The public's right to attend government meetings and view public records is based on statutes enacted by legislative bodies. The right to attend judicial proceedings and view judicial records generally is controlled by courts based on traditional practices, court rules, and constitutional law.
The U.S. Supreme Court has ruled the public has a qualified right of access to criminal trials, jury selection, and pretrial hearings. The Supreme Court has not yet formally extended this right to civil proceedings, but traditionally the public is allowed to attend. Many lower courts have ruled that civil proceedings are presumptively open.
If a proceeding historically has been open, the U.S. Supreme Court has ruled judges can close it only if:
· Evidence shows access will abridge a constitutional rights, such as the defendant's right to a fair trial;
· Alternatives to closure would not protect the right jeopardized by access; and
· Closure is limited in time and scope only to what is necessary to protect the right.
Judges may also control the conduct of spectators in courtrooms and the use of cameras and recording equipment.
The Florida Supreme Court has ruled that criminal and civil proceedings in state courts generally should be open to the public. Judges, however, may close courtrooms or seal certain judicial records if the party seeking closure has overcome the presumption of openness by proving that:
· Closure is necessary to prevent a serious and imminent threat to the administration of justice;
· No less restrictive measures are available; and
· Closure would be effective to protect the defendant's rights without being broader than necessary.
To close a civil proceeding, a judge must find that closure is necessary to:
· Comply with the Florida Constitution, a statute, rule, or case law;
· Protect trade secrets;
· Protect a compelling interest, such as national security, or the identification of confidential informants;
· Obtain evidence to properly determine legal issues in a case;
· Avoid substantial injury to innocent third parties, such as children in a divorce proceeding; or
· Avoid substantial injury to a party by disclosure of matters protected by common law or privacy rights.
Before ordering closure in a civil proceeding, the judge must also find that no reasonable alternative is available and then use the least restrictive closure necessary to accomplish the stated purpose.
If the public or members of the media oppose closure, they must be notified of the closure request and given an opportunity to fight it.
Court decisions, procedural rules, and the Florida Constitution provide for access to judicial records. Court records generally are open for inspection once they are filed with the clerk, unless specifically closed by court order or otherwise exempted.
A 1990 law prohibits a court from entering an order that conceals a public hazard or information that may help guard against injury from a public hazard. Known as the Sunshine in Litigation Act, the law enables the public to inspect judicial documents regarding public hazards even if the parties agree to settle the litigation out of court.
Judges may issue restrictive orders, often called gag orders, preventing parties and trial participants from talking about judicial proceedings. To issue a gag order, a judge must demonstrate that there is a substantial likelihood their statements would prejudice a criminal proceeding, that no viable alternative exists, and that the order is no broader than necessary to protect the defendant's rights.
Judges may not, however, impose prior restraints that prevent members of the media from publishing information they have already obtained, unless the circumstances pose an immediate threat to the administration of justice. A party seeking a prior restraint has a heavy burden of proof because there is a presumption against its Constitutionality.
Cameras in Florida Courts
For more than 25 years, cameras and recording equipment have been allowed in Florida courtrooms. There are, however, rules regulating the number of television and still cameras permitted. Also, photographers must use equipment that does not produce distracting light or sound.
Cameras may not be excluded solely because they make participants nervous or self-conscious.
State judges may ban cameras from judicial proceedings only if the participant seeking the ban can prove the presence of cameras would have a "substantial effect" on a trial participant that would be "qualitatively different" from coverage by other media.
Judicial orders denying electronic or photographic recording of a judicial proceeding are reviewable directly by the Florida Supreme Court.
Camera Access to Federal Courts
Although cameras are allowed in 47 states, they are still banned from most federal courts and U.S. Supreme Court proceedings. However, the Judicial Conference of the United States, the policy-making body for the federal courts, passed a resolution that gave federal appellate judges the discretion to allow still photographs or radio or television coverage of appellate arguments.