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The Supreme Court uses a two-tiered test to determine if there is a First Amendment right to access to an administrative hearing. The test, the court stated, quoting Press-Enterprise Co. v Superior Ct. (478 U.S. 1), 'includes 'whether the place and process have historically been open to the press and general public' and 'whether public access plays a significant positive role in the functioning of the particular process in question.' 


The two most recent Supreme Court opinions dealing with the First Amendment right of access are Press-Enterprise Co. v Superior Ct. of Cal. (Press-Enterprise I) (464 U.S. 501 [upholding First Amendment right of access for voir dire proceeding in a criminal trial]) and Press-Enterprise Co. v Superior Ct. (Press-Enterprise II) (478 U.S. 1, supra [First Amendment right of access for preliminary hearing in criminal case]). There is no basis in either opinion for concluding that the Supreme Court no longer relies on the historical tradition of access as a significant consideration in determining whether a particular proceeding should receive First Amendment protection.


In Press-Enterprise I, Chief Justice Burger, writing for eight members of the Court, resummarized the thorough exigesis given in his plurality ...

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