const. law review 4.docx

8/9/2019 const. law review 4.docx

1/48

U.S. Supreme Court

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (!8"#

Richmond Newspapers, Inc. v. Virginia

No. $!%&4'

rgued )e*ruar+ !, !8"

ecided -u+ &, !8"

448 U.S. 555

APPEAL FROM THE SUPREME COURT OF VIRGINIA

Syllabus

At the commencement of a fourth trial on a murder charge (the defendant's conviction after thefirst trial having been reversed on appeal, and two subsequent retrials having ended in mistrials),

the Virginia trial court granted defense counsel's motion that the trial be closed to the public

without any objections having been made by the prosecutor or by appellants, a newspaper andtwo of its reporters who were present in the courtroom, defense counsel having stated that he did

not "want any information being shuffled bac and forth when we have a recess as to ! ! ! who

testified to what!" ater that same day, however, the trial judge granted appellants' request for ahearing on a motion to vacate the closure order, and appellants' counsel contended that

constitutional considerations mandated that, before ordering closure, the court should first decidethat the defendant's rights could be protected in no other way! #ut the trial judge denied themotion, saying that, if he felt that the defendant's rights were infringed in any way and others'

rights were not overridden, he was inclined to order closure, and ordered the trial to continue

"with the press and public e$cluded!" %he ne$t day, the court granted defendant's motion to strie

the prosecution's evidence, e$cused the jury, and found the defendant not guilty! %hereafter, thecourt granted appellants' motion to intervene nunc pro tuncin the case, and the Virginia &upreme

ourt dismissed their mandamus and prohibition petitions and, finding no reversible error,

denied their petition for appeal from the closure order!

Hel!%he judgment is reversed! p!* +! &! -./*01 * +! &! */2*1 * +! &! 2*/-301

* +! &! -30/-3!

Re"erse#

45! 6789 :+&%78 #+5;85, joined by 45 :+&%78


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the trial of a criminal case must be open to the public! Gannett Co# "# $ePas%uale&. +! &! .-*,

distinguished! p! * +! &! -./*0!

age * +! &! -

(a) %he historical evidence of the evolution of the criminal trial in Anglo/American justicedemonstrates conclusively that, at the time this =ation's organic laws were adopted, criminal

trials both here and in 8ngland had long been presumptively open, thus giving assurance that the

proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct ofparticipants, or decisions based on secret bias or partiality! 7n addition, the significant community

therapeutic value of public trials was recogni>ed? when a shocing crime occurs, a community

reaction of outrage and public protest often follows, and thereafter the open processes of justiceserve an important prophylactic purpose, providing an outlet for community concern, hostility,

and emotion! %o wor effectively, it is important that society's criminal process "satisfy the

appearance of justice," O''utt "# Un(te States&.* +! &! 00, .* +! &! 0,which can best be

provided by allowing people to observe such process! 9rom this unbroen, uncontradicted

history, supported by reasons as valid today as in centuries past, it must be concluded that apresumption of openness inheres in the very nature of a criminal trial under this =ation's system

of justice! C'#& e#)#& Le"(ne "# Un(te States&.-@ +! &! -03! p! * +! &! -./!

(b) %he freedoms of speech, press, and assembly, e$pressly guaranteed by the 9irst Amendment,share a common core purpose of assuring freedom of communication on matters relating to the

functioning of government! 7n guaranteeing freedoms such as those of speech and press, the 9irst

Amendment can be read as protecting the right of everyone to attend trials so as to give meaningto those e$plicit guarantees1 the 9irst Amendment right to receive information and ideas means,

in the conte$t of trials, that the guarantees of speech and press, standing alone, prohibit

government from summarily closing courtroom doors which had long been open to the public at

the time the 9irst Amendment was adopted! 4oreover, the right of assembly is also relevant,having been regarded not only as an independent right, but also as a catalyst to augment the free

e$ercise of the other 9irst Amendment rights with which it was deliberately lined by thedraftsmen! A trial courtroom is a public place where the people generally // and representatives

of the media // have a right to be present, and where their presence historically has been thought

to enhance the integrity and quality of what taes place! p!* +! &! /*!

(c) 8ven though the onstitution contains no provision which, by its terms, guarantees to thepublic the right to attend criminal trials, various fundamental rights, not e$pressly guaranteed,

have been recogni>ed as indispensable to the enjoyment of enumerated rights! %he right to attend

criminal trials is implicit in the guarantees of the 9irst Amendment1

age * +! &!

without the freedom to attend such trials, which people have e$ercised for centuries, importantaspects of freedom of speech and of the press could be eviscerated! p!* +! &! 2/*3!

(d)


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whether alternative solutions would have met the need to ensure fairness1 there was no

recognition of any right under the onstitution for the public or press to attend the trial1 and there

was no suggestion that any problems with witnesses could not have been dealt with by e$clusionfrom the courtroom or sequestration during the trial, or that sequestration of the jurors would not

have guarded against their being subjected to any improper information! p! * +! &! *3/*0!

45! :+&%78 #58==A=, joined by 45! :+&%78 4A5&6A, concluded that the 9irst

Amendment // of itself and as applied to the &tates through the 9ourteenth Amendment // securesthe public a right of access to trial proceedings, and that, without more, agreement of the trial

judge and the parties cannot constitutionally close a trial to the public! 6istorically and

functionally, open trials have been closely associated with the development of the fundamentalprocedure of trial by jury, and trial access assumes structural importance in this =ation's

government of laws by assuring the public that procedural rights are respected and that justice is

afforded equally, by serving as an effective restraint on possible abuse of judicial power, and byaiding the accuracy of the trial factfinding process! 7t was further concluded that it was not

necessary to consider in this case what countervailing interests might be sufficiently compelling

to reverse the presumption of openness of trials, since the Virginia statute involved // authori>ingtrial closures at the unfettered discretion of the judge and parties // violated the 9irst and

9ourteenth Amendments! p! * +! &! */2*!

45! :+&%78 &%8


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45! 6789 :+&%78 #+5;85 announced the judgment of the ourt and delivered an opinion,

in which 45! :+&%78


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parties e$cept the witnesses when they testify!" %r!,supra&at /! F9ootnote @G %he record does

not show that any objections to the closure order were made by anyone present at the time,

including appellants


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age * +! &! -@

made a 4otion that a mistrial be declared, which motion was taen under advisement!"

"At the conclusion of the ommonwealth's evidence, the attorney for the defendant moved the

ourt to strie the ommonwealth's evidence on grounds stated to the record, which 4otion wassustained by the ourt!"

"And the jury having been e$cused, the ourt doth find the accused =D% ;+7%I of 4urder, as

charged in the 7ndictment, and he was allowed to depart!"

I#at @@a! F9ootnote .G

Dn &eptember @, 02*, the trial court granted appellants' motion to intervene nunc pro tuncinthe &tevenson case! Appellants then petitioned the Virginia &upreme ourt for writs of

mandamus and prohibition, and filed an appeal from the trial court's closure order! Dn :uly 2,

022, the Virginia &upreme ourt dismissed the mandamus and prohibition petitions and, findingno reversible error, denied the petition for appeal!I#at @.a/@*a!

Appellants then sought review in this ourt, invoing both our appellate, @* +!&!! H 0@(@),

and certiorari jurisdiction! H 0@(.)!


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observed that those e$cused "are not compellable to come, but left to their own liberty!" @ 8!

oe, 7nstitutes of the aws of 8ngland 0@0 (-th ed! 0-*0)! F9ootnote -G

Although there appear to be few contemporary statements

age * +! &! --

on the subject, reports of the 8yre of Bent, a general court held in 0.0./0.0, evince a

recognition of the importance of public attendance apart from the "jury duty" aspect! 7t was

e$plained that

"the Bing's will was that all evil doers should be punished after their deserts, and that justiceshould be ministered indifferently to rich as to poor1 an 'or t,e better acco*pl(s,(n) o' t,(s&he

prayed the community of the county by t,e(r attenancethere to lend him their aid in the

establishing of a happy and certain peace that should be both for the honour of the realm and for

their own welfare!"

0 6oldsworth,supraat @-*, quoting from the &!&! edition of the 8yre of Bent, vol! i!, p! @

(emphasis added) !

9rom these early times, although great changes in courts and procedure too place, one thing

remained constant? the public character of the trial at which guilt or innocence was decided! &ir%homas &mith, writing in 0- about "the definitive proceedinges in causes criminall,"

e$plained that, while the indictment was put in writing as in civil law countries?

