Doors to Remain Open during Business Hours: Maintaining the Media's (and Public's) First Amendment Right of Access in the Face of Changing Technology

By Coppock, Paul | South Dakota Law Review, Summer 2013 | Go to article overview

Doors to Remain Open during Business Hours: Maintaining the Media's (and Public's) First Amendment Right of Access in the Face of Changing Technology


Coppock, Paul, South Dakota Law Review


In Rapid City Journal v. Delaney, the South Dakota Supreme Court held that, under the First Amendment of the United States Constitution and common law principles, the media has a qualified right of access to civil litigation similar to that of criminal litigation. In so holding, the South Dakota Supreme Court upheld a common law tradition of presumptive openness, as well as a long line of United States Supreme Court holdings. While no United States Supreme Court holding directly implicates press access to civil litigation, the Supreme Court's holdings concerning criminal trial access have been interpreted as extending to civil proceedings. The media "s First Amendment right of access to judicial proceedings, however, is not absolute. A party seeking to bar the media can successfully do so by demonstrating that there is an overriding interest that can only be satiated by the media 's exclusion. In the event of exclusion, the trial court must produce a record specific enough that a reviewing court can clearly see the trial court's rationale behind barring the media. Furthermore, any alternatives the trial court considered against outright media exclusion must be included in the record

I. INTRODUCTION

The Freedom of the Press provision of the First Amendment (1) safeguards the media's right of access to trials. (2) While the First Amendment does not explicitly pronounce that the media, or the public, have a right to attend trials, the founders drafted the provision against the backdrop of the common law presumption of openness. (3) Open trials play an important role in the administration of justice. (3) Openness in the judicial system is meaningful because it allows for members of the public not in attendance to remain confident that proper courtroom procedure is being followed. (5) Without the public's freedom to attend trials, "important aspects of freedom of speech and 'of the press could be eviscerated.'" (6) Additionally, values inherent in the First Amendment right of access would be promoted were the media granted greater flexibility with regard to cameras in courtrooms. (7) Specifically, were cameras afforded a greater role in the courts, a larger percentage of the public would be exposed to the system. (8) Cameras would enable a greater number of citizenry to better educate themselves about and assess the legitimacy of the public court system. (9)

United States Supreme Court cases dealing with the issue of public access have been in the context of criminal proceedings. (10) However, many federal courts--including the Court of Appeals for the Eighth Circuit--and state supreme courts have extended the media's right of access to civil trials. (11) In Rapid City Journal v. Delaney, (12) South Dakota became yet another jurisdiction to embrace the First Amendment's and the common law's principle of the media's right of access in civil trials. (13) Additionally, two months prior to the Delaney decision, the South Dakota Supreme Court granted the media greater latitude regarding cameras in the courtroom. (14) Taken as a whole, it is evident that the South Dakota Supreme Court is attempting to harmonize First Amendment values with modem technology. (15)

The Delaney Court held that trials have always been presumptively open to the public, and that the media's First Amendment right of access should not be limited to criminal trials, but should also extend to civil trials. (16) The Court stated that the rationale for allowing access to civil proceedings is that "openness enhances both the basic fairness of ... trials and the appearance of fairness so essential to public confidence in the system." (17) The Court, however, held that the media's right of access is not absolute and may be overcome by a countervailing interest. (18)

The United States Supreme Court developed the "experience and logic" test that the South Dakota Supreme Court seemed to have applied in Delaney. (19) However, inferences must be drawn to conclude that the South Dakota Supreme Court utilized the "experience and logic" test. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Doors to Remain Open during Business Hours: Maintaining the Media's (and Public's) First Amendment Right of Access in the Face of Changing Technology
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.