Free Speech

Manhattan Federal Court Coronavirus-Related Restrictions

In light of this, should the presumptive First Amendment right of access to court cases require the court to provide video coverage of hearings?

|The Volokh Conspiracy |

Posted today on the court site:

The United States District Court for the Southern District of New York announces visitor restrictions to all courthouses in the District as a result of the COVID-19 virus (coronavirus) outbreak in New York.

The Centers for Disease Control has advised people to take precautions in light of the COVID-19 virus outbreak and noted that the best way to prevent illness is to avoid being exposed to this virus.

Therefore, effective immediately, the following persons shall not enter any courthouse in the Southern District of New York:

• Persons who have travelled to any of the following countries within the last 14 days:
CHINA
SOUTH KOREA
JAPAN
ITALY
IRAN
(This list may be updated as further guidance is received.)

• Persons who reside or have had close contact with someone who has travelled to one of the countries listed above within the last 14 days;

• Persons who have been asked to self-quarantine by any doctor, hospital or health agency;

• Persons who have been diagnosed with, or have had contact with, anyone who has been diagnosed with COVID-19;

• Persons with fever, cough or shortness or breath.

Anyone attempting to enter in violation of these protocols will be denied entry by a Court Security Officer.

Here's my question: All of us have a presumptive First Amendment right to attend court hearings; the Court has so held as to criminal trials, and all federal appellate courts that have decided the question (including the Second Circuit, which covers New York) have held the same as to civil trials.

Now there's doubtless a compelling government interest in preventing illness and death, so some restriction on this right would likely be constitutional. But should the government, if it excludes some people from a trial or other hearing, offer live (or briefly delayed) webcasting as a less restrictive alternative?

True, generally the right of access doesn't include a right to watch online—but that's precisely because there is a right to attend: "While these cases establish that the press [and members of the public have] a right of access to observe criminal trials, … the right of access therein was a right to attend, listen and report. No case suggests that this right of access includes a right to televise, record, or otherwise broadcast trials." If some people are denied a right to attend, listen, and report, should the government then instead provide them with a right to access recordings or broadcasts?

My sense is that this argument isn't likely to prevail under current law; for instance, when there's no space in a courtroom, the people who can't get in aren't entitled to video access. But if a court decides to institute broader public health restrictions, for instance banning all but a few people from attending, then I think the case for providing video access becomes stronger.

UPDATE: Just to be clear, I assume that if a party, a lawyer, or a necessary witness is thus excluded, the hearing or trial will likely be postponed; I'm focusing here on the exclusion of members of the public generally.

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  1. If a party to a case is thus excluded, does he have a right to have the trial postponed? Or to be excused from a requirement to attend?

  2. Makes sense to me. Until now, I’ve generally favored the rights of the courts to limit recording and broadcast, in order to protect the decorum of the courts, to guard against acting, whether staged by the judges and courts themselves, or the counsels, or the witnesses. But perhaps the ‘decorum’ of the courts can only be protected a few inches farther than the decorum of society at large. My mind goes back to the ‘Chicago Seven’ trials, following the riots outside the Democratic convention in Chicago in 1968. Made a total farce of the Court, even without live broadcast.

    But basically, the public understood what a crazy proceeding that was, because there were press and other public there to report it. The argument for public access is not that Everybody should be able to be there, but that at least Somebody, a third party, at least a few parties without a stake in the case, can be neutral witnesses.

    And so, to the extent that technology allows it and is not directly disruptive of the proceedings, there’s a strong argument for electronic access in lieu of physical attendance, where physical attendance presents a danger.

  3. Wow. So first Chinese-American deft with family from abroad wins two years later on collateral 6A challenge, then.

  4. Why Japan? They have fewer cases than the USA, Spain, Germany, and France.

  5. Do we have an ADA argument here as well? I have asthma; I often have “shortness of breath”. 🙂

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