The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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:
(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.