The Logic Of Experience: The Role Of History In Recognizing Public Rights Of Access Under The First Amendment

This Comment addresses this dearth in scholarship by identifying eight ways lower courts use history to analyze the experience prong of the experience and logic test for whether a First Amendment right attaches to right of access to certain legal proceedings. I identified these taxonomies by reviewing 185 federal circuit court opinions in Westlaw that cited Press‐Enterprise II, seventy‐six of which applied the experience and logic test. I also reviewed some federal district court and state court opinions cited in the circuit court opinions and scholarly articles. I focus on the range of ways courts have handled “mixed history”—a proceeding that is replete with examples of both open and closed practices.

This Comment analyzes to what degree these different taxonomies are in line with, or depart from, the Supreme Court’s jurisprudence on the topic. Like Levine, I argue that some of the different approaches reflect uncertainty and unanswered questions in the Supreme Court’s opinions. This analysis demonstrates that lower courts have little direction regarding how to conceptualize historical traditions that are beset by open and closed practices, or proceedings that lack a historical tradition of access because they are relatively new.

Nevertheless, while this Comment shows that a range of approaches to the experience prong are in line with the Supreme Court’s jurisprudence, analyzing the different uses of history by lower courts in detail underscores scholars’ critiques of the doctrine. In particular, it shows that the experience prong is not suited to address new practices when there may be no history of openness or closure, and that the emphasis on history does not allow the right of access doctrine to accommodate changes in governmental practice and innovation.

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