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

Article excerpt

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. …

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