|Richmond Newspapers, Inc. v. Virginia
[ Burger ]
[ White ]
[ Stevens ]
[ Brennan ]
[ Stewart ]
[ Blackmun ]
[ Rehnquist ]
Richmond Newspapers, Inc. v. Virginia
APPEAL FROM THE SUPREME COURT OF VIRGINIA
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.
Gannett Co. v. DePasquale, 443 U.S. 368 (1979), held that the Sixth Amendment right to a public trial was personal to the accused, conferring no right of access to pretrial proceedings that is separately enforceable by the public or the press. The instant case raises the question whether the First Amendment, of its own force and as applied to the States through [p585] the Fourteenth Amendment, secures the public an independent right of access to trial proceedings. Because I believe that the First Amendment -- of itself and as applied to the States through the Fourteenth Amendment -- secures such a public right of access, I agree with those of my Brethren who hold that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public. [n1]
While freedom of expression is made inviolate by the First Amendment, and, with only rare and stringent exceptions, may not be suppressed, see, e.g., Brown v. Glines, 444 U.S. 348, 364 (1980) (BRENNAN, J., dissenting); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558-559 (1976); id. at 590 (BRENNAN, J., concurring in judgment); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam opinion); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 715-716 (1931), the First Amendment has not been viewed by the Court in all settings as providing an equally categorical assurance of the correlative freedom of access to information, see, e.g., Saxbe v. Washington Post Co., 417 U.S. 843, 849 [p586] (1974), Zemel v. Rusk, 381 U.S. 1, 16-17 (1965); see also Houchins v. KQED, Inc., 438 U.S. 1, 8-9 (1978) (opinion of BURGER, C.J.); id. at 16 (STEWART J., concurring in judgment); Gannett Co. v. DePasquale, 433 U.S. at 401-405 (REHNQUIST, J., concurring). But cf. id. at 397-398 (POWELL, J., concurring); Houchins, supra at 27-38 (STEVENS, J., dissenting); Saxbe, supra at 856-864 (POWELL, J., dissenting); Pell v. Procunier, 417 U.S. 817, 839-842 (1974) (Douglas, J., dissenting). [n2] Yet the Court has not ruled out a public access component to the First Amendment in every circumstance. Read with care and in context, 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. See Houchins, supra at 8-9 (opinion of BURGER, C.J.) (access to prisons); Saxbe, supra at 849 (same); Pell, supra at 831-832 (same); Estes v. Texas, 381 U.S. 532, 541-542 (1965) (television in courtroom); Zemel v. Rusk, supra at 16-17 (validation of passport to unfriendly country). These cases neither comprehensively nor absolutely deny that public access to information may, at times, be implied by the First Amendment and the principles which animate it.
The Court's approach in right-of-access cases simply reflects the special nature of a claim of First Amendment right to gather information. Customarily, First Amendment guarantees are interposed to protect communication between speaker [p587] and listener. When so employed against prior restraints, free speech protections are almost insurmountable. See Nebraska Press Assn. v. Stuart, supra at 558-559; New York Times Co. v. United States, supra at 714 (per curiam opinion). See generally Brennan Address, 32 Rutgers L.Rev. 173 176 (1979). But the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government. See United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4 (1938); Grosjean v. American Press Co., 297 U.S. 233, 249-250 (1936); Stromberg v. California, 283 U.S. 359, 369 (1931); Brennan, supra at 176-177; J. Ely Democracy and Distrust 93-94 (1980); T. Emerson, The System of Freedom of Expression 7 (1970); A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948); Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 23 (1971). Implicit in this structural role is not only "the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), but also the antecedent assumption that valuable public debate -- as well as other civic behavior -- must be informed. [n3] The structural [p588] model links the First 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. [n4]
However, because "the stretch of this protection is theoretically endless," Brennan, supra at 177, it must be invoked with discrimination and temperance. For, so far as the participating citizen's need for information is concerned, "[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow." Zemel v. Rusk, supra at 16-17. An assertion of the prerogative to gather information must accordingly be assayed by considering the information sought and the opposing interests invaded. [n5]
This judicial task is as much a matter of sensitivity to practical necessities as it is of abstract reasoning. But at least [p589] two helpful principles may be sketched. First, 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. Cf. In re Winship, 397 U.S. 358, 361-362 (1970). Such a tradition commands respect, in part, because the Constitution carries the gloss of history. More importantly, a tradition of accessibility implies the favorable judgment of experience. Second, the value of access must be measured in specifics. Analysis is not advanced by rhetorical statements that all information bears upon public issues; what is crucial in individual cases is whether access to a particular government process is important in terms of that very process.
