DECISION and ORDER Upon the letter application dated August 17, 2022, filed as NYSCEF Document No. 515, written on behalf of non-parties National Public Radio, Inc., WP Company LLC, and Insider Media Group, requesting that those entities as well as other members of the press be permitted to attend the jury selection in this action, the Court finds as follows: The amended complaint in this action alleges that on September 3, 2015, plaintiffs, a group of human rights activists of Mexican origin, were violently attacked by defendant Donald J. Trump’s security guards, and their property was destroyed, for the express purpose of interfering with their political speech while they were lawfully assembled on the public sidewalk in front of the headquarters of Donald J. Trump for America, Inc. and the Trump Organization LLC. The defendants deny these allegations. Defendants initially asserted a counterclaim alleging that plaintiff Galicia in fact committed an unprovoked assault against defendant Schiller, the head of security for the Trump Organization. This counterclaim was later withdrawn. Plaintiffs cause of action styled as “tortious interference with political speech” was dismissed by this Court (Tapia, J.), and that holding was affirmed by the Appellate Division, which agreed that no such cause of action exists. Further, Judge Tapia dismissed the claims of Gonzalo Cruz Franco, dismissed the causes of action for negligent hiring, retention and supervision, and allowed claims for assault and conversion of property to proceed to trial. At the outset, the court notes that closure of the courtroom to the press means closure of the courtroom to the public, and implicates statutory and constitutional concerns, even outside of the context of criminal cases and family court cases, where the issue of courtroom closure more regularly arises, and where the issue has been more widely addressed. This Court has not located any case in which the Supreme Court explicitly recognized a right of access to civil proceedings such as the present case, although in Richmond Newspapers, 448 U.S. at 580 n. 17, Chief Justice Burger, speaking for himself, Justice White and Justice Stevens, stated that “[w]hether the public has a right to attend trials in civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.” The Third Circuit Court of Appeals long ago recognized that the public has a right of access to civil proceedings. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). The Second Circuit similarly concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials, and to their related proceedings and records, as derived from the fact that the First Amendment, unlike the Sixth Amendment, does not distinguish between criminal and civil proceedings, nor among the various branches of government. New York Civ. Liberties Union v. New York City Transit Auth., 684 F.3d 286, 298 (2011). Should there be any doubt that public policy disfavors limitations on public access to court proceedings, and that this is the law in the State of New York, we need only refer to New York Judiciary Law §4. That section provides that the sittings of every court within this state shall be public, and every citizen may freely attend the same, except in proceedings and trials in cases for divorce, seduction, rape, and some other specified instances not applicable here. As the New York State Court of Appeals observed in Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 446 (2009), “By its plain terms, the statute mandates that any judicial proceeding, whether it be a criminal or civil trial…be presumptively open to the public.” Further, it must be observed that jury selection is an integral part of the trial. The cases are myriad in the context of criminal trials, which hold that a compelling need must be established to limit the right of the public and the press to observe jury selection. In Press-Enterprise Co. v. Sup. Ct. of Cal. for Riverside Cty., 464 U.S. 501 (1984), the United States Supreme Court held that the First Amendment required that jury selection be presumptively open to the public in a criminal trial. That case, unlike the instant case, involved a criminal trial for rape, which raised concerns of juror embarrassment, and other sensitive issues not implicated here. Other Courts have likewise held that the right of the public and press to attend voir dire proceedings is “essential…to public confidence in the administration of justice.” ABC, Inc. v. Stewart, 360 F.3d 90, 105-06 (2d Cir. 2004). However, the right to such access is not without limitation and must be balanced against other interests which might justify the closing of the courtroom to the public. The right of public access may be limited where courtroom closure is necessitated by a compelling governmental interest, and where the closure is narrowly tailored to serve that interest. Thus, for example, in a high profile criminal trial involving an alleged sexual assault, closure of the courtroom during a Molineux/Sandoval hearing was warranted as allegations of prior uncharged sexual offenses by the defendant were made, and sealing the documents relating to the pretrial hearing was required to prevent tainting the jury pool with inadmissible, prejudicial information. See Matter of New York Times Co. v. Burke, 172 A.D.3d 541 (1st Dept. 2019). In another case, good cause was shown to close the courtroom to the public during respondent’s civil management trial pursuant to Mental Hygiene Law §10.08(g) in view of the significant risk that a public trial might compromise the anonymity of the victims. Matter of State of New York v. John T., 163 A.D.3d 1148, 1149 (1st Dept. 2018). There can hardly be any dispute that this action is of interest to the public, as it concerns a former President of the United States. The present case concerns allegations of assault and destruction of property, which in themselves do not implicate any privacy concerns which would require restricting public access. It has already been established that there is no cause of action for “tortious interference with political speech.” Nevertheless, there may be some attempt to establish that the alleged assault was motivated by a desire to silence the plaintiffs. Whether or not this should be permitted will be determined at trial. However, in any event, there is no rational basis to believe that coverage by the press or public access will result in the deprivation of a fair trial to any party, or cause inconvenience or trepidation to prospective jurors. As in all trials, the jurors will be advised that if there is any matter they wish to discuss in camera, they may so request. This action presents no sensitive or embarrassing issues, or issues of privacy, as may arise in family court cases or certain criminal cases. There is no legitimate reason to conclude that public observation of the jury selection or of the trial will result in unfair or undue prejudice to any party, or that it will result in unfair or unwarranted embarrassment or prejudice to any person. With respect to jury selection or voir dire in particular, the First Department noted in one criminal case that where the voir dire entails discussion of controversial or sensitive issues, public access to the jurors’ responses could significantly inhibit their candor. Matter of Daily News, L.P. v. Wiley, 126 A.D.3d 511 (1st Dept. 2015). But there is no showing that the fact that one of the defendants in this case is the former President will inhibit the candor of the prospective jurors. Instead, it may be fairly stated that the former President engenders strong responses from the public in all that he does, and that the public has no inhibitions in expressing its opinions on the subject of the former President, pro or con. There is no doubt that politics is in some small part of this case, as the plaintiffs were political protesters. But that fact does not support closing the courtroom. This case, being civil in nature, simply does not implicate any legitimate interests which would warrant closure. Accordingly, the application for public access and for press access to jury selection is granted. The Court reserves the right to regulate the number of members of the press and public in attendance should it be necessary to do so solely for the purpose of maintaining public order or the integrity of the proceedings based on space limitations or logistical concerns. Should that become necessary, the court will ensure that any space limitation be drawn as narrowly tailored as possible to achieve the needs of the Court, and that, if necessary and feasible, technology be implemented to stream the proceedings to the Internet or to a remote viewing area. Lastly, the Court notes that no application has been made for audio-visual coverage as required by Section 131.2 of Part 131 of the Rules of the Chief Administrative Judge. There shall be no electronic broadcasting or other transmission to the public or radio or television signals from the courtroom, the recording of sound or light in the courtroom for later transmission or reproduction, the taking of motion pictures in the courtroom by the news media, or the taking of still pictures. Dated: August 24, 2022
