Denial of Public Access to Trial Exhibits in Child Pornography Prosecutions
C o u rts m ay d e n y p u b lic a cc e ss to e x h ib its e n te re d in to e v id e n c e in c h ild p o rn o g ra p h y p ro s e c u tio n s
February 10, 1994
M e m o r a n d u m O p in i o n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l C r im in a l D iv is io n
Y ou h av e a sk e d w h e th e r c o u rts m ay d e n y p u b lic a c c e ss to e x h ib its e n te re d into e v id e n c e in c h ild p o rn o g ra p h y p ro s e c u tio n s .1 B e c a u se th e p riv a c y in te re sts o f the ch ild ren d e p ic te d in su ch trial e x h ib its o v e rc o m e th e g e n e ra l p re s u m p tio n in fa v o r o f p u b lic a c c e s s to ju d ic ia l re c o rd s, w e c o n c lu d e th a t p ro s e c u to rs m a y a sk c o u rts to p ro h ib it a c c e ss to c h ild p o rn o g ra p h y e x h ib its , an d th a t co u rts m a y e n te r o rd e rs p ro v id in g th is ty p e o f relief.
I. The Theory Supporting Public Access to Trial Exhibits
“ [T]he courts of this country recognize a general right to inspect and copy pub lic records and documents, including judicial records and docum ents.” Nixon v. Warner Com munications, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). Moreover, this common law right o f access to judicial records does not depend “on a proprietary interest in the document or upon a need for it as evidence in a law suit.” Id. But “the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.” Id. at 598. In this respect, “the decision as to access is one best left to the sound dis cretion of the trial court, a discretion to be exercised in light o f the relevant facts and circumstances of the particular case.” Id. at 599 (footnote omitted). W hile the Supreme Court has acknowledged the common law right of access to court records, the Court has eschewed constitutional theories proffered in support of a more expansive right to inspect court documents.2 Nixon, 435 U.S. at 608-10
1 T he n g h l o f access afforded to the general public is coterm inous w ith the ng h t o f access granted to the press P ell v. P rocunier, 417 U S 817, 833-34 (1974); c f a lso N ixon v W arner C om m unications, In c , 435 U S. 589, 609 (1978) ( “T he Firsi A m endm ent generally grants the press no right to inform ation ab o u t a trial superior to that o f the general public "). H ence, the term “ public access’’ should be regarded as synonym ous with press access. 2 In discussing access to actual co u rt proceedings, the Suprem e C ourt has consistently distinguished betw een the Sixth A m endm ent, w hich em pow ers defendants to dem and open proceedings in crim inal cases, see, e.g , W aller v. G eorgia, 461 V S 39, 4 4-47 (1984), and the First A m endm ent, w hich grants the press and public the q u alified right to attend crim inal proceedings even w hen the defendant w ishes to have the proceedings closed See, e g , P ress-E n terp rise Co v S u p e rio r C ourt o f C alifornia, 478 U .S 1, 7-13 (1986); G lobe N ew sp a p er Co v S u p erio r C ourt o f N o rfo lk C ounty, 457 U.S 596, 603-07 (1982) T hese
7 O pinions o f the O ffice o f L egal C ounsel
(rejecting argum ents based on First and Sixth Am endments). With regard to the First A m endm ent guarantee o f freedom o f the press, the Court has held that, within the courthouse, “ ‘a reporter’s constitutional rights are no greater than those of any other m em ber of the public.’” Id. at 609 (quoting E ster v. Texas, 381 U.S. 532, 589 (1965) (H arlan, J., concurring)). W ith respect to the Sixth Amendment right to a public trial, the Court has concluded that this requirement “is satisfied by the opportunity o f m em bers of the public and the press to attend the trial and to report w hat they have observed.” Id. at 610. Thus, the single rationale supporting public access to trial exhibits flows from the common law right to inspect and copy ju d i cial records. Id. at 597; Valley Broad. Co. v. U nited States Dist. Court, 798 F.2d 1289, 1292-93 (9th Cir. 1986).