"All the rest is doone openlie in the presence of the :udges, the :ustices, the enquest, the prisoner,

an so *an(e as +(ll or can co*e so neare as to ,eare (t&and all depositions and witnesses given

aloude, t,at all *en *ay ,eare 'ro* t,e *out, o' t,e epos(tors an +(tnesses +,at (s sa(e#"

%! &mith, Ee 5epublica Anglorum 030 (Alston ed!02@) (emphasis added)! %hree centuries later,

&ir 9rederic olloc was able to state of the "rule of publicity" that, "FhGere we have one

tradition, at any rate, which has persisted through all changes!" 9! olloc, %he 8$pansion of theommon aw .0/.@ (023)! See also8! :ens, %he #oo of 8nglish aw ./ (-th ed!02-)?

"FDGne of the most conspicuous features of 8nglish justice, that all judicial trials are held in open

court, to which the

age * +! &! -

public have free access, ! ! ! appears to have been the rule in 8ngland from time immemorial!"


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riminal aw in olonial Virginia 0@*/0@2 (02.3)1 5einsch, %he 8nglish ommon aw in the

8arly American olonies, in 0 &elect 8ssays in Anglo/American egal 6istory .-, 3 (023)!

7ndeed, when in the mid/0-33's the Virginia Assembly felt that the respect due the courts was

"by the clamorous unmannerlynes of the people lost, and order, gravity and decoram which

should manifest the authority of a court in the court it selfe neglected,"

the response was not to restrict the openness of the trials to the public, but, instead, to prescribe

rules for the conduct of those attending them! See&cott,supraat 0.@!

7n some instances, the openness of trials was e$plicitly recogni>ed as part of the fundamental lawof the olony! %he 0- oncessions and Agreements of , %he #illof 5ights? A Eocumentary 6istory 0@2 (020)!

age * +! &! -*

%he ennsylvania 9rame of ;overnment of 0-*@ also provided "FtGhat all courts shall be

open ! ! ! ," &ources of Dur iberties,supraat @01 0 &chwart>,supraat 03, and this declaration

was reaffirmed in H @- of the onstitution adopted by ennsylvania in 0-! See0 &chwart>,

supraat @0! See alsoHH 0@ and - of the 4assachusetts #ody of iberties, 0-0, reprinted in 0&chwart>,supraat ., *3!

Dther contemporary writings confirm the recognition that part of the very nature of a criminal

trial was its openness to those who wished to attend! erhaps the best indication of this is foundin an address to the inhabitants of Cuebec which was drafted by a committee consisting of

%homas ushing, 5ichard 6enry ee, and :ohn Eicinson and approved by the 9irst ontinental

ongress on Dctober @-, 0! 0 :ournals of the ontinental ongress, 0/0*2, pp! 030, 03(023) (:ournals)! %his address, written to e$plain the position of the olonies and to gain the

support of the people of Cuebec, is an "e$position of the fundamental rights of the colonists, as

they were understood by a representative assembly chosen from all the colonies!" 0 &chwart>,

supraat @@0! #ecause it was intended for the inhabitants of Cuebec, who had been "educatedunder another form of government" and had only recently become 8nglish subjects, it was

thought desirable for the ontinental ongress to e$plain "the inestimable advantages of a free

8nglish constitution of government, which it is the privilege of all 8nglish subjects to enjoy!" 0:ournals 03-!

"FDneG great right is that of trial by jury! %his provides that neither life, liberty nor property can

be taen from the possessor until twelve of his une$ceptionable countrymen and peers of his


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vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his

character and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, (n

open Court& be'ore as *any o' t,e people as c,use to

age * +! &! -2

atten&shall pass their sentence upon oath against him! ! ! !"

I#at 03 (emphasis added)!

0

As we have shown, and as was shown in both the ourt's opinion and the dissent in Gannett&.

+!&! at . +! &! .*,. +! &! .*-, n! 0, . +! &! 0*/@, the historical evidencedemonstrate conclusively that, at the time when our organic laws were adopted, criminal trials

both here and in 8ngland had long been presumptively open! %his is no quir of history1 rather, it

has long been recogni>ed as an indispensable attribute of an Anglo/American trial! #oth 6ale inthe 0th century and #lacstone in the 0*th saw the importance of openness to the proper

functioning of a trial1 it gave assurance that the proceedings were conducted fairly to all

concerned, and it discouraged perjury, the misconduct of participants, and decisions based onsecret bias or partiality! See& e#)#&4! 6ale, %he 6istory of the ommon aw of 8ngland ../.

(-th ed! 0*@3)1 .

recogni>ed the therapeutic value of open justice but regarded it as the eystone?

"


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! ;oede, A 9oreigner's Dpinion of 8ngland @0 (6orne trans! 0*@@) (emphasis added!) %he

ne$us between openness, fairness, and the perception of fairness was not lost on them?

"F%Ghe judge, the counsel, and the jury, are constantly e$posed to public animadversion, and thisgreatly tends to augment the e$traordinary confidence which the 8nglish repose in the

administration of justice!"

I#at @0!

%his observation raises the important point that "FtGhe publicity of a judicial proceeding is a

requirement of much broader bearing than its mere effect upon the quality of testimony!" - :!


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age * +! &! @

process "satisfy the appearance of justice," O''utt "# Un(te States&.* +! &! 00, .* +! &! 0

(02), and the appearance of justice can best be provided by allowing people to observe it!

ooing bac, we see that, when the ancient "town meeting" form of trial became toocumbersome, 0@ members of the community were delegated to act as its surrogates, but the

community did not surrender its right to observe the conduct of trials! %he people retained a

"right of visitation" which enabled them to satisfy themselves that justice was, in fact, beingdone!

eople in an open society do not demand infallibility from their institutions, but it is difficult for

them to accept what they are prohibited from observing!

of the entire criminal justice system! ! ! !"

Nebras-a Press Assn# "# Stuart&@ +!&! at @ +! &! *(#58==A=, :!, concurring in

judgment)!
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the centuries/old history of open trials and the opinions of this ourt! Supraat * +! &! -/

, and n! 2!

%he #ill of 5ights was enacted against the bacdrop of the long history of trials beingpresumptively open! ublic access to trials was then regarded as an important aspect of the

process itself1 the conduct of trials "before as many of the people as chuse to attend" wasregarded as one of "the inestimable advantages of a free 8nglish constitution of government!" 0

:ournals 03-, 03! 7n guaranteeing freedoms such as those of speech and press, the 9irstAmendment can be read as protecting the right of everyone to attend trials so as to give meaning

to those e$plicit guarantees!

"F%Ghe 9irst Amendment goes beyond protection of the press and the self/e$pression

age * +! &! -

of individuals to prohibit government from limiting the stoc of information from which

members of the public may draw!"

F(rst Nat(onal 0an- o' 0oston "# 0ellott(&. +! &! -, . +! &! *.(02*)! 9ree speech

carries with it some freedom to listen! "7n a variety of conte$ts, this ourt has referred to a 9irstAmendment right to rece("e (n'or*at(on an (eas#12 3le(n(enst "# Manel& 456 U# S# 789&456U# S# 7:;7;?# @,at t,(s *eans (n t,e conte/t o' tr(als (s t,at t,e F(rst A*en*ent )uarantees

o' speec, an press& stan(n) alone& pro,(b(t )o"ern*ent 'ro* su**ar(ly clos(n) courtroo*

oors +,(c, ,a lon) been open to t,e publ(c at t,e t(*e t,at A*en*ent +as aopte#

"9or the 9irst Amendment does not spea equivocally! ! ! ! 7t must be taen as a command of the

broadest scope that e$plicit language, read in the conte$t of a liberty/loving society, will allow!"

0r()es "# Cal('orn(a&.0 +! &! @@, .0 +! &! @-.(020) (footnote omitted)! 7t is not crucial

whether we describe this right to attend criminal trials to hear, see, and communicateobservations concerning them as a "right of access," c'# Gannett& supraat . +! &! .2

(Ded that, "without some protection for seeing out the news, freedom of the press could

be eviscerated!"0ranbur) "# Hayes&3* +! &! --, 3* +! &! -*0(02@)! %he e$plicit,

guaranteed rights to spea and to publish concerning what taes place at a

age * +! &!

trial would lose much meaning if access to observe the trial could, as it was here, be foreclosedarbitrarily! F9ootnote 0@G

0

%he right of access to places traditionally open to the public, as criminal trials have long been,

may be seen as assured by the amalgam of the 9irst Amendment guarantees of speech and press1
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and their affinity to the right of assembly is not without relevance! 9rom the outset, the right of

assembly was regarded not only as an independent right, but also as a catalyst to augment the

free e$ercise of the other 9irst Amendment rights with which it was deliberately lined by thedraftsmen! F9ootnote 0.G

age * +! &! *

"%he right of peaceable assembly is a right cognate to those of free speech and free press, and is

equally fundamental!"$e Bon)e "# Ore)on&@22 +! &! .., @22 +! &! .-(02.)! eopleassemble in public places not only to spea or to tae action, but also to listen, observe, and

learn1 indeed, they may "assemblFeG for any lawful purpose,"Ha)ue "# CIO&.3 +! &! 2-, .3

+! &! 02(02.2) (opinion of &tone, :!)! &ubject to the traditional time, place, and mannerrestrictions,see& e#)#& Co/ "# Ne+ Ha*ps,(re&.0@ +! &! -2(020)1see also Co/ "# Lou(s(ana&

.2 +! &! 2,.2 +! &! -3/- (02-), streets, sidewals, and pars are places traditionally

open, where 9irst Amendment rights may be e$ercised,see Ha)ue "# CIO& supra&at .3 +! &!