To 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.
"This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage." In re Oliver, 333 U.S. 257, 266 (1948); see Gannett Co. v. DePasquale, 443 U.S. at 419-420 (BLACKMUN, J., concurring and dissenting). Indeed, historically and functionally, open trials have been closely associated with the development of the fundamental procedure of trial by jury. In re Oliver, supra at 266; Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 388 (1932). [n6] Preeminent English legal observers and commentators have unreservedly acknowledged and applauded the public character of the common law [p590] trial process. See T. Smith, De Republica Anglorum 77, 81-82 (1970); [n7] 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681); 3 W. Blackstone, Commentaries *372-*373; [n8] M. Hale The History of the Common Law of England 342-344 (6th ed. 1820); [n9] 1 J. Bentham, Rationale of Judicial Evidence 584-585 (1827). And it appears that "there is little record, if any, of secret proceedings, criminal or civil, having occurred at any time in known English history." Gannett, supra at 420 (BLACKMUN, J., concurring and dissenting); see also In re Oliver, supra at 269, n. 22; Radin, supra, at 386-387.
This legacy of open justice was inherited by the English settlers in America. The earliest charters of colonial government expressly perpetuated the accepted practice of public trials. See Concessions and Agreements of West New Jersey, 1677, ch. XXIII; [n10] Pennsylvania Frame of Government 1682, Laws Agreed Upon in England, V. [n11] "There is no evidence that any colonial court conducted criminal trials behind closed doors. . . ." Gannett Co. v. DePasquale, supra at 425 (BLACKMUN, J., concurring and dissenting). Subsequently framed state constitutions also prescribed open trial proceedings. See, e.g., Pennsylvania Declaration of Rights, 1776, IX; [n12] North Carolina Declaration of Rights, 1776, IX; [n13] Vermont Declaration of Rights, X (1777); [n14] see also In re Oliver, 333 U.S. at 267.
Following the ratification in 1791 of the Federal Constitution's Sixth Amendment, . . most of the original states and those subsequently admitted to [p591] the Union adopted similar constitutional provisions.
Ibid. [n15] Today, the overwhelming majority of States secure the right to public trials. Gannett, supra, at 414-415, n. 3 (BLACKMUN, J., concurring and dissenting); see also In re Oliver, supra at 267-268, 271, and nn. 17-20.
This Court too has persistently defended the public character of the trial process. In re Oliver established that the Due Process Clause of the Fourteenth Amendment forbids closed criminal trials. Noting the "universal rule against secret trials," 333 U.S. at 266, the Court held that
[i]n view of this nation's historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment's guarantee that no one shall be deprived of his liberty without due process of law means, at least, that an accused cannot be thus sentenced to prison.
Id. at 273. [n16] [p592] Even more significantly for our present purpose, Oliver recognized that open trials are bulwarks of our free and democratic government: public access to court proceedings is one of the numerous "checks and balances" of our system, because "contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power," id. at 270. See Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). Indeed, the Court focused with particularity upon the public trial guarantee "as a safeguard against any attempt to employ our courts as instruments of persecution," or "for the suppression of political and religious heresies." Oliver, supra at 270. Thus, Oliver acknowledged that open trials are indispensable to First Amendment political and religious freedoms.