II. Presumptions, Privacy Concerns, and the Balancing Test
A pplication o f the com m on law rig h t of access to judicial records and docu ments requires a balancing o f the factors militating for and against public viewing o f the records and docum ents at issue. Nixon, 435 U.S. at 602; U nited S tates v. C riden, 648 F.2d 814, 819 (3d Cir. 1981). The starting point for the balancing test “ is the presum ption — however gauged — in favor o f public access to judicial records.” N ixon, 435 U.S. at 602; se e a lso V alley B road., 798 F.2d at 1293 (col lecting cases). Because of this presumption, the press and public ordinarily must be allow ed to inspect and copy trial exhibits. Id:, Criden, 648 F.2d at 823. But even when public disclosure has occurred through the admission of evidence at trial, “there are instances where the right to [inspect and] copy evidence already made public has been denied pursuant to the court’s pow er to prevent use o f evidence for im proper purposes.” Id. at 825. For exam ple, courts retain the authority to deny public access to court records that m ight be “ ‘used to gratify private spite or pro mote public scandal.’” Nixon, 435 U .S. at 598. Courts likewise may prohibit pub lic access to trial exhibits that “would result in the great public embarrassment of a third party.” V alley B road., 798 F.2d at 1294 n.7. For this reason, a district court could properly foreclose public access to videotapes made by a defendant prior to raping a kidnap victim, even though the “evidence had been shown in the court room ,” “because further broadcast w ould support sensationalism, would not serve the public interest, and ‘would impinge upon the precious privacy rights of . . . the unfortunate victim o f the crim e.’” C riden , 648 F.2d at 825 (quoting In re A p p lica tion o f KSTP Television, 504 F. Supp. 360, 362 (D. Minn. 1980)). The privacy concerns that can justify denial o f public access to trial exhibits are most com pelling in the context of child pornography prosecutions. See Valley B road., 798 F.2d at 1294 (factors weighing against public access to court records include “the likelihood o f an improper use, ‘including publication of . . . porno-
d ecisio n s, o f co u rse, do noi sp eak to the question o f public access to court records and exhibits introduced at tn a l. S e e U n ite d S la te s v B eckh a m , 789 F 2d 4 0 1 , 411, 4 1 3 (6th Cir. 1986) (contrasting First A m endm ent right to attend tn a l and Sixth A m endm ent rig h t to open p ro ceed in gs w ith com m on law right to inspect and copy p u b lic records). D enial o f P ublic A ccess to Trial E xhibits m C hild P ornography P rosecutions
graphic . . . m aterials’”) (quoting U nited States v. Criden, 648 F.2d 814, 830 (3d Cir. 1981) (W eis, J., concurring in part and dissenting in part)). As the Supreme Court has explained, pornographic materials involving children “are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” N ew York v. Ferber, 458 U.S. 747, 759 (1982). M oreover, dis tribution of child pornography “violates ‘the individual interest in avoiding disclo sure of personal m atters.’” Id.
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Denial of Public Access to Trial Exhibits in Child Pornography Prosecutions
C o u rts m ay d e n y p u b lic a cc e ss to e x h ib its e n te re d in to e v id e n c e in c h ild p o rn o g ra p h y p ro s e c u tio n s
February 10, 1994
M e m o r a n d u m O p in i o n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l C r im in a l D iv is io n
Y ou h av e a sk e d w h e th e r c o u rts m ay d e n y p u b lic a c c e ss to e x h ib its e n te re d into e v id e n c e in c h ild p o rn o g ra p h y p ro s e c u tio n s .1 B e c a u se th e p riv a c y in te re sts o f the ch ild ren d e p ic te d in su ch trial e x h ib its o v e rc o m e th e g e n e ra l p re s u m p tio n in fa v o r o f p u b lic a c c e s s to ju d ic ia l re c o rd s, w e c o n c lu d e th a t p ro s e c u to rs m a y a sk c o u rts to p ro h ib it a c c e ss to c h ild p o rn o g ra p h y e x h ib its , an d th a t co u rts m a y e n te r o rd e rs p ro v id in g th is ty p e o f relief.