0(opinion of 5oberts, :!)1 a trial courtroom also is a public place where the people generally //

and representatives of the media // have a right to be present, and where their presencehistorically has been thought to enhance the integrity and quality of what taes place! F9ootnote

0G

age * +! &! 2

C

%he &tate argues that the onstitution nowhere spells out a guarantee for the right of the public to

attend trials, and that, accordingly, no such right is protected! %he possibility that such a

contention could be made did not escape the notice of the onstitution's draftsmen1 they were

concerned that some important rights might be thought disparaged because not specificallyguaranteed! 7t was even argued that, because of this danger, no #ill of 5ights should be adopted!

See& e#)#&%he 9ederalist =o! * (A! 6amilton)! 7n a letter to %homas :efferson in Dctober, 0**,:ames 4adison e$plained why he, although "in favor of a bill of rights," had "not viewed it in an

important light" up to that time? "7 conceive that, in a certain degree ! ! ! , the rights in question

are reserved by the manner in which the federal powers are granted!" 6e went on to state that

"there is great reason to fear that a positive declaration of some of the most essential rights couldnot be obtained in the requisite latitude!"


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doubt in a criminal trial, as well as the right to travel, appear nowhere in the onstitution or #ill

of 5ights! Iet these important but unarticulated rights have nonetheless been found to share

constitutional protection in common with e$plicit guarantees! F9ootnote 0-G %he concernse$pressed by 4adison and others have thus been resolved1 fundamental rights, even though not

e$pressly guaranteed, have been recogni>ed by the ourt as indispensable to the enjoyment of

rights e$plicitly defined!


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"FaG ey piece of evidence in &tevenson's original conviction was a bloodstained shirt obtained

from &tevenson's wife soon after the illing! %he Virginia &upreme ourt, however, ruled that the

shirt was entered into evidence improperly!"

App! .a!

F9ootnote @G

Virginia ode H 02!@/@-- (&upp! 02*3) provides in part?

"7n the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court

may, in its discretion, e$clude from the trial any persons whose presence would impair theconduct of a fair trial, provided that the right of the accused to a public trial shall not be

violated!"

F9ootnote .G

At oral argument, it was represented to the ourt that tapes of the trial were available to the

public as soon as the trial terminated! %r! of Dral Arg! .-!

F9ootnote G

7n our view, the validity of Va!ode H 02!@/@-- (&upp! 02*3) was not sufficiently drawn in

question by appellants before the Virginia courts to invoe our appellate jurisdiction!

"7t is essential to our jurisdiction on appeal ! ! ! that there be an e$plicit and timely insistence in

the state courts that a state statute, as applied, is repugnant to the federal onstitution, treaties or

laws!"

C,arleston Feeral Sa"(n)s Loan Assn# "# Alerson&.@ +! &! 0*@, .@ +! &! 0*(02)!

Appellants never e$plicitly challenged the statute's validity! 7n both the trial court and the &tate&upreme ourt, appellants argued that constitutional rights of the public and the press prevented

the court from closing a trial without first giving notice and an opportunity for a hearing to the

public and the press and e$hausting every alternative means of protecting the defendant's right to

a fair trial! ;iven appellants' failure e$plicitly to challenge the statute, we view these argumentsas constituting claims of rights under the onstitution, which rights are said to limit the e$ercise

of the discretion conferred by the statute on the trial court! C'# P,(ll(ps "# Un(te States&.0@ +! &!

@-, .0@ +! &! @@(020) ("FAGn attac on lawless e$ercise of authority in a particular case is

not an attac upon the constitutionality of a statute conferring the authority ! ! !")! &uch claimsare properly brought before this ourt by way of our certiorari, rather than appellate, jurisdiction!

See& e#)#& 3ul-o "# Cal('orn(a Super(or Court&.- +! &! *,.- +! &! 23, n! (02*)1Hanson "#

$enc-la&. +! &! @.,. +! &! @, and n! (02*)!


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record of even one such secret criminal trial in 8ngland since abolition of the ourt of &tar

hamber in 0-0, and whether that court ever convicted people secretly is in dispute! ! !"

"%his nation's accepted practice of guaranteeing a public trial to an accused has its roots in our8nglish common law heritage! %he e$act date of its origin is obscure, but it liely evolved long

before the settlement of our land as an accompaniment of the ancient institution of jury trial!"

In re Ol("er&... +! &! @,... +! &! @--(02*) (#lac, :!) (footnotes omitted)!

"Dne of the demands of a democratic society is that the public should now what goes on in

courts by being told by the press what happens there, to the end that the public may judgewhether our system of criminal justice is fair and right!"

Marylan "# 0alt(*ore Ra(o S,o+& Inc#&..* +! &! 20@, ..* +! &! 2@3(023) (9ranfurter, :!,

dissenting from denial of certiorari) !

"7t is true that the public has the right to be informed as to what occurs in its courts, ! ! ! reportersof all media, including television, are always present if they wish to be, and are plainly free to

report whatever occurs in open court! ! ! !"

Estes "# Te/as&.*0 +! &! .@, .*0 +! &! 0/@ (02-) (lar, :!)1see also (#at .*0 +! &! *./

* (


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"limitation on visitations is justified by what the ourt of Appeals acnowledged as 'the truism

that prisons are institutions where public access is generally limited!' 0-0 +!&!App!E!! at *3,

2 9!@d at 222! See Aerley "# Flor(a&.* +! &! .2,.* +! &! 0(02--) FjailsG!"

See also Greer "# Spoc-&@ +! &! *@*(02-) (military bases)!

F9ootnote 0@G

%hat the right to attend may be e$ercised by people less frequently today, when information as to

trials generally reaches them by way of print and electronic media, in no way alters the basic

right! 7nstead of relying on personal observation or reports from neighbors as in the past, mostpeople receive information concerning trials through the media whose representatives "are

entitled to the same rights Fto attend trialsG as the general public!"Estes "# Te/as&.*0 +!&! at .*0

+! &! 3!

F9ootnote 0.G


21/48

similarly limited1 but it would be ironic indeed if the very historic openness of the trial could

militate against protection of the right to attend it! %he onstitution guarantees more than simply

freedom from those abuses which led the 9ramers to single out particular rights! %he verypurpose of the 9irst Amendment is to guarantee all facets of each right described1 its draftsmen

sought both to protect the "rights of 8nglishmen" and to enlarge their scope! See 0r()es "#

Cal('orn(a&.0 +! &! @@,.0 +! &! @-./@- (020)!

"%here are no contrary implications in any part of the history of the period in which the 9irstAmendment was framed and adopted! =o purpose in ratifying the #ill of 5ights was clearer than

that of securing for the people of the +nited &tates much greater freedom of religion, e$pression,

assembly, and petition than the people of ;reat #ritain had ever enjoyed!"

I#at .0 +! &! @-!

F9ootnote 0G

4adison's comments in ongress also reveal the perceived need for some sort of constitutional"saving clause," which, among other things, would serve to foreclose application to the #ill of

5ights of the ma$im that the affirmation of particular rights implies a negation of those note$pressly defined! See0 Annals of ong! .*/3 (0*2)! See also& e#)#&@ :! &tory,

ommentaries on the onstitution of the +nited &tates -0 (th ed! 0*20)! 4adison's efforts,

culminating in the =inth Amendment, served to allay the fears of those who were concerned thate$pressing certain guarantees could be read as e$cluding others!