By the same token, a special solicitude for the public character of judicial proceedings is evident in the Court's rulings upholding the right to report about the administration of justice. While these decisions are impelled by the classic protections afforded by the First Amendment to pure communication, they are also bottomed upon a keen appreciation of the structural interest served in opening the judicial system to public inspection. [n17] So, in upholding a privilege for reporting truthful information about judicial misconduct proceedings, Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), emphasized that public scrutiny of the operation of a judicial disciplinary body implicates a major purpose of the First Amendment -- "discussion of governmental affairs," id. at 839. Again, Nebraska Press Assn. v. Stuart, 427 U.S. at 559, noted that the traditional guarantee against prior restraint "should have particular force as applied to reporting of criminal proceedings. . . ." And Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975), instructed that, [p593]
[w]ith respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.
See Time, Inc. v. Firestone, 424 U.S. 448, 473-474, 476-478 (1976) (BRENNAN, J., dissenting) (open judicial process is essential to fulfill "the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions . . .").
Tradition, contemporaneous state practice, and this Court's own decisions, manifest a common understanding that "[a] trial is a public event. What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947). As a matter of law and virtually immemorial custom, public trials have been the essentially unwavering rule in ancestral England and in our own Nation. See In re Oliver, 333 U.S. at 266-268; Gannett Co. v. DePasquale, 443 U.S. at 386, n. 15; id. at 418-432, and n. 11 (BLACKMUN, J., concurring and dissenting). [n18] Such abiding adherence to the principle of open trials "reflect[s] a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U.S. 145, 155 (1968).
Publicity serves to advance several of the particular purposes of the trial (and, indeed, the judicial) process. Open 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.g., Estes v. Texas, 381 U.S. at 538-539. But, as a feature of our [p594] governing system of justice, the trial process serves other, broadly political, interests, and public access advances these objectives as well. To that extent, trial access possesses specific structural significance. [n19]
The trial is a means of meeting "the notion, deeply rooted in the common law, that ‘justice must satisfy the appearance of justice.'" Levine v. United States, 362 U.S. 610, 616 (1960), quoting Offutt v. United States, 348 U.S. 11, 14 (1954); accord, Gannett Co. v. DePasquale, supra, at 429 (BLACKMUN, J., concurring and dissenting); see Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). For a civilization founded upon principles of ordered liberty to survive and flourish, its members must share the conviction that they are governed equitably. That necessity underlies constitutional provisions as diverse as the rule against takings without just compensation, see PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-83, and n. 7 (1980), and the Equal Protection Clause. It also mandates a system of justice that demonstrates the fairness of the law to our citizens. One [p595] major function of the trial, hedged with procedural protections and conducted with conspicuous respect for the rule of law, is to make that demonstration. See In re Oliver, supra, at 270, n. 24.
Secrecy is profoundly inimical to this demonstrative purpose of the trial process. Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Public access is essential, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice. See Gannett, supra at 428-429 (BLACKMUN, J., concurring and dissenting).
But the trial is more than a demonstrably just method of adjudicating disputes and protecting rights. It plays a pivotal role in the entire judicial process, and, by extension, in our form of government. Under our system, judges are not mere umpires, but, in their own sphere, lawmakers -- a coordinate branch of government. [n20] While individual cases turn upon the controversies between parties, or involve particular prosecutions, court rulings impose official and practical consequences upon members of society at large. Moreover, judges bear responsibility for the vitally important task of construing and securing constitutional rights. Thus, so far as the [p596] trial is the mechanism for judicial factfinding, as well as the initial forum for legal decisionmaking, it is a genuine governmental proceeding.
It follows that the conduct of the trial is preeminently a matter of public interest. See Cox Broadcasting Corp. v. Cohn, 420 U.S. at 491-492; Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920 (1950) (opinion of Frankfurter, J., respecting denial of certiorari). More importantly, public access to trials acts as an important check, akin in purpose to the other checks and balances that infuse our system of government.
