First Amendment; Access to judicial advisory commission meetings; The “experience & logic” test, Press-Enter Co v Superior Court of CA for Riverside Cnty; Whether the test could be extended to provide access to “advisory” as well as “adjudicatory” proceedings; Phillips v DeWine; Detroit Free Press v Ashcroft

The court held that plaintiff-journalist’s (McCaleb) First Amendment challenge to the Tennessee Judicial Advisory Commission’s practice of closing its meetings to the public could not be resolved under Press-Enterprise’s “experience-and-logic test” where that standard can only be applied to “adjudicatory” not “advisory” proceedings. Arguing that the Commission’s practice violated the First Amendment, McCaleb sued defendant-Long, the Director of the Tennessee Administrative Office of the Courts. The district court initially granted McCaleb an injunction but later dissolved it, granting Long summary judgment. McCaleb contended that he should prevail under the experience-and-logic test. The court explained that “the First Amendment does not confer a general right to access information in the government’s possession[,]” and the burden is on the person seeking the information to show that constitutional rights have been violated. It noted that the experience-and-logic test was first applied only as to access to criminal proceedings and was then extended to provide access to executive agencies’ adjudicatory proceedings. However, the court declined to extend it to advisory proceedings, such as the meetings at issue here. It noted that both before and after its decision in Detroit Free Press, it had “not applied the experience-and-logic test to situations that, in McCaleb’s view, would have required it.” For example, in Phillips, it “interpreted Detroit Free Press to extend the application of the experience-and-logic test only so far as adjudicative administrative proceedings. . . .It explicitly rejected the view that this Circuit has endorsed the views of other circuits who have applied the test generally. Phillips made clear that our circuit has applied the experience-and-logic test only in the context of adjudicative proceedings.” Thus, because the Commission’s meetings are advisory, and because McCaleb did not raise any other theory entitling him to access, the court affirmed the district court’s judgment.