F9ootnote 0-G

See& e#)#& NAACP "# Alaba*a&. +! &! 2(02*) (right of association)1 Gr(s+ol "#

Connect(cut&.*0 +! &! 2(02-), and Stanley "# Geor)(a&.2 +! &! (02-2) (right toprivacy)1Estelle "# @(ll(a*s&@ +! &! 30, @ +! &! 3.(02-), and Taylor "# 3entuc-y&.- +!&! *, .- +! &! *./*- (02*) (presumption of innocence)1In re @(ns,(p&.2 +! &! .*

(023) (standard of proof beyond a reasonable doubt)1 Un(te States "# Guest&.*. +! &! ,.*.

+! &! /2 (02--), and S,ap(ro "# T,o*pson&.2 +! &! -0*, .2 +! &! -.3(02-2) (right tointerstate travel)!

F9ootnote 0G


22/48

free flow of traffic,see& e#)#& Co/ "# Ne+ Ha*ps,(re&.0@ +! &! -2(020), so may a trial judge,

in the interest of the fair administration of justice, impose reasonable limitations on access to a

trial!

"F%Ghe question in a particular case is whether that control is e$erted so as not to deny or

unwarrantedly abridge ! ! ! the opportunities for the communication of thought and the discussionof public questions immemorially associated with resort to public places!"

I#at .0@ +! &! ! 7t is far more important that trials be conducted in a quiet and orderly settingthan it is to preserve that atmosphere on city streets! Co*pare& e#)#& 3o"acs "# Cooper&..- +! &!

(022), +(t, Ill(no(s "# Allen&.2 +! &! ..(023), an Estes "# Te/as&.*0 +! &! .@(02-)!

4oreover, since courtrooms have limited capacity, there may be occasions when not everyperson who wishes to attend can be accommodated! 7n such situations, reasonable restrictions on

general access are traditionally imposed, including preferential seating for media representatives!

C'# Gannett&. +!&! at . +! &! .2/.2* (D


23/48

age * +! &! *.

so long as it is nondiscriminatory, falls outside the purview of 9irst Amendment concern!"

I#at 0 +! &! *(emphasis in original)! And inHouc,(ns "# 3E$& Inc#&.* +! &! 0,.* +!

&! 02/3, 7 e$plained at length why 45! :+&%78 #58==A=, 45! :+&%78 De a right of access todaythan it did inHouc,(ns#9orHouc,(nsinvolved the plight of a segment of society least able to

protect itself, an attac on a longstanding policy of concealment, and an absence of any

legitimate justification for abridging public access to information about how government

operates! 7n this case, we are protecting the interests of the most powerful voices in thecommunity, we are concerned with an almost unique e$ception to an established tradition of

openness in the conduct of criminal

age * +! &! *

trials, and it is liely that the closure order was motivated by the judge's desire to protect theindividual defendant from the burden of a fourth criminal trial! F9ootnote @M@G

7n any event, for the reasons stated in art 77 of myHouc,(nsopinion, .* +!&! at.* +! &! ..*,

as well as those stated by %68 6789 :+&%78 today, 7 agree that the 9irst Amendment

protects the public and the press from abridgment of their rights of access to information aboutthe operation of their government, including the :udicial #ranch1 given the total absence of any

record justification for the closure order entered in this case, that order violated the 9irst

Amendment!

F9ootnote @M0G

"=either the 9irst Amendment nor the 9ourteenth Amendment mandates a right of access to

government information or sources of information within the government's control!"

.* +!&! at .* +! &! 0(opinion of #+5;85, !:!) !
http://supreme.justia.com/cases/federal/us/417/843/case.html#857http://supreme.justia.com/cases/federal/us/438/1/case.htmlhttp://supreme.justia.com/cases/federal/us/438/1/case.html#19http://supreme.justia.com/cases/federal/us/438/1/case.html#19http://supreme.justia.com/cases/federal/us/438/1/case.html#19http://supreme.justia.com/cases/federal/us/438/1/case.html#38http://supreme.justia.com/cases/federal/us/448/555/case.html#F2/1http://supreme.justia.com/cases/federal/us/448/555/case.html#F2/2http://supreme.justia.com/cases/federal/us/438/265/case.html#338http://supreme.justia.com/cases/federal/us/438/265/case.html#338http://supreme.justia.com/cases/federal/us/448/555/case.html#T2/1http://supreme.justia.com/cases/federal/us/438/1/case.html#15http://supreme.justia.com/cases/federal/us/417/843/case.html#857http://supreme.justia.com/cases/federal/us/438/1/case.htmlhttp://supreme.justia.com/cases/federal/us/438/1/case.html#19http://supreme.justia.com/cases/federal/us/438/1/case.html#19http://supreme.justia.com/cases/federal/us/438/1/case.html#38http://supreme.justia.com/cases/federal/us/448/555/case.html#F2/1http://supreme.justia.com/cases/federal/us/448/555/case.html#F2/2http://supreme.justia.com/cases/federal/us/438/265/case.html#338http://supreme.justia.com/cases/federal/us/448/555/case.html#T2/1http://supreme.justia.com/cases/federal/us/438/1/case.html#15


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"%he 9irst and 9ourteenth Amendments do not guarantee the public a right of access to

information generated or controlled by government! ! ! ! %he onstitution does no more than

assure the public and the press equal access once government has opened its doors!"

I#at .* +! &! 0-(&%8


25/48

*/2 (02-)1 (#at @ +! &! 23(#58==A=, :!, concurring in judgment)1Ne+ or- T(*es

Co# "# Un(te States&3. +! &! 0., 3. +! &! 0(020) (per curiam opinion)1Near "#

M(nnesota e/ rel# Olson&@*. +! &! -2,@*. +! &! 0/0- (02.0), the 9irst Amendment has notbeen viewed by the ourt in all settings as providing an equally categorical assurance of the

correlative freedom of access to information,see& e#)#& Sa/be "# @as,(n)ton Post Co#&0 +! &!

*., 0 +! &! *2

age * +! &! *-

(02),e*el "# Rus-&.*0 +! &! 0,.*0 +! &! 0-/0 (02-)1see also Houc,(ns "# 3E$& Inc#&

.* +! &! 0,.* +! &! */2 (02*) (opinion of #+5;85, !:!)1 (#at .* +! &! 0-(&%8


26/48

T(*es Co# "# Sull("an&.- +! &! @, .- +! &! @3(02-), but also the antecedent assumption

that valuable public debate // as well as other civic behavior // must be informed! F 9ootnote .M.G

%he structural

age * +! &! **

model lins the 9irst Amendment to that process of communication necessary for a democracy to

survive, and thus entails solicitude not only for communication itself, but also for the

indispensable conditions of meaningful communication! F9ootnote .MG

6owever, because "the stretch of this protection is theoretically endless," #rennan,supraat *+! &! 0, it must be invoed with discrimination and temperance! 9or, so far as the participating

citi>en's need for information is concerned, "FtGhere are few restrictions on action which could

not be clothed by ingenious argument in the garb of decreased data flow!"e*el "# Rus-& supraat.*0 +! &! 0-/0! An assertion of the prerogative to gather information must accordingly be

assayed by considering the information sought and the opposing interests invaded! F9ootnote .MG

%his judicial tas is as much a matter of sensitivity to practical necessities as it is of abstract

reasoning! #ut at least

age * +! &! *2

two helpful principles may be setched! 9irst, the case for a right of access has special force

when drawn from an enduring and vital tradition of public entree to particular proceedings or

information! C'# In re @(ns,(p&.2 +! &! .*,.2 +! &! .-0/.-@ (023)! &uch a traditioncommands respect, in part, because the onstitution carries the gloss of history! 4ore

importantly, a tradition of accessibility implies the favorable judgment of e$perience! &econd,

the value of access must be measured in specifics! Analysis is not advanced by rhetoricalstatements that all information bears upon public issues1 what is crucial in individual cases iswhether access to a particular government process is important in terms of that very process!

%o resolve the case before us, therefore, we must consult historical and current practice with

respect to open trials, and weigh the importance of public access to the trial process itself!

