New York Civil Liberties Union v. New York City Transit Authority, No. 10-372 (2d Cir. 2011)
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The New York City Transit Authority (NYCTA) appealed from an order of the district court enjoining the enforcement of an NYCTA policy requiring third parties to obtain the consent of those contesting notices of violations before NYCTA's Transit Adjudication Bureau in order to observe such hearings. At issue was whether the public had a right to access these proceedings. The court held that the First Amendment guaranteed the public a presumptive right of access to the NYCTA's adjudicatory proceedings and that the NYCTA had not overcome that presumption.
The court issued a subsequent related opinion or order on January 4, 2012.
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10-0372-cv New York Civil Liberties Union v. New York City Transit Authority 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: December 16, 2010 Decided: July 20, 2011) Docket No. 10-0372-cv NEW YORK CIVIL LIBERTIES UNION, Plaintiff-Appellee, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant, H. DALE HEMMERDINGER, ELLIOT G. SANDER, Defendants. Before: LEVAL, CALABRESI, LYNCH, Circuit Judges. The New York City Transit Authority ( NYCTA ) appeals from an order of the district court for the Southern District of New York (Sullivan, J.) enjoining the enforcement of an NYCTA policy requiring third parties to obtain the consent of those contesting notices of violation before NYCTA s Transit Adjudication Bureau in order to observe such hearings. We hold that the First Amendment guarantees the public a presumptive right of access to the NYCTA s adjudicatory proceedings, and that the NYCTA has not overcome that presumption. Affirmed. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 CHRISTOPHER DUNN, New York Civil Liberties Union Foundation, (Arthur Eisenberg, on the brief), New York, N.Y., for Plaintiff-Appellee. RICHARD SCHOOLMAN, Office of the General Counsel, New York City Transit Authority, (Valerie K. Ferrier, on the brief), New York, N.Y. for Defendant-Appellant. David A. Schulz, Jacob P. Goldstein, Levine Sullivan Koch & Schulz, LLP, New York, N.Y., for Amici Curiae The New York Times Company, et al., in support of PlaintiffAppellee. Brian Kreiswirth, Committee on Civil Rights, The Association of the Bar of the City of New York, Marjorie Lindblom, Evan Saucier, Kirkland & Ellis LLP, New York, N.Y. for Amicus Curiae The Association of the Bar of the City of New York. CALABRESI, Circuit Judge: Defendant-Appellant New York City Transit Authority ( NYCTA ) promulgates 22 23 Rules of Conduct ( Rules ) for those who use the city s public transportation and its 24 associated facilities. N.Y. Pub. Auth. Law § 1204(5-a); see N.Y. Comp. Codes R. & 25 Regs. § 1050 et seq.1 All New York City police officers are authorized to issue citations 26 for violations of the Rules. New York Civil Liberties Union v. New York City Transit 27 Authority, 675 F. Supp. 2d 411, 414 (S.D.N.Y. 2009) ( NYCLU ); see N.Y. Comp. Codes 28 R. & Regs. § 1050.12. A police officer has discretion to issue either a summons to New 29 York Criminal Court ( Criminal Court ) or a notice of violation for the Transit 30 Adjudication Bureau ( TAB ), a department in the NYCTA where an alleged Rule- 31 breaker may contest the citation in an in-person hearing. NYCLU, 675 F. Supp. 2d at 414; 1 The NYCTA is municipal board and public-benefit corporation established by the laws of New York state, empowered to operate, maintain, and control public transit facilities in New York City. New York Civil Liberties Union v. New York City Transit Authority, 675 F. Supp. 2d 411, 413 & n.1, 2 (S.D.N.Y. 2009). 2 1 see N.Y. Pub. Auth. L. § 1209-a(3). In each forum, a neutral decisionmaker determines 2 whether the alleged violator has broken a Rule and imposes a penalty for such violations. 3 When a person who is issued a summons contests the citation in court, that 4 hearing is, by statute, open to the public. N.Y. Judiciary Law § 4 (stating that, absent 5 exceptions not relevant here, [t]he sittings of every court within this state shall be public, 6 and every citizen may freely attend the same . . . . ). NYCTA policy, in contrast, 7 excludes from a TAB proceeding any observer to whose presence the person contesting 8 the notice of violation, or respondent, objects. Plaintiff-Appellee New York Civil Liberties Union ( NYCLU ) brought suit 9 10 under 42 U.S.C. § 1983 to enjoin this policy, claiming, inter alia, that the policy violated 11 the NYCLU s First Amendment right of access to government proceedings.2 The district 12 court (Sullivan, J.) granted a preliminary, and then a permanent, injunction. NYCLU, 675 13 F. Supp. 2d at 439; New York Civil Liberties Union v. New York City Transit Authority, 14 No. 1:09-cv-3595 (RJS) Doc. 39 (January 22, 2010), Doc. 40 (January 29, 2010). On 15 appeal, the NYCTA claims that the public has no right of access to administrative 16 adjudicatory proceedings generally and that, even if such a right exists, it should not 17 apply to TAB hearings. We disagree. The public s right of access to an adjudicatory proceeding does not depend on 18 19 which branch of government houses that proceeding. To determine whether a particular 20 adjudicatory forum should be presumptively open to the public, courts ask whether the 21 forum has historically been open and whether openness enables its proper functioning. In 2 Although the NYCLU argued below for a federal common law right of access, see 675 F. Supp. 2d at 423 n.20, it does not advance that theory on appeal as an alternative basis for affirming the district court s judgment. We accordingly deem the theory abandoned. 3 1 the present case, both lines of inquiry lead squarely to the same answer. We reach no 2 broad conclusions about the openness required of administrative proceedings generally. 3 But we conclude that the First Amendment guarantees the public a qualified right of 4 access to the administrative adjudicatory forum at issue in this case, and that no grounds 5 have been adduced by the NYCTA supporting its rules limiting that right. We therefore 6 affirm. BACKGROUND 7 8 9 I. The Transit Adjudication Bureau From 1966, when the Rules were first enacted, until 1986, when the TAB first 10 began operating, the New York Criminal Court ( Criminal Court ) had exclusive 11 jurisdiction over citations for Rules violations. NYCLU, 675 F. Supp. 2d at 415. A 1984 12 statute created the TAB to lessen the burden on the Criminal Court and to increase the 13 rate at which fines were collected from Rules violators. See N.Y. Pub. Auth. Law § 1209- 14 a. The statute also increased the fine that could be imposed: while the Criminal Court is 15 limited to a fine of no more than $25 for a violation of an NYCTA Rule, the TAB may 16 fine a violator up to $100, with an additional penalty of up to $50 for failing to respond to 17 a notice of violation. N.Y. Pub. Auth. Law § 1204(5-a); see also NYCLU, 675 F. Supp. 2d 18 at 414. (The Criminal Court may also sentence a violator to a maximum of 10 days 19 imprisonment, NYCLU, 675 F. Supp. 2d at 414, but the record suggests that this penalty 20 is rarely, if ever, imposed.) 21 The police officer citing the violation has discretion to choose whether to issue a 22 citation to Criminal Court or a notice of violation to the TAB. As the district court 23 observed, no violation appears to be, by definition, only returnable to one of the 4 1 venues. NYCLU, 675 F. Supp. 2d at 415; see N.Y. Pub. Auth. Law § 1209-a(3) (giving 2 the TAB non-exclusive jurisdiction over violations of the Rules). A person who receives a TAB notice of violation may pay the fine without 3 4 contesting it, contest it by mail, or contest it at an in-person hearing. In 2008, officers 5 issued 125,155 notices of violation returnable to the TAB. That same year, 88,236 notices 6 of violation were paid without contest, and 19,028 were contested at in-person TAB 7 hearings. Attorneys appointed by the NYCTA President and paid on a per-diem basis 8 preside over TAB hearings as TAB hearing officers. N.Y. Pub. Auth. Law § 1209-a(2). 