Court Transparency and the First Amendment

Abstract

“Publicity is the very soul of justice,” legal philosopher Jeremy Bentham wrote in 1827. Regrettably, lady justice is at risk of losing her soul. In courts across the country, secrecy is increasingly the norm. Indeed, the extent of secrecy in American courts is astonishing, especially given the assumption by many that the First Amendment guarantees a right of public access to the courts. In reality, the United States Supreme Court has explicitly held only that there is a First Amendment right of public access to criminal trials and pre-trial proceedings. The Court has never addressed the question of whether there is a constitutional right of access to civil proceedings or to court records. Moreover, the Court’s last pronouncement on this issue occurred more than a quarter of a century ago and left the lower courts with a confusing and inconsistent doctrinal roadmap for dealing with public access questions. In the intervening decades, public access to the courts has been quietly under siege.

This is a critical time for court transparency because the courts, like so many institutions of government, are in the midst of a transformation from the largely paper-based world of the twentieth century to an interconnected, electronic world where physical and temporal barriers to information are disappearing. Not surprisingly, the shift to electronic access to the courts can implicate important privacy interests. As a result of these and other concerns, a number of courts and legislatures are considering sharply limiting public access to certain court proceedings and records.

We can, however, put court transparency on a firm theoretical foundation by focusing on the structural role the First Amendment plays in our constitutional system. In doing so, this Article makes two related arguments. First, a central purpose of the First Amendment is to ensure that citizens can effectively participate in and contribute to our republican system of self-government. Second, in order to effectuate this goal, the First Amendment must be understood to embody an affirmative right of access to information held by the courts, which by virtue of their unique institutional position possess information that is essential for the public to effectively evaluate the workings of government and therefore to act as sovereigns over the government. Drawing on these conclusions, this Article reworks existing First Amendment doctrine to shift the emphasis away from the question of whether the public has a right of access to individual judicial proceedings or records to whether the interests supporting secrecy outweigh the structural benefits of public access. This reworking of public access doctrine provides a principled way for courts to evaluate the interests in secrecy while at the same time ensuring that the public’s right of access to the courts is retained.

Keywords: court transparency, first amendment

JEL Classification: K13, K40