First Amendment requires that Transit Authority open up its hearings to the public

The New York City Transit Authority holds a hearing to resolve whether someone allegedly violated TA rules. Those hearings were closed to the public if the defendant didn't want anyone in the hearing room. The Second Circuit holds that this policy is unconstitutional. I know that many of us can't wait to watch these hearings from gavel to gavel, one after another, until they throw us out of the building. Now we have that opportunity.

The case is New York Civil Liberties Union v. New York City Transit Authority, decided on July 20. The police can issue citations if you violate subway or other public transportation rules. You can contest the citation at a hearing. The City argued that the hearings should not be accessible to the public because alleged rules violators may forgo the hearing to avoid any invasions of privacy. But there is no evidence to back this up. This is really just an arbitrary policy of the Transit Authority to presume that these hearings should be closed to the public. Speculation is not a legitimate basis to get around the First Amendment.

The Second Circuit (Calabresi, Leval and Lynch) says that the First Amendment requires that these hearings be open to the public. Here's how the Court of Appeals sees it: it quotes a 63 year-old Supreme Court ruling to the effect that "Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account." The Supreme Court has also said that criminal trials are open to the public unless a good reason justifies closing the courtroom. The Second Circuit has taken that one step further. In 1984, it said that the First Amendment guarantees a qualified right of access to civil trials as well.

This logic extends to the the Transit Authority's administrative hearings. True, there were no administrative hearings when the First Amendment was adopted in the 18th Century. But, who cares? The hearings are trial-like, and that's enough. Since the Transit Authority's hearings are structured like the adversarial proceedings that the public is allowed to attend, these hearings cannot be off-limits. The Court of Appeals reasons that the "[Transit Adjudication Bureau] acts as an adjudicatory body, operates under procedures modeled on those of the courts, and 'imposes official and practical consequences upon members of society.'"