9 The TAB can issue subpoenas, accept pleas[,] . . . hear and determine . . . 10 charges of transit infractions[,] . . . impose civil penalties[,] . . . [and] enter judgments and 11 enforce them, without court proceedings, in the same manner as the enforcement of 12 money judgments in civil actions. N.Y. Pub. Auth. Law § 1209-a(4)(a)-(e), (g). A final 13 order issued by the TAB serves as a bar to . . . criminal prosecution for the same 14 conduct. Id. 1209-a(9)(b). TAB guidelines provide that respondents may be represented 15 by counsel. NYCLU, 675 F. Supp. 2d at 417; see Guidelines Governing Proceedings 16 Before the Transit Adjudication Bureau § 1.7 ( TAB Guidelines ).3 Respondents may 17 show up at the TAB office any time during the period stated on their notices of violation 18 and receive a hearing on a first-come, first-served basis.4 But if a hearing is scheduled by 19 the TAB (as is sometimes done to facilitate the production of witnesses or evidence), the 20 respondent must be told its date and location. NYCLU, 675 F. Supp. 2d at 417. Hearing 21 officers identify the parties and issues in the case; advise respondents of their rights to a 3 The NYCTA promulgates guidelines governing TAB proceedings pursuant to statutory authority. N.Y. Pub. Auth. Law § 1209-a(4)(d); see NYCLU, 675 F. Supp. 2d at 416 & n.7. 4 The accusing officer s written notice serves as prima facie evidence of a violation. TAB Guidelines § 2.1. 5 1 hearing, representation, cross-examination, document production, and appeal; and 2 oversee the presentation of motions, cases in chief, and rebuttals. Id. at 417-18. TAB 3 guidelines govern the timing, formats, and procedures for filing documents, id. at 418, 4 and specify that a Rules infraction must be established by clear and convincing evidence, 5 with any affirmative defenses to be established by a preponderance of the evidence, id. 6 Witnesses are sworn and exhibits may be introduced. Id. Respondents may appeal a 7 hearing officer s decision to an internal appeals board and, from there, to state court. Id. 8 at 419. The TAB is required by statute to compile . . . complete and accurate records 9 relating to all charges and dispositions. N.Y. Pub. Auth. Law § 1209-a(4)(f). In other 10 words, in these and many other particulars, the TAB acts very much like a court of first 11 instance. 12 At the same time, the TAB s powers and procedures are not the same as a court s. 13 To enforce a subpoena that is not obeyed, the TAB may make application to the [New 14 York] supreme court. Id. § 1209-a(7)(e). Although a TAB final order may be enforced 15 without court proceedings in the same manner as . . . money judgments entered in civil 16 actions, id. § 1209-a(9)(b), the TAB may need to apply to a court of competent 17 jurisdiction for enforcement of such a decision, id. § 1209-a(4)(g). Most of the rules of 18 evidence do not apply to TAB hearings, id. § 1209-a(7)(e), and no pre-hearing motions or 19 discovery are permitted, TAB Guidelines §§ 2.3, 2.8. The notice of violation itself, 20 without additional corroboration, is deemed prima facie evidence of a violation. Id. § 2.1. 21 And, significantly, the records the TAB compiles on charges and dispositions are, by 6 1 statute, exempt from disclosure under New York s Freedom of Information Law. N.Y. 2 Pub. Auth. Law § 1209-a(4)(f); see N.Y. Pub. Officers Law § 87.5 3 II. The TAB s Access Policy 4 The NYCTA describes its long-term access policy as one of presumptive 5 openness to the public. Under that policy, a person who wishes to observe a TAB hearing 6 must twice obtain the consent of the respondent whose case is being heard. If the 7 respondent objects either time, the observer must be excluded from the hearing. A 8 prospective observer must give TAB security personnel her name and inform them of her 9 wish to observe a hearing. When the respondent is called, TAB officials are supposed to 10 call the observer as well. The hearing officer, who meets respondents at the door leading 11 to the hearing rooms, then asks the respondent if he objects to the observer s presence at 12 the hearing. If the respondent objects, the observer may not enter. If the respondent does 13 not object, the three proceed to a hearing room. There, the observer must state her name 14 for the record, and the hearing officer again asks whether the respondent objects to the 15 observer s presence. If he does not, the hearing can proceed. If the respondent does object 16 to the observer s presence, the observer must leave before the hearing begins. TAB 17 personnel do not ask why a respondent objects to an observer s presence and do not 5 By statute, these records shall be deemed exempt from disclosure under the [New York State] freedom of information law as records compiled for law enforcement purposes. N.Y. Pub. Auth. Law § 1209-a(4)(f). New York s Freedom of Information Law exempts records compiled for law enforcement purposes if their disclosure would lead to specific consequences, including interfering with law enforcement investigations, judicial proceedings, or the right to a fair trial; or revealing a confidential source, confidential criminal investigation information, or non-routine criminal investigative techniques or procedures. N.Y. Pub. Officers Law § 87(2)(e). The TAB statute does not specify which of these consequences TAB records implicate. New York s Freedom of Information Law also insulates records that are specifically exempted from disclosure by state or federal statute. Id. § 87(2)(a). Whether the statutory exemption of TAB records from the Freedom of Information Law violates a presumptive right of access to government proceedings is not before us, and we do not address that question here. 7 1 attempt to evaluate the reason, significance, or propriety of the observer s presence. A 2 respondent s objection by itself conclusively bars an observer from a hearing. Although this policy was only put in writing in March 2009, after the NYCLU 3 4 complained to the NYCTA about access to TAB hearings, Martin Schnabel, the 5 NYCTA s vice president and general counsel, testified that the policy had been in place 6 for many years as an unwritten practice. Mr. Schnabel also stated that the NYCTA Board 7 and the Metropolitan Transit Authority played no role in adopting the access policy, 8 which has not been formally promulgated as a rule. Instead, he testified, the matter was 9 discussed among . . . TAB personnel and Transit Authority legal personnel. But, he 10 continued, the ultimate judgment as to what the policy should be at this juncture is 11 mine. 12 Mr. Schnabel stated his belief that allow[ing] people to attend regardless of the 13 wishes of the respondent may well have the effect of chilling the appearance of some 14 percentage of respondents, who would feel their privacy so invaded by an open hearing 15 as to lead them to decline to have a hearing at all. Mr. Schnabel explained that the 16 rationale underlying the policy was preventing such a chilling effect on respondents 17 who might otherwise avail themselves of the opportunity to contest their notices of 18 violation, but who would do so in person only if they had the power to exclude third 19 parties from their hearings. 