The knowledge 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 Oliver, 333 U.S. at 270 -- an abuse that, in many cases, would have ramifications beyond the impact upon the parties before the court. Indeed, "‘[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.'" Id. at 271, quoting 1 J. Bentham, Rationale of Judicial Evidence 524 (1827); see 3 W. Blackstone, Commentaries *372; M. Hale, History of the Common Law of England 344 (6th ed. 1820); 1 J. Bryce, The American Commonwealth 514 (rev.1931).
Finally, with some limitations, a trial aims at true and accurate factfinding. Of course, proper factfinding is to the benefit of criminal defendants and of the parties in civil proceedings. But other, comparably urgent, interests are also often at stake. A miscarriage of justice that imprisons an innocent accused also leaves a guilty party at large, a continuing threat to society. Also, mistakes of fact in civil litigation may inflict costs upon others than the plaintiff and defendant. Facilitation of the trial factfinding process, therefore, is of concern to the public as well as to the parties. [n21]
Publicizing trial proceedings aids accurate factfinding. "Public trials come to the attention of key witnesses unknown [p597] to the parties." In re Oliver, supra at 270, n. 24; see Tanksley v. United States, 145 F.2d 58, 59 (CA9 1944); 6 J. Wigmore, Evidence § 1834 (J. Chadbourn rev.197). Shrewd legal observers have averred that
open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth than the private and secret examination . . . where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal.
3 Blackstone, supra, at *373. See Tanksley v. United States, supra at 59-60; Hale, supra at 345; 1 Bentham, supra at 522-523. And experience has borne out these assertions about the truthfinding role of publicity. See Hearings on S. 290 before the Subcommittee on Constitutional Rights and the Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary Committee, 89th Cong., 1st Sess., pt. 2, pp. 433-434, 437-438 (1966).
Popular attendance at trials, in sum, substantially furthers the particular public purposes of that critical judicial proceeding. [n22] In that sense, public access is an indispensable element of the trial process itself. Trial access, therefore, assumes structural importance in our "government of laws," Marbury v. Madison, 1 Cranch 137, 163 (1803).
As previously noted, resolution of First Amendment public access claims in individual cases must be strongly influenced [p598] by the weight of historical practice and by an assessment of the specific structural value of public access in the circumstances. With regard to the case at hand, our ingrained tradition of public trials and the importance of public access to the broader purposes of the trial process, tip the balance strongly toward the rule that trials be open. [n23] What countervailing interests might be sufficiently compelling to reverse this presumption of openness need not concern us now, [n24] for the statute at stake here authorizes trial closures at the unfettered discretion of the judge and parties. [n25] Accordingly, Va.Code § 19.2-266 (Supp. 1980) violates the First and Fourteenth Amendments, and the decision of the Virginia Supreme Court to the contrary should be reversed.
1. Of course, the Sixth Amendment remains the source of the accused's own right to insist upon public judicial proceedings. Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
That the Sixth Amendment explicitly establishes a public trial right does not impliedly foreclose the derivation of such a right from other provisions of the Constitution. The Constitution was not framed as a work of carpentry, in which all joints must fit snugly without overlapping. Of necessity, a document that designs a form of government will address central political concerns from a variety of perspectives. Significantly, this Court has recognized the open trial right both as a matter of the Sixth Amendment and as an ingredient in Fifth Amendment due process. See Levine v. United States, 362 U.S. 610, 614, 616 (1960); cf. In re Oliver, 333 U.S. 257 (1948) (Fourteenth Amendment due process). Analogously, racial segregation has been found independently offensive to the Equal Protection and Fifth Amendment Due Process Clauses. Compare Brown v. Board of Education, 347 U.S. 483, 495 (1954), with Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954).
