American Bar Association
Forum on Communications Law

Access to Court Proceedings and Records

John Gerhart

In February 2000, a coalition of news organizations intervened in the Branch Davidian wrongful death lawsuit that was pending in federal court in Waco, Texas.1 The lawsuit arose out of the federal government's 1993 raid on the Branch Davidian compound near Mt. Carmel, Texas. The press sought access to a court-supervised field test of certain firearms and military equipment that the presiding judge and the special counsel investigating the 1993 raid had arranged to be conducted at a United States military installation. Although the circumstances that necessitated the press's intervention in the Branch Davidian lawsuit were highly unusual, the case nevertheless provides a recent and interesting basis for a review of the media's right of access to federal court proceedings and records.2 The case also merits discussion because of an alarming statement by the federal district court that all pretrial matters in a civil lawsuit are not public in nature.

Media Intervention in Waco

A critical issue in the Branch Davidian lawsuit was whether government agents fired on the Branch Davidian compound during the April 19, 1993, raid. Contending that the agents had fired on the compound, the plaintiffs pointed to film from an infrared camera that monitored the events from aboard a plane flying overhead during the raid. The infrared camera detected what appeared to be flashes of light from certain government positions that the plaintiffs contended were gunfire. The government, however, consistently has denied that its agents fired weapons during the raid.

At the request of the parties to the lawsuit and former Senator John Danforth, the special independent counsel appointed to investigate the government's actions, U.S. District Court Judge Walter Smith ordered a field test to be held at Fort Hood, Texas, in mid-March. Made possible by Senator Danforth's office, the field test was to be conducted by a court-appointed expert and would involve a live fire exercise of certain firearms and military equipment that were in the possession of government agents during the raid. A plane carrying the same infrared camera present during the 1993 raid would record the exercise to help the court determine whether the gunfire caused flashes similar to that observed by the camera during the 1993 raid.

In February, Judge Smith informed a news reporter that the media would not be allowed to observe the field test. Several news organizations, including the Associated Press, the New York Times, the Dallas Morning News, and the St. Louis Post-Dispatch, filed motions to intervene in the lawsuit for the limited purpose of seeking access to the field test. Neither plaintiffs' counsel nor the government opposed the media's request but the government did defer to Special Counsel Danforth, who opposed media access.

The media request raised several questions with regard to First Amendment and common law rights of access. Did the media have standing to intervene? Was the field test a court proceeding? Did the field test constitute pretrial discovery? Did the press have a right of access to the test? If so, what was the applicable standard for barring access? The answers to these and other questions demonstrate the varying rights of access news organizations have to court proceedings and records.

The Media's Standing

Any discussion of the media's standing to intervene and seek access to court proceedings and records begins with the fundamental principle that the press has a First Amendment right to gather the news.3 The First Amendment also protects the public and news media's right to receive information and ideas.4 These free speech and free press safeguards typically are cited by courts in holding that news agencies have standing to challenge orders that impair their ability to gather the news and receive information although they are neither parties to the litigation nor restrained directly by the orders.5 In Pansy v. Borough of Stroudsburg, the Third Circuit concluded that "in determining whether the Newspapers have standing, . . . [w]e need only find that the Order of Confidentiality being challenged presents an obstacle to the Newspapers' attempt to obtain access."6 In East Baton Rouge Parish School Board, the Fifth Circuit recognized both the right to gather news and the right to receive protected speech as independent grounds upon which a nonparty news agency may have standing to contest a confidentiality order.7 The Waco federal court thus granted the media organizations' motions to intervene in the Branch Davidian lawsuit.

Right of Access to Court Proceedings

Although the press has standing to seek access to court proceedings and records, its rights are no greater than those enjoyed by the general public.8 Any question with regard to the media's right of access to a particular court proceeding or record thus is a question of public access. A trial nevertheless has long been recognized to be a public event, and that which transpires in the courtroom is public property.9 However, the right of access to the courts is not absolute but rather is a qualified one.10 The public's right of access to courts varies depending on the nature of the particular proceeding taking place.