20 Mr. Schnabel further testified that he had collected no evidence and conducted no 21 studies on which he based his conclusion that open access would discourage respondents 22 from seeking TAB hearings. The NYCTA did submit a declaration from Debra Siedman 23 DeWan, a long-time TAB hearing officer, who listed reasons respondents might wish to 8 1 maintain [their] privacy when testifying. These included the existence of embarrassing 2 medical conditions or other physical or mental illnesses; an inability to pay the fines; and 3 the fear that a parent or a parole or probation officer would learn of the hearing. 4 III. The NYCLU s Allegations 5 According to its complaint, the NYCLU is an organization that advocates for 6 open governmental and judicial proceedings. As an example, the NYCLU submitted 7 materials indicating that it had worked successfully to open hearings at the New York 8 City Taxi and Limousine Commission to the public. 9 The NYCLU further asserts that it is involved in advocacy about [New York 10 City Police Department] policies and practices. For instance, the NYCLU has urged the 11 New York City Police Department to ensure that officers know that bystanders are 12 entitled to film and photograph police activity in public transit areas and advocated 13 changes in the police department s public transit sting operations. The NYCLU has also 14 investigated the demographic characteristics of those stopped and frisked by New York 15 City Police Department officers on public transit, and concluded that minorities receive a 16 disproportionate number of citations for Rule violations. These investigative and 17 advocacy activities, the NYCLU alleges, give it a particular interest in observing TAB 18 hearings in which [New York City Police Department] officers testify. 19 The NYCLU also represents clients issued notices of violation. The NYCLU 20 alleges that the inability to observe TAB hearing freely leaves it seriously hampered in 21 its ability to advise clients about their own hearings. Finally, the NYCLU has asserted 22 that it plan[s] to promptly start monitoring TAB hearings if the access policy is 23 enjoined. 9 1 According to the NYCLU s complaint, law students working under the direction 2 of an NYCLU attorney attempted to observe TAB hearings on several occasions. Some 3 would-be observers were simply denied access to hearings without more. Security guards 4 or hearing officers told them that observation was against the law, that the hearings are 5 not open to the public, or just that they could not enter. Others were told they had to 6 obtain a respondent s consent. On one occasion, [t]he head hearing officer denied the 7 law student s request to observe a hearing unless she could identify a consenting 8 respondent. This requirement prevented her from observing a hearing. On another 9 occasion, after having been told that observers were not permitted, a law student spoke to 10 a security supervisor who, recognizing the student, offered to request a random 11 individual s permission to let the student sit in on a hearing, which the student was 12 allowed to do [o]nce someone consented. 13 IV. Proceedings Below 14 The district court determined that TAB hearings are presumptively open under the 15 First Amendment, and that therefore limits to access are subject to strict scrutiny. Since a 16 respondent s objection conclusively bars a third party from observing a hearing and 17 respondents may object for any reason at all to the presence of an observer, the district 18 court held that the policy was not strictly tailored to a compelling governmental purpose, 19 and specifically is not tailored to the NYCTA s stated purpose of preventing the chilling 20 of respondents willingness to contest their notices of violation in person. NYCLU, 675 F. 21 Supp. 2d at 438-39. 22 23 Accordingly, the court granted the NYCLU s motion for a preliminary, and ultimately a permanent, injunction requiring the NYCTA to open TAB hearings to the 10 1 public absent specific, on-the-record findings that closure of a proceeding is narrowly 2 tailored to meet a higher governmental value. Id. at 439. The NYCTA appeals this 3 decision, claiming that no presumptive right of access adheres to administrative 4 adjudicatory proceedings. In the alternative, the NYCTA argues that, even if such a right 5 attached to some administrative adjudicatory proceedings, it should not apply to the TAB. 6 The NYCTA also challenges the NYCLU s standing to sue. For the reasons that follow, 7 we affirm the district court. DISCUSSION 8 9 10 I. Standards of Review We review a district court s grant of a preliminary injunction for abuse of 11 discretion, which occurs when the district court bases its ruling on an incorrect legal 12 standard or on a clearly erroneous assessment of the facts. Bronx Household of Faith v. 13 Bd. of Educ., 331 F.3d 342, 348 (2d Cir. 2003). To obtain a preliminary injunction a 14 party must demonstrate . . . that it will be irreparably harmed if an injunction is not 15 granted. Id. at 348-49. For mandatory injunctions, which alter rather than maintain the 16 status quo, such as the one at issue here, the movant must show a clear or 17 substantial likelihood of success on the merits. Id. at 349. The requirements for a 18 permanent injunction are essentially the same as for a preliminary injunction, except 19 that the moving party must demonstrate actual success on the merits. The district court 20 is authorized to determine, as it did here, that the evidence before it suffices for that 21 purpose. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987). Our 22 standard of review remains the same. 11 1 Whether a plaintiff has standing to sue is a question of law that we review de 2 novo. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004). 3 II. Standing 4 To have standing, a plaintiff must demonstrate an actual and imminent, not 5 conjectural or hypothetical threat of a concrete and particularized injury in fact that is 6 fairly traceable to the challenged action of the defendant and that a favorable judicial 7 decision will [likely] prevent or redress. Summers v. Earth Island Inst., 129 S. Ct. 1142, 8 1149 (2009) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 9 U.S. 167, 180-81 (2000)). 10 An organization can have standing to sue in one of two ways. It may sue on 11 behalf of its members, in which case it must show, inter alia, that some particular 12 member of the organization would have had standing to bring the suit individually. See, 13 e.g., Warth v. Seldin, 422 U.S. 490, 511 (1975) (calling this approach representational 14 standing); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) 15 (calling it associational standing). In addition, an organization can have standing in its 16 own right to seek judicial relief from injury to itself and to vindicate whatever rights and 17 immunities the association itself may enjoy. Warth, 422 U.S. at 511; Havens Realty 18 Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982) ( [O]rganizations are entitled to sue on 19 their own behalf . . . . ). Under this theory of organizational standing, the organization 20 is just another person albeit a legal person seeking to vindicate a right. To qualify, the 21 organization itself must meet[] the same standing test that applies to individuals. Irish 22 Lesbian & Gay Org., 143 F.3d at 649 (quoting Spann v. Colonial Village, Inc., 899 F.2d 23 24, 27 (D.C. Cir. 1990)) (alteration in the original); see also Nnebe v. Daus, No. 09-4305- 12 1 cv, --- F.3d ----, 2011 WL 2149924, at *6-*7 (2d Cir. March 25, 2011, revised May 31, 2 2011) (confirming that nothing prevents an organization from bringing a § 1983 suit on 3 its own behalf so long as it can independently satisfy the requirements of Article III 4 standing, and that only a perceptible impairment of an organization s activities is 5 necessary for there to be an injury in fact satisfying the requirements of standing 6 (internal quotation marks omitted)). 