The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The First Amendment generally gives anyone the right to access court records (with rare exceptions when the records can be sealed). But a Louisiana statute limits prisoners' right to file public records requests, including for court records. That statute has been read (perhaps misread) to limit prisoners' ability to get the records that reveal how the jury in his case voted. And that's practically important now that the U.S. Supreme Court has held (in Ramos v. Louisiana) that nonunanimous convictions are generally unconstitutional, and many prisoners will be challenging their convictions on those grounds.
Several months ago, when Ramos was pending, the Louisiana Supreme Court was asked to recognize the prisoners' right of access in such situations (Logan v. State). And the Marion B. Brechner First Amendment Project, the Pennsylvania Center for the First Amendment, and I filed an amicus brief in support (many thanks to our pro bono counsel, William Brock Most).
Yesterday, the court agreed, and allowed applicant Donald Logan access to the relevant court records. The court's decision relied on the Louisiana Constitution's right of access provision ("No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law") and past Louisiana decisions interpreting the statute, and our brief was based on the First Amendment. (The petition canvassed state law well, and we thought we would focus on the federal question.) Still, we hope that our arguments might have helped push the court in the right direction:
Summary of the Argument
The First Amendment protects the right to access court records. That right belongs to all Americans, including prisoners. While the right can be overcome when necessary to protect prison security or a similar interest, permitting prisoners to access their jury polling information will not undermine security.
[A.] Mr. Logan Has a First Amendment Right of Access to the Jury Polling Information in This Case
"The public has a common-law and First Amendment right to inspect and copy judicial records." "The right of access extends to all phases and records of criminal proceedings." "The public's access to judicial records 'serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness.'" "[C]ourts of appeals have … recognized a First Amendment right of access to documents filed for use in sentencing proceedings." The right is equally recognized as to documents related to the trial. See, e.g., Phoenix Newspapers v. U.S. Dist. Ct. (9th Cir. 1998) ("transcripts of hearings conducted during jury deliberations in a criminal trial"), cited approvingly by In re Hearst Newspapers, LLC (5th Cir. 2011).
Under this right of access, every member of the public is presumptively entitled to access court records, such as the jury polling information in this case. Nor is the presumption rebutted here. "The presumption of openness may be overcome by an overriding interest based on findings that sealing is essential to preserve higher values and is narrowly tailored to serve that interest." McCraney, 99 F. Supp. 3d at 654 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)). But there is no overriding interest in denying inmates, or anyone else, the results of a jury poll. Keeping this information open will not jeopardize, for instance, the security of prisons, jurors, or witnesses.
[B.] Mr. Logan Has Not Lost This Right as a Result of Being Imprisoned
Mr. Logan should be able to access the jury poll results even if this Court concludes that the First Amendment right of access to court records is more constrained for prison inmates, and "that a prison regulation impinging on" this right "'is valid if it is reasonably related to legitimate penological interests.'" Mr. Logan's records request was not denied under a prison regulation enacted by "'prison administrators'" or "'prison officials'" ; the U.S. Supreme Court's concerns about deference to "the day-to-day judgments of prison officials" with regard to "anticipate[d] security problems," id. (citation omitted), therefore do not apply.
Nor does denying Mr. Logan documents related to the jury poll serve a "legitimate penological" purpose. Prisoners cannot use these documents in ways that exacerbate "disciplinary and security concerns." The denial is not "expressly aimed at protecting prison security." The prisoner is not seeking a right of access as a basis for physically going to court, which could create a wide range of penological problems.
The denial does not involve "individualized … determinations" made by a "warden" that the documents are "detrimental to the security, good order, or discipline of the institution" and therefore "create an intolerable risk of disorder under the conditions of a particular prison at a particular time." Indeed, it is extremely unlikely that these documents would have such detrimental effects, and there is certainly no basis for a general presumption that they would have such effects. See Shakur v. Selsky (2d Cir. 2004) (concluding that an "across-the-board" restriction on [prisoner] free speech rights could not be upheld … because it "may be too broad" and involve "needless exclusions"). Likewise, jury poll results cannot "facilitate criminal activity."
Instead, access to jury poll results merely facilitates prisoners' First-Amendment-protected [actions]. Access to court proceedings by the media promotes the media's Free Press Clause rights (and the rights of the public to receive information). Likewise, access to jury poll results by a prisoner promotes his Petition Clause rights to bring claims on appeal and on habeas review.
More broadly, free speech is constitutionally protected because, among other things, "it furthers the search for truth." "The right of access to court records" likewise "serves vital purposes" including "to safeguard against any attempt to employ our courts as instruments of persecution, to promote the search for truth, and to assure confidence in judicial remedies."
The courts in these cases were speaking about the search for truth in public debate. But the courtroom is also a place for search for truth; in a possible future habeas claim brought by Mr. Logan, a court may need to determine the truth of whether Mr. Logan was convicted by a nonunanimous verdict. The search for truth in that case would be advanced by the right of access to court records here.
Mr. Logan may or may not end up having a right to have his nonunanimous conviction set aside under the Sixth Amendment. But he has a First Amendment right to access the records of his criminal trial, records that can help him exercise a future First Amendment right to bring the Sixth Amendment challenge. This Court should agree to hear the case, and reverse the district court's order denying Mr. Logan access to the documents recording the polling of the jury in his case.