FAC to California Judiciary: End Court Secrecy Now

The First Amendment Coalition today called on California judicial leaders to put a stop to widespread court secrecy that has occurred throughout the coronavirus pandemic and ensure the public and press have access to hearings and trials as required under the First Amendment and California law.

In a letter to the California Judicial Council, the rule-making body of the state’s court system, FAC and its partners cite numerous examples of secret proceedings that have taken place since health concerns caused courts to restrict in-person access to courtrooms.

While many of the state’s 58 Superior Courts quickly adopted audio or video livestreaming to conduct hearings, too often the public was shut out of these remote-access innovations and turned away from courthouse doors. And with courts starting to resume more functions — such as conducting jury trials — the urgent need for public access is even more acute.

That’s why the First Amendment Coalition, joined by Public Justice and all three California affiliates of the American Civil Liberties Union, asked the Judicial Council to provide guidance and support to all 58 trial courts.

“At a minimum, any proceeding that would otherwise be public under the law must be accessible” to the public, whether physically or by audio or video feeds, the letter says.

The letter follows months of outreach by FAC and its partners to all of the state’s Superior Courts, during which time the groups documented numerous instances where the public was improperly excluded from crucial judicial proceedings. Today’s letter identifies numerous unconstitutional orders and policies, a lack of transparency about public access options, and insufficient technology, resulting in secret proceedings across the state. The specific problems identified in the letter include: 

  • Nine general orders and rules that unconstitutionally barred the public from accessing judicial proceedings;
  • Instances when courts failed to provide the public access to remote technologies used to conduct hearings;
  • Relatives of criminal defendants being turned away from courthouses when they attempted to observe hearings, with no alternative access provided; and
  • Representatives of FAC and the ACLU being denied access to civil and criminal proceedings in multiple courts, with no alternative access provided.

Many courts made improvements to increase public access after their initial closures, but problems persist. As recently as last week, relatives could not access hearings for people who had been arrested during Black Lives Matter protests in California.

“We fear that without direction and support from the Judicial Council to all Superior Courts, the public’s First Amendment rights will continue to be irreparably harmed, and that these harms will fall disproportionately on low-income people of color who are overrepresented in our criminal justice system,” attorneys for FAC, ACLU and Public Justice write in the letter.

The U.S. Supreme Court has time and again recognized that the public and press have a right under the First Amendment to attend court proceedings. That right is also well-established under California law.

“Public court proceedings are a cornerstone of our democracy,” said FAC Executive Director David Snyder. “Without public scrutiny, our judicial system cannot function properly, and abuses of courts’ extraordinary power will inevitably flourish. The time for the Judicial Council to act is now.”

Kathleen Guneratne, a senior staff attorney with the ACLU of Northern California who specializes in criminal-justice reform, said: “Preserving court transparency is critical now more than ever. We do not tolerate secret prosecutions in this country. Even one secret hearing is one too many.”

Stephanie Glaberson, a staff attorney with Public Justice who focuses on access to justice issues, said: “During times of crisis like the COVID-19 pandemic, fundamental constitutional protections like open courts become more—not less—important. We have seen courts around the country, including some in California, adapt to this situation with reasonable, readily available solutions that ensure public and media access. It’s time for the Judicial Council to take a leadership role and encourage courts throughout the state to implement these solutions for all Californians.”

FAC, ACLU and Public Justice make a number of recommendations to the Judicial Council and request the body address the issue immediately, as courts develop reopening plans. The recommendations include asking each court to confirm it is holding no secret proceedings.

About FAC:
FAC fights to promote, protect and defend free speech, a free press and the people’s right to know. A key element of this mission is ensuring transparency in state and federal courts by intervening in court cases to keep records and hearings open and public. Today’s letter is a part of these efforts, and was made possible by support from FAC’s supporters.

In addition to open-court advocacy, FAC has worked to combat government secrecy throughout the public-health emergency, speaking out against efforts to weaken freedom-of-information laws, publishing new tools to help the public and press obtain records, and holding regular virtual workshops on government transparency and press freedom. See our dedicated COVID-19 resource page

View the letter and exhibits.

For more information: 
David Snyder
Executive Director, First Amendment Coalition

Kathleen Guneratne
Senior Staff Attorney, ACLU Northern California

Stephanie Glaberson
Staff Attorney, Public Justice