We Interrupt Your Broadcast [Ban] to Bring You [Greater Access]: New Consideration for Rule 2.17 during a Pandemic

In March 2020, the COVID-19 pandemic closed down courthouses across Indiana. While trial courts in other states began conducting proceedings online and live streaming them on media platforms to ensure public access, Indiana Supreme Court rules explicitly outlawed that practice. The Indiana Supreme Court temporarily suspended that rule a month after the governor issued an executive stay-at-home order. While pragmatic, case law suggests the order was unnecessary. Trial courts could have utilized the audio and video accommodations afforded to absent parties to provide access to the public. Opponents argue the Sixth Amendment’s public hearing clause requires court proceedings, especially those criminal in nature, to be open to any and everyone who wants to view them. Those arguments fail to correctly recognize that the right to a public hearing does not require access for all, but instead access to those who wish to participate and who successfully gain entry. This article reviews the history of Rule 2.17, highlights how that history would have supported the Indiana Supreme Court’s decision to leave the rule unamended, and explain how the inclusion of some at the exclusion of many is still constitutionally sound.