Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. IP 80-74-CR-02 and IP 80-74-CR-03 -- William E. Steckler, Judge.
Before Cummings, Chief Judge, Fairchild, Senior Circuit Judge, and East, Senior District Judge.*fn*
This case raises the question of whether the district court erred in refusing to release to the media, for the purpose of copying and broadcasting to the public during the pendency of a criminal trial, an audio recording which had been admitted into evidence and played in open court. We hold that the case is not moot. Even though the broadcasters sought access to the tape contemporaneous with the trial, long since ended, the underlying dispute is of the type "capable of repetition, yet evading review." Considering all of the circumstances, we cannot say that the district court abused its discretion in denying the broadcasters' request. For guidance in future cases, however, we make clear that there is a strong presumption in favor of the common law right of access to judicial records and that permission to inspect, copy, and disseminate should be denied only where actual, as opposed to hypothetical, factors demonstrate that justice so requires.
The criminal trial of Martin K. Edwards and Francis B. Kendall attracted considerable attention in the media. Edwards, a state Senator and President Pro Tempore of the Indiana Senate, and Kendall, a private businessman, had been indicted on charges relating to unlawful payments of money in exchange for influencing legislation.*fn1 During the course of their trial, on November 19, 1980, an audio recording of a telephone conversation between Edwards and one John L. Cline*fn2 was admitted into evidence and played to the jury. A day earlier, through channels not clear from the record, full transcripts of that recording had been published in The Indianapolis News and The Indianapolis Star newspapers. Following introduction of the tape,*fn3 Video-Indiana, Inc., a television broadcasting station, and Mid-America Radio, Inc., a radio station, both of Indianapolis, (collectively, the "Broadcasters"), informally requested permission of the court to copy the audio recording for broadcast to the public. The court took the requests under advisement and suggested that formal applications be filed. The next day, November 20, 1980, the Broadcasters submitted written applications seeking permission to copy, for broadcast contemporaneous with the trial, all video and audio tapes which had been or might be admitted into evidence.*fn4 On November 21, 1980, the court heard oral argument in support of the requests by counsel for the Broadcasters, and in opposition thereto by counsel for each of the defendants and counsel for the United States. The applications were thereafter denied in an oral decision from the bench.
The court's decision was based on essentially three factors. First, the court expressed concern that mid-trial authorization of access might be viewed as placing a judicial imprimatur upon particular evidence which might be overcome by later testimony, and therefore concluded that pendency of trial was a factor entitled to considerable weight. Second, the court observed that Edwards had yet to stand trial upon several counts of tax evasion which had been severed from the instant charges and that public broadcast of the tape might make it "doubly difficult" to draw a jury for that subsequent proceeding. Despite this potential obstacle, however, the court expressly noted that it was inclined to agree that through proper voir dire examination "nevertheless a jury can be selected ... with a fair and impartial attitude." Finally, the court offered the view that a recent resolution of the Judicial Conference of the United States reaffirming the ban against broadcast of trials was a relevant consideration weighing in favor of denying access to the tape.
Subsequently, the Broadcasters filed an appeal in this court. Because the answering brief of defendants Edwards and Kendall was wholly perfunctory in nature and the Government's brief indicated that it would not oppose release of the tape if, as was likely, the second trial of Edwards was completed before oral argument, we asked Attorney Irvin B. Charne of Milwaukee to file a brief and argue as amicus in support of the trial court's decision. We are grateful for his assistance.
The relief sought by the Broadcasters in their application to the district court was the release of the tapes during the trial. The amicus argues that since the trial has now ended contemporaneous access to the tapes is impossible and therefore the appeal should be dismissed as moot.*fn5 We agree with the Broadcasters that the underlying dispute is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911), and therefore is not moot. It is reasonably foreseeable that in other criminal trials similar applications for access to tape recordings will be made and will be denied. See Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426 n.2 (5th Cir. 1981) ("broadcaster's requests for access are continuing and continue to be denied"). It is also likely that in such cases the criminal trials will be of sufficiently short duration that an order denying access will evade appellate review during the period in which contemporaneous access could be granted. Cf. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S. Ct. 2814, 2821, 65 L. Ed. 2d 973 (1980) ("(m)ore often than not ... a closure order "will evade review ...' "). Thus, while it would be impossible for us to direct the district court to now accord the specific relief requested, mootness does not preclude consideration of the merits. Accord Belo Broadcasting, supra, 654 F.2d at 426 n.2; In Re Application of National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 949 n.1 (2d Cir. 1980) (hereafter "Myers").*fn6
For similar reasons, we find inadequate the government's suggestion that the case be remanded to the district court for reconsideration of the initial request for access in view of the fact that the trial of Edwards and Kendall has ended and the separate tax evasion charges against Edwards resolved.*fn7 While a different decision might now be reached based on these changed circumstances, such a procedure would avoid the basic question of whether the Broadcasters were entitled to have access to the tape during the course of the trial. It is that issue we believe must be addressed. Accordingly, we turn to the merits.
III. The Common Law Right of Access to Judicial Records
The Broadcasters do not argue that they were constitutionally entitled to inspect, copy, or broadcast the tape which had been admitted into evidence and played to the jury. Rather, they base their claim upon the common law right of access to judicial records.
The keystone for our analysis is the Supreme Court's decision in Nixon v. Warner Communications, 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). There, during the trial of several of ex-President Nixon's former advisers, certain tape recordings were played to the jury in open court and reels of the tapes were admitted into evidence. Transcripts of the tapes furnished to reporters were widely reprinted in the press. At the close of the trial at which four of the defendants were convicted, and following an earlier unsuccessful request to copy, broadcast, and sell to the public portions of the tapes, certain broadcasters petitioned for immediate access to the recordings. The district court denied permission, United States v. Mitchell, 397 F. Supp. 186 ...