Procedurally, this case more appropriately should have been initiated by a petition for access to the sealed records. Cf. Keene Publishing Corp. v. Cheshire County Super. Ct., 119 N.H. 710, 406 A.2d 137 (1979); Keene Pub. Corp. v. Keene Dist. Ct., 117 N.H. 959, 380 A.2d 261 (1977). Because this is a question of form and not substance, we conclude that the newspaper's choice of procedure should not jeopardize its pursuit of a potentially meritorious claim.
Id. In Keene Publishing Corp. v. Keene District Court, 117 N.H. 959, 961, 380 A.2d 261 (1977), we acknowledged that the right of the press to gather news is “not unlimited.”[3, 4] Although our cases discussing the newsgathering privilege have involved traditional news media, such as newspapers, see, e.g., Keene Pub. Corp., 117 N.H. at 960, we reject Mortgage Specialists' contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting.
In State v. Williams, supra, the New Jersey Supreme Court found that its constitutional provision on free press, which is phrased in substantially the same terms as Art. I, § 15 of the Utah Constitution, created a public right of access to a preliminary hearing, subject to exceptions where the court finds that pretrial publicity poses a "realistic likelihood of prejudice to a fair trial. . . ." 93 N.J. at 63, 459 A.2d at 654. In Keene Publishing Corp. v. Keene District Court, 117 N.H. 959, 380 A.2d 261 (1977), the New Hampshire Supreme Court held that its free press provision guaranteed that the press could not be excluded from a probable cause hearing without finding that a failure to close the hearing would pose a clear and present danger to a fair trial. And in Phoenix Newspapers Inc. v. Jennings, supra, the Arizona Supreme Court relied on its free press provision and a provision for justice to be administered openly in holding that a preliminary hearing must be open unless "circumstances exist which establish a clear and present danger that the judicial process will be subverted by an open hearing. . . ." 490 P.2d at 566.
[1, 2] In this State the press has been held to have a State constitutional right, though not unlimited, to gather news. N.H. CONST. pt. I, art. 22; Keene Pub. Corp. v. Keene Dist. Ct., 117 N.H. 959, 961, 380 A.2d 261, 262 (1977); Opinion of the Justices, 117 N.H. 386, 373 A.2d 642 (1977). To effectuate this right, this court has adopted standards that govern pretrial criminal hearings and establish a presumption in favor of open judicial proceedings and unsealed court records.
Most of these cases have involved state constitutional provisions modeled on the Sixth Amendment in that the public-trial right is phrased in terms of a guarantee to the accused. See, e. g., Jackson v. Mobley, 157 Ala. 408, 411-412, 47 So. 590, 592 (1908); Commercial Printing Co. v. Lee, 262 Ark. 87, 93-96, 553 S.W.2d 270, 273-274 (1977); Lincoln v. Denver Post, 31 Colo. App. 283, 285-286, 501 P.2d 152, 154 (1972); State ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777, 785-788 (Fla.App. 1975); Gannett Pacific Corp. v. Richardson, 59 Haw. 224, 230-231, 580 P.2d 49, 55 (1978); State v. Beaudoin, 386 A.2d 731, 733 (Me. 1978); Cox v. State, 3 Md. App. 136, 139-140, 238 A.2d 157, 158-159 (1968); State v. Schmit, 273 Minn. 78, 86-88, 139 N.W.2d 800, 806-807 (1966); State v. Keeler, Page 430 52 Mont. 205, 218-219, 156 P. 1080, 1083-1084 (1916); Keene Publishing Corp. v. Keene District Court, 117 N. H. 959, 962-963, 380 A.2d 261, 263-264 (1977); State v. Allen, 73 N.J. 132, 157-160, 373 A.2d 377, 389-390 (1977); Neal v. State, 86 Okla. Cr. 283, 289, 192 P.2d 294, 297 (1948); State v. Holm, 67 Wyo. 360, 382-385, 224 P.2d 500, 508-509 (1950). Several States have recognized such an interest under constitutional provisions establishing open courts.
In a long line of cases discussing access to court proceedings and court records, we have relied upon Articles 8 and 22, together, as the basis for the State constitutional right of access. In Keene Publishing Corp. v. Keene District Court, 117 N.H. 959, 961-62 (1977), we held that the trial court could not order the closing of a probable cause hearing to protect the defendant from pre-trial publicity. In doing so, we recognized that "[i]n this state the press has been held to have a right, though not unlimited, to gather news so as to effectuate the policy of our constitution that a free press is `essential to the security of freedom in a state.'"
Our State Constitution gives the press a presumptive right of access to judicial proceedings and court records, limited, however, by the necessity that it be balanced against a criminal defendant's fundamental right to a fair trial. See Keene Publishing Corp. v. Cheshire County Super. Ct., 119 N.H. 710, 711 (1979); Keene Pub. Corp. v. Keene Dist. Ct., 117 N.H. 959, 961 (1977); N.H. CONST. pt. I, art. 15. In this case, the petitioners were given unrestricted access to be present, to gather information and to report upon the proceedings in State v. Tulloch; the only limitation the trial court imposed was its prohibition of cameras or other electronic media forms for dissemination of the information gathered.
"There is almost universal agreement among the courts, which have considered the right-of-access issue, that access to court proceedings should be limited only in exceptional circumstances. See Gannett Pacific Corp. v. Richardson, supra; Philadelphia Newspapers, Inc. v. Jerome [ 478 Pa. 484, 387 A.2d 425 (1978)], supra; and Keene Publishing v. Keene District Court, [117] N.H. [959], 380 A.2d 261 (1977). The reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, is to enhance the public trust and confidence in the judicial process, and to insulate the process against attempts to use the courts as tools for persecution. Gannett Pacific Corp. v. Richardson, supra.
Id. at 389, 373 A.2d at 647. In the case at hand we do not have the governmental involvement versus the press that was at issue in Keene Publishing Corp. v. Keene District Court, 117 N.H. 959, 380 A.2d 261 (1977) or in Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710, 406 A.2d 137 (1979). Furthermore, the United States Supreme Court has indicated that to meet the New York Times standard, any press privilege must give way before the First Amendment. Herbert v. Lando, 441 U.S. 153 (1979).
There is almost universal agreement among the courts, which have considered the right-of-access issue, that access to court proceedings should be limited only in exceptional circumstances. See Gannett Pacific Corp. v. Richardson, supra; Philadelphia Newspapers, Inc. v. Jerome, supra; and Keene Publishing v. Keene District Court, N.H., 380 A.2d 261 (1977). The reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, is to enhance the public trust and confidence in the judicial process, and to insulate the process against attempts to use the courts as tools for persecution.