Zansberg will petition U.S. Supreme Court to heard records case

Law Week Colorado: Longtime Colorado media lawyer Steve Zansberg, who has represented national news organizations in cases connected to the Aurora theater shooting, the Oklahoma City bombing and the Kobe Bryant rape prosecution, intends to file a petition for certiorari with the U.S. Supreme Court in a First Amendment records case brought on behalf of the Colorado Independent.

“We are seeking certiorari,” Zansberg said. “Very actively so.”

Zansberg and his client, the Colorado Independent, have until Sept. 28 to file a cert petition with the court.

At issue is the question of whether the First Amendment provides the public qualified access to judicial records. Thirty-eight years ago, the U.S. Supreme Court ruled in Richmond Newspapers, Inc. v. Virginia that the First Amendment afforded the public and the press qualified access to certain judicial proceedings. The court wrote in its ruling that “the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.”

The right to access judicial records, however, is another question. The country’s highest court has not explicitly ruled that the First Amendment provides such a right to access records, but several lower federal courts have recognized a qualified right for the public to view court documents. In ruling earlier this summer in the case People v. Sir Mario Owens, the Colorado Supreme Court came to an altogether different conclusion concerning judicial documents.

In a unanimous decision, Colorado Supreme Court Justice Melissa Hart wrote: “While presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions, neither the U.S. Supreme Court nor this court has ever held that records filed with a court are treated the same way. We decline to conclude here that such unfettered access to criminal justice records is guaranteed by either the First Amendment or Article II, section 10 of the Colorado Constitution.”

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