7 The NYCTA claims that the NYCLU lacks standing because it failed to identify 8 any individual member of the NYCLU who currently has standing to challenge the TAB 9 access policy. But as the district court explained in its lucid opinion, the NYCLU does 10 not bring its challenge under an associational/representational theory of standing. Rather, 11 it sues to vindicate its own rights as an organization with goals and projects of its own. 12 NYCLU, 675 F. Supp. 2d at 425-26. As it does not sue on behalf of injured members, it 13 need not identify any that have standing. The individuals described in the NYCLU s 14 submissions as having attempted to observe TAB hearings are not listed because they are 15 injured members of the organization. They are, instead, its agents or representatives, and 16 it is the organization itself that claims injury. 17 The NYCTA also claims that the district court was wrong to conclude that the 18 NYCLU s attempts to observe TAB hearings have been frustrated in the past. Id. at 19 427. According to the NYCTA, NYCLU attempts to observe TAB hearings were blocked 20 by misinformed individual employees acting in violation of long-standing TAB policy. 21 The NYCTA suggests that this problem was resolved once the access policy was written 22 down and distributed. 13 1 As discussed above, however, the NYCLU s complaint details at least two 2 instances in which TAB personnel correctly conveyed TAB s current access policy and, 3 pursuant to it, required would-be observers to obtain the consent of a respondent in order 4 to be allowed to observe a hearing. In both cases, when the NYCLU wished to observe a 5 hearing, the person representing the organization was barred from doing so without 6 obtaining a respondent s consent. The NYCTA further argues that the NYCLU lacks standing because only TAB 7 8 personnel ever prevented its representatives from attending a hearing. NYCLU 9 representatives were never excluded from a hearing by any respondent. The NYCLU, 10 however, challenges not the conduct of respondents but the TAB access policy as 11 implemented by TAB personnel. Accordingly, this argument has no bearing on the 12 NYCLU s standing. For its part, the NYCLU has alleged an interest in open access to TAB hearings as 13 14 part of its organizational mission of advocating for open governmental and judicial 15 proceedings. This mission, it asserts, is specifically relevant to the instant case (a) 16 because of the NYCLU s investigation and advocacy regarding police conduct in the 17 transit system and (b) as a matter of its professional responsibility to clients. The NYCLU 18 has further shown that the access policy has impeded, and will continue to impede, the 19 organization s ability to carry out this aforementioned mission. We agree that the 20 NYCLU has alleged a cognizable interest and both past and imminent injuries to it. 21 Accordingly, the district court correctly found that the NYCLU has standing to bring its 22 challenge. We therefore turn to the putative right of access on which that standing is 23 based. 14 1 2 III. The First Amendment Right of Access to Government Proceedings Courts and commentators have long recognized the centrality of openness to 3 adjudicatory proceedings: Without publicity, all other checks are insufficient: in 4 comparison of publicity, all other checks are of small account. In re Oliver, 333 U.S. 5 257, 271 (1948) (quoting 1 Jeremy Bentham, Rationale of Judicial Evidence 524 (1827)). 6 While the Sixth Amendment guarantees the right to a . . . public trial to the accused, 7 U.S. Const. amend. VI, the value of openness for the defendant has not always been 8 strictly distinguished from its value to the public and to the adjudicatory proceeding 9 itself. The knowledge that every criminal trial is subject to contemporaneous review in 10 the forum of public opinion is an effective restraint on possible abuse of judicial power. 11 In re Oliver, 333 U.S. at 270. In Oliver, seemingly Sixth Amendment public access was 12 seen as a guarantor of fairness, accuracy, and correct procedure as much because these 13 further democratic values and help adjudicators reach correct results as because they 14 protect defendants. 15 The distinction in protected values was drawn clearly in Gannett Co., Inc. v. 16 DePasquale, 443 U.S. 368 (1979), which held that the Sixth Amendment guaranteed only 17 the right of the accused to have his trial held before the public and did not protect the 18 right of the public to observe the proceeding. A year later, however, a plurality of the 19 Court found this public right to be implicit in the guarantees of the First Amendment. 20 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (plurality opinion). It 21 stated that without the freedom to attend such trials, . . . important aspects of freedom of 22 speech and of the press could be eviscerated. Id. (internal quotation marks and footnote 15 1 omitted).6 Free speech, the plurality opinion noted, carries with it some freedom to 2 listen. Id. at 576. The First Amendment s guarantees of freedom of speech and the press entail that 3 4 the government [be prohibited] from limiting the stock of information from which 5 members of the public may draw. Id. (quoting First National Bank of Boston v. Bellotti, 6 435 U.S. 765, 783 (1978)). Public access to trials helps give meaning to those explicit 7 guarantees of freedom of speech and the press guarantees that protect the right to 8 speak and to publish concerning what takes place at a trial, and that would lose much 9 meaning if access to observe the trial could . . . be foreclosed arbitrarily. Id. at 575, 576- 10 77. As this implies, the First Amendment right of access to criminal trials is not 11 12 absolute. It does not foreclose the possibility of ever excluding the public. What offends 13 the First Amendment is the attempt to do so without sufficient justification. 14 This right, incidentally, is also consistent with the rights of the accused. As 15 Gannett made clear[,] . . . although the Sixth Amendment guarantees the accused a right 16 to a public trial, it does not give [her] a right to a private trial. Id. at 580 (citing Gannett, 17 443 U.S. at 382). And the presumptive First Amendment right of access precludes a 18 judge or a defendant, or both together, from arbitrarily closing a criminal proceeding.7 6 Richmond Newspapers did not produce a majority opinion, but seven of the eight Justices who participated agreed that the First Amendment, together with the Fourteenth, guaranteed a right of public access to criminal trials. Justice Powell, who did not participate in the decision in Richmond, had previously expressed this same view. Gannett Co., 443 U.S. at 397 (Powell, J., concurring); see also Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974) (Powell, J., dissenting). 7 Open access also serves larger purposes of accountability, legitimation, and democratic governance. Because court rulings impose official and practical consequences upon members of society at large, a trial is a genuine governmental proceeding that is pre-eminently a matter of public interest. Id. at 59596. Public access serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 16 1 Justice Brennan s concurrence in Richmond Newspapers offered two helpful 2 principles to guide courts in determining whether a qualified right of access attaches to a 3 given government proceeding. Id. at 589 (Brennan, J., concurring). First, courts should 4 inquire into experience (history) and consider[] whether the place and process have 5 historically been open to the . . . public. Press-Enterprise v. Superior Court, 478 U.S. 1, 6 8 (1986) ( Press-Enterprise II ) (internal quotation marks omitted). Second, courts 7 should consider logic (functionality) and ask whether public access plays a significant 8 positive role in the functioning of the particular process in question. Id. Courts apply this 9 experience and logic test to determine whether a qualified right of public access attaches 10 to a given government forum. See, e.g., Globe Newspaper, 457 U.S. at 605; Hartford 11 Courant Co. v. Pellegrino, 380 F.3d 83, 94-95 (2d Cir. 2004). 