In United States v. Blagojevich, the Seventh Circuit addressed the issue of whether the presumption in favor of disclosure of jurors' names had been rebutted. The Seventh Circuit began its analysis by recognizing three bases by which judicial proceeding information is made available to the press and the public: (1) the First Amendment right of access, (2) the common law presumption of openness, and (3) the Jury Selection and Service Act. While each of these bases functions primarily to make information available to the press and public, each also carries its own distinct standard by which the presumption of openness can be rebutted. Importantly, the First Amendment standard carries a more rigorous burden for rebutting the presumption than the common law and statutory standards. In United States v. Blagojevich, the court explicitly refused to analyze the issue of juror name disclosure under the First Amendment; instead, the court used statutes and the common law. However, the court failed to apply the appropriate standard when it analyzed the issue. Without explanation or announcement, the court applied the more rigorous First Amendment standard to its common law and statutory analysis. This Note will argue that by applying a First Amendment standard to its common law and statutory analysis, the Seventh Circuit has essentially erased the distinction among First Amendment, common law, and statutory analyses of this issue. Finally, this Note suggests that the distinction should be revived because if a court is unable to use the common law standard--which carries a lower burden than the First Amendment standard--in the future, it may result in the release of jurors' names when they otherwise would have been protected from the public and the media.
Timothy J. Letizia,
United States v. Blagojevich: A Standard Bait and Switch,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol6/iss1/3