Access to Criminal Proceedings

The public's constitutional right of access to criminal proceedings became firmly established in the early 1980s by virtue of a series of frequently cited Supreme Court decisions, Richmond Newspapers, Inc. v. Commonwealth of Virginia,11 Globe Newspaper Co. v. Superior Court,12 Press-Enterprise v. Superior Court ( Press-Enterprise I),13 and Press-Enterprise v. Superior Court ( Press-Enterprise II).14 In Richmond Newspapers and Globe Newspaper, the Supreme Court recognized a First Amendment right of access to criminal trials.15 The Supreme Court reasoned that the First Amendment's protections of speech and the press share a common purpose of ensuring freedom of communication on matters relating to the functioning of the government, and that such a right necessarily includes the right to know the manner in which criminal trials are conducted.16 The Court also emphasized two features of the criminal justice system to explain further why a right of access to criminal trials was protected by the First Amendment. First, criminal trials historically have been open to the public.17 Second, access plays a significant role in the functioning of the judicial process and the government as a whole.18 Public scrutiny of criminal trials enhances the quality and safeguards the integrity of the fact-finding process, fosters an appearance of fairness, and permits the public to participate in and serve as a check upon the judicial process.19

These considerations became the basis for the Supreme Court's standard for determining whether a constitutional right of access applies to a particular criminal proceeding. In Press-Enterprise I and Press-Enterprise II, the Court again voiced the similar reasoning in extending the First Amendment right of access to other stages of criminal proceedings-voir dire and preliminary proceedings. 20 The Court's standard for access is now commonly known as the "experience and logic" test and requires courts to look to two factors in determining whether there is a First Amendment right of access to a particular proceeding: (1) whether the proceeding traditionally has been open to the public; and (2) whether public access would play a "significant positive role in the functioning of the particular process in question." 21

The First Amendment right of access is a qualified right. If the "experience and logic" test is satisfied, closure of the proceedings nevertheless is permissible if there is a showing of a sufficiently compelling competing interest that warrants closure. The standard for denying access has been articulated by the Supreme Court in two slightly different ways, but both formulations of the standard are demanding. In Press-Enterprise I and Globe Newspaper, the Court stated: "Where . . . the state attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."22

In Press-Enterprise I, the Court also reiterated the standard set forth in Richmond Newspapers and stated that "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values."23 Press-Enterprise II repeats this same language.24

In instances where a trial court has identified a sufficiently compelling or overriding interest to enter a closure order, the Supreme Court also has mandated that the trial court is to articulate the interest and set forth findings specific enough for a reviewing court to determine whether a closure order was properly entered.25 If the interest asserted for the closure of a pretrial hearing is the right to a fair trial, the hearing "shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights."26

Relying on these Supreme Court decisions, federal courts of appeals have acknowledged the existence of a First Amendment right of access to a variety of criminal pre- and post-trial proceedings, including suppression,27 bail,28 and sentencing hearings.29 Despite the recognition of First Amendment right of access to such proceedings, however, decisions to deny access have been upheld where the proper showing of an overriding competing interest has been demonstrated.30 With respect to some proceedings, the public right of access is rarely recognized or, if found to exist, usually gives way to a competing interest. Courts routinely refuse to allow access to grand jury proceedings.31 The Supreme Court also has stated that the First Amendment right of access to trial should not prevent the use of sidebar or in-chamber conferences during a trial.32

Access to Civil Proceedings

The Supreme Court has not expressly decided whether there is a constitutional right of access to civil proceedings. The Court nevertheless strongly suggested in Richmond Newspapers that the same constitutional right of access would apply to a civil case as it does to a criminal case. In its plurality opinion, the Court stated that "[w]hether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal cases have been presumptively open."33 In his concurring opinion, Justice Potter Stewart unequivocally stated that "the First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal."34 Several circuits have ruled in accordance with the Supreme Court's dicta and recognized a First Amendment right of access to civil proceedings.35 As noted by the Sixth Circuit, "[t]he policy considerations discussed in Richmond Newspapers apply to civil as well as criminal cases."36

Access to Civil Pretrial Discovery

Although a First Amendment right of access may apply to civil courtroom proceedings, the Supreme Court's decision in Seattle Times v. Rhinehart37 indicates that the Court might not extend the right of access to pretrial discovery. The Court stated that "pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice."38 It thus appears the Court would not find that pretrial discovery proceedings meet the first prong of the "experience and logic" test.