12 Reading Richmond Newspapers broadly, the Supreme Court has subsequently 13 held that the First Amendment safeguards a qualified right of access not only to criminal 14 trials but to related proceedings such as witness testimony, Globe Newspaper, 457 U.S. at 15 608-10; the transcripts of voir dire proceedings, Press-Enterprise v. Superior Court, 464 16 U.S. 501, 505-10 (1984) ( Press-Enterprise I ); and preliminary hearings, Press- 17 Enterprise II, 478 U.S. at 13-15. 18 Our circuit has further held that the presumption of access applies to other aspects 19 of criminal trials as well, including judicial records such as videotapes of defendants, In 20 re Application of Nat l Broad. Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir. 21 1980); pretrial suppression hearings, In re Application of the Herald Co. (United States v. (1982). In doing so, it has systemic effects not only on government proceedings but on perceptions of their legitimacy. Because public access allows people not actually attending trials [to] have confidence that standards of fairness are being observed[,] . . . . [o]penness . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. PressEnterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984). 17 1 Klepfer), 734 F.2d 93, 99 (2d Cir. 1984); plea agreements and plea hearings, United 2 States v. Haller, 837 F.2d 84, 86-87 (2d Cir. 1988); information on the payment of court- 3 appointed counsel, United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir. 1989); bail 4 hearings, United States v. Abuhamra, 389 F.3d 309, 323-24 (2d Cir. 2004); live voir dire 5 proceedings, ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir. 2004); and sentencing 6 hearings, United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir. 2005). We have also 7 held that the public s right implies that particular individuals may not be summarily 8 excluded from court. Huminski v. Corsones, 396 F.3d 53, 83-84 (2d Cir. 2005).8 Most relevant for the present case, we have concluded that the First Amendment 9 10 guarantees a qualified right of access not only to criminal but also to civil trials and to 11 their related proceedings and records. Westmoreland v. Columbia Broad. Sys., Inc., 752 12 F.2d 16, 22 (2d Cir. 1984); see also Hartford Courant, 380 F.3d at 93 (civil and criminal 13 docket sheets). Significantly, all the other circuits that have considered the issue have 14 come to the same conclusion. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 15 249, 253-54 (4th Cir. 1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th 16 Cir. 1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984); In re 17 Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983); Newman v. Graddick, 18 696 F.2d 796, 801 (11th Cir. 1983).9 This recognition of the right to attend civil trials derives from the fact that the 19 20 First Amendment, unlike the Sixth, does not distinguish between criminal and civil 8 There is nothing to the contrary in the brief mention of this issue in Posr v. Court Officer Shield #207, 180 F.3d 409, 414 (2d Cir. 1999), where the complainant sought to assert the right to bring into the courtroom a bicycle pump, which was reasonably prohibited with the kind of time, place, and manner restrictions explicitly allowed in Richmond Newspapers and its progeny. Richmond Newspapers, 448 U.S. at 578. 9 The Supreme Court has not yet considered whether the public right of access applies to civil trials, but six of the eight sitting Justices in Richmond Newspapers clearly implied that the right applies to civil cases as well as criminal ones. Huminski, 396 F.3d at 82 n.30. 18 1 proceedings; nor does it distinguish among branches of government. Rather, it protects 2 the public against the government s arbitrary interference with access to important 3 information. Richmond Newspapers, 448 U.S. at 583 (Stevens, J., concurring). As the 4 district court below aptly noted, [o]nce unmoored from the Sixth Amendment, there is 5 no principle that limits the First Amendment right of access to any one particular type of 6 government process. NYCLU, 675 F. Supp. 2d at 431 (internal quotation marks omitted). However, neither our Court nor the Supreme Court has had occasion to consider 7 8 under what conditions, if at all, a qualified right of access attaches to non-trial civil 9 proceedings like the administrative adjudication at issue here. It is to that question that 10 we now turn. 11 A. Applicability of the Experience and Logic Test 12 The NYCTA would have us forgo the Richmond Newspapers test: it argues that 13 administrative proceedings are never subject to a presumption of public access and that 14 Richmond Newspapers and its progeny apply only to courts. The NYCTA argues that, 15 since administrative proceedings were rare, if not nonexistent, in the early Republic, they 16 are totally different from either criminal or civil trials, which enjoyed centuries of open 17 access, dating back before the Founding. The First Amendment, the NYCTA claims, 18 could not possibly guarantee a right to access something that barely existed at the time of 19 the Founding. Instead, the NYCTA suggests, the issue of public access to administrative 20 proceedings is one for the legislature or the administrative agency itself to decide, free 21 from judicial supervision. This argument fails for several reasons. 22 23 The Supreme Court has not specified how courts should determine whether the experience and logic test applies to administrative proceedings. But we have good reason 19 1 to think that this determination does not involve asking whether the proceedings in 2 question have a history of openness dating back to the Founding. As the Sixth Circuit has 3 stated, the Supreme Court effectively silenced this argument in Press-Enterprise II, 4 where the Court relied on exclusively post-Bill of Rights history in determining that 5 preliminary hearings in criminal cases were historically open. Detroit Free Press v. 6 Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002) (citing Press-Enterprise II, 478 U.S. at 10- 7 12). 8 More importantly, the NYCTA s claim is refuted by the reasoning of the public 9 access cases themselves. These focus not on formalistic descriptions of the government 10 proceeding but on the kind of work the proceeding actually does and on the First 11 Amendment principles at stake. [T]he First Amendment question cannot be resolved 12 solely on the label we give the event, i.e., trial or otherwise, particularly where the 13 [proceeding] functions much like a full-scale trial. Press-Enterprise II, 478 U.S. at 7. In 14 extending the right of public access from the criminal trial to its components and on to 15 civil trials, the Supreme Court and the circuits have emphasized the importance of access 16 to public participation and to government accountability values, the courts have 17 emphasized, that are central to democracy. [T]he First Amendment . . . has a structural 18 role to play in securing and fostering our republican system of self-government, 19 Richmond Newspapers, 448 U.S. at 587 (Brennan, J., concurring). And public access 20 serves to ensure that the individual citizen can effectively participate in and contribute 21 to self-government. Globe Newspaper, 457 U.S. at 604. There is little cause to think that 22 this reasoning has significantly less force in the administrative context. And this is 23 especially so when the administrative process at issue so closely resembles that of the 20 1 courts. See Detroit Free Press, 303 F.3d at 710 ( A government operating in the shadow 2 of secrecy stands in complete opposition to the society envisioned by the Framers of our 3 Constitution. ). 