The Volokh Conspiracy

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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.