Seattle Times, however, does not stand for the proposition that the First Amendment has no application with regard to orders barring access to pretrial discovery. At issue was whether the newspaper had a First Amendment right to publish information it had obtained during civil discovery in a libel lawsuit in which it was a defendant. The plaintiffs in Seattle Times were a religious group, its leader, and several members. The Washington state trial court, after compelling plaintiffs to produce certain information about their members and donors, also issued a protective order prohibiting the newspaper from publishing the information or otherwise using it in any way other than in connection with preparing for and trying the lawsuit. The newspaper challenged the protective order, contending the order violated the newspaper's First Amendment rights.

The Supreme Court affirmed the trial court's decision to enter a protective order and rejected the newspaper's contention that a protective order will only pass constitutional muster when the proponent demonstrates a "compelling governmental interest." Recognizing the broad discretion afforded to a trial court under the "good cause" standard of Washington Superior Court Rule 26(c), the Supreme Court deferred to the lower courts' determination that the privacy and religious freedom interests at stake constituted good cause.39

The Court's analysis nevertheless demonstrates that the First Amendment does apply to protective orders restricting dissemination of pretrial discovery. As noted by Justices Brennan and Marshall in their concurring opinion, the Court recognized "that pretrial protective orders, designed to limit the dissemination of information gained through the civil discovery process, are subject to scrutiny under the First Amendment."40 In his opinion for the Court, Justice Powell characterized the relevant constitutional inquiry as follows:

The critical question that this case presents is whether a litigant's freedom comprehends the right to disseminate information that he obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In addressing that question it is necessary to consider whether the "practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression" and whether "the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved."41

In addressing this question, the Court found "judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context."42 The Court further found Rule 26's provision for protective orders furthered a substantial government interest in protecting litigants from the "significant potential for abuse" in pretrial discovery and did not require heightened First Amendment scrutiny.43 With these considerations in mind, the Court concluded:

We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.44

Seattle Times thus recognizes that the First Amendment does apply to protective orders, albeit a proper showing of "good cause" under Rule 26 provides an adequate safeguard of First Amendment interests.

In light of the Seattle Times analysis , some courts have recognized a proper balancing of interests under the "good cause" standard of Federal Rule of Civil Procedure 26 is necessary in order to adequately protect First Amendment interests.45 In fact, the First Circuit has stated that "[p]rotective discovery orders are subject to first amendment scrutiny, but that scrutiny must be made within the framework of Rule 26(c)'s requirement of good cause."46 The Sixth Circuit has similarly recognized that "[w]hile District Courts have the discretion to issue protective orders, that discretion is limited by the careful dictates of Fed.R.Civ.P. 26 and 'is circumscribed by a long established legal tradition' which values public access to court proceedings."47

Courts also have recognized a statutory right of public access to pretrial discovery, pursuant to Rule 26, that is independent of any common law or constitutional considerations.48 According to the First Circuit, the good cause requirement of Rule 26(c) means that "[a]s a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings."49 In another case, the Second Circuit affirmed a district court's conclusion that there was a "statutory right of access" to discovery materials pursuant to Rules 5(d) and 26(c), and that discovery is presumptively open to public scrutiny unless a valid protective order directs otherwise.50 Observing the good cause standard, courts have denied or modified protective orders so as to allow public access to pretrial discovery materials and proceedings.51 For example, in Estate of Rosenbaum v. New York City, a New York federal court found the depositions of the New York City mayor and a former New York City police commissioner to be the subject of great public interest and should be open to the news media.52 Therefore, while civil pretrial protective orders may not be subject to heightened constitutional scrutiny, such orders still may be successfully challenged on the grounds of insufficient cause.

Right of Access to Court Records

The Supreme Court has not recognized a First Amendment right of access to judicial records but acknowledged the existence of a "common law right of access to judicial records" in Nixon v. Warner Communications.53 Nixon involved the media's attempt to gain access to certain Watergate tapes that had been admitted into evidence during the criminal trial of several former advisors to the president. After the D.C. Circuit reversed the trial court's denial of the media request for access, the Supreme Court granted review and rejected the media's claim there was a First Amendment right of access to the tapes. The Court stressed that the media were not being precluded from reporting on the testimony elicited and exhibits introduced during the trial and, with regard to the tapes, noted that approximately twenty-two hours of edited tapes had been played in open court and that transcripts of the edited tapes had been prepared and widely reprinted in the media. Therefore, according to the Court, the press had been permitted access to all "information in the public domain" about the tapes.54

