Toward a New Public Access Doctrine
51 Pages Posted: 13 Sep 2005
"Toward a New Public Access Doctrine" posits that the United States Supreme Court's quarter-century old public access doctrine needs a major overhaul. That doctrine prescribes the test that courts must use to evaluate claims of a First Amendment right of press and public access to trials and other judicial proceedings. As the article makes clear with a unique and thorough analysis of the decision patterns evident in the hundreds of lower court cases that have evaluated such claims, the current test is infinitely manipulable. Its manipulability has resulted in an inconsistent and contradictory body of case law, giving rise to concerns that its vastly divergent analyses and results are outcome-driven.
The article proposes a new public access doctrine marked by a consistency in application and clarity of purpose that will make access denials as rare as the Supreme Court intended. Unlike the current access doctrine, it does not artificially distinguish between documents and proceedings, limiting access to those who happen to be present and able to find space in the courtroom, nor does it treat document access and proceeding access as fungible, when each offers the public information that the other does not. Ultimately, the approach carries the significant corollary benefit of protecting judges from majoritarian pressures by constraining their discretion and compelling - and thus permitting - them to follow a non-manipulable law. As a result, it will lessen the appearance, and the actuality, of outcome-driven analyses.
Keywords: First Amendment, public access, Richmond, Detroit Free press, media, constitutional law
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