Nonetheless, the Court has created a First Amendment right of access to certain judicial proceedings, especially criminal trials (Richmond Newspapers, Inc. v. Virginia (1980)), jury selection in criminal trials (Press-Enterprise Co. v. Superior Court (I) (1984)), certain preliminary hearings but not grand jury hearings (Press-Enterprise Co. v. Superior Court (II) (1986)), and possibly also civil trials (Richmond Newspapers). To determine which proceedings qualify, the Court generally looks to whether “the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question” (Press-Enterprise (II)).
Of course, this “experience and logic” test leaves a great deal uncertain. As to “experience,” some classes of proceedings or documents are novel enough that there hasn’t been much experience related to them. Courts can reason by analogy, but there are often competing analogies. For other classes of proceedings, traditions are mixed, with some states going one way and others another way. And as to “logic,” the trouble is that public access would often have both benefits and costs — it can be plausibly predicted to play a positive role in some ways and a negative role in others.
In any event, this area of First Amendment law is something of a mess, as I learned when I was creating that portion of my textbook. One recent case, Strine v. Delaware Coalition for Open Government, Inc., helps illustrate the complexity. (Disclosure: My colleagues Andy Pincus and Brantley Webb at the Mayer Brown LLP firm represent the Delaware judiciary, which is to say the petitioners.)
Strine involves a Delaware procedure that provides for confidential arbitration of civil cases by a state court judge, if both parties agreed to such arbitration. The procedure is unusual, so there’s not much “experience” to go with. One can try to analogize to similar proceedings, but which ones? Such arbitrations are not that different from civil cases, and civil cases have historically been open to the public. But such agreed-to arbitrations are also not that different from arbitrations under arbitration contracts (which can be enforced by civil courts), and such arbitrations have historically not been open to the public.
Likewise, one can see openness to the public as advancing the civil adjudication process, by helping assure the public that justice is done (a factor the Court stressed in Richmond Newspapers), or by discouraging perjury by witnesses. But one can also see it as harming the process, for instance by revealing various confidential information to the parties’ competitors. Unsurprisingly, the Third Circuit panel split 2-1 (Judges Sloviter and Fuentes in the majority, with Judge Roth dissenting).
In any event, Strine is now before the Supreme Court, which should decide soon whether to hear the case. By my reckoning, the Justices haven’t considered right-of-access questions since 1986, so not a single member of the Court today has opined on the issue (except in Presley v. Georgia (2010), a short opinion that was handed down without oral argument and that, according to the 7-Justice majority, basically just applied settled law). If the Court does return to this field, it might shed some more light on what “tradition” and “experience” mean in this area. Or the Court might just deny certiorari, and the current muddle will continue — though to be fair sometimes such muddles continue, or get exacerbated, even when the Court hands down a new opinion.
(Note: The First Amendment right of access to criminal trials overlaps in some measure with the Public Trial Clause, but the two are different in an important way. The Public Trial Clause secures a criminal defendant’s right, which the defendant can waive, but the First Amendment secures a right of the public, which the defendant can’t waive.)