While refusing to recognize a constitutional right of access, the Court acknowledged "a general right to inspect and copy public records and documents, including judicial records and documents."55 However, the Court held that this right "is not absolute."56 The Court gave little guidance on what the common law right of access entailed other than making two observations: "[e]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes"; and "[t]he few decisions that have recognized such a right do agree that the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case."57 Otherwise, the Court stated it "need not undertake to delineate precisely the contours of the common law right, as we assume, arguendo, that it applies to the tapes at issue."58

The Court ultimately reversed the D.C. Circuit on grounds that had not been raised on appeal, the Presidential Recordings and Materials Preservation Act of 1974.59 In deciding to deny access to the tapes, the Court found that the "presence of an alternative means of public access [the administrative procedure established by the Act] tips the scales in favor of denying access."60

The federal common law right of access to court records and documents recognized by Nixon v. Warner Communications has been extended uniformly by the circuit courts to both criminal and civil cases.61 However, courts differ on what weight should be given to the right. Several circuits recognize a "strong" presumption in favor of public access to records.62 Other circuits have refused to assign a specific weight to the presumption in favor of access.63 Court decisions also vary somewhat on the scope of the right of access. For example, in some instances, courts have refused to recognize a right of access to discovery materials filed with or submitted to the court with discovery motions.64 In at least one instance, the discovery motion also was found to be outside the scope of the public's right of access.65 Discovery materials submitted with nondiscovery motions, however, have been found to be subject to the public's right of access.66

In addition to a common law right of access, many circuits also have recognized a First Amendment right of access to certain judicial documents.67 These courts typically rely upon the Supreme Court's decisions of Richmond Newspapers, Globe Newspaper, and Press-Enterprise I and II, all of which were decided after Nixon, and typically apply the Supreme Court's "experience and logic" test to determine if a First Amendment right of access attaches to a particular document.68 While some courts have only recognized the constitutional right in the context of criminal proceedings, others also have acknowledged its application to records in civil cases.69

Ruling on the Media's Motion

A significant hurdle in the news organizations' effort to gain access to the field test was the out-of-court nature of the test. Citing Seattle Times, the special counsel opposed the media's request for access and argued the field test constituted pretrial discovery to which the press did not have a First Amendment right of access. Aside from objecting to the special counsel's standing in the lawsuit, the press argued the field test was not discovery but was in effect an in-court proceeding by virtue of the court's supervision. Barring media access thus was subject to constitutional scrutiny. The media also argued that, even if the test was pretrial discovery, there had been no showing of good cause to prohibit media access. Furthermore, the participation of the U.S. military in the field test, the significant national interest in the government's actions during the raid of the Branch Davidian compound, and the anticipated presence of congressional representatives demonstrated the inherent public nature of the proceeding.

The special counsel nevertheless argued allowing media access to the field test would result in an "inning by inning" report on his investigation that would undermine its progress. In response, the news organizations noted that it was the special counsel who was placing his investigation further into the public eye by becoming involved in a federal civil lawsuit. Having decided to participate in a public proceeding, the special counsel could not then seek to shroud in secrecy his involvement in the lawsuit.

After considering the parties' positions, the trial court denied the news organizations' motions for access and found "the media have identified no constitutional or common law right that would entitle them to access to this procedure." In reaching this conclusion, the court broadly construed Seattle Times to stand for the proposition that "pre-trial matters are not public components of a civil trial." Comparing the field test to a crime scene, the court stated that "there is no right of access inherent in the First Amendment that would permit the press to attend any other type of pre-trial, scientific testing, such as investigative interviews, autopsies, DNA tests, lie detectors or any other test conducted in the normal course of an investigation."

The court also based its ruling on two other considerations. First, the court cited security and safety reasons and stated that "[t]his Court does not believe the military should be responsible for assuring the safety of more civilians than necessary." Second, because the field test would only provide additional data for the experts, the court concluded the media's presence would not assist the pubic in gaining a better understanding of whether federal agents had fired weapons during the government's raid on the Branch Davidian compound.

Other Troubling Aspects

The trial court's order was troubling in two respects. First, the court's interpretation of Seattle Times is inconsistent with any reading of the Supreme Court's opinion in that case . Nowhere in its opinion did the Supreme Court hold or otherwise suggest the First Amendment has no application in civil pretrial matters. Furthermore, such an interpretation is contradicted by numerous court decisions applying the Press-Enterprise standard to civil pretrial proceedings. Also troubling was the court's comparison of the field test to a crime scene and a criminal investigation. As the field test was a court-supervised proceeding in a civil lawsuit, the court's comparison did not seem to be appropriate.

