1. Time is critical. If you cannot get to a telephone, try to have someone call your editor and lawyer. Media cooperation should be in effect; when any media lawyer learns of the problem, he or she should be alerted to call counsel for other media present.
2. If time permits, remind the U.S. attorney present of Local Court Rule 53(e) and of the Department of Justice's anticlosure guidelines and rules.
3. If that fails, respectfully object to the court and hand the court your "open hearing card" (Appendix VI). In addition, you should call the following authorities to the attention of the court:
(a) If it is a pretrial evidentiary hearing, advise the court that Gannett Co. v. DePasquale, suggests that any "spectators present in the courtroom" can object to a proposed closure. Furthermore, a majority of the justices in Globe Newspaper v. Superior Court, found that representatives of the press "must be given an opportunity to be heard on the question of their exclusion."4. The most compelling argument in a pretrial suppression hearing will be the procedural requirements of Local Rule 53(e) if you are in the Western District of Washington. Respectfully ask the judge to read that rule before deciding. The same rule must be followed before closing a federal court trial, but if the court can be familiarized with Richmond Newspapers, it is considerably less likely that a trial would be closed.
(b) In either a pretrial hearing or a trial, cite Richmond Newspapers Inc. v. Virginia, discussed in the previous section, and its clear holding that the First Amendment requires that judicial proceedings should be open unless it is clearly shown that closure is required as the only alternative to preventing prejudice. Remind the court that Press-Enterprise II, discussed above, firmly establishes that the First Amendment right to access is independent of the defendant's Sixth Amendment right to fair trial, and that if at all possible the fair trial rights must be protected by means that do not restrict public access to a judicial proceeding.
(c) Cite Federal District Court Local Rule 53(e) and its requirement that your lawyer must be given an opportunity to present full argument.
(d) Cite Seattle Times v. U.S. District Court, discussed above, and the Ninth Circuit's recognition that voir dire and other alternatives will likely be effective to mitigate prejudice, particularly in a metropolitan area.
5. If a federal judge determines to close the hearing without following Local Rule 53(e), state that you object and that you believe that court rules and the First Amendment entitle the public and the press to an adjournment of the proceeding so that counsel can present critical constitutional issues to the court.
6. Do not agree to refrain from publishing information which you might obtain if allowed to remain in the otherwise closed proceeding. Check with your editor and lawyer if the court makes such a request.
7. If the judge orders you to leave, you should comply, but respectfully ask that you be given a written copy of the judge's closure order, setting forth the reasons for the closure.
BACK TO TABLE OF CONTENTS: PART II