4 Of course, widespread administrative adjudication is a relatively new 5 phenomenon. Fed. Mar. Comm n v. S. C. State Ports Auth., 535 U.S. 743, 755 (2002) 6 (noting that formalized administrative adjudications were all but unheard of in the late 7 18th century and early 19th century ). But changes in the organization of government do 8 not exempt new institutions from the purview of old rules. Rather, they lead us to ask 9 how the new institutions fit into existing legal structures. If, as the NYCTA suggests, 10 government institutions that did not exist at the time of the Framers were insulated from 11 the principles of accountability and public participation that the Framers inscribed in the 12 First Amendment, legislatures could easily avoid constitutional strictures by moving an 13 old governmental function to a new institutional location. Immunizing government 14 proceedings from public scrutiny by placing them in institutions the Framers could not 15 have imagined, as the NYCTA urges, would make avoidance of constitutional protections 16 all too easy. 17 Two other circuits have considered a similar question, and they have likewise 18 concluded that Richmond Newspapers is a test broadly applicable to issues of access to 19 government proceedings, North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 20 208-09 (3d Cir. 2002), and especially to quasi-judicial administrative proceedings, 21 because there is a limited First Amendment right of access to certain aspects of the 22 executive and legislative branches, Detroit Free Press, 303 F.3d at 695. As a result, 23 these circuits have each applied the experience and logic test in the administrative 21 1 context. See id. at 705 (holding that the experience and logic test applies to removal 2 proceedings and that the public has a qualified right of access to those proceedings); 3 North Jersey Media Group, 308 F.3d 198 (holding that the experience and logic test 4 applies to removal proceedings and that the public lacks a qualified right of access to 5 those proceedings). The fact that, in applying this test, the circuits differed on how the 6 test played out in no way counters their holdings, with which we agree, that the test 7 applies to administrative trials. 8 9 Similarly, albeit in a different line of cases, the Supreme Court has recognized that the adjudicatory work of administrative agencies can be sufficiently like that of the 10 courts to warrant requiring the agencies to follow principles that apply to courts. For 11 instance, Butz v. Economou, 438 U.S. 478 (1978), which extended the absolute immunity 12 enjoyed by Article III judges to administrative law judges, noted that judicial immunity 13 stems from the characteristics of the judicial process rather than its location within one 14 or another branch of government. Id. at 512. And, the Court determined, adjudication 15 within a federal administrative agency shares enough of the characteristics of the judicial 16 process to render the work of the modern federal hearing examiner or administrative 17 law judge within this framework . . . functionally comparable to that of a judge. Id. at 18 512-13 (internal quotation marks omitted). More recently, Federal Maritime Commission 19 v. South Carolina State Ports Authority concluded that states retained the sovereign 20 immunity they enjoyed in court when they were subject to an administrative adjudicatory 21 proceeding that walks, talks, and squawks very much like a lawsuit. Fed. Mar. 22 Comm n, 535 U.S. at 757 (quoting South Carolina State Ports Authority v. Fed. Mar. 23 Comm n, 243 F.3d 165, 174 (4th Cir. 2001)). 22 Such cases recognize that the principles governing adjudication do not lose 1 2 validity when the adjudication moves to another branch of government. Indeed, as the 3 Supreme Court has stated, when governmental agencies adjudicate or make binding 4 determinations which directly affect the legal rights of individuals, it is imperative that 5 those agencies use the procedures which have traditionally been associated with the 6 judicial process. Hannah v. Larche, 363 U.S. 420, 442 (1960). 7 In the present case, the TAB acts as an adjudicatory body, operates under 8 procedures modeled on those of the courts, and impose[s] official and practical 9 consequences upon members of society. Richmond Newspapers, 448 U.S. at 595 10 (Brennan, J., concurring). When a neutral adjudicator determines whether public transit 11 users have violated a Rule, that determination has the force of law and, like the criminal 12 trial for which it substitutes, it is a genuine governmental proceeding. Id. at 506. The 13 TAB and the court serve similar functions, in similar ways, and have a similar effect on 14 the parties before them. In so holding, we need not, and should not, make any broad pronouncement about 15 16 the right of access to administrative processes generally. Given the wide variety of 17 proceedings that characterize the administrative state, that would be as foolhardy as it is 18 unnecessary. But we have no trouble concluding that the First Amendment guarantees a 19 presumptive right of access at least to this administrative forum. We therefore proceed to 20 examine the experience and logic of open access to the TAB s proceedings.10 21 B. The Experience of Public Access to TAB Hearings 10 The Supreme Court has called the experience and logic prongs of the Richmond Newspapers test complementary, Press-Enterprise II, 478 U.S. at 8, but it has not specified how much weight courts should give each prong. We need not determine the issue in this case, because both experience and logic lead clearly to the conclusion that the TAB is subject to a First Amendment right of access. 23 1 Our inquiry is considerably simplified by the jurisdiction the TAB shares with the 2 Criminal Court. The fact that an alleged violator may be subject either to a court or to a 3 TAB proceeding at the total discretion of the police officer, rather than by reference to 4 any alleged conduct, suggests that the two forums are functionally comparable. Butz, 5 438 U.S. at 513 (internal quotation marks omitted). The Richmond Newspapers test looks 6 not to the formal description of the forum but to the historical experience in that type or 7 kind of hearing throughout the United States. El Vocero de Puerto Rico v. Puerto Rico, 8 508 U.S. 147, 150 (1993) (internal quotation marks omitted) (emphasis in the original). 9 While the TAB s relaxed procedures and administrative placement differentiate it 10 somewhat from the Criminal Court, the jurisdictional overlap and shared function of the 11 two forums render them in important ways the same type or kind of hearing. Id. 12 Because of this, how the experience and logic inquiry comes out with respect to the 13 Criminal Court largely determines how it comes out for the TAB as well. And, since 14 access to criminal court hearings is the core of the entire Richmond Newspaper line of 15 cases, a similar result for the TAB seems almost foreordained. The government cannot 16 simply dress up a criminal trial in the guise of an administrative hearing and thereby 17 evade the well-established requirement that criminal proceedings be open to the public. 