The field test took place in mid-March 2000. Not surprisingly, both sides to the lawsuit publicly claimed victory afterwards. At the conclusion of the field test, the trial court acted on its own initiative and entered an order prohibiting the parties from disclosing the contents of the tapes made during the field test. The order raised additional questions as to whether the public had a presumptive right of access to the tapes on the grounds they were court records or pretrial discovery that, absent good cause, the parties had a right to disseminate. The court's order, however, was not challenged by the parties or the press. In late May, the court-appointed expert issued a report supporting the government's position that the flashes of light observed during the 1993 raid were not gunfire. Attorneys for the plaintiffs disputed the report and plan to raise the gunfire issue at trial.


The parties' differing interpretations of the results of the field test in the Branch Davidian lawsuit demonstrate the principal reason the press sought access to the field test, i.e., to provide the public an objective source for information on a matter of significant public interest. Although the facts surrounding the field test may eventually be fully disclosed and debated at trial or in Special Counsel Danforth's report, these avenues for information are not adequate substitutes for the public's ability to have a firsthand view of the events through the eyes of the press. Furthermore, there is no guarantee a civil lawsuit will reach trial and, with regard to the report of a special independent counsel, the public should be afforded the right to scrutinize the report based on all available information.

The most alarming aspect of the trial court's decision in the Branch Davidian lawsuit is the court's statement that pretrial matters in a civil lawsuit are "nonpublic." This blanket assertion encompasses not only the entire discovery process but also all in-court pretrial proceedings of any nature. Although contradicted by numerous authorities, the court's statement nevertheless is indicative of a growing tendency to shield civil proceedings from public view. Pretrial protective orders are commonplace and litigants routinely seek to prohibit public dissemination of the vast majority of items produced in discovery. In many lawsuits, the veil of secrecy often extends into the courthouse as the parties file documents and exhibits under seal and sometimes seek to elicit witness testimony in camera. As evidenced by recent lawsuits against the tobacco and health care industries, matters of significant public interest always will be addressed in civil proceedings. Since the vast majority of civil cases do not reach trial, access to pretrial proceedings are of critical importance to the public's understanding of issues being addressed in civil lawsuits. The notion of public courts has little meaning if access to such proceedings are denied.


1. Andrade v. Chojnaki , 65 F. Supp. 2d 431 (W.D. Tex. 1999).

2. The right of access to state courts and records varies with the scope of differing state laws and is beyond the scope of this article.

3. Branzburg v. Hayes, 408 U.S. 665, 681 (1972); United States v. Gurney, 558 F.2d 1202, 1208 (5th Cir. 1977), cert. denied, 435 U.S. 968 (1978 );CBS, Inc. v. Young , 522 F.2d 234, 238 (6th Cir. 1975) .

4. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748, 756-57 (1976).

5. See, e.g., United States v. East Baton Rouge Parish School Bd., 78 F.3d 920, 926-27 (5th Cir. 1996); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994); In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir.), cert. denied, 488 U.S. 946 (1988); Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir. 1986); Radio & Television News Ass'n v. U.S. District Court , 781 F.2d 1443, 1445 (9th Cir. 1986); Gurney, 558 F.2d at 1207; CBS, Inc., 522 F.2d at 238.

6. Pansy, 23 F.3d at 777.

7. East Baton Rouge Parish School Bd., 78 F.3d at 926-27.

8. Nixon v. Warner Communications, 435 U.S. 589, 609 (1978).

9. Craig v. Harney, 331 U.S. 367, 373-74 (1947).

10. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10 (1986) (Press-Enterprise II); Globe Newspaper Co v. Superior Court, 457 U.S. 596, 606 (1982).

11. 448 U.S. 555 (1980).

12. Globe Newspaper, 457 U.S. at 596.

13. 464 U.S. 501 (1984).

14. Press-Enterprise II, 478 U.S. at 1.

15. Globe Newspaper, 457 U.S. at 603; Richmond Newspapers, 448 U.S. at 558-81 (plurality opinion).

16. Globe Newspaper, 457 U.S. at 604; Richmond Newspapers, 448 U.S. at 575.

17. Globe Newspaper, 457 U.S. at 605; Richmond Newspapers, 448 U.S. at 569.

18. Globe Newspaper, 457 U.S. at 605-06.

19. Id. at 606. See also Richmond Newspapers, 448 U.S. at 569-71 (plurality opinion); id. at 595, 596-97 (Brennan, J., concurring).

