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Court Transparency and the First Amendment David S University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2-2017 Court Transparency and the First Amendment David S. Ardia University of North Carolina School of Law, [email protected] Follow this and additional works at: https://scholarship.law.unc.edu/faculty_publications Part of the Courts Commons, and the First Amendment Commons Publication: Cardozo Law Review This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. ARDIA.38.3.1 (Do Not Delete) 3/8/2017 6:33 PM COURT TRANSPARENCY AND THE FIRST AMENDMENT David S. Ardia† “Publicity is the very soul of justice,” legal philosopher Jeremy Bentham once warned.1 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 raises significant privacy concerns. 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. † Assistant Professor of Law, University of North Carolina School of Law, and Faculty Co- Director, UNC Center for Media Law and Policy. Thanks to Heidi Kitrosser, Anne Klinefelter, Bill Marshall, Cathy Packer, Mary-Rose Papandrea, and participants at the 2016 Internet Law Works-in-Progress Symposium at New York Law School for helpful comments and discussion. Thank you also to Patrick Redmon, Maddie Salamone, Robert Sparks, and James Wudel for exceptional research assistance. 1 4 JEREMY BENTHAM, Bentham’s Draught for the Organization of Judicial Establishments, Compared with That of the National Assembly, with a Commentary on the Same, in THE WORKS OF JEREMY BENTHAM 305, 316 (John Bowring ed., London, Simpkin, Marshall, & Co. 1843) [hereinafter BENTHAM, THE WORKS OF JEREMY BENTHAM]. 835 ARDIA.38.3.1 (Do Not Delete) 3/8/2017 6:33 PM 836 CARDOZO LAW REVIEW [Vol. 38:835 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 experience and logic support a public right of access to individual judicial proceedings and records to whether the structural benefits of court transparency are outweighed by the need for secrecy. 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. TABLE OF CONTENTS INTRODUCTION .................................................................................................................837 I. PUBLIC ACCESS TO THE COURTS ..............................................................................843 A. Constitutional Framework ...........................................................................845 1. A Right to Information Generally ..................................................845 2. A Right to Information from the Government ............................847 3. A Right to Information from the Courts .......................................851 B. Application in the Lower Courts .................................................................856 1. Inconsistency and Uncertainty .......................................................858 2. The Limits of Experience and Logic ..............................................861 a. Experience Is a Poor Guide for a Constitutional Right of Access ......................................................................862 b. The Logic Prong Is Focused on the Wrong Things .........864 3. The Danger of Ad Hoc Balancing ..................................................866 4. Common-Law Access and the Dilemma of Court Records .......871 II. FIRST AMENDMENT STRUCTURALISM ......................................................................880 A. The First Amendment’s Purpose and Structural Role ..............................881 1. Theories of the First Amendment ..................................................882 2. Constitutional Structuralism...........................................................885 B. The Structural Values of Court Transparency...........................................889 1. The First Amendment as Sword .....................................................890 2. Higher-Order Constitutional Values .............................................894 a. First-Order Benefits..............................................................895 ARDIA.38.3.1 (Do Not Delete) 3/8/2017 6:33 PM 2017] COURT TRANSPARENCY 837 b. Second-Order Benefits .........................................................896 c. Third-Order Benefits ...........................................................897 3. Court Transparency and Self-Governance ...................................900 4. The Unique Structural Role of the Courts ....................................902 III. AN ANALYTICALLY COHERENT PUBLIC ACCESS DOCTRINE ..................................906 A. Ensuring a Presumption of Public Access ...................................................907 B. Evaluating Countervailing Interests ...........................................................912 C. Expanding Access to the Courts ...................................................................916 CONCLUSION......................................................................................................................918 INTRODUCTION In 2008, the United States Court of Appeals for the Third Circuit published an opinion in a lawsuit that, as far as the public knew, did not exist. The case, Doe v. C.A.R.S. Protection Plus, Inc.,2 was kept so secret over the course of seven years that it never appeared on a public docket. By order of the district court, all proceedings were closed and all records were sealed.3 The case, and its extraordinary secrecy, only came to light because the Third Circuit issued a decision reversing the district court’s grant of summary judgment in favor of the defendants.4 In the penultimate paragraph of that decision, the Third Circuit affirmed the district court’s sealing of the case, ruling that the judge did not abuse his discretion even though he did not provide the public with notice and an opportunity to be heard on the question of closure and did not issue any on-the-record findings supporting his closure order.5 And then, without further explanation, the Third Circuit promptly sealed the appellate record.6 2 527 F.3d 358 (3d Cir.), order clarified, 543 F.3d 178 (3d Cir. 2008). 3 If a member of the public or press attempted to find the case on the district court’s Public Access to Court Electronic Records (PACER) system, they would have received a message saying either that no such case existed or that it was sealed. See Petition for Writ of Certiorari at 3, N.Y. Law Publ’g Co. v. Doe, 555 U.S. 1013 (2008) (No. 08-330), 2008 WL 4185426, at *3 [hereinafter Petition for Certiorari]. 4 C.A.R.S. Prot. Plus, Inc., 527 F.3d at 361–62. 5 Id. at 371. 6 See Order, Doe v. C.A.R.S. Prot. Plus, Inc., 543 F.3d 178 (2008) (Nos. 06-3625 & 06-4508) (order filed on June 19, 2008 denying motion for intervention, for access to records and proceedings, and to alter/amend opinion) (the order is available in Appendix B to the Petition for Certiorari, supra note 3). The Third Circuit later modified its decision, stating: “It is not our intention that the order we entered sealing the record on appeal would prevent the
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