Wednesday, May 18, 2022

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From amicus curiae brief: Depriving a journalist of his opportunity to object to closure by handcuffing and physically removing him is unconstitutional and improper

[Excerpts from Part III of a Brief of Amicus Curiae prepared by the Charlotte attorney Jon Buchan on behalf of the Reporters Committee for Freedom of the Press, with legal citations omitted]

Mr. Boney sought to attend the sentencing as a surrogate of the public, in order to assert his constitutional right to be present in the courtroom and inform the public about the proceeding. The trial court’s order to remove him, which the sheriff s deputies did in handcuffs, and the trial court’s threat to hold him in contempt merely for attempting to exercise his right of access not only violates his constitutional rights but offends fundamental democratic principles. Mr. Boney was doing exactly what the Reporters Committee recommends as a best practice for journalists covering court proceedings. He asserted objections himself and immediately engaged counsel, who filed a motion for access. . .

It is well-established that the public must have notice and an opportunity to be heard before a court may close proceedings. As the U.S. Supreme Court explained, if the
constitutional right of the press and public to access is to have substance, representatives of these groups “must be given an opportunity to be heard on the question of their exclusion.” . . . The federal courts of appeals have “uniformly” agreed that notice and an opportunity to be heard must be given prior to an order closing the courtroom or sealing documents to which the public has a right of access. . .

The Fourth Circuit has recognized three procedural requirements:

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First, the district court must give the public adequate notice that the closure of a hearing or the sealing of documents may be ordered….

Second, the district court must provide interested persons “an opportunity to object to the request before the court ma[kes] its decision.”

Third, if the district court decides to close a hearing or seal documents, “it must state its reasons on the record, supported by specific findings.”. . .

Courts have recognized the importance of these requirements in sentencing hearings, in particular. . . And courts have upheld such requirements even where—unlike here—historically sensitive topics are involved, such as “national security interests.”

Here, the trial court denied Mr. Boney the ability to assert his objections, despite his well-established right to do so, and it physically restrained and removed him from the court and threatened contempt penalties, as if he had committed a crime. Such conduct not only offends the First Amendment but sends a chilling message to other members of the press and public not to assert their rights of access, lest they face the same fate. In addition, the trial court failed to make any findings, let alone specific ones, to justify its closure order and removal of Mr. Boney.

Accordingly, it is imperative that this Court grant the petition and make clear that the trial court’s treatment of Mr. Boney was improper and must not be repeated. . . .

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