20. Press-Enterprise I, 464 U.S. at 505-10.

21. Id. at 8; Press-Enterprise II, 478 U.S. at 10.

22. Press-Enterprise I, 464 U.S. at 510; Press-Enterprise II, 478 U.S. at 8; Globe Newspaper, 457 U.S. at 607.

23. Press-Enterprise I, 464 U.S. at 510. See also Richmond Newspapers, 448 U.S. at 581.

24. Press-Enterprise II, 478 U.S. at 9-10.

25. Press-Enterprise I, 464 U.S. at 510.

26. Press-Enterprise II, 478 U.S. at 14.

27. See, e.g., United States v. Criden, 675 F.2d 550, 554-55 (3d Cir. 1982) ( Criden II); In re Herald Co. , 734 F.2d 93, 100 (2d Cir. 1984); United States v. Brooklier, 685 F.2d 1162, 1170 (9th Cir. 1982).

28. United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir. 1983).

29. See, e.g., In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986).

30. See, e.g., In re Globe Newspaper Co., 729 F.2d 47, 53 (1st Cir. 1984) (denying public access to bail hearing).

31. See, e.g., In re Grand Jury Subpoena, 103 F.3d 234 (2d Cir. 1996) (overriding interest in secrecy of grand jury proceedings outweighs First Amendment right of access); In re Subpoena to Testify Before a Grand Jury Directed to Custodian of Records (Univ. of Fla. Athletic Program) , 864 F.2d 1559, 1562-63 (11th Cir. 1989) (no right of access to grand jury). See also Press-Enterprise II, 478 U.S. at 9 (explaining that grand jury proceedings "would be totally frustrated if conducted openly").

32. Richmond Newspapers, 457 U.S. at 598 n.23.

33. Id. at 580 n.17.

34. Id. at 599 (Stewart, J., concurring).

35. See, e.g., Publicker Industries v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984); In re Continental Illinois Securities Litig. , 732 F.2d 1302, 1308 (7th Cir. 1984); Brown & Williamson Tobacco Corp. v. Federal Trade Comm'n , 710 F.2d 1165, 1179 (6th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). See also Newman v. Graddick, 696 F.2d 796 (11th 1983); In re Iowa Freedom of Information Council, 724 F.2d 658 (8th 1983).

36. Brown & Williamson Tobacco Corp., 710 F.2d at 1179. See also In re Continental Ill. Sec. Litig., 732 F.2d at 1308 ("[t]he policy reasons for granting public access to criminal proceedings apply to civil cases as well").

37. 467 U.S. 20 (1984).

38. Seattle Times, 467 U.S. at 33 (citations omitted).

39. Id. at 31, 36-37.

40. Id. at 37 (Brennan, J. and Marshall, J., concurring).

41. Id. at 32 (quoting Procunier v. Martinez , 416 U.S. 396, 413 (1974); Brown v. Glines, 444 U.S. 348, 354-55 (1980); Buckley v. Valeo, 424 U.S. 1, 25 (1976)).

42. Id. at 34.

43. Id. at 34-36.

44. Id. at 37.

45. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986); United States v. $9,041,598.69, 976 F. Supp. 654, 656 (S.D. Tex. 1997) (citing Seattle Times, 467 U.S. at 37 (1984)). But see Cipallone v. Liggett Group, Inc., 785 F.2d 1108, 1118-20 (3d Cir. 1986).

46. Anderson, 805 F.2d at 7.

47. Procter & Gamble Co., 78 F.3d at 227 (quoting Brown & Williamson Tobacco Corp., 710 F.2d at 1177).

48. See, e.g., Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789-90 (1st Cir. 1988), cert. denied, 488 U.S. 1030 (1989); In re Agent Orange Product Liability Litig., 821 F.2d 139, 145-46 (2d Cir. 1987), cert. denied, 484 U.S. 953 (1987).

49. Public Citizen, 858 F.2d at 789-90 (citations omitted).

50. In re Agent Orange, 821 F.2d at 145-46.

51. See, e.g., Public Citizen, 858 F.2d at 792; In re Agent Orange, 821 F.2d at 148; Estate of Rosenbaum v. New York City , 21 Media L. Rep. (BNA) 1987 (E.D.N.Y. 1993); Avirgan v. Hull , 118 F.R.D. 252 (D.D.C. 1987).

