First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Conflict between constitutional rights is not uncommon. One difficult conflict 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 publicity1 and during trials that were media spectaculars2 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 preventing press publication of information directly confronts the First Amendment’s bar on prior restraints,3 although the courts have a good deal more discretion in preventing the information from becoming public in the first place.4

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,5 the decision raised questions concerning the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend the trials themselves.6 In a split ruling in Richmond Newspapers v. Virginia, the Court held that the First Amendment protected the right of access to criminal trials against the wishes of the defendant.7

Chief Justice Warren Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices.8 The Chief Justice emphasized the history showing that trials were traditionally open. This openness, moreover, was no “quirk of history” but “an indispensable attribute of an Anglo-American trial.” 9 He explained that 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 at the commission of many crimes, convincingly demonstrated why the tradition had developed and been maintained.10 Thus, the opinion concluded that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” 11 Ultimately, the plurality ruled that “in 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.” 12

Justice William Brennan, joined by Justice Thurgood Marshall, followed a different route to the same conclusion. He argued that rather than solely protecting individual communications, “the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government.” 13 He argued that in order to secure robust public debate and “other civic behavior,” the First Amendment must also ensure that debate is “informed,” protecting not only “communication itself but also . . . the indispensable conditions of meaningful communication.” 14

Two years later, the Supreme Court articulated a standard for determining when the government’s or the defendant’s interests could outweigh the public right of access. Globe Newspaper Co. v. Superior Court15 involved a 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 William Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness16 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 recognized by the Court was not absolute; instead, 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.” 17 The Court was explicit that the right of access was to criminal trials,18 leaving open the question of the openness of civil trials.

The Court next applied and extended the right of access in several other areas of criminal proceedings, 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 I19 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.” 20 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, forty-one of the forty-four days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, for example, in camera consideration of jurors’ requests for protection from publicity. In Waller v. Georgia,21 the Court held that “under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press Enterprise,” 22 and noted that the need for openness at suppression hearings “may be particularly strong” because the conduct of police and prosecutor is often at issue.23 And, in Press Enterprise II,24 the Court held that there is a similar First Amendment right of the public to access 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.” 25 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.26

Footnotes

1

See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961); Rideau v. Louisiana, 373 U.S. 723 (1963).

2

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).

3

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

4

See, e.g., Gentile v. State Bar of Nev., 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).

5

Gannett Co. v. DePasquale, 443 U.S. 368 (1979).

6

DePasquale rested solely on the Sixth Amendment, the Court reserving judgment on whether there is a First Amendment right of public access. 443 U.S. at 392.

7

448 U.S. 555 (1980). The decision was seven-one, with Justice William Rehnquist dissenting, id. at 604, and Justice Lewis Powell not participating. Justice Lewis Powell, however, had taken the view in DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First Amendment did protect access to trials.

8

See Richmond Newspapers v. Virginia, 448 U.S. 555, 582 (1980) (Stevens, J., concurring).

9

448 U.S. at 569 (plurality opinion).

10

Id. at 570–71.

11

Id. at 573.

12

448 U.S. at 564–69. The emphasis on experience and history was repeated by the Chief Justice in his opinion for the Court in Press-Enter. Co. v. Superior Ct., 478 U.S. 1 (1986) (Press-Enterprise II).

13

Id. at 587 (Brennan, J., concurring in the judgment).

14

Id. at 587–88.

15

457 U.S. 596 (1982). Chief Justice Warren Burger, with Justice William 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 John Paul Stevens dissented on the ground of mootness. Id. at 620.

16

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. 457 U.S. at 605 n.13.

17

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.

18

The Court throughout the opinion identifies the right as access to criminal trials, even italicizing the words at one point. Id. at 605.

19

Press-Enter. Co., 464 U.S. 501 (1984).

20

Id. at 510.

21

467 U.S. 39 (1984).

22

DePasquale, 443 U.S. 368 (1979), did not involve assertion by the accused of his Sixth 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.” Id. at 381.

23

467 U.S. at 47.

24

Press-Enter. Co., 478 U.S. 1 (1986).

25

Id. at 14.

26

Id. at 12.