I. The Theory Supporting Public Access to Trial Exhibits
“ [T]he courts of this country recognize a general right to inspect and copy pub lic records and documents, including judicial records and docum ents.” Nixon v. Warner Com munications, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). Moreover, this common law right o f access to judicial records does not depend “on a proprietary interest in the document or upon a need for it as evidence in a law suit.” Id. But “the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.” Id. at 598. In this respect, “the decision as to access is one best left to the sound dis cretion of the trial court, a discretion to be exercised in light o f the relevant facts and circumstances of the particular case.” Id. at 599 (footnote omitted). W hile the Supreme Court has acknowledged the common law right of access to court records, the Court has eschewed constitutional theories proffered in support of a more expansive right to inspect court documents.2 Nixon, 435 U.S. at 608-10
1 T he n g h l o f access afforded to the general public is coterm inous w ith the ng h t o f access granted to the press P ell v. P rocunier, 417 U S 817, 833-34 (1974); c f a lso N ixon v W arner C om m unications, In c , 435 U S. 589, 609 (1978) ( “T he Firsi A m endm ent generally grants the press no right to inform ation ab o u t a trial superior to that o f the general public "). H ence, the term “ public access’’ should be regarded as synonym ous with press access. 2 In discussing access to actual co u rt proceedings, the Suprem e C ourt has consistently distinguished betw een the Sixth A m endm ent, w hich em pow ers defendants to dem and open proceedings in crim inal cases, see, e.g , W aller v. G eorgia, 461 V S 39, 4 4-47 (1984), and the First A m endm ent, w hich grants the press and public the q u alified right to attend crim inal proceedings even w hen the defendant w ishes to have the proceedings closed See, e g , P ress-E n terp rise Co v S u p e rio r C ourt o f C alifornia, 478 U .S 1, 7-13 (1986); G lobe N ew sp a p er Co v S u p erio r C ourt o f N o rfo lk C ounty, 457 U.S 596, 603-07 (1982) T hese
7 O pinions o f the O ffice o f L egal C ounsel
(rejecting argum ents based on First and Sixth Am endments). With regard to the First A m endm ent guarantee o f freedom o f the press, the Court has held that, within the courthouse, “ ‘a reporter’s constitutional rights are no greater than those of any other m em ber of the public.’” Id. at 609 (quoting E ster v. Texas, 381 U.S. 532, 589 (1965) (H arlan, J., concurring)). W ith respect to the Sixth Amendment right to a public trial, the Court has concluded that this requirement “is satisfied by the opportunity o f m em bers of the public and the press to attend the trial and to report w hat they have observed.” Id. at 610. Thus, the single rationale supporting public access to trial exhibits flows from the common law right to inspect and copy ju d i cial records. Id. at 597; Valley Broad. Co. v. U nited States Dist. Court, 798 F.2d 1289, 1292-93 (9th Cir. 1986).
