Public Access and Media Rules for Administrative Adjudicators in High-Profile Hearings

By McNeil, Christopher B. | Judicature, May/June 2008 | Go to article overview

Public Access and Media Rules for Administrative Adjudicators in High-Profile Hearings


McNeil, Christopher B., Judicature


Many courts have rules in place designed to strike the right balance between access and a fair trial in high-profile cases. What's needed are rules for when the proceedings are conducted by an administrative agency.

When a case of great public interest arises, many courts have rules in place designed to strike the right balance between a litigant's right to due process and a fair trial with First Amendment rights of access to judicial proceedings. But what happens when the tribunal is part of the executive branch of government? Do the rules change when the proceedings are conducted by an administrative agency instead of a judicial-branch court?

If the question was largely academic at the start of the new millennium, its character changed significantly after the attacks of September 11 and the subsequent United States military detention of persons identified as enemy combatants at Guantanemo Bay, Cuba.; In a few short years our interest in how the executive branch conducts; quasi-judicial hearings has sharpened, piqued by governmental limitations placed on access to adjudicative hearings both at home and abroad. Just how public does an administrative hearing have to be? What rights of access apply when the interests being litigated are limited to those wholly within the authority of a regulatory body? Does aq agency have an obligation to balance participant privacy rights against public access rights? Are there bencht marks of fair and effective media relations policies, standards that agencies should consider adopting when anticipating the role of the media in the operation of agency adjudications?

In many respects, media policies developed by judicial-branch courts would seem to serve as appropriate templates for executive-branch adjudicators. There are, however, some differences to consider. Agency hearings are conducted without juries, so an agency media policy can be crafted without standards for how the media will interact with prospective or impaneled jurors. Agency adjudicators generally lack the power to enforce a contempt citation, raising questions of whether an agency can hold media representatives accountable for acts that violate the agency's media policies.

Administrative hearings, further, tend to be civil in nature. To the extent an agency bases its media policies on models implemented by trial courts (models that likely accommodate interests of persons charged with crimes), the agency's policies may need to be adjusted to grant greater access than that of the trial court. Despite these differences, the question remains: how can we balance First Amendment interests in an open hearing against the tendency of executive adjudicators to operate in a relatively controlled and oftentimes closed environment?

Applying the First Amendment

It is true that most of the case law describing the rights of access under the First Amendment arises in the context of judicial proceedings, not proceedings conducted by executivebranch adjudicators. This distinction was not lost on the Department of Justice when it argued in post-9/11 deportation proceedings that "the political branches of government are completely immune from the First Amendment guarantee of access."1 The argument failed both times it was used,2 but the fact that such a claim was raised suggests some care needs to be taken when applying judicial trial-access doctrine to executive-branch hearings.

First Amendment access doctrine is the appropriate starting point when crafting any media relations policy, whether for a judicial-branch court or for proceedings conducted by administrative agencies. Whether the public's "qualified right of access"3 may be restricted requires an analysis articulated in cases that started in 1980 with Richmond Newspaper^1 (guaranteeing under the First Amendment the right to attend criminal trials) and ended in 1986 with Press-Enterprise II,5 in which the Court extended the right of access to preliminary proceedings in addition to trials, and introduced a two-part test considering whether "the place and process have historically been open to the press and the general public," and whether "public access plays a significant positive role in the functioning of the particular process in question. …

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