18 Even without the functionally equivalent Criminal Court as a guide, however, we 19 would come to the same conclusion. The NYCTA argues that because there is no history 20 of open access to the TAB dating back to the First Amendment, TAB proceedings cannot 21 be presumptively open under that amendment. But the Supreme Court has instructed us to 22 ask not whether the First Amendment was formulated with some particular forum in 23 mind, but whether the place and process have historically been open. Press-Enterprise 24 1 II, 478 U.S. at 8. If we understood this instruction to require us to look to the physical 2 location and institutional proceeding at issue, we might conclude, as the NYCTA urges, 3 that the offices of the TAB and its hearings have been subject to the current access policy 4 for the TAB s entire brief history. To take this view, however, would be to rely on 5 precisely the kind of formalism that the Richmond Newspapers line of cases eschews.11 6 The process that goes on at TAB hearings is a determination of whether a respondent has 7 violated a Transit Authority Rule. And that process was presumptively open from the 8 inception of the Rules system in 1966, when such proceedings were heard only in open 9 criminal courts.12 11 The Supreme Court has not stated how long a history of openness the experience prong of the Richmond Newspapers test requires, and we need not resolve this issue here. [W]e are mindful that [a] historical tradition of at least some duration is obviously necessary, . . . [or] nothing would separate the judicial task of constitutional interpretation from the political task of enacting laws currently deemed essential. Detroit Free Press, 303 F.3d at 701 (quoting In re The Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985)) (alterations in original). At the same time, we note that it makes less sense to assume that First Amendment principles require centuries of openness for validation than to evaluate the length of a tradition by reference to the kind of institution and proceeding involved in the particular case. As a result, the fact that the Rules governing behavior on New York public transit are themselves less than half a century old is less relevant to our inquiry than that their violation was prosecuted exclusively in open court for the first two decades of their existence, and that it continues to be so prosecuted when the citing police officer, in his or her discretion, issues a summons to Criminal Court rather than a notice of violation returnable to the TAB. Cf. Suarez, 880 F.2d at 631 (holding Criminal Justice Act, 18 U.S.C. § 3006A, forms presumptively accessible even though the statute was enacted only in 1964). 12 We are inclined to think that treating TAB hearings not as substitutes for Criminal Court hearings but as administrative proceedings in their own right might well yield the same result. The tradition of openness in formal administrative adjudicatory proceedings generally has amply demonstrated the favorable judgment of experience. Richmond Newspapers, 448 U.S. at 589 (Brennan, J., concurring). As amici New York Times et al. point out, administrative hearings at which individual rights are adjudicated have traditionally been open. Already in 1933, the District of Columbia Circuit noted that a number of . . . acts of Congress creating [administrative] bodies . . . provi[de] . . . that all proceedings shall be public. Hughes, Inc. v. FTC, 63 F.2d 362, 363 (D.C. Cir. 1933); see id. at 363-64 (finding that public hearings serve the same purposes whether in courts or bureaus and are wholly consonant with the modern view of functions of government ). The Supreme Court sounded a similar note when it required a few years later that the inexorable safeguard of a fair and open hearing be maintained in administrative adjudication. Ohio Bell Telephone Co. v. Public Utilities Comm n, 301 U.S. 292, 304 (1937) (internal quotation marks and citations omitted). Contemporaneously, the Court described a fair and open hearing as one of the rudimentary requirements of fair play, and found it essential alike to the legal validity of . . . administrative regulation and to the maintenance of public confidence. Morgan v. United States, 304 U.S. 1, 15 (1938). That these values are essentially the same as those Richmond Newspapers ascribed to open court proceedings suggests that the history of quasi-judicial administrative proceedings includes an analogously strong tradition of public access. Mindful of the Supreme Court s injunction not to make unnecessary constitutional adjudications, 25 1 2 C. The Logic of Public Access to TAB Hearings Our answer to the logic part of the inquiry is, again, guided by the logic of access 3 to the Criminal Court, which has been well established. As with the experience prong, 4 however, looking just to the TAB itself yields the same result. The logic prong of the 5 inquiry essentially asks whether openness enhances the ability of the government 6 proceeding to work properly and to fulfill its function. Press-Enterprise II, 478 U.S. at 8. 7 This inquiry requires an understanding of what the function of a particular process is and 8 an evaluation of the role of openness in it.13 9 Court trials, which serve both as a mechanism for judicial factfinding, [and] as 10 the initial forum for legal decision making, Richmond Newspapers, 448 U.S. at 596 11 (Brennan, J., concurring), have been held to depend on publicity as a check that 12 enhance[s] the fairness of the trial itself, United States v. Doe, 63 F.3d 121, 126 (2d 13 Cir. 1995). TAB proceedings similarly serve an adjudicatory function that determines 14 respondents rights. As a proceeding that, like a trial, involves both factfinding and legal 15 decision making, the TAB hearing is subject to the same dangers whether willful or 16 accidental as a trial, dangers that can be reduced significantly by the kind of [p]ublic 17 scrutiny . . . [that] enhances the quality and safeguards the integrity of the factfinding 18 process. Globe Newspaper, 457 U.S. at 606. see Ashwander v. TVA, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring), we make clear that the discussion in this footnote is not an alternative holding. 13 The Third Circuit has posited that this inquiry perforce must take account of the flip side the extent to which openness impairs the public good, because, were the logic prong only to determine whether openness serves some good, it is difficult to conceive of a government proceeding to which the public would not have a . . . right of access. North Jersey Media, 308 F.3d at 217. Of course, the test has never been whether openness serves some good, id., but whether [it] plays a significant positive role in the functioning of the particular process in question. Press-Enterprise II, 478 U.S. at 8. We think this phrasing already encompasses the flip side. North Jersey Media, 308 F.3d at 217. 26 Furthermore, in a TAB proceeding, individuals confront the power of their 1 2 government to judge and penalize their actions; like a trial, it is a part of the general 3 administration of justice that is central to government authority. Doe, 63 F.3d at 126. In 4 this sense, like a trial, one of the TAB s functions is to maintain the public perception of 5 government as a legitimate authority that satisfies the appearance of fairness so essential 6 to public confidence in the system. Press-Enterprise I, 464 U.S. at 508. And it is this 7 appearance of fairness that has been held to be enhance[d] by open access. Id. at 508, 8 509. 9 Finally, because the TAB, like other administrative agencies, forms a part, albeit 10 small, of a larger web of government authority, [f]ree access [to it] . . . informs the 11 populace of the workings of government and fosters more robust democratic debate, 12 Doe, 63 F.3d at 126, thereby serv[ing] to insure that the individual citizen can 13 effectively participate in and contribute to our republican system of self-government, 14 Globe Newspaper, 457 U.S. at 604. 