninth Circuit held that the rule was overbroad, explaining that while Hawaii residents had a privacy right, the rule was not the least restrictive means by which the state could protect its residents’ right to privacy. Because the rule prevented access to records that the press had a presumptive right to across a wide range of criminal and civil proceedings, it was deemed overbroad and struck down as unconstitutional.
A. Civil case proceedings have a constitutional presumption of openness
Doe v. Public Citizen (United States Court of Appeals for the Fourth Circuit, 2014). Here, the Fourth Circuit held that the public and the press have a presumptive right to inspect docket sheets in civil cases. Additionally, it concluded that the First Amendment right of access extends to judicial rulings on summary judgment motions, explaining “it would be anomalous to conclude that the First Amendment right of access applies to materials that formed the basis of the district court’s decision ruling on a summary judgment motion but not the court’s opinion itself.”
Courthouse News Service v. New Mexico Administrative Office of the Courts (United States Court of Appeals for the Tenth Circuit, 2022). In this case, Courthouse News Service challenged the New Mexico court system’s practice of withholding new civil complaints from the press and public until after administrative processing instead of providing access to the complaints at the time of receipt. The Tenth Circuit agreed with the plaintiff, holding that the right of access applies to newly filed, non-confidential civil complaints. This right attaches at the moment the complaint is filed because the public must promptly understand the consequences of filing a complaint, such as what obligations they may have to preserve evidence or that it may trigger a statute of limitations in some cases.
B. Criminal case proceedings have a constitutional presumption of openness
United States v. Wecht (United States Court of Appeals for the Third Circuit, 2008). The Third Circuit held that the media has a First Amendment right of access to obtain the names of both trial jurors and prospective jurors prior to the jury being empaneled.
Commonwealth v. Long (Supreme Court of Pennsylvania, 2007). The Pennsylvania Supreme Court held that the First Amendment right of public access to criminal trials provides a qualified right of access to impaneled jurors’ names but not addresses. It found that modern jury practice had moved away from the presumption that jurors’ addresses were historically known to the public and concluded that revealing jurors’ names was sufficient to serve as an additional check on the impartiality of the jury and that disclosing jurors’ addresses may hamper jury service.
Grand Jury matters
United States v. Index Newspapers LLC (United States Court of Appeals for the Ninth Circuit, 2014). This case dealt with a newspaper that sought to unseal the record of a grand jury witness’ contempt file, including the transcripts, court files, and any related briefing. Relying on the experience and logic test articulated in Press-Enterprise Co., the Ninth Circuit held that there is no First Amendment public right of access to filings and transcripts relating to motions to quash grand jury subpoenas, the closed portion of contempt proceedings that discuss matters occurring before the grand jury, or motions to hold a grand jury witness in contempt.
In re 2014 Allegheny County Investigating Grand Jury (Superior Court of Pennsylvania, 2018). This case arises from an appeal by WPXI – a Pittsburgh based television station – of an order denying its motion to obtain access to a search warrant and sealing order issued in connection with a grand jury investigation. The court held that no First Amendment right of public access attaches to the grand jury documents sought by WPXI. It noted that historically, such proceedings have been closed to the public. Additionally, public access to the grand jury proceedings would hinder the efficient functioning of the proceedings.