CRS Annotated Constitution

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Government and the Conduct of Trials.—Conflict between constitutionally protected rights is not uncommon. One of the most difficult to resolve is the conflict between a criminal defendant’s Fifth and Sixth Amendment rights to a fair trial and the First Amendment’s protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pre–trial publicity191 and during trials that were media “spectaculars”192 have been reversed, but the prevention of such occurrences is of paramount importance to the governmental and public interest in the finality of criminal trials and the successful prosecution of criminals. However, the imposition of “gag orders” on press publication of information directly confronts the First Amendment bar on prior restraints,193 although the courts have a good deal more discretion in preventing the information from becoming public in the first place.194 Perhaps the most profound debate that has arisen in recent years concerns the right of access of the public and the press to trial and pre–trial proceedings, and in those cases the Court has enunciated several important theorems of First Amendment interpretation.

When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pre–trial suppression hearings,195 a major debate flowered that implicated all the various strands of the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend trials.196 The right of access to criminal trials against the wishes of the defendant was held protected in Richmond Newspapers v. Virginia,197 but the Justices could not agree upon a majority rationale that would permit principled application of the holding to other areas in which access is sought.


Chief Justice Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices (and one of them in a separate concurrence drew conclusions probably going beyond the Chief Justice’s opinion).198 Basic to the Chief Justice’s view was an historical treatment which demonstrated that trials were traditionally open. This openness, moreover, was no “quirk of history” but “an indispensable attribute of an Anglo–American trial.” This characteristic flowed from the public interest in seeing fairness and proper conduct in the administration of criminal trials; the “therapeutic value” to the public of seeing its criminal laws in operation, purging the society of the outrage felt with the commission of many crimes, convincingly demonstrated why the tradition developed and was maintained. Thus, “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” The presumption has more than custom to command it. “[I]n the context of trials . . . the First Amendment 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 that amendment was adopted.”199

Justice Brennan, joined by Justice Marshall, followed a significantly different route to the same conclusion. In his view, “the First Amendment . . . has a structural role to play in securing and fostering our republican system of self–government.” It preserves and protects meaningful control over government through public discussion of its operation, and government therefore is compelled to see to the availability of information that people need to engage in that meaningful discussion. Thus, there is in fact a right of access that arises in the context of situations implicating self–government, including, but not limited to, trials.200

The trial court in Richmond Newspapers had made no findings of necessity for closure, and neither Chief Justice Burger nor Justice Brennan found the need to articulate a standard for determining when the government’s or the defendant’s interests could outweigh the public right of access. That standard was developed two years later. Globe Newspaper Co. v. Superior Court201 involved a[p.1107]statute, unique to one State, that mandated the exclusion of the public and the press from trials during the testimony of a sex–crime victim under the age of 18. For the Court, Justice Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness202 and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the factfinding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. The right is not absolute, but in order to close all or part of a trial government must show that “the denial is necessitated by a compelling governmental interest, and [that it] is narrowly tailored to serve that interest.”203 The Court was explicit that the right of access was to criminal trials,204 so that the question of the openness of civil trials remains.

The Court next applied and extended the right of access in several other areas, striking down state efforts to exclude the public from voir dire proceedings, from a suppression hearing, and from a preliminary hearing. The Court determined in Press–Enterprise I205 that historically voir dire had been open to the public, and that “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”206 No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, 41 of the 44 days of voir dire in a rape–murder case. The trial court also had not considered the possibility of less restrictive alternatives, e.g. in camera consideration of jurors’ requests for protection from publicity. In Waller v. Georgia,207 the Court held that “under the Sixth Amendment, any clo[p.1108]sure of a suppression hearing over the objections of the accused208 must meet the tests set out in Press Enterprise,” and noted that the need for openness at suppression hearings “may be particularly strong” due to the fact that the conduct of police and prosecutor is often at issue.209 And in Press Enterprise II,210 the Court held that there is a similar First Amendment right of the public to access to most criminal proceedings (here a preliminary hearing) even when the accused requests that the proceedings be closed. Thus, an accused’s Sixth Amendment–based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be “specific findings . . . demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.”211 Openness of preliminary hearings was deemed important because, under California law, the hearings can be “the final and most important step in the criminal proceeding” and therefore may be “‘the sole occasion for public observation of the criminal justice system,”’ and also because the safeguard of a jury is unavailable at preliminary hearings.212


191 Irvin v. Dowd, 366 U.S. 717 (1961) ; Rideau v. Louisiana, 373 U.S. 723 (1963) .
192 Sheppard v. Maxwell, 384 U.S. 333 (1966) ; compare Estes v. Texas, 381 U.S. 532 (1965) , with Chandler v. Florida, 449 U.S. 560 (1981) .
193 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) .
194 See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (disciplinary rules restricting extrajudicial comments by attorneys are void for vagueness, but such attorney speech may be regulated if it creates a “substantial likelihood of material prejudice” to the trial of a client); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (press, as party to action, restrained from publishing information obtained through discovery).
195 Gannett Co. v. DePasquale, 443 U.S. 368 (1979) .
196 DePasquale rested solely on the Sixth Amendment, the Court reserving judgment on whether there is a First Amendment right of public access. 443U.S. at 392 443U.S. at 392.
197 448 U.S. 555 (1980) . The decision was 7–to–1, Justice Rehnquist dissenting, id. at 604, and Justice Powell not participating. Justice Powell, however, had taken the view in Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First Amendment did protect access to trials.
198 See Richmond Newspapers v. Virginia, 448 U.S. 555, 582 (1980) (Justice Stevens concurring).
199 Id. at 564–69. The emphasis on experience and history was repeated by the Chief Justice in his opinion for the Court in Press– Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press–Enterprise II).
200 Id. at 585–93.
201 457 U.S. 596 (1982) . Joining Justice Brennan’s opinion of the Court were Justices White, Marshall, Blackmun, and Powell. Justice O’Connor concurred in the judgment. Chief Justice Burger, with Justice Rehnquist, dissented, arguing that the tradition of openness that underlay Richmond Newspapers, was absent with respect to sex crimes and youthful victims and that Richmond Newspapers was unjustifiably extended. Id. at 612. Justice Stevens dissented on mootness grounds. Id. at 620.
202 That there was no tradition of openness with respect to the testimony of minor victims of sex crimes was irrelevant, the Court argued. As a general matter, all criminal trials have been open. The presumption of openness thus attaches to all criminal trials and to close any particular kind or part of one because of a particular reason requires justification on the basis of the governmental interest asserted. Id. at 605 n.13.
203 Id. at 606–07. Protecting the well–being of minor victims was a compelling interest, the Court held, and might justify exclusion in specific cases, but it did not justify a mandatory closure rule. The other asserted interest, encouraging minors to come forward and report sex crimes, was not well served by the statute.
204 The Court throughout the opinion identifies the right as access to criminal trials, even italicizing the word at one point. Id. at 605.
205 Press–Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) .
206 464U.S. at 510 464U.S. at 510.
207 467 U.S. 39 (1984) .
208 Gannett Co. v. DePasquale, supra n., did not involve assertion by the accused of his 6th Amendment right to a public trial; instead, the accused in that case had requested closure. “[T]he constitutional guarantee of a public trial is for the benefit of the defendant.” DePasquale, 443U.S. at 381 443U.S. at 381.
209 467U.S. at 47 467U.S. at 47.
210 Press–Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) .
211 Id. at 14.
212 Id. at 12.
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