2. A conceptually separate, yet related, question is whether the media should enjoy greater access rights than the general public. See, e.g., Saxbe v. Washington Post Co., 417 U.S. at 850; Pell v. Procunier, 417 U.S. at 834-835. But no such contention is at stake here. Since the media's right of access is at least equal to that of the general public, see ibid., this case is resolved by a decision that the state statute unconstitutionally restricts public access to trials. As a practical matter, however, the institutional press is the likely, and fitting, chief beneficiary of a right of access because it serves as the "agent" of interested citizens, and funnels information about trials to a large number of individuals.
3. This idea has been foreshadowed in MR. JUSTICE POWELL's dissent in Saxbe v. Washington Post Co., supra at 862-863:
What is at stake here is the societal function of the First Amendment in preserving free public discussion of governmental affairs. No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny. . . . "[The] First Amendment is one of the vital bulwarks of our national commitment to intelligent self-government." . . . It embodies our Nation's commitment to popular self-determination and our abiding faith that the surest course for developing sound national policy lies in a free exchange of views on public issues. And public debate must not only be unfettered; it must also be informed. For that reason, this Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression.
4. The technique of deriving specific rights from the structure of our constitutional government, or from other explicit rights, is not novel. The right of suffrage has been inferred from the nature of "a free and democratic society," and from its importance as a "preservative of other basic civil and political rights. . . ." Reynolds v. Sims, 377 U.S. 533, 561-562 (1964), San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 34, n. 74 (1973). So, too, the explicit freedoms of speech, petition, and assembly have yielded a correlative guarantee of certain associational activities. NAACP v. Button, 371 U.S. 415, 430 (1963). See also Rodriguez, supra at 33-34 (indicating that rights may be implicitly embedded in the Constitution); 411 U.S. at 62-63 (BRENNAN, J., dissenting); id. at 112-115 (MARSHALL, J., dissenting); Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (BRENNAN, J., concurring).
5. Analogously, we have been somewhat cautious in applying First Amendment protections to communication by way of nonverbal and nonpictorial conduct. Some behavior is so intimately connected with expression that, for practical purposes, it partakes of the same transcendental constitutional value as pure speech. See, e.g., Tinker v. Des Moines School District, 393 U.S. 503, 505-506 (1969). Yet where the connection between expression and action id perceived as more tenuous, communicative interests may be overridden by competing social values. See, e.g., Hughes v. Superior Court, 339 U.S. 460, 464-465 (1950).
[The public trial] 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. We need scarcely be reminded that the jury was the patria, the "country," and that it was in that capacity, and not as judges, that it was summoned.
Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 388 (1932); see 3 W. Blackstone, Commentaries *349 ("trial by jury, called also the trial per pais, or by the country"); T. Smith, De Republica Anglorum 79 (1970).
7. First published in 1583.
8. First published in 1765.
9. First edition published in 1713.
10. Quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971).
11. Id. at 140.
12. Id. at 265.
13. Id. at 287.
14. Id. at 323
15. To be sure, some of these constitutions, such as the Pennsylvania Declaration of Rights, couched their public trial guarantees in the language of the accused's rights. But although the Court has read the Federal Constitution's explicit public trial provision, U.S.Const., Amdt. 6, as benefiting the defendant alone, it does not follow that comparably worded state guarantees must be so construed. See Gannett Co. v. DePasquale, 443 U.S. at 425, and n. 9 (BLACKMUN, J., concurring and dissenting); cf. also Mallott v. State, 608 P.2d 737, 745, n. 12 (Alaska 1980). And even if the specific state public trial protections must be invoked by defendants, those state constitutional clauses still provide evidence of the importance attached to open trials by the founders of our state governments. Indeed, it may have been thought that linking public trials to the accused's privileges was the most effective way of assuring a vigorous representative for the popular interest.
16. Notably, Oliver did not rest upon the simple incorporation of the Sixth Amendment into the Fourteenth, but upon notions intrinsic to due process, because the criminal contempt proceedings at issue in the case were "not within ‘all criminal prosecutions' to which [the Sixth] . . . Amendment applies." Levine v. United States, 362 U.S. 610, 616 (1960); see also n. 1, supra.
