Fresh Tips: Reporters have standing to challenge closure of hearings in open court

courtroomReporters covering criminal cases sometimes encounter a judge who believes that it is appropriate, for whatever reason, to close the courtroom doors and prevent the public, and the media, from attending certain proceedings.  An example of such an instance was recounted in a relatively recent Kansas Supreme Court case, State v. Cox, 297 Kan. 648 (2013) where the defendant was charged with sexual assault of two young girls.  There, “[a]t the State’s request and over a defense objection at trial, the district court judge closed the courtroom to spectators while pictures of the girls’ genitalia were exhibited and discussed. The judge attributed the closure to ‘the personal nature of the photographs.’ As soon as the photographs were removed from view, members of the public were allowed back into the courtroom.”  State v. Cox, 297 Kan. at 651.  When the defendant appealed his sentence on the basis that the Sixth Amendment right to a public trial has been violated, the Kansas Supreme Court ordered remand on the grounds that “the district judge’s wholesale closing of courtroom doors during the presentation of a sexual assault nurse examiner’s testimony concerning her examination of the child-victims’ genitalia violated the public-trial guarantee.”  Id., Syl. 4.

It is unknown whether any members of the news media were in the courtroom at the time the judge cleared it during the Cox trial, or if their presence would have made a difference.  However, it is important for reporters to understand that Supreme Court precedent empowers them to act if they are covering a hearing where a judge acts similarly to the one in Cox.  “[R]epresentatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)). Other courts agree, with the Ninth Circuit finding that “those excluded from the proceeding must be afforded a reasonable opportunity to state their objections.” U.S. v. Brooklier, 685 F.2d 1162, 1167‑68 (9th Cir. 1982). Likewise, the Second Circuit in In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2nd Cir. 1988) found that “news agencies have standing as recipients of speech” to challenge gag orders.

To that end, a reporter should be armed with the following statement for any time a court is closed in violation of the First Amendment. In such an instance, a reporter should stand, respectfully gain the judge’s attention, and say the following:

“I am (name), a reporter for (name of news organization).  On behalf of both myself and my organization, I respectfully object to closure of this proceeding to the public and the media, and I request an opportunity to be heard before any closure is ordered.  I understand that, under the First Amendment to the United States Constitution, as well as the constitution of the State of Kansas, the public and the media rightfully may attend court proceedings.  At the very least, the law requires that a hearing be held before closure may be ordered.  I respectfully request an opportunity for counsel to be present at such a hearing.”

A statement like this, read by a Kansas newspaper reporter in open court, had a profound effect in a case that took place about 35 years ago.  There, in response to a judge’s closure of a pretrial hearing in a high-profile murder case, a reporter “read a statement previously prepared by her employer for just such a purpose. The statement contained the newspaper’s request for a hearing on the closure issue and then summarized legal arguments outlining the legal standards for closing a criminal proceeding as viewed by the newspaper. The basis of petitioner’s argument was the decision of the United States Supreme Court in  Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).” Kansas City Star v. Fossey, 230 Kan. at 242 (1981).   The reporter’s objection helped the media establish key Kansas Supreme Court precedent that court proceedings and records are presumptively open to the public and cannot be closed except in rare circumstances. See Kansas City Star v. Fossey, 230 Kan. at 247-250.

Thus, a reporter who states an objection to a judge’s plan to close a court proceeding makes it a matter of record. If the statement doesn’t prevent closure on its own, it at least gives the attorney for the reporter’s news organization a legal basis for demanding a hearing and, if necessary, holding the judge accountable on appeal.