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In the United States courts seem to be supposed to be public proceedings. For example, if a criminal trial is going on, I believe in most cases I cannot be prevented from entering that room and watching and listening to the proceeding, presumably because they are "public" proceedings. However, the legal basis for this is not clear to me.

This question about the legal basis for law proceedings being public has become more trenchant now in the COVID era because many court proceedings are being held by telecast now. Before a judge could just physically grab and expel anybody trying to record the goings on in a court, but now that trials are being webcast, anyone can simply record the webcast. Some courts, like those in New Hampshire, have threatened to criminalize doing this and cite state laws allegedly outlawing recording court proceedings.

What is the constitutionality of such laws? Is the public nature of courtroom proceedings at the whim of the state, or is there is a constitutional protection of public access to trials in public courts?

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  • Given the current state/speed of progress in technology, we should expect it possible to augment our bodies with recording equipment in not so distant future, at which point any prohibitions on recording will become obsolete as it won't be practical to tell recording from natural memorizing.
    – Greendrake
    Commented Aug 20, 2021 at 22:30
  • Relevant background: Cameras in the Courtroom
    – feetwet
    Commented Apr 14, 2022 at 17:43

3 Answers 3

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Yes there is a right

For civil trials it is not a Constitutional right, it’s a Common Law one. Civil trials in the USA are public because trials in England were (and are) public.

For criminal trials, the sixth amendment guarantees “speedy and public” trials.

But, like all rights, it is not unfettered.

In addition to practical considerations like how much room there is for a public audience, there are also trials or parts of trials from which the public is excluded. Family law and children’s court matters are almost always not public. Similarly, trials that deal with national security issues.

The limitation on the right to public access must be balanced with issues such as privacy and security. While Constitutional rights are subject to “strict scrutiny” on limitations the same is not necessarily true of Common law rights, however, for such a longstanding right it would come close.

As for recording trials: there is no right to do so other than by taking notes. Unsurprisingly, there is no specific right in the Constitution for audio or visual recording because the technical ability to do so post-dates the Bill of Rights by about a century. Therefore there is no Constitutional right or Common law right. Most courts can allow or disallow recordings at their discretion.

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    By that logic, states could make it illegal for me to record anything that I don't have a specific constitional right to record (like something involving religious practices). So, for example, New Hampshire could make it illegal to record streams from security cameras without a license.
    – Cicero
    Commented Aug 20, 2021 at 13:37
  • @Cicero If you mean recording someone else's stream, they already have a copyright on that stream and can dictate the terms of your access to that stream, including forbidding recording. Commented Aug 20, 2021 at 13:43
  • @IllusiveBrian I am talking about ANY stream. This has nothing to do with IP, which is mostly governed by federal law. I am talking about a state's legal ability to ban recording of anything. According to your logic, a state is free to make it illegal for me to record a court proceeding, so why not anything else? In fact, by that logic they could make it illegal for me to videotape a public beach, or a public building or most anything else.
    – Cicero
    Commented Aug 20, 2021 at 13:54
  • @Cicero The government can make it illegal to record inside buildings it owns. Public outdoor spaces are protected by the First Amendment, but inside buildings the government usually has an overriding interest in setting the rules of recording. Commented Aug 20, 2021 at 14:18
  • This answer is incorrect because there are First and Sixth Amendment rights to public trials.
    – bdb484
    Commented Aug 20, 2021 at 14:58
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New Hampshire Rule of Criminal procedure 46 only says that one can photograph trials under certain conditions "Except as otherwise provided by this rule or by other provisions of law", which is standard disclaimer subordinating the restriction to other laws or the remainder of the rule, it does not imply that there exists any general state law against recording. The court cannot "criminalize" on its own, but (State v. Martina and references therein) acknowledge "the inherent criminal contempt authority vested in New Hampshire courts". Violating court rules can thus result in fines, just as illegal parking can result in a fine. Your question appears to focus on the prohibition, and not the criminal record issue.

Chandler v. Florida, 449 U.S. 560 holds that "This Court has no supervisory jurisdiction over state courts, and, in reviewing a state court judgment, is confined to evaluating it in relation to the Federal Constitution", and in general does not take up a suggestion that allowing broadcast coverage of trials. Quoting the prior ruling from the Florida Supreme Court, "Nor does the Sixth Amendment require that the trial -- or any part of it -- be broadcast live or on tape to the public", thus the issue is not (as seen at the time) a US Constitutional one.