17. As Mr. Justice Holmes pointed out in his opinion for the Massachusetts Supreme Judicial Court in Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), "the privilege [to publish reports of judicial proceedings] and the access of the public to the courts stand in reason upon common ground." See Lewis v. Levy, El., Bl., & El. 537, 120 Eng.Rep. 610 (K.B. 1858).
18. The dictum in Branzburg v. Hayes, 408 U.S. 665, 684-685 (1972), that "[n]ewsmen . . . 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 contrary; it simply notes that rights of access may be curtailed where there are sufficiently powerful countervailing considerations. See supra at 588.
19. By way of analogy, we have fashioned rules of criminal procedure to serve interests implicated in the trial process beside those of the defendant. For example, the exclusionary rule is prompted not only by the accused's interest in vindicating his own rights, but also, in part, by the independent "‘imperative of judicial integrity.'" See, e.g., Terry v. Ohio, 392 U.S. 1, 12-13 (1968), quoting Elkins v. United States, 364 U.S. 206, 222 (1960); United States v. Calandra, 414 U.S. 338, 357-359 (1974) (BRENNAN, J., dissenting); Olmstead v. United States, 277 U.S. 438, 484-485 (1928) (Brandeis, J., dissenting); id. at 470 (Holmes, J., dissenting). And several Members of this Court have insisted that criminal entrapment cannot be "countenanced," because the "obligation" to avoid
enforcement of the law by lawless means . . . goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice . . . is the transcending value at stake.
Sherman v. United States, 356 U.S. 369, 380 (1958) (Frankfurter, J., concurring in result); see United States v. Russell, 411 U.S. 423, 436-439 (1973) (Douglas, J., dissenting); id. at 442-443 (STEWART, J., dissenting); Sorrells v. United States, 287 U.S. 435, 455 (1932) (opinion of Roberts, J.); Casey v. United States, 276 U.S. 413, 423, 425 (1928) (Brandeis, J., dissenting) .
20. The interpretation and application of constitutional and statutory law, while not legislation, is lawmaking, albeit of a kind that is subject to special constraints and informed by unique considerations. Guided and confined by the Constitution and pertinent statutes, judges are obliged to be discerning, to exercise judgment, and to prescribe rules. Indeed, at times, judges wield considerable authority to formulate legal policy in designated areas. See, e.g., Moragne v. States Marine Lines, 398 U.S. 375 (197); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457 (1957); P. Areeda, Antitrust Analysis 45-46 (2d ed.1974) ("Sherman Act [is] . . . a general authority to do what common law courts usually do: to use certain customary techniques of judicial reasoning . . . and to develop, refine, and innovate in the dynamic common law tradition").
21. Further, the interest in insuring that the innocent are not punished may be shared by the general public, in addition to the accused himself.
22. In advancing these purposes, the availability of a trial transcript is no substitute for a public presence at the trial itself. As any experienced appellate judge can attest, the "cold" record is a very imperfect reproduction of events that transpire in the courtroom. Indeed, to the extent that publicity serves as a check upon trial officials, "[r]ecordation . . . would be found to operate rather as cloa[k] than chec[k]; as cloa[k] in reality, as chec[k] only in appearance." In re Oliver, 333 U.S. at 271, quoting 1 J. Bentham, Rationale of Judicial Evidence 524 (1827); see id. at 577-578.
23. The presumption of public trials is, of course, not at all incompatible with reasonable restrictions imposed upon courtroom behavior in the interests of decorum. Cf. Illinois v. Allen, 397 U.S. 337 (1970). Thus, when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion upon the huddle. Nor does this opinion intimate that judges are restricted in their ability to conduct conferences in chambers, inasmuch as such conferences are distinct from trial proceedings.
24. For example, national security concerns about confidentiality may sometimes warrant closures during sensitive portions of trial proceedings, such as testimony about state secrets. Cf. United States v. Nixon, 418 U.S. 683, 714-716 (1974).
25. Significantly, closing a trial lacks 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.