Free Speech

Right of Public Access to Civil Court Cases

|The Volokh Conspiracy |

Commenters have occasionally asked why American law generally recognizes a right of public access to civil court cases between two private parties. Why not treat those cases as just a private matter of purely private concern?

I think Justice Holmes put it well in Cowley v. Pulsifer (Mass. 1884), a case about people's right to report on civil court cases without fear of libel liability:

The chief advantage to the country which we can discern [from the right to publish information from judicial proceedings] … is the security which publicity gives for the proper administration of justice…. It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

And courts have since then pointed to this as a justification for the tradition of public access to court proceedings and court documents as well. The administration of justice, even in cases between private citizens, is an important governmental function. It involves the spending of government funds, but, more importantly, the exercise of the government's coercive power: The outcome of a civil case is often the government limiting a party's liberty or transferring the party's property; and the decision may set a precedent that will later affect the liberty and property of others. Courts allow some restriction on access to court records (especially when the restrictions focus on minor details). But there is a strong presumption of such access.

Of course, not all government activity that affects people's liberty and property is carried on openly. Legislative sessions can go on in secret; not all executive documents are subject to Freedom Of Information Acts; and even the judicial process isn't entirely open (consider the deliberations of judges on a panel, or juvenile proceedings). But tradition matters in our legal system, and there is a longstanding tradition of open court proceedings and open court files, represented in the common-law right of access.

Courts have also constitutionalized this tradition, by concluding that there is a First Amendment right of access to court proceedings and records—an unusual feature of First Amendment law, which generally doesn't recognize such a right of access to other government documents and functions. The Supreme Court has so ruled as to criminal cases, but many lower courts have done the same as to civil cases.

One can question whether this constitutionalization was sound (see, e.g., Justice Rehnquist's dissenting opinion in Richmond Newspapers, Inc. v. Virginia). Perhaps this question should be left entirely to state courts and state legislatures instead. But in any event, the rule is one of broad access, even to ordinary civil litigation.

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  1. There is no right to public access in New York State courts. During trial most judges will not let anyone in the courtroom unless they’re an actual party or one of the attorneys.

  2. Under federal law if the parties wish a truly private adjudication they can always opt for arbitration and if they really want to have a trial they can set the arbitration rules to pretty much any thing they want.

    I don’t believe there is any reason they couldn’t hire a retired Federal Judge to preside over the arbitration under the Federal Rules and hire a group of people hear the case as a jury.

    1. That’s fine if all parties agree that the matter should be secret. But often private arbitration is “forced” through a contract of adhesion, so the nature of the proceedings can be made private unilaterally over the objection of another party.

      Case law and precedent dies on the vine in arbitration. Ebay’s newest agreements expressly state that one arbiter’s ruling on a matter cannot be used in another arbitration case (if somehow another party found out about it), and doesn’t bind ebay to act consistently with any arbiter’s ruling going forward (with other customers).

      Secrecy is a great tool for allowing the same abuses to be committed over and over.

  3. On a related matter, why are arrest records public? Arrests are performed by low-level officers with no prior scrutiny. Yet, publicity of the arrest can have severe consequences on personal and professional lives. What is the public interest of open arrest records?

    1. Because the consequences of the police being able to do secret arrests would be even worse.

      1. That does not require publishing identities, just the basic facts of the arrest records will do.

        1. Except, “the police arrested someone but we won’t tell you who” is still a secret arrest.

          1. It still seems an overreaction to a theoretical problem. We’ll see in November whether we’ll be sliding into an autocracy. If we do, Mr. Trump did not need any secret arrests to get there, just some plain demagoguery. In the mean time, every year millions of people (the arrested and their families) are victimized by a criminal justice system that gives them theoretical protections, but in practice punishes them without trial by: 1. public shaming, 2. a ruinous bail system, 3. unaffordable decent defense or inadequate public defense, 4. pressure into accepting plea bargains by overcharging. All of these are also threats to democracy. Making arrest records opaque (not secret) seems much less of a threat.
            I do take your point though. I just think there is space for some balance.

            1. If I were arrested for bogus reasons, I’d want it as public as possible. It could not be too public. Broadcast it from every station for 24 hours if you want.

              If I were arrested for good reasons, then it’s none of my business.

    2. Arrest records strike me as the most difficult case. Because there’s a huge public interest in knowing what the police does, but on the other hand, arrest carries all of the stigma of criminal conviction without any of the due process protections.

      In the end, I think public access is the better rule. But there could definitely be far more restrictions on prosecutors and police officers who cause a great deal of harm with respect to arrestees. Leaking evidence in a criminal case could be tied to an exclusionary rule or made into a serious felony carrying prison time and to be prosecuted by a special prosecutor, perp walking and tipping off the press to arrests could be prohibited and also made into a serious felony, etc. It could also be made the law that databases that sell arrest information must also provide accurate information about dropped charges, acquittals, and reversed convictions.

      1. What about wanted posters?

        1. Assuming there is an adequate procedure in place for deciding who belongs on a wanted poster, this seems less of an issue.

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