II

"%his nation's accepted practice of guaranteeing a public trial to an accused has its roots in our

8nglish common law heritage!"In re Ol("er&... +! &! @, ... +! &! @--(02*)1see Gannett

Co# "# $ePas%uale&. +!&! at . +! &! 02/@3 (#AB4+=, :!, concurring and dissenting)!7ndeed, historically and functionally, open trials have been closely associated with the

development of the fundamental procedure of trial by jury!In re Ol("er& supraat ... +! &! @--1

5adin, %he 5ight to a ublic %rial, - %emp!!C! .*0, .** (02.@)! F9ootnote .M-G reeminent8nglish legal observers and commentators have unreservedly acnowledged and applauded the

public character of the common law

age * +! &! 23
http://supreme.justia.com/cases/federal/us/376/254/case.htmlhttp://supreme.justia.com/cases/federal/us/376/254/case.html#270http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/3http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/4http://supreme.justia.com/cases/federal/us/448/176/case.html#177http://supreme.justia.com/cases/federal/us/448/176/case.html#177http://supreme.justia.com/cases/federal/us/381/1/case.html#16http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/5http://supreme.justia.com/cases/federal/us/397/358/case.htmlhttp://supreme.justia.com/cases/federal/us/397/358/case.html#361http://supreme.justia.com/cases/federal/us/397/358/case.html#361http://supreme.justia.com/cases/federal/us/333/257/case.htmlhttp://supreme.justia.com/cases/federal/us/333/257/case.htmlhttp://supreme.justia.com/cases/federal/us/333/257/case.html#266http://supreme.justia.com/cases/federal/us/443/368/case.html#419http://supreme.justia.com/cases/federal/us/333/257/case.html#266http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/6http://supreme.justia.com/cases/federal/us/376/254/case.htmlhttp://supreme.justia.com/cases/federal/us/376/254/case.html#270http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/3http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/4http://supreme.justia.com/cases/federal/us/448/176/case.html#177http://supreme.justia.com/cases/federal/us/448/176/case.html#177http://supreme.justia.com/cases/federal/us/381/1/case.html#16http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/5http://supreme.justia.com/cases/federal/us/397/358/case.htmlhttp://supreme.justia.com/cases/federal/us/397/358/case.html#361http://supreme.justia.com/cases/federal/us/333/257/case.htmlhttp://supreme.justia.com/cases/federal/us/333/257/case.html#266http://supreme.justia.com/cases/federal/us/443/368/case.html#419http://supreme.justia.com/cases/federal/us/333/257/case.html#266http://supreme.justia.com/cases/federal/us/448/555/case.html#F3/6


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trial process! See%! &mith, Ee 5epublica Anglorum , *0/*@ (023)1 F9ootnote .MG @ 8! oe,

7nstitutes of the aws of 8ngland 03. (-th ed! 0-*0)1 .

J..1 F9ootnote .M*G 4! 6ale %he 6istory of the ommon aw of 8ngland .@/. (-th ed!0*@3)1 F9ootnote .M2G 0 :! #entham, 5ationale of :udicial 8vidence */* (0*@)! And it

appears that "there is little record, if any, of secret proceedings, criminal or civil, having occurred

at any time in nown 8nglish history!" Gannett& supraat . +! &! @3(#AB4+=, :!,concurring and dissenting)1see also In re Ol("er& supraat... +! &! @-2, n! @@1 5adin,supra&at

.*-/.*!

%his legacy of open justice was inherited by the 8nglish settlers in America! %he earliest charters

of colonial government e$pressly perpetuated the accepted practice of public trials! Seeoncessions and Agreements of


28/48

8ven more significantly for our present purpose, Ol("errecogni>ed that open trials are bulwars

of our free and democratic government? public access to court proceedings is one of the

numerous "checs and balances" of our system, because "contemporaneous review in the forumof public opinion is an effective restraint on possible abuse of judicial power," (#at ... +! &!

@3! See S,eppar "# Ma/+ell&.* +! &! ...,.* +! &! .3(02--)! 7ndeed, the ourt focused

with particularity upon the public trial guarantee "as a safeguard against any attempt to employour courts as instruments of persecution," or "for the suppression of political and religious

heresies!" Ol("er& supraat ... +! &! @3!%hus, Ol("eracnowledged that open trials are

indispensable to 9irst Amendment political and religious freedoms!

#y the same toen, a special solicitude for the public character of judicial proceedings is evidentin the ourt's rulings upholding the right to report about the administration of justice!


29/48

ublicity serves to advance several of the particular purposes of the trial (and, indeed, the

judicial) process! Dpen trials play a fundamental role in furthering the efforts of our judicial

system to assure the criminal defendant a fair and accurate adjudication of guilt or innocence!See& e#)#& Estes "# Te/as&.*0 +!&! at.*0 +! &! .*/.2! #ut, as a feature of our

age * +! &! 2

governing system of justice, the trial process serves other, broadly political, interests, and public

access advances these objectives as well! %o that e$tent, trial access possesses specific structuralsignificance! F9ootnote .M02G

%he trial is a means of meeting "the notion, deeply rooted in the common law, thatDust(ce *ust

sat(s'y t,e appearance o' Dust(ce#12 Le"(ne "# Un(te States& 9:; U# S# :=5&9:; U# S# :=::5?&

%uot(n) O''utt "# Un(te States& 946 U# S# ==& 946 U# S# =484?. accor& Gannett Co# "#$ePas%uale& supra& at 449 U# S# 4;>8

*aDor 'unct(on o' t,e tr(al& ,e)e +(t, proceural protect(ons an conucte +(t, consp(cuous

respect 'or t,e rule o' la+& (s to *a-e t,at e*onstrat(on# See In re Ol("er& supra& at 999 U# S#

;75& n# ;4#

&ecrecy is profoundly inimical to this demonstrative purpose of the trial process! Dpen trialsassure the public that procedural rights are respected, and that justice is afforded equally! losed

trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law!

ublic access is essential, therefore, if trial adjudication is to achieve the objective of maintainingpublic confidence in the administration of justice! See Gannett& supraat. +! &! @*/@2

(#AB4+=, :!, concurring and dissenting)!

#ut the trial is more than a demonstrably just method of adjudicating disputes and protecting

rights! 7t plays a pivotal role in the entire judicial process, and, by e$tension, in our form ofgovernment! +nder our system, judges are not mere umpires, but, in their own sphere,

lawmaers // a coordinate branch of)o"ern*ent#F9ootnote .M@3G


30/48

trial is the mechanism for judicial factfinding, as well as the initial forum for legal

decisionmaing, it is a genuine governmental proceeding!

7t follows that the conduct of the trial is preeminently a matter of public interest! See Co/0roacast(n) Corp# "# Co,n&@3 +!&! at @3 +! &! 20/2@1Marylan "# 0alt(*ore Ra(o S,o+&

Inc#&..* +! &! 20@, ..* +! &! 2@3(023) (opinion of 9ranfurter, :!, respecting denial ofcertiorari)! 4ore importantly, public access to trials acts as an important chec, ain in purpose

to the other checs and balances that infuse our system of government!

"%he nowledge that every criminal trial is subject to contemporaneous review in the forum of

public opinion is an effective restraint on possible abuse of judicial power,"

In re Ol("er&... +!&! at ... +! &! @3// an abuse that, in many cases, would have ramifications

beyond the impact upon the parties before the court! 7ndeed, "+J(t,out publ(c(ty& all ot,erc,ec-s are (nsu''(c(ent! (n co*par(son o' publ(c(ty& all ot,er c,ec-s are o' s*all account#12 I# at

999 U# S# ;7=& %uot(n) = B# 0ent,a*& Rat(onale o' Bu(c(al E"(ence 8;4


31/48

opular attendance at trials, in sum, substantially furthers the particular public purposes of that

critical judicial proceeding! F9ootnote .M@@G 7n that sense, public access is an indispensable

element of the trial process itself! %rial access, therefore, assumes structural importance in our"government of laws,"Marbury "# Ma(son&0 ranch 0., +! &! 0-.(0*3.)!

IV

As previously noted, resolution of 9irst Amendment public access claims in individual casesmust be strongly influenced

age * +! &! 2*

by the weight of historical practice and by an assessment of the specific structural value of public

access in the circumstances!


32/48

a practical matter, however, the institutional press is the liely, and fitting, chief beneficiary of a

right of access because it serves as the "agent" of interested citi>ens, and funnels information

about trials to a large number of individuals!

F9ootnote .M.G

%his idea has been foreshadowed in 45! :+&%78 D


33/48

F9ootnote .M-G

"F%he public trialG seems almost a necessary incident of jury trials, since the presence of a jury ! !

! already insured the presence of a large part of the public!


34/48

%o be sure, some of these constitutions, such as the ennsylvania Eeclaration of 5ights, couched

their public trial guarantees in the language of the accused's rights! #ut although the ourt has

read the 9ederal onstitution's e$plicit public trial provision, +!&!onst!, Amdt! -, as benefitingthe defendant alone, it does not follow that comparably worded state guarantees must be so

construed! See Gannett Co# "# $ePas%uale&. +!&! at . +! &! @, and n! 2 (#AB4+=,

:!, concurring and dissenting)1 c'# also Mallott "# State&-3* !@d ., , n! 0@ (Alasa 02*3)!And even if the specific state public trial protections must be invoed by defendants, those state

constitutional clauses still provide evidence of the importance attached to open trials by the

founders of our state governments! 7ndeed, it may have been thought that lining public trials tothe accused's privileges was the most effective way of assuring a vigorous representative for the

popular interest!