II. Presumptions, Privacy Concerns, and the Balancing Test
A pplication o f the com m on law rig h t of access to judicial records and docu ments requires a balancing o f the factors militating for and against public viewing o f the records and docum ents at issue. Nixon, 435 U.S. at 602; U nited S tates v. C riden, 648 F.2d 814, 819 (3d Cir. 1981). The starting point for the balancing test “ is the presum ption — however gauged — in favor o f public access to judicial records.” N ixon, 435 U.S. at 602; se e a lso V alley B road., 798 F.2d at 1293 (col lecting cases). Because of this presumption, the press and public ordinarily must be allow ed to inspect and copy trial exhibits. Id:, Criden, 648 F.2d at 823. But even when public disclosure has occurred through the admission of evidence at trial, “there are instances where the right to [inspect and] copy evidence already made public has been denied pursuant to the court’s pow er to prevent use o f evidence for im proper purposes.” Id. at 825. For exam ple, courts retain the authority to deny public access to court records that m ight be “ ‘used to gratify private spite or pro mote public scandal.’” Nixon, 435 U .S. at 598. Courts likewise may prohibit pub lic access to trial exhibits that “would result in the great public embarrassment of a third party.” V alley B road., 798 F.2d at 1294 n.7. For this reason, a district court could properly foreclose public access to videotapes made by a defendant prior to raping a kidnap victim, even though the “evidence had been shown in the court room ,” “because further broadcast w ould support sensationalism, would not serve the public interest, and ‘would impinge upon the precious privacy rights of . . . the unfortunate victim o f the crim e.’” C riden , 648 F.2d at 825 (quoting In re A p p lica tion o f KSTP Television, 504 F. Supp. 360, 362 (D. Minn. 1980)). The privacy concerns that can justify denial o f public access to trial exhibits are most com pelling in the context of child pornography prosecutions. See Valley B road., 798 F.2d at 1294 (factors weighing against public access to court records include “the likelihood o f an improper use, ‘including publication of . . . porno-
d ecisio n s, o f co u rse, do noi sp eak to the question o f public access to court records and exhibits introduced at tn a l. S e e U n ite d S la te s v B eckh a m , 789 F 2d 4 0 1 , 411, 4 1 3 (6th Cir. 1986) (contrasting First A m endm ent right to attend tn a l and Sixth A m endm ent rig h t to open p ro ceed in gs w ith com m on law right to inspect and copy p u b lic records). D enial o f P ublic A ccess to Trial E xhibits m C hild P ornography P rosecutions
graphic . . . m aterials’”) (quoting U nited States v. Criden, 648 F.2d 814, 830 (3d Cir. 1981) (W eis, J., concurring in part and dissenting in part)). As the Supreme Court has explained, pornographic materials involving children “are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” N ew York v. Ferber, 458 U.S. 747, 759 (1982). M oreover, dis tribution of child pornography “violates ‘the individual interest in avoiding disclo sure of personal m atters.’” Id. at 759 n.10 (quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)). Consequently, children who appear in pornographic pictures and films suffer a personal invasion with each viewing of the material.3 Indeed, one district court employed precisely this reasoning in denying press access to video tapes depicting relations and conversations between a kidnap victim and the kid napper who subsequently raped her. In re A pplication o f KSTP Television, 504 F. Supp. at 362 (“Release of the tapes for public dissemination would impinge upon the precious privacy rights of Mary Stauffer, the unfortunate victim of the crim e.”). Because the tapes had previously been shown during the trial o f the kidnapper, the district court concluded that “any additional information inherent in the video tape form can serve only to accent the morbid and lurid details of the crime and pander to lascivious curiosity.” Id. at 363. The decision in KSTP Television has given rise to the settled principle that con cern for the privacy o f third parties can override the presumption of access to ju d i cial records. Valley B road., 798 F.2d at 1294 & n.7 (citing KSTP T elevision with approval); In re A pplication o f N ational Broad. Co., 653 F.2d 609, 619-20 (D.C. Cir. 1981) (same); Criden, 648 F.2d at 825 (same). In child pornography prosecu tions, this principle rebuts the presumption of public access to trial exhibits. See id. (discussing KSTP Television)-, cf. a lso Nixon, 435 U.S. at 598 (noting that “the common-law right of inspection has bowed before the power of a court to insure that its records are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful, and sometimes disgusting, details of a di vorce case’”) (quoting In re Casw ell, 29 A. 259, 259 (R.I. 1893)). By interposing concern for the privacy of the children who appear in the pornographic exhibits admitted at trial, the government can defeat common law claims asserted in support of public access to such exhibits, and courts can take action to prevent the public availability o f the exhibits.
W ALTER DELLINGER A ssistan t A ttorn ey G eneral Office o f Legal Counsel
1 This problem is com pounded w hen the press and public receive perm ission to copy exh ib its in child pornography prosecutions. [A] press representative in reporting a trial m ay adequately inform the general public about a challenged m otion picture film by describing it as pornographic. It is not necessary that the film o r excerpts be released for use in the evening TV new s Indeed, to perm it such a show ing under the guise o f new s would only thw art the laws prohibiting exhibition. C riden, 648 F.2d at 831 (W eis, J , con cu rrin g in part and dissenting in part)