There's a Reporter in the Hallway: Fifth Circuit Holds Media Has First Amendment Right to Notice and Hearing before Closing Sentencing Proceedings


It was not necessary for Houston Chronicle reporter Dane Schiller to camp outside the courtroom door to receive notice that the court was about to go into an unannounced closed sentencing hearing of notorious Mexican drug kingpin Oziel Cardenas-Guillen. Nor, the Fifth Circuit Court of Appeals has held, was it necessary for the Chronicle to have a lawyer come over in less than 20 minutes to file a handwritten motion to be heard on the issue of whether the government had met its burden to have the hearing closed. Rather, the Fifth Circuit has found that the public and the media have a First Amendment right to notice that a sentencing hearing will be closed and an opportunity to be heard on the issue prior to closure. In re Hearst Newspapers, L.L.C., ____ F.3d _____, 2011 WL 1844189 (5th Cir. 2011).

In fact, despite Schiller’s and the Chronicle’s efforts, the district court declined to hear the Chronicle’s handwritten motion at the time it was walked in during Cardenas-Guillen’s sentencing hearing – just as it had declined to hear an earlier motion to intervene that the Chronicle had filed requesting relief regarding the numerous sealed motions and orders. The Chronicle had also sent a letter to the district court requesting notice and an opportunity to be heard with regard to closure of any proceedings. Nevertheless, the district court granted the government’s motion to close the sentencing hearing for “security reasons” and to deprive the public of notice that the hearing was taking place. This order and the government’s motion were sealed. Only Schiller’s fortuitous presence in the courthouse at the very hour of the hearing tipped the Chronicle off to the fact that its request for notice had been denied, and that the hearing was in progress.

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