Sixth Circuit: Equal Access To Court Proceedings Only Applies To Those More Equal Than Others

There's presumptive access to court records under the First Amendment. But that presumption presumes a lot of other things, as this recent Sixth Circuit Appeals Court ruling demonstrates. Just because something is open doesn't necessarily mean it's accessible. But the Sixth Circuit has decided access (no matter how limited) is still access, and that's all that matters.

Here's David Wells, summarizing the Sixth Circuit decision for Courthouse News Service.

The ruling culminated out of two separate legal cases in Michigan. According to court documents, [Claudette] Greenhoe and her husband were involved in a matter before the Bay County Probate Court while Stevens was a party to case before the Family Division of the Antrim County Circuit Court.

In both cases, the parties sought and were denied the audio recordings of their proceedings, which they tried to get based on their belief that the court transcripts contained serious errors.

They filed a federal lawsuit challenging the denials but U.S. District Judge Paul Maloney ruled against them, finding that no First Amendment rights were violated when the courts denied access to the recordings.

It would seem that if the court makes recordings, there's no legitimate reason these can't be uploaded and accessed by anyone. The Sixth Circuit, however, sees it otherwise. In its decision [PDF], it declares the bare minimum of access to be good enough under the First Amendment. It's the appellants that are wrong, no matter what arguments they make about apparent discrepancies in transcripts. If the government doesn't want its work double-checked, it's free to make that call.

Appellants have not provided any argument on a relevant tradition of openness. For our
part, we have found no case establishing the historical availability of audio recordings of court proceedings when a party can attend a trial, receive a transcript, and request the right to record the
proceedings themselves. We are not the only court to come back empty-handed in this regard.

A dearth of precedent should not prevent a court from recognizing the issue here, which goes far beyond the arguments raised by the two appellants. What is access? And how should that be defined?

According to this court, it should be defined by those who have the ability and resources to make the most of courtroom access.

The State of Michigan gives litigants many ways to access state judicial proceedings. Litigants may attend hearings; they may receive transcripts; they may challenge the accuracy of those transcripts and receive a second review; and they may, with permission, audio-record the proceedings themselves. But Michigan does not guarantee to litigants that they will receive the court's audio recordings. Two sets of state-court litigants who suffered adverse decisions challenged that policy in federal court, arguing that denying access to court audio recordings violates the First Amendment. The district court dismissed their claims. We AFFIRM.

The affirmation presumes several things, many of which are going to reflect poorly on this court when better challenges arrive.

First, the court assumes the access granted by the state is equal. It isn't. It provides greater access to those with the physical ability to attend court hearings. It also assumes courts will regularly allow those who do attend to make their own audio recordings - something that doesn't appear to be reflected anywhere in the record.

Finally, it assumes everyone interested in court proceedings has equal access. They don't. Some are physically too far away to attend court proceedings they're interested in. Some may be deaf, which means attending court proceedings is mostly a useless endeavor, which results in them waiting for transcripts that may not arrive for days, weeks, or months.

The same goes for journalistic entities to which time is of the essence. They are also given supposedly equal access, but are at the mercy of the courts, which will upload transcripts whenever they're completed.

Finally, members of the public who suffer from sight-related problems get nothing at all. They're supposedly welcome to attend court hearings, but that possibly makes them dependent on someone else who may not be able to get them to the courthouse. Their own remote option (transcripts) requires them to be able to see. Transcript PDFs aren't Braille. And if there is a Braille option, access to those versions will be even further delayed. Audio recordings would give these members of the public nearly instant access to court proceedings but the Sixth Circuit says that simply isn't necessary.

If you're fortunate enough to take full advantage of the court system, have an unlimited travel budget, and are willing to fight with clerks and judges over making your own recordings of court proceedings, you can get all the First Amendment you need. But for everyone else, your rights end wherever the court decide they end. And if that means less access to proceedings the Constitution says you should have presumptive access to, so be it.