The First Amendment Coalition and 10 other advocacy organizations today called on the California judiciary to recognize and enforce the public’s First Amendment right of access to court proceedings as court operations change in response to the COVID-19 pandemic.
Courts across California are halting proceedings, restricting access to buildings and holding some hearings telephonically, raising concerns that members of the public and the press, who are exempt from the state’s stay-at-home order, will face insurmountable barriers to accessing. The First Amendment and California law guarantee a public right of access to criminal and civil court proceedings, as well as records relating to those proceedings.
From the letter the coalition submitted to California Chief Justice Tani Cantil-Sakauye:
We recognize the severe health crises we all face as a society and applaud your leadership in issuing the March 23 Statewide Order. At the same time, we need to recognize that important civil liberties and constitutional rights should not be unduly restricted. While courts are closing buildings, halting proceedings and holding some hearings telephonically, we are concerned members of the press and public will face insurmountable barriers to access judicial records and proceedings.
The coalition makes a number of recommendations:
First, telephonic hearings must be conducted on conference lines that make some allowance for free public usage. And dial-in information must be readily available to the public in advance of the hearing.
Second, criminal proceedings, such as arraignments and sentencing, that take place in courtrooms or via video must in some way be open to the public and press. See, Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). Gov. Newsom correctly designated the press as “essential” and therefore they are exempt from the state’s “shelter in place” order. Reporters, who serve as the eyes and ears of the public, should not be blocked from access to courthouses to observe proceedings, even as courts take reasonable measures to restrict access for health reasons.
Third, court records must remain publicly available. Access will come to a screeching halt if clerks’ offices are closed to the public. This is yet another reason courts should move toward making all records available on their websites. If records cannot be made available online, courts should make arrangements for access in some other manner. Moreover, courts should waive any fees for online access at least until normal operations resume.