| Richmond Newspapers, Inc. v. Virginia
(No. 79-243)
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| Syllabus
| Opinion
[ Burger ] | Concurrence
[ White ] | Concurrence
[ Stevens ] | Concurrence
[ Brennan ] | Concurrence
[ Stewart ] | Concurrence
[ Blackmun ] | Dissent
[ Rehnquist ] |
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Richmond Newspapers, Inc. v. Virginia
APPEAL FROM THE SUPREME COURT OF VIRGINIA
MR. JUSTICE BLACKMUN, concurring in the judgment.
My opinion and vote in partial dissent last Term in Gannett Co. v. DePasquale, 443 U.S. 368, 406 (1979), compels my vote to reverse the judgment of the Supreme Court of Virginia.
I
The decision in this case is gratifying for me for two reasons:
It is gratifying, first, to see the Court now looking to and relying upon legal history in determining the fundamental public character of the criminal trial. Ante at 564-569, 572-574, and n. 9. The partial dissent in Gannett, 443 U.S. at 419-433, took great pains in assembling -- I believe adequately -- the historical material, and in stressing its importance to this area of the law. See also MR. JUSTICE BRENNAN's helpful review set forth as Part II of his opinion in the present case. Ante at 589-593. Although the Court in Gannett gave a modicum of lip service to legal history, 443 U.S. at 386, n. 15, 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.
The Court's return to history is a welcome change in direction.
It is gratifying, second, to see the Court wash away at least some of the graffiti that marred the prevailing opinions in Gannett. No fewer than 12 times in the primary opinion in that case, the Court (albeit in what seems now to have become [p602] clear dicta) observed that its Sixth Amendment closure ruling applied to the trial itself. The author of the first concurring opinion was fully aware of this, and would have restricted the Court's observations and ruling to the suppression hearing. Id. at 394. Nonetheless, he joined the Court's opinion, ibid., with its multiple references to the trial itself; the opinion was not a mere concurrence in the Court's judgment. And MR. JUSTICE REHNQUIST, in his separate concurring opinion, quite understandably observed, as a consequence, that the Court was holding "without qualification," that "‘members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials,'" id. at 403, quoting from the primary opinion, id. at 391. The resulting confusion among commentators [n1] and journalist [n2] was not surprising. [p603]
II
The Court'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 Sixth Amendment right on the part of the public -- or the press -- to an open hearing on a motion to suppress. I, of course, continue to believe that Gannett was in error, both in its interpretation of the Sixth Amendment generally and in its application to the suppression hearing, for I remain convinced that the right to a public trial is to be found where the Constitution explicitly placed it -- in the Sixth Amendment. [n3]
The Court, however, has eschewed the Sixth Amendment route. The plurality turns to other possible constitutional sources, and invokes a veritable potpourri of them -- the Speech Clause of the First Amendment, the Press Clause, the Assembly Clause, the Ninth Amendment, and a cluster of penumbral guarantees recognized in past decisions. This course is troublesome, but it is the route that has been selected, and, at least for now, we must live with it. No purpose would be served by my spelling out at length here the reasons for my saying that the course is troublesome. I need do no more than observe that uncertainty marks the nature -- and strictness -- of the standard of closure the Court adopts. The plurality opinion speaks of "an overriding interest articulated in findings," ante at 581; MR. JUSTICE STEWART reserves, perhaps not inappropriately, "reasonable limitations," ante at 600; MR. JUSTICE BRENNAN presents his separate analytical framework; MR. JUSTICE POWELL, in Gannett, was critical of those Justices who, relying on the Sixth Amendment, concluded [p604] that closure is authorized only when "strictly and inescapably necessary," 443 U.S. at 393-400; and MR. JUSTICE REHNQUIST continues his flat rejection of, among others, the First Amendment avenue.
Having said all this, and with the Sixth Amendment set to one side in this case, I am driven to conclude, as a secondary position, that the First Amendment must provide some measure of protection for public access to the trial. The opinion in partial dissent in Gannett explained that the public has an intense need and a deserved right to know about the administration of justice in general; about the prosecution of local crimes in particular; about the conduct of the judge, the prosecutor, defense counsel, police officers, other public servants, and all the actors in the judicial arena; and about the trial itself. See 443 U.S. at 413, and n. 2, 414, 428-429, 448. See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975). It is clear and obvious to me, on the approach the Court has chosen to take, that, by closing this criminal trial, the trial judge abridged these First Amendment interests of the public.
I also would reverse, and I join the judgment of the Court.
1. See, e.g., Stephenson, Fair Trial-Free Press: Rights in Continuing Conflict, 46 Brooklyn L.Rev. 39, 63 (1979) ("intended reach of the majority opinion is unclear" (footnote omitted)); The Supreme Court, 1978 Term, 93 Harv.L.Rev. 60, 65 (1979) ("widespread uncertainty over what the Court held"); Note, 51 U.Colo.L.Rev. 425, 432-433 (1980) ("Gannett can be interpreted to sanction the closing of trials"; citing "the uncertainty of the language in Gannett," and its "ambiguous sixth amendment holding"); Note, 11 Tex.Tech.L.Rev. 159, 170-171 (1979) ("perhaps much of the present and imminent confusion lies in the Court's own statement of its holding"); Borow & Kruth, Closed Preliminary Hearings, 55 Calif.State Bar J. 18, 23 (1980) ("Despite the public disclaimers . . . , the majority holding appears to embrace the right of access to trials, as well as pretrial hearings"); Goodale, Gannett Means What it Says; But Who Knows What it Says?, Nat.L.J. Oct. 15, 1979, p. 20; see also Keeffe, The Boner Called Gannett, 66 A.B.A.J. 227 (1980).
2. The press -- perhaps the segment of society most profoundly affected by Gannett -- has called the Court's decision "cloudy," Birmingham Post-Herald, Aug. 21, 1979, p. A4; "confused," Chicago Sun-Times, Sept. 20, 1979, p. 56 (cartoon); "incoherent," Baltimore Sun, Sept. 22, 1979, p. A14; "mushy," Washington Post, Aug. 10, 1979, p. A15; and a "muddle," Time, Sept. 17, 1979, p. 82, and Newsweek, Aug. 27, 1979, p. 69.
3. I shall not again seek to demonstrate the errors of analysis in the Court's opinion in Gannett. I note, however, that the very existence of the present case illustrates the utter fallacy of thinking, in this context, that "the public interest is fully protected by the participants in the litigation." Gannett Co. v. DePasquale, 443 U.S. at 384. Cf. id. at 438-439 (opinion in partial dissent).