F9ootnote .M0-G

=otably, Ol("erdid not rest upon the simple incorporation of the &i$th Amendment into the

9ourteenth, but upon notions intrinsic to due process, because the criminal contempt proceedings

at issue in the case were "not within all cr(*(nal prosecut(ons1 to +,(c, t,e S(/t,J # # #A*en*ent appl(es#2 Le"(ne "# Un(te States& 9:; U# S# :=5& 9:; U# S# :=::5?. see also n# =&

supra#

F9ootnote .M0G

As 4r! :ustice 6olmes pointed out in his opinion for the 4assachusetts &upreme :udicial ourt

in Co+ley "# Puls('er&0. 4ass! .2@, .2 (0**), "the privilege Fto publish reports of judicial

proceedingsG and the access of the public to the courts stand in reason upon common ground!"

See Le+(s "# Le"y&8l!, #l!, K 8l! ., 0@3 8ng!5ep! -03 (B!#! 0**)!

F9ootnote .M0*G

%he dictum in0ranbur) "# Hayes&3* +! &! --, 3* +! &! -*/-* (02@), that

"FnGewsmen ! ! ! may be prohibited from attending or publishing information about trials if such

restrictions are necessary to assure a defendant fair trial ! ! !" is not to the contrary1 it simplynotes that rights of access may be curtailed where there are sufficiently powerful countervailing

considerations! See supraat * +! &! **!

F9ootnote .M02G

#y way of analogy, we have fashioned rules of criminal procedure to serve interests implicated

in the trial process beside those of the defendant! 9or e$ample, the e$clusionary rule is promptednot only by the accused's interest in vindicating his own rights, but also, in part, by the

independent "(*perat("e o' Du(c(al (nte)r(ty#12 See& e#)#& Terry "# O,(o& 9>; U# S# =& 9>; U# S# =;

=9 :6?& %uot(n) El-(ns "# Un(te States& 9:4 U# S# ;5:& ;;; :5?. Un(te States "# Calanra&4=4 U# S# 996& 4=4 U# S# 98798> 74?


35/48


36/48

F9ootnote .M@G

9or e$ample, national security concerns about confidentiality may sometimes warrant closures

during sensitive portions of trial proceedings, such as testimony about state secrets! C'# Un(teStates "# N(/on&0* +! &! -*., 0* +! &! 0/0- (02)!

F9ootnote .M@G

&ignificantly, closing a trial lacs even the justification for barring the door to pretrial hearings?

the necessity of preventing dissemination of suppressible prejudicial evidence to the public

before the jury pool has become, in a practical sense, finite and subject to sequestration!

45! :+&%78 &%8


37/48

pars as areas of traditional 9irst Amendment activity, e#)#& S,uttles+ort, "# 0(r*(n),a*&.2 +!

&! 0, a trial courtroom is a place where representatives of the press and of the public are not

only free to be, but where their presence serves to assure the integrity of what goes on!

#ut this does not mean that the 9irst Amendment right of members of the public and

representatives of the press to attend civil and criminal trials is absolute! :ust as a legislature mayimpose reasonable time, place, and manner restrictions upon the e$ercise of 9irst Amendment

freedoms, so may a trial judge impose reasonable limitations upon the unrestricted occupation ofa courtroom by representatives of the press and members of the public! C'# S,eppar "# Ma/+ell&

.* +! &! ...! 4uch more than a city street, a trial courtroom must be a quiet and orderly place!

Co*pare 3o"acs "# Cooper&..- +! &! , +(t, Ill(no(s "# Allen&.2 +! &! .., andEstes "# Te/as&.*0 +! &! .@! 4oreover, every courtroom has a finite physical capacity, and there may be

occasions when not all who wish to attend a trial may do so! F9ootnote M.G And while there e$ist

many alternative ways to satisfy the constitutional demands of a fair trial, F9ootnote MG thosedemands may also sometimes justify limitations upon the unrestricted presence of spectators in

the courtroom! F9ootnote MG

&ince, in the present case, the trial judge appears to have

age * +! &! -30

given no recognition to the right of representatives of the press and members of the public to bepresent at the Virginia murder trial over which he was presiding, the judgment under review must

be reversed!

7t is upon the basis of these principles that 7 concur in the judgment!

F9ootnote M0G

%he ourt also made clear that the &i$th Amendment does not give the accused the right to aprivate trial! . +!&! at . +! &! .*@! C'# S(n)er "# Un(te States&.*3 +! &! @(&i$th

Amendment right of trial by jury does not include right to be tried without a jury)!

F9ootnote M@G

7t has long been established that the protections of the 9irst Amendment are guaranteed by the

9ourteenth Amendment against invasion by the &tates!E#)#& G(tlo+ "# Ne+ or-&@-* +! &! -@!%he 9irst Amendment provisions relevant to this case are those protecting free speech and a free

press! %he right to spea implies a freedom to listen,3le(n(enst "# Manel&3* +! &! .! %heright to publish implies a freedom to gather information,0ranbur) "# Hayes&3* +! &! --,3*+! &! -*0! Seeopinion of 45 :+&%78 #58==A= concurring in the judgment, antep! * +!

&! *,pass(*#

F9ootnote M.G
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7n such situations, representatives of the press must be assured access!Houc,(ns "# 3E$& Inc#&

.* +! &! 0,.* +! &! 0-(opinion concurring in judgment)!

F9ootnote MG

&uch alternatives include sequestration of juries, continuances, and changes of venue!

F9ootnote MG

%his is not to say that only constitutional considerations can justify such restrictions! %he

preservation of trade secrets, for e$ample, might justify the e$clusion of the public from at least

some segments of a civil trial! And the sensibilities of a youthful prosecution witness, fore$ample, might justify similar e$clusion in a criminal trial for rape, so long as the defendant's

&i$th Amendment right to a public trial were not impaired! See& e#)#& Sta*(carbon& N#V# "#

A*er(can Cyana*( Co#&- 9!@d .@, .2/@ (A@ 02)!

45! :+&%78 #AB4+=, concurring in the judgment!

4y opinion and vote in partial dissent last %erm in Gannett Co# "# $ePas%uale&. +! &! .-*,. +! &! 3-(022), compels my vote to reverse the judgment of the &upreme ourt of

Virginia!

I

%he decision in this case is gratifying for me for two reasons?

7t is gratifying, first, to see the ourt now looing to and relying upon legal history in

determining the fundamental public character of the criminal trial!Anteat * +! &! -/-2,* +! &! @/, and n! 2! %he partial dissent in Gannett&. +!&! at . +! &! 02/.., too

great pains in assembling // 7 believe adequately // the historical material, and in stressing its

importance to this area of the law! See also45! :+&%78 #58==A='s helpful review set forth

as art 77 of his opinion in the present case!Anteat * +! &! *2/2.! Although the ourt inGannettgave a modicum of lip service to legal history, . +!&! at . +! &! .*-, n! 0, it denied

its obvious application when the defense and the prosecution, with no resistance by the trial

judge, agreed that the proceeding should be closed!

%he ourt's return to history is a welcome change in direction!