A First Amendment theory has gained traction, see Fields v. Philadelphia. It is uncontroversial that expressive acts are protected, but it has also been argued that photographing is sufficiently expressive (e.g. the instant case). The 3rd Circuit court agreed with the other odd-numbered circuits "that there is a First Amendment right to record police activity in public". The opinion reasons in §4 based on the future expressive value of photographs. Photographs are an essential component of the future expression. However,

We do not say that all recording is protected or desirable. The right to record police is not absolute. “[I]t is subject to reasonable time, place, and manner restrictions.” Kelly, 622 F.3d at 262

The New Hampshire rules are a statement of what those reasonable restrictions are, up to the point of judicial discretion to determine that photographing would be disruptive.

SCOTUS has not declared a First Amendment right to photograph court proceedings, but the potential for such a finding is evident, based on the right to photograph police.

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  • Quoting the prior ruling from the Florida Supreme Court, "Nor does the Sixth Amendment require that the trial -- or any part of it -- be broadcast live or on tape to the public", thus the issue is not (as seen at the time) a US Constitutional one. That’s a very authoritarian opinion. Not imposing a duty to broadcast or tape to the public does not imply that it has a right to deny the same.
    – kisspuska
    Commented Aug 22, 2021 at 4:13
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    In fact, Amendment VI does provide that the hearing be public, and therefore no privacy is presumed unless there is good cause to make it in camera or secret as well as records be sealed. This is bullshit, to cover their bases.
    – kisspuska
    Commented Aug 22, 2021 at 4:14
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Your confusion stems from being overly committed to one sense of the word "public":

"any member of the public can drop in and observe any portion of the trial that they want"

But this interpretation is obviously untenable--you couldn't have the jury deliberations open to the public, for instance. "Public" here means something more like:

"the outcome of these proceedings is a matter of public record"

The trial itself is public in two essential ways:

  1. It's a public trial as opposed to a secret trial, the distinctive features of which I've highlighted below:

A secret trial is a trial that is not open to the public, nor generally reported in the news, especially any in-trial proceedings. Generally no official record of the case or the judge's verdict is made available. Often there is no indictment. The accused is usually not able to obtain the counsel of an attorney or confront witnesses for the prosecution

Of course, many trials aren't generally reported in the news, nor readily accessible to nosy members of the public, but they are still matters of official record: the government is not seeking to conceal that the proceedings took place.

  1. The trial is carried out by our public governmental institutions, as opposed to some private entity or group. Partly this is a protection against vigilantism: I'm entitled to a trial by a jury of my peers, but I'm also protected from 12 random citizens appointing themselves to be my "jury" and holding a "trial" for me in someone's dank basement. It also means the government can't outsource the criminal justice system to some private contractor who throws money at them--at least, not until the post-conviction stages of the process.
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  • Public is public.
    – kisspuska
    Commented Aug 22, 2021 at 4:09
  • The trial is "public" in the sense that the public has a right to be admitted, and the defendant has a right to have them admitted to the trial i8self (not the deliberations nor in camera proceedings) except on such rare occasions specific proceeding is rules closed. Family court when dealing with child custody issues is normally closed, although not when dealing with divorces. Court verdicts are also matters of public record, but a public trial is one at which the public may be pre4sent.. Commented Aug 23, 2021 at 3:16
  • @davidsiegel Histrionic accusations of plagiarism are unwarranted. The first two “quotes” are example sentences that I made up, such as you might find in a dictionary definition of a term with multiple senses like public, the word being discussed. Commented Aug 23, 2021 at 7:45
  • @davidsiegel In what meaningful way are the jury deliberations not part of “the trial itself”? Except insofar as they do not occur in public, and are thus inconvenient for your side of the argument? Commented Aug 23, 2021 at 7:49
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    Answering one's own Q is a standard technique here on SE. On Law at least, when one of those who post many answers asks a question it is often in order to self-answer it. As to the cmt here, I said "I believe I have established..." meaning that I was pointing to my own writing, so as to make it clear to others here that there was an answer with detailed citations to caselaw rather than speculation. Perhaps you might consider examining those cites and see if you agree or disagree with the conclusion I draw, rather than arguing about who wrote it. All posts were openly signed. Commented Aug 27, 2021 at 2:38

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