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Column: Rediscovering the First Amendment Right of Access (New York Law Journal)

By Christopher Dunn

Thirty years ago the United States Supreme Court issued a landmark ruling holding that the First Amendment afforded the public a constitutional right of access to criminal trials. Coming just six years after post-Watergate amendments to the Freedom of Information Act dramatically expanded public access to government documents, the Supreme Court’s decision opened the door to a judicial assault on secret government proceedings.

Reflecting the optimism of the time, I published a law review article in 1984 predicting the newly minted right of access would reach one of the most sacrosanct of closed proceedings: disciplinary proceedings against judges.

Funny thing, the revolution never came. The Supreme Court has yet to consider whether the First Amendment right of access extends to any type of government proceeding other than criminal trials and related proceedings. And though every circuit to have addressed the issue has held the right applies to civil trials, the Courts of Appeals had, with the exception of a single type of administrative proceeding, never considered whether the right extends beyond traditional court proceedings.

Two weeks ago, however, the Second Circuit weighed in on this issue when it squarely held (in a case in which I serve as counsel) that the First Amendment right of access is not limited to traditional court proceedings. Given the Court’s stature, its forceful ruling, and the dearth of law in this area, the decision may reinvigorate efforts to use the First Amendment to open to public scrutiny the wide range of government proceedings that take place outside a courtroom.

The First Wave

In 1980, the Supreme Court first confronted the question whether the First Amendment entitled the public to attend a criminal trial. The dispute arose when a judge granted a murder defendant’s request to close the courtroom. Though the defendant was concerned about the presence of a member of the victim’s family in the courtroom, it was the resulting exclusion of two newspapers reporters that prompted the lawsuit that ended up in the Supreme Court.

In Richmond Newspapers v. Virginia, a plurality of the Court held that, in light of a long history of public access to criminal trials and the substantial benefits of subjecting trials to public scrutiny, the First Amendment created a right of access to them. On the historical point, the Court traced to “before the Norman Conquest” (that would be 1066) public attendance of criminal trials, concluding that “the historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open.”

As for the important values that openness promotes, the Court spoke broadly about the key role openness plays in assuring the fairness of the proceedings. And beyond that, the Court highlighted the “community therapeutic value” of open trials:

The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.

Most fundamentally, the Court explained, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

Finally, the Court cast aside the (accurate) claim that the First Amendment lacks an express right of access, reasoning in sweeping terms that the right of access necessarily is implicit in the core values of a “liberty-loving society”:

The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a “right of access,” or a “right to gather information,” for we have recognized that without some protection for seeking out the news, freedom of the press could be eviscerated. The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily.

Two years later, in Globe Newspaper Co. v. Superior Court for the County of Norfolk, a majority of the Court adopted the Richmond Newspapers analysis in striking a statute that closed criminal trial proceedings during the testimony of sexual assault victims younger than 18. In 1984 the Court extended the access right to transcripts of juror voir dire in criminal cases and, in 1986, to preliminary hearings in criminal proceedings.

And that marks the end of the Supreme Court line. Other than a 1993 per curiam ruling applying the 1986 decision about preliminary hearings to similar proceedings in Puerto Rico, the Court has not issued any more decisions about the First Amendment right of access. It has never addressed whether the right extends even to civil trials, much less has it considered whether it extends beyond the courtroom to other types of government proceedings.

Narrow Expansion in the Courts of Appeals

Every circuit to have addressed the issue has held that the First Amendment right of access extends to civil trials, with some also holding it encompasses information connected to civil trials (such as docket sheets). Until last month’s Second Circuit ruling, however, only the Sixth and Third Circuits had dealt with proceedings beyond the traditional courtroom, with both addressing the same type of proceeding.

At issue for both circuits was the Bush ddministration’s decision afer the terrorist attacks of September 11, 2001, to close what were known as “special interest” immigration deportation proceedings. Before both courts, the federal government argued as a threshold matter that the right of access was limited to judicial proceedings and could never extend to administrative proceedings, even if they were adjudicative in nature. Both circuits rejected this argument, recognizing that, because the First Amendment is not particular to judicial proceedings, there was no reason to draw a bright line at such proceedings. Rather, as the Third Circuit concluded, “Richmond Newspapers is a test broadly applicable to issues of access to government proceedings.”

Important as was recognition that the right of access was not limited to judicial proceedings, application of the Richmond Newspapers history-and-logic analysis in these cases still presented a substantial hurdle. Most significantly, the government argued the right could not attach to any proceeding that did not have a centuries-long tradition of access comparable to that of trials. (Indeed, the administrative state did not exist when the First Amendment was adopted.) And on this point, the courts split: the Sixth Circuit held the right of access nonetheless attached to deportation proceedings, while the Third Circuit held it did not. Neither case went to the Supreme Court.

Thus, as of last month, the passage of three decades since the Supreme Court’s seminal ruling in Richmond Newspapers had yielded just two circuit cases holding that the right of access could extend beyond traditional court proceedings and only one circuit case holding that it actually did (and did to a single type of administrative proceeding, namely deportation proceedings). Into this void stepped the Second Circuit.

A New Day

Described by the New York Daily News as “a circle of hell that came into formation well after Dante wrote his ‘Inferno,’” the Transit Adjudication Bureau (TAB) is an agency on the second floor of a Brooklyn side street that conducts nearly 20,000 hearings a year adjudicating summonses issued by NYPD officers to people accused of violating Transit Authority rules of conduct. Those hearings include motions, direct testimony and cross examination, exhibits, legal argument, rulings by a hearing officer, and an appeals process, all governed by a detailed set of court-like rules. All hearings took place behind a locked door, and members of the public or press could observe them only if they obtained the consent of the person issued the summons. Under Transit Authority policy, that person did not need to provide any reason for closing the hearing.

After being blocked from observing TAB hearings in early 2009, the New York Civil Liberties Union filed suit challenging the access policy. Southern District Judge Richard Sullivan held the policy violated the First Amendment, and the Transit Authority appealed to the Second Circuit.

In a July 20 opinion authored by Judge Guido Calabresi and joined by Judges Gerald Lynch and Pierre Leval, the Court of Appeals affirmed Judge Sullivan’s ruling in New York Civil Liberties Union v. New York City Transit Authority. After sketching out Richmond Newspapers and its progeny, the Court observed that “neither our Court nor the Supreme Court has had occasion to consider under what conditions, if at all, a qualified right of access attaches to non-trial proceedings like the administrative adjudication at issue here.”

On this critical threshold issue, the Transit Authority contended (as had the federal government in the deportation cases) that the Richmond Newspapers test could not reach administrative proceedings because they were “rare, if nonexistent, in the early Republic.” The court rejected this, reasoning that whether a proceeding was subject to Richmond Newspapers analysis depended not on the proceeding’s label but on its substance; otherwise, the government could simply evade its constitutional obligations: “Immunizing government proceedings from public scrutiny by placing them in institutions the Framers could not have imagined, as the NYCTA urges, would make avoidance of constitutional protections all too easy.”

Turning to application of the history-and-logic analysis, the Court relied on the fact TAB proceedings are in substance judicial and on the fact that they closely parallel criminal court proceedings in which Transit Authority rules violations can also be adjudicated to conclude that the history prong was met. On the logic prong, the Court reasoned that the values openness serves for traditional court proceeding apply equally to TAB hearings given the adjudicative nature of those hearings.

Finally, the Second Circuit rejected the Transit Authority’s argument that, even if the First Amendment right attached to TAB hearings, the agency could nonetheless overcome the right: “The TAB’s access policy, however, does not come close to meeting our standard for justifying closure. A respondent need not articulate any interest prejudiced by public access; the closure is total for that respondent’s hearing; and the hearing officer neither considers alternatives nor makes any findings regarding the relative weight of the interests at stake.”

Looking Forward

For the Second Circuit to hold that the First Amendment right of access is not limited to traditional courtroom proceedings is a dramatic advance. Though the Court was careful to emphasize it was making no broad pronouncement about the extent to which proceedings other than TAB hearings must be open to the public, its ruling means that the entire range of government proceedings now will be subject to scrutiny under Richmond Newspapers. It will bear close watching to see if the promise of Richmond Newspapers is finally realized.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.