15 The NYCTA has not argued that public access would not enhance the TAB s 16 functioning in these ways. Rather, it suggests that the possibility that some respondents 17 would be dissuaded from contesting their notices of violation in person suffices to 18 outweigh any potential benefits of publicity. But far from showing that this danger is real, 19 the NYCTA has offered no empirical support for th[is] claim. Id. at 609. Like the Sixth 20 Circuit, we do not believe speculation should form the basis for . . . a . . . restriction of 21 the public s First Amendment rights. Detroit Free Press, 303 F.3d at 709. To the extent 22 that a particular defendant or witness has a legitimate interest in excluding the public 23 from a specific proceeding before the TAB, the NYCTA retains the authority to close the 27 1 hearing room on an ad hoc basis, provided that its decision complies with the 2 requirements set out in Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001), and delineated 3 below. Accordingly, because public access plays a significant positive role in the 4 functioning of the [TAB] process, Press-Enterprise II, 478 U.S. at 8, we hold that TAB 5 proceedings are subject to a public right of access under the First Amendment. 6 D. 7 Requirements for Closing Hearings and the TAB Policy The First Amendment right of access is always qualified. Just as a government 8 may impose reasonable time, place, and manner restrictions upon the use of its streets in 9 the interest of such objectives as the free flow of traffic, so may a trial judge, in the 10 interest of the fair administration of justice, impose reasonable limitations on access to a 11 trial. Richmond Newspapers, 448 U.S. at 581 n.18 (plurality opinion) (internal citation 12 omitted). The same, of course, applies as to other government proceedings subject to the 13 right of access. The Supreme Court has stated, however, that the State s justification in 14 denying access must be a weighty one, Globe Newspaper, 457 U.S. at 606, and that 15 [c]losed proceedings, although not absolutely precluded, must be rare and only for cause 16 shown, Press-Enterprise I, 464 U.S. at 509. The Globe Newspaper Court, for instance, 17 held that even the State s interest in shielding minor victims of alleged sex crimes from 18 further trauma and embarrassment and encourag[ing] . . . such victims to come forward 19 and testify, 457 U.S. at 607, was insufficient to justify a statute requiring an across-the- 20 board, mandatory closure of a court whenever such minors testified. Rather, Globe 21 Newspaper made the trial court determine the necessity and propriety of closure on a 22 case-by-case basis. Id. at 608. 28 The standard for exclusion, as stated by the High Court, is that there be an 1 2 overriding interest based on findings that closure is essential to preserve higher values 3 and is narrowly tailored to serve that interest. The interest is to be articulated along with 4 findings specific enough that a reviewing court can determine whether the closure order 5 was properly entered. Press-Enterprise I, 464 U.S. at 510; see also Globe Newspaper, 6 457 U.S. at 606-07 ( Where, as in the present case, the [government] attempts to deny the 7 right of access in order to inhibit the disclosure of sensitive information, it must be shown 8 that the denial is necessitated by a compelling governmental interest, and is narrowly 9 tailored to serve that interest. ). The same standard applies whether the defendant is 10 seeking or objecting to closure, and whether the motion is made under the Sixth 11 Amendment or the First. Doe, 63 F.3d at 128. In our circuit, a government proceeding subject to a qualified First Amendment 12 13 right of access may be closed if four factors are satisfied: [1] the party seeking to close 14 the hearing must advance an overriding interest that is likely to be prejudiced, [2] the 15 closure must be no broader than necessary to protect that interest, [3] the trial court must 16 consider reasonable alternatives to closing the proceeding, and [4] it must make findings 17 adequate to support the closure. Williams, 237 F.3d at 152 (quoting Waller v. Georgia, 18 467 U.S. 39, 48 (1984));14 see also Doe, 63 F.3d at 127 ( Given the presumption of 19 openness, proceedings cannot be closed unless specific, on the record findings are made 20 demonstrating that closure is essential to preserve higher values and is narrowly tailored 14 Waller dealt the closure of a criminal suppression hearing under the Sixth Amendment, but, as previously noted, although the interests at stake in Sixth Amendment and First Amendment publicity of government proceedings differ, the standards for closure are the same. Doe, 63 F.3d at 128. Indeed, Waller cites PressEnterprise I on this point. Waller, 467 U.S. at 48. 29 1 to serve that interest. ) (quoting Press-Enterprise II, 478 U.S. at 13-14) (internal 2 quotation marks and citation omitted). 3 Accordingly, we have recognized that a person s physical safety as well as the 4 privacy interests of individuals such as witnesses, third parties, and those investigated in 5 connection with a legal violation, may warrant closure. Doe, 63 F.3d at 127. Thus, we 6 have allowed a court to exclude the public from proceedings during the testimony of 7 police officers whose undercover work was ongoing, Ayala v. Speckard, 131 F.3d 62, 72 8 (2d Cir. 1997) (en banc); to exclude the public from part of voir dire, where the trial 9 judge had made on-the-record findings that the risk of juror dishonesty about racial bias 10 in a highly publicized case sufficed to warrant keeping in camera voir dire transcripts 11 sealed until after a jury had been impaneled, United States v. King, 140 F.3d 76 (2d Cir. 12 1998); and to limit the entrance of new observers to a trial during the testimony of a key 13 witness in order not to distract the jury, Williams, 237 F.3d at 152. 14 The TAB s access policy, however, does not come close to meeting our standard 15 for justifying closure. A respondent need not articulate any interest prejudiced by public 16 access; the closure is total for that respondent s hearing; and the hearing officer neither 17 considers alternatives nor makes any findings regarding the relative weight of the 18 interests at stake. See Williams, 237 F.3d at 152. Indeed, the TAB s policy resembles one 19 explicitly addressed by the Supreme Court in a case that struck down a local court rule 20 allowing [preliminary criminal] hearings to be closed upon the request of the defendant, 21 without more. El Vocero de Puerto Rico, 508 U.S. at 150. That case and others have 22 made clear that the government may not arbitrarily close its proceedings to the public 30 1 when, as in the case before us, it does so by allowing private parties to wield the arbitrary 2 power. CONCLUSION 3 4 We conclude that the TAB s current access policy violates the public s First 5 Amendment right of access to government proceedings. We further conclude that the 6 NYCLU s ability to carry out its mission would be irreparably harmed through the 7 continued violation of this right. 8 9 We have considered all of the NYCTA s arguments and find them to be without merit. We therefore AFFIRM the district court s order permanently enjoining the 10 NYCTA from enforcing the TAB s current access policy and requiring any future closure 11 of TAB hearings to the public to comport with the narrow tailoring and on-the-record 12 factfinding required by the First Amendment. 31
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