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

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.