“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the letter de cachet. