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Written by Heidi Kitrosser, last updated on December 1, 2023

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Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984), and Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986), were the last of four cases in which the Supreme Court established a presumptive public right under the First Amendment to attend criminal trial and pretrial proceedings.


Chief Justice Warren E. Burger wrote the majority ruling in both decisions.


The Supreme Court first deemed the public to have a presumptive right to attend criminal trial proceedings in Richmond Newspapers, Inc. v. Virginia (1980).


The plurality and concurring opinions in Richmond Newspapers suggested that the First Amendment protects access to some government information as a precondition to speech about government.


Court uses two-part test to determine when government activities must be open

In Globe Newspaper Co. v. Superior Court (1982), a majority of the Court reiterated this logic and adopted a two-part test to determine when government activities presumptively must be open. The test, first introduced by Justice William J. Brennan Jr. in his Richmond Newspapers concurrence, asks whether the relevant proceedings historically have been open and whether openness is instrumentally valuable to those proceedings.


The Globe Court deemed criminal trials to meet this test. The Globe Court also established that presumptively open activities may be closed only if closure meets “strict scrutiny” — that is, if closure is narrowly tailored to meet a compelling government interest.


Press-Enterprise cases involved access to pretrial proceedings

The Press-Enterprise cases posed the question of whether presumptive openness extends to criminal pretrial proceedings. The first Press-Enterprise case involved voir dire, or jury selection proceedings, and the second Press-Enterprise case involved a preliminary hearing. In each case, a majority of the Supreme Court applied the two-part test to deem the relevant hearing presumptively open and found closure unjustified under strict scrutiny.


The precedential reach of the Press-Enterprise cases and their antecedents remains uncertain.


Lower courts generally extend this line of cases to civil judicial proceedings but are split on whether it extends outside of the judicial realm. Adding to the uncertainty is a line of cases predating the Press-Enterprise cases and their antecedents, in which the Supreme Court rejected First Amendment access claims raised by the press with respect to prisons, and a 1999 case — Los Angeles Police Department v. United Reporting Publishing Co. — in which the Supreme Court, with little explanation, rejected a First Amendment access claim concerning arrestee address records.


This article was originally worn in 2009. Heidi Kitrosser is the Robins Kaplan Professor of Law at the University of Minnesota.


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