Public Access to a Hearing Outside the Courtroom

Answer

I haven’t as yet been able to put my hands on a case addressing the press’ right of access to court hearings held in locations outside the courtroom.  However, the law is clear that the press and public have a First Amendment right to attend pretrial proceedings in criminal cases (see the left-hand column of page 19 of the California Supreme Court’s decision in NBC Subsidiary, attached), aright that extends to plea hearings (look at pages 2-3 of the Haller case, which I’ve attached).  Just as the courts cannot close courtrooms — even small or ill-equipped courtrooms — without first making the necessary findings (including that a compelling interest requires closure, the closure order is narrowly tailored, and there are no alternatives to closure), there is no basis for the court to close a hearing that it chooses to hold outside of the courtroom walls.  Indeed, if a court could avoid public access simply by holding hearings in places outside the courtroom, the constitutional right of access could be easily circumvented — a result which would be completely inconsistent with the law.

A hearing is a hearing, and just as a court cannot bar the press on the grounds that its courtroom facilities are ill-equipped to handle the press, they also cannot bar the press from a hearing held at a hospital simply because quarters may be cramped.  Although a court can impose reasonable “time, place and manner” restrictions, the logical response to that argument is a pooling arrangement, whereby one or a couple reporters can witness the proceedings and in turn inform all other members of the press.  If this issue comes up — particularly if they claim that they can’t let in some people without letting in everyone — you should point the court to the U.S. Supreme Court’s decision in Richmond Newspapers case, which I’ve also attached.  That case, which recognized the press and public’s First Amendment right to attend criminal trials, the Supreme Court recognized the special role of the media as “surrogates for the public,” and stated although “media representatives enjoy the same rights of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard.”  (see page 9, right-hand column).

To the extent there are attempts to exclude you on privacy grounds, the response is that by holding the arraignment at a hospital, the court has turned the hospital into a courtroom of sorts, and you cannot be excluded simply because the hearing is in a hospital.  You would only be seeing and hearing what you would otherwise be seeing or hearing in a courtroom, and HIPAA (which we discussed) has no applicability to this situation.