7t is gratifying, second, to see the ourt wash away at least some of the graffiti that marred theprevailing opinions in Gannett#=o fewer than 0@ times in the primary opinion in that case, the

ourt (albeit in what seems now to have become

age * +! &! -3@

clear dicta) observed that its &i$th Amendment closure ruling applied to the trial itself! %he

author of the first concurring opinion was fully aware of this, and would have restricted the
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ourt's observations and ruling to the suppression hearing!I#at . +! &! .2! =onetheless, he

joined the ourt's opinion, (b(#&with its multiple references to the trial itself1 the opinion was

not a mere concurrence in the ourt's judgment! And 45! :+&%78 586=C+7&%, in hisseparate concurring opinion, quite understandably observed, as a consequence, that the ourt

was holding "without qualification," that "*e*bers o' t,e publ(c ,a"e no const(tut(onal r(),t

uner t,e S(/t, an Fourteent, A*en*ents to atten cr(*(nal tr(als&12 (# at 449 U# S# 459&%uot(n) 'ro* t,e pr(*ary op(n(on& (# at449 U# S# 9>=#T,e result(n) con'us(on a*on)

co**entators Footnote 8=J an Dournal(st Footnote 8;J +as not surpr(s(n)#

Pa)e 446 U# S# :59

II

%he ourt's ultimate ruling in Gannett&with such clarification as is provided by the opinions in

this case today, apparently is now to the effect that there is no &i$th Amendment right on the part

of the public // or the press // to an open hearing on a motion to suppress! 7, of course, continue

to believe that Gannettwas in error, both in its interpretation of the &i$th Amendment generallyand in its application to the suppression hearing, for 7 remain convinced that the right to a public

trial is to be found where the onstitution e$plicitly placed it // in the &i$th Amendment!F9ootnote M.G

%he ourt, however, has eschewed the &i$th Amendment route! %he plurality turns to other

possible constitutional sources, and invoes a veritable potpourri of them // the &peech lause of

the 9irst Amendment, the ress lause, the Assembly lause, the =inth Amendment, and acluster of penumbral guarantees recogni>ed in past decisions! %his course is troublesome, but it

is the route that has been selected, and, at least for now, we must live with it! =o purpose would

be served by my spelling out at length here the reasons for my saying that the course is

troublesome! 7 need do no more than observe that uncertainty mars the nature // and strictness //of the standard of closure the ourt adopts! %he plurality opinion speas of "an overriding

interest articulated in findings," anteat * +! &! *01 45! :+&%78 &%8


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judicial arena1 and about the trial itself! See. +!&! at . +! &! 0.,and n! @,. +! &! 0,

. +! &! @*/@2, . +! &! *! See also Co/ 0roacast(n) Corp# "# Co,n&@3 +! &! -2,@3

+! &! 2@(02)! 7t is clear and obvious to me, on the approach the ourt has chosen to tae,that, by closing this criminal trial, the trial judge abridged these 9irst Amendment interests of the

public!

7 also would reverse, and 7 join the judgment of the ourt!

F9ootnote M0G

See& e#)#&&tephenson, 9air %rial/9ree ress? 5ights in ontinuing onflict, - #roolyn !5ev!.2, -. (022) ("intended reach of the majority opinion is unclear" (footnote omitted))1 %he

&upreme ourt, 02* %erm, 2. 6arv!!5ev! -3, - (022) ("widespread uncertainty over what

the ourt held")1 =ote, 0 +!olo!!5ev! @, .@/.. (02*3) (";annett can be interpreted tosanction the closing of trials"1 citing "the uncertainty of the language in Gannett&" and its

"ambiguous si$th amendment holding")1 =ote, 00 %e$!%ech!!5ev! 02, 03/00 (022)

("perhaps much of the present and imminent confusion lies in the ourt's own statement of itsholding")1 #orow K Bruth, losed reliminary 6earings, alif!&tate #ar :! 0*, @. (02*3)

("Eespite the public disclaimers ! ! ! , the majority holding appears to embrace the right of access

to trials, as well as pretrial hearings")1 ;oodale, Gannett4eans


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"7t has no ind of fault or flaw,"

"And 7, my ords, embody the aw!"

7t is difficult not to derive more than a little of this flavor from the various opinions supporting

the judgment in this case! %he opinion of %68 6789 :+&%78 states?

"F6Gere, for the first time, the ourt is ased to decide whether a criminal trial itself may be

closed to the public upon the unopposed request of a defendant, without any

age * +! &! -3

demonstration that closure is required to protect the defendant's superior right to a fair trial, or

that some other overriding consideration requires closure!"

Anteat * +! &! -! %he opinion of 45! :+&%78 #58==A= states?

"5ead with care and in conte$t, our decisions must therefore be understood as holding only that

any privilege of access to governmental information is subject to a degree of restraint dictated by

the nature of the information and countervailing interests in security or confidentiality!"

Anteat * +! &! *-!

9or the reasons stated in my separate concurrence in Gannett Co# "# $ePas%uale&. +! &! .-*,

. +! &! 3.(022), 7 do not believe that either the 9irst or &i$th Amendment, as made

applicable to the &tates by the 9ourteenth, requires that a &tate's reasons for denying public

access to a trial, where both the prosecuting attorney and the defendant have consented to an

order of closure approved by the judge, are subject to any additional constitutional review at ourhands! And 7 most certainly do not believe that the =inth Amendment confers upon us any such

power to review orders of state trial judges closing trials in such situations! See anteat* +! &!2, n! 0!


42/48

#ut to gradually rein in, as this ourt has done over the past generation, all of the ultimate

decisionmaing power over how justice shall be administered, not merely in the federal system,

but in each of the 3 &tates, is a tas that no ourt consisting of nine persons, however gifted, isequal to! =or is it desirable that such authority be e$ercised by such a tiny numerical fragment of

the @@3 million people who compose the population of this country! 7n the same concurrence just

quoted, 4r! :ustice :acson accurately observed that

"FtGhe generalities of the 9ourteenth Amendment are so indeterminate as to what state actions areforbidden that this ourt has found it a ready instrument, in one field or another, to magnify

federal, and incidentally its own, authority over the states!"

I#at . +! &! .!

6owever high/minded the impulses which originally spawned this trend may have been, andwhich impulses have been accentuated since the time 4r! :ustice :acson wrote, it is basically

unhealthy to have so much authority concentrated in a small group of lawyers who have been

appointed to the &upreme ourt and enjoy virtual life tenure! =othing in the reasoning of 4r!hief :ustice 4arshall inMarbury "# Ma(son&0 ranch 0. (03.) requires that this ourt,

through ever/broadening use of the &upremacy lause, smother a healthy pluralism which would

ordinarily e$ist in a national government embracing 3 &tates!

%he issue here is not whether the "right" to freedom of the press conferred by the 9irstAmendment to the onstitution overrides the defendant's "right" to a fair trial conferred by other

Amendments to the onstitution1 it is, instead, whether any provision in the onstitution may

fairly be read to prohibit what the trial judge in the Virginia state court system did in this case!#eing unable to find any such prohibition in the 9irst, &i$th =inth, or any other Amendment to

the +nited &tates onstitution, or in the onstitution itself, 7 dissent!

Dfficial &upreme ourt caselaw is only found in the print version of the +nited &tates 5eports!

:ustia caselaw is provided for general informational purposes only, and may not reflect current

legal developments, verdicts or settlements!


43/48

Eid the closure of the trial to the press and public violate the 9irst Amendment or the &i$th

AmendmentL

ecision/ votes for 5ichmond =ewspapers 7nc!, 0 vote(s) against

0ega provision/Amendment 0? &peech, ress, and Assembly

7n a /to/0 decision, the ourt held that the right to attend criminal trials was "implicit in the

guarantees of the 9irst Amendment!" %he ourt held that the 9irst Amendment encompassed not

only the right to spea but also the freedom to listen and to receive information and ideas! %heourt also noted that the 9irst Amendment guaranteed the right of assembly in public places such

as courthouses! %he ourt emphasi>ed that "certain unarticulated rights" were implicit in

enumerated guarantees and were often "indispensable to the enjoyment of rights e$plicitlydefined!"

* +!&! 0

Press-Enterprise Co. v. Superior Court

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

No. 84-1560 Argued: Februar !6" 1#86 --- $e%ided: &une '0" 1#86

alifornia filed a complaint against a nurse charging him with murdering 0@ patients by

administering massive doses of the heart drug lidocaine! %he 4agistrate granted the defendant's

motion to e$clude the public from the preliminary hearing on the complaint under a alifornia

statute that requires such proceedings to be open unless "e$clusion of the public is necessary in

order to protect the defendant's right to a fair and impartial trial!" At the conclusion of the 0/day

preliminary hearing, the 4agistrate refused petitioner's request that the transcript of the

proceedings be released! %hereafter, the &tate, supported by petitioner and opposed by the

defendant, moved unsuccessfully in the alifornia &uperior ourt to have the transcript released!

etitioner then filed a peremptory writ of mandate with the alifornia ourt of Appeal!

4eanwhile, the defendant waived his right to a jury trial, and the &uperior ourt released the

transcript! After holding that the controversy was not moot, the ourt of Appeal denied the writ!

%he alifornia &upreme ourt also denied the writ, holding that there is no general)irst

mendmentright of access to preliminary hearings, and that! under the alifornia statute, if thedefendant establishes a "reasonable lielihood of substantial prejudice," the burden shifts to the

prosecution or the media to show by a preponderance of the evidence that there is no such

reasonable probability of prejudice! 1p&2

Hel!
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0! 8ven though the &uperior ourt ultimately released the transcript in question, the case is not

moot, because the controversy is "capable of repetition, yet evading review!" Globe Ne+spaper

Co# "# Super(or Court&45$ U.S. 5!3"G45$ U.S. 5!31 45$ U.S. 5!31 Gannett Co# "# $ePas%uale&

44' U.S. '38! %hus, this ourt has jurisdiction! ! -!