52. Rosenblum, 21 Media L. Rep. at 1988-90.

53. 435 U.S. 589, 597, 608 (1978).

54. Nixon, 435 U.S. at 592-93.

55. Id. at 597.

56. Id. at 598.

57. Id. at 598-99.

58. Id. at 599.

59. Id. at 603.

60. Id. at 606.

61. See, e.g., San Jose Mercury News, Inc. v. U.S. District Court, 187 F.3d 1096, 1102 (9th Cir. 1999); Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 161 (3d Cir. 1993); Smith v. U.S. District Court, 956 F.2d 647, 650 (7th Cir. 1992); FTC v. Standard Financial Management, 830 F.2d 404, 408 n.4 (1st Cir. 1987); In re Continental Ill. Sec. Litig., 732 F.2d at 1308; Brown & Williamson Tobacco Corp., 710 F.2d at 1179.

62. See, e.g., San Jose Mercury News, 187 F.3d at 1102; Smith, 956 F.2d at 650; Brown & Williamson Tobacco Corp., 710 F.2d at 1179; Criden I, 648 F.2d 814, 824-26 (3d Cir. 1981). See also United States v. Meyers, 635 F.2d 945, 952 (2d Cir. 1980) ("only the most compelling circumstances" should prevent access).

63. See, e.g., United States v. Webbe, 791 F.2d 103, 106 (8th Cir. 1986); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 434 (5th Cir. 1981).

64. See, e.g., Leucadia, 998 F.2d at 156; Anderson, 805 F.2d at 13.

65. Leucadia, 998 F.2d at 156.

66. See id. at 156; Republic of Philippines v. Westinghouse Elec. Corp ., 949 F.2d 653, 660-61 (3d Cir. 1991); In re Continental Ill. Sec. Litig., 732 F.2d at 1308.

67. See, e.g., Washington Post v. Robinson , 935 F.2d 282, 287-88 (D.C. Cir. 1991 ("The first amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed"); Oregonian Publ'g Co. v. U.S. District Court, 920 F.2d 1462, 1465 (9th Cir. 1990) ("Under the first amendment, the press and the public have a presumed right of access to court proceedings and documents."), cert denied, 501 U.S. 1210 (1991); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir. 1989) (public has a First Amendment right of access to records submitted in connection with criminal proceedings); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (First Amendment right of access applies to document filed in connection with search warrant applications), cert. denied, 488 U.S. 1009 (1989); United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989) ("this court has held that the first amendment right of access extends to documents submitted in connection with a judicial proceeding"); United States v. Haller, 827 F.2d 84, 87 (2d Cir. 1988) (qualified First Amendment right of access extends to documents filed in connection with plea hearings); In re NBC, Inc., 828 F.2d 340, 345 (6th Cir. 1987) (qualified right of access applies to pretrial documents pertaining to proceedings for disqualifying a judge); In re Washington Post Co., 807 F.2d at 390 (First Amendment right of access applies to documents filed in connection with plea hearings and sentencing hearings in criminal cases); United States v. Smith, 123 F.2d 140, 146 (3d Cir. 1997) (First Amendment right of access to criminal proceedings is extended "to the records and briefs that are associated with that proceeding").

68. See, e.g., Robinson, 935 F.2d at 288; Oregonian Publ'g Co., 920 F.2d at 1465; Pokaski, 868 F.2d at 502 & n.10, 509; In re Search Warrant, 855 F.2d at 573; Corbitt, 879 F.2d at 228-29; Smith, 123 F.2d at 146.

69. See, e.g., Republic of Philippines, 949 F.2d at 659 (citing Publicker Industries, 733 F.2d at 1070); Brown & Williamson Tobacco Corp., 710 F.2d at 1177-79; Robinson, 935 F.2d at 287-88; Oregonian Publ'g Co., 920 F.2d at 1465; Corbitt, 879 F.2d at 228.


John Gerhart is an associate in the firm of Jenkens & Gilchrist in Dallas, Texas, and is a member of the firm's media law practice group. He represented the Associated Press, the New York Times , the Dallas Morning News , and the St. Louis Post-Dispatch in their intervention in the Branch Davidian lawsuit in Waco, Texas. Matthew Stack, a law student at Saint Louis University, also assisted in the research for this article.

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