What to do when a judge closes a courtroom

SCPA Attorney Jay Bender
By SCPA Attorney Jay Bender

You’re in the courtroom to cover a proceeding.  You’re not taking photographs or recording the proceeding with your smart phone or other device.  You’re doing what reporters have always done—you’re paying attention and taking notes.

Out of the blue, one of the lawyers rises and says, “Your honor, I think the courtroom needs to be closed.”

In even rarer cases the judge might say, “Bailiff, clear the courtroom of all but the parties and the attorneys.”

What do you do?  What do you say?

First, stand up.  If there is no particular space reserved for reporters in the courtroom you’re in, I recommend sitting as close to the well of the court as you can.  You can hear better there, and when you stand, the judge is more likely to see you.

Then, you say, “Your honor, I’m Clark Kent from the Daily Planet (I’m of course using these names for illustration), and on behalf of myself and my paper object to the closure of the courtroom.  I would ask that prior to closing the courtroom my paper’s attorneys be provided an opportunity to be heard.”

If you’re new to this, your heart will be pounding, your voice might sound strangled, and your knees might be knocking.  That’s not much different from how young lawyers feel when they address the court in the early days of their practice, and I’m guessing you probably haven’t had much experience speaking in court.

You’re on solid ground legally objecting to the closure.  In the South Carolina federal courts, any motion to close a proceeding is supposed to be made in advance and docketed in the public record.  A hint:  if you’re covering a legal matter, develop the practice of regularly checking the docket.  Even though there is precedent requiring advance docketing of a motion to close a courtroom, that isn’t always done as there are times when unexpected circumstances present themselves in court.

There is no South Carolina courts procedural rule requiring advance docketing of a motion to close a courtroom, but your right to object to closure in advance of an opportunity for your attorney to be heard is established in our state constitution and decisions of the Supreme Court of South Carolina.

The public, including reporters, has a constitutionally protected right to attend court proceedings.  The federal right of access is rooted in the First Amendment.  The South Carolina right to attend court is guaranteed in Article I, Section 9 of the South Carolina Constitution which provides that all courts shall be public, and in the First and Fourteenth Amendments to the United States Constitution.

It is always helpful, but not always possible, to anticipate when a motion will be made to close a courtroom.  In South Carolina cases involving child abuse and those with some interracial criminal component are the ones most likely to be the subject of a motion to close the courtroom.  But, there are other situations where the defendant might be prominent, or there are companion cases where investigations are continuing.

Talk to your editor in advance to alert the editor that a closure motion might be made.  Your editor might delegate to you the responsibility to call the paper’s lawyer, or might ask that you call back to the paper so the editor can call the lawyer if that is the route the paper chooses to pursue.  If you’re the one making the call, make sure you know the lawyer’s name and telephone number.  Know what court you’re in, and the name of the judge.  The more detail you can provide, the quicker your lawyer might be able to respond.

If in spite of your request you are shown the door, take note of who is allowed to remain in the courtroom, and their roles in the closed proceeding.  This information will help your lawyer argue later that the closure was improper and a transcript should be provided.

If your request to have your lawyer heard is denied, don’t continue to argue, leave the courtroom, but stay close so you can return once the closure ends.  Do not under any circumstances leave a tape recorder in the courtroom to record what transpires.  That is illegal, and will result in your needing a criminal defense attorney as distinguished from a lawyer who will come to court to argue that the doors should remain open to promote confidence in the fairness of the proceeding.

To make all of this somewhat easier, the Press Association has a card with a statement you can read when court closure is discussed.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

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