Courts have not settled on a single, clear rationale or test to determine journalists’ (and the public’s) right of access to quasi-public spaces—government land, military sites, polling places, and the like. In recent years, however, several circuit courts of appeal have relied on a two-prong test the Supreme Court developed to decide cases involving access to courtrooms. Explain the test and the outcomes it has produced to discuss whether the courts appear to be increasing or decreasing the right of public access to these quasi-public spaces.

What will be an ideal response?

The test is the “experience and logic” test or the “tradition and benefits” test. The court asks whether the place traditionally has been open to the public and whether that openness benefits the primary purpose(s) of the facility or space. The Third Circuit Court of Appeals in 2013 used the test to uphold a Pennsylvania law that kept nonvoters 10 feet away from the polls. The court said any tradition of open polls and voting was overcome by a progressively more secret process. Second, greater access to polls might reduce potential for voter fraud but could equally increase voter intimidation that could deter voting. Thus, access to polls could constitutionally be limited. A decade earlier, the Sixth Circuit struck down a similar Ohio law as a content-based limit on nonvoter speech. In 2013, on remand from the Ninth Circuit, a district court applied the test to uphold Bureau of Land Management restrictions on access to wild horse roundups. Although the roundups had traditionally been open to the public, limitations on viewing protected roundup efficiency and observer safety without unduly limiting access. The two-prong test seems to be reducing access to traditionally open places and proceedings.