@! %he qualified )irst mendmentright of access to criminal proceedings applies to preliminary

hearings as conducted in alifornia! 9irst, there has been a tradition of public accessibility to

preliminary hearings of the type conducted in alifornia! As opposed to grand jury proceedings,

preliminary hearings conducted before neutral and detached magistrates have been open to the

public! &econd, public access to such preliminary hearings is essential to the proper functioning

of the criminal justice system! %his proper functioning is not made any less essential by the fact

that a preliminary hearing cannot result in a conviction and the adjudication is before a

magistrate without a jury! %he absence of a jury maes the importance of public access even

more significant! p! -/0.!

.! &ince a qualified )irst mendmentright of access attaches to preliminary hearings as

conducted in alifornia, the proceedings cannot be closed unless specific, on/the/record findings

are made demonstrating that "closure is essential to preserve higher values and is narrowly

tailored to serve that interest!"PressEnterpr(se Co# "# Super(or Court&434 U.S. 5", 03! 7f the

interest asserted is the defendant's right to a fair trial, the preliminary hearing shall not be closed

unless there is a "substantial probability" that that right will be prejudiced by publicity that

closure would prevent, and that reasonable alternatives to closure cannot adequately protect the

right! 6ere, the "reasonable lielihood" test applied by the alifornia &upreme ourt placed a

lesser burden on the defendant than the "substantial probability" test required by the )irst

mendment! 4oreover, the court failed to consider whether alternatives short of closure wouldhave protected the defendant's interests! p! 0./0!

. al!.d ., -20 !@d 03@-, reversed!

#+5;85, !:!, delivered the opinion of the ourt, in which #58==A=,


45/48

appeal from the united states distrit ourt for the eastern distrit of

penns!l"ania

=o! 2-/00! Argued 4arch 02, 022 // Eecided :une @-, 022

%wo provisions of the ommunications Eecency Act of 022- (EA or Act) see to protect

minors from harmful material on the 7nternet, an international networ of interconnectedcomputers that enables millions of people to communicate with one another in "cyberspace" and

to access vast amounts of information from around the world! %itle +! &! ! A! H@@.(a)(0)(#)

(ii) (&upp! 022) criminali>es the "nowing" transmission of "obscene or indecent" messages to

any recipient under 0* years of age! &ection @@.(d) prohibits the "nowinFgG" sending or

displaying to a person under 0* of any message "that, in conte$t, depicts or describes, in terms

patently offensive as measured by contemporary community standards, se$ual or e$cretory

activities or organs!" Affirmative defenses are provided for those who tae "good faith, ! ! !

effective ! ! ! actions" to restrict access by minors to the prohibited communications, H@@.(e)()

(A), and those who restrict such access by requiring certain designated forms of age proof, such

as a verified credit card or an adult identification number, H@@.(e)()(#)! A number of plaintiffs

filed suit challenging the constitutionality of HH@@.(a)(0) and @@.(d)! After maing e$tensive

findings of fact, a three judge Eistrict ourt convened pursuant to the Act entered a preliminary

injunction against enforcement of both challenged provisions! %he court's judgment enjoins the

;overnment from enforcing H@@.(a)(0)(#)'s prohibitions insofar as they relate to "indecent"

communications, but e$pressly preserves the ;overnment's right to investigate and prosecute the

obscenity or child pornography activities prohibited therein! %he injunction against enforcement

of H@@.(d) is unqualified because that section contains no separate reference to obscenity or child

pornography! %he ;overnment appealed to this ourt under the Act's special review provisions,

arguing that the Eistrict ourt erred in holding that the EA violated both the 9irst Amendmentbecause it is overbroad and the 9ifth Amendmentbecause it is vague!

Hel!%he EA's "indecent transmission" and "patently offensive display" provisions abridge

"the freedom of speech" protected by the 9irst Amendment! p! 0/3!

(a) Although the EA's vagueness is relevant to the 9irst Amendmentoverbreadth inquiry, the

judgment should be affirmed without reaching the 9ifth Amendmentissue! ! 0!

(b) A close loo at the precedents relied on by the ;overnment//G(nsber)v!Ne+ or-&.23 +!&!

-@21FCCv!Pac('(ca Founat(on&.* +!&! @-1 andRentonv!Playt(*e T,eatres& Inc#& +!&!0//raises, rather than relieves, doubts about the EA's constitutionality! %he EA differs from

the various laws and orders upheld in those cases in many ways, including that it does not allow

parents to consent to their children's use of restricted materials1 is not limited to commercial

transactions1 fails to provide any definition of "indecent" and omits any requirement that

"patently offensive" material lac socially redeeming value1 neither limits its broad categorical

prohibitions to particular times nor bases them on an evaluation by an agency familiar with the
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46/48


47/48

;overnment has not proved otherwise! Dn the other hand, the Eistrict ourt found that currently

available user basesoftware suggests that a reasonably effective method by whichparentscan

prevent their children from accessing material which theparentsbelieve is inappropriate will

soon be widely available! 4oreover, the arguments in this ourt referred to possible alternatives

such as requiring that indecent material be "tagged" to facilitate parental control, maing

e$ceptions for messages with artistic or educational value, providing some tolerance for parental

choice, and regulating some portions of the 7nternet differently than others! articularly in the

light of the absence of any detailed congressional findings, or even hearings addressing the

EA's special problems, the ourt is persuaded that the EA is not narrowly tailored! p! @*/..!

(f) %he ;overnment's three additional arguments for sustaining the EA's affirmative

prohibitions are rejected! 9irst, the contention that the Act is constitutional because it leaves open

ample "alternative channels" of communication is unpersuasive because the EA regulates

speech on the basis of its content, so that a "time, place, and manner" analysis is inapplicable!

&ee, e#)#& Consol(ate E(son Co# o' N# # v!Publ(c Ser"# Co**1n o' N# #& +!&! .3, .-!&econd, the assertion that the EA's "nowledge" and "specific person" requirements

significantly restrict its permissible application to communications to persons the sender nows

to be under 0* is untenable, given that most 7nternet forums are open to all comers and that even

the strongest reading of the "specific person" requirement would confer broad powers of

censorship, in the form of a "hecler's veto," upon any opponent of indecent speech! 9inally,

there is no te$tual support for the submission that material having scientific, educational, or other

redeeming social value will necessarily fall outside the EA's prohibitions! p! ../.!

(g) %he H@@.(e)() defenses do not constitute the sort of "narrow tailoring" that would save the

EA! %he ;overnment's argument that transmitters may tae protective "good faith actioFnG" by"tagging" their indecent communications in a way that would indicate their contents, thus

permitting recipients to bloc their reception with appropriate software, is illusory, given the

requirement that such action be "effective"? %he proposed screening software does not currently

e$ist, but, even if it did, there would be no way of nowing whether a potential recipient would

actually bloc the encoded material! %he ;overnment also failed to prove that H@@.(b)()'s

verification defense would significantly reduce the EA's heavy burden on adult speech!

Although such verification is actually being used by some commercial providers of se$ually

e$plicit material, the Eistrict ourt's findings indicate that it is not economically feasible for

most noncommercial speaers! p! ./.!

(h) %he ;overnment's argument that this ourt should preserve the EA's constitutionality by

honoring its severability clause, H-3*, and by construing nonseverable terms narrowly, is

acceptable in only one respect! #ecause obscene speech may be banned totally, seeM(ller& supra&

at 0*, and H@@.(a)'s restriction of "obscene" material enjoys a te$tual manifestation separate from

that for "indecent" material, the ourt can sever the term "or indecent" from the statute, leaving

the rest of H@@.(a) standing! p! ./.2!
http://www.law.cornell.edu/supct-cgi/get-us-cite?447+530http://www.law.cornell.edu/supct-cgi/get-us-cite?447+530


48/48

(i) %he ;overnment's argument that its "significant" interest in fostering the 7nternet's growth

provides an independent basis for upholding the EA's constitutionality is singularly

unpersuasive! %he dramatic e$pansion of this new forum contradicts the factual basis underlying

this contention? that the unregulated availability of "indecent" and "patently offensive" material

is driving people away from the 7nternet! ! 3!

2@2 9! &upp! *@, affirmed!

&tevens, :!, delivered the opinion of the ourt, in which &calia, Bennedy, &outer, %homas,

;insburg, and #reyer, ::!, joined! D'onnor, :!, filed an opinion concurring in the judgment in

part and dissenting in part, in which 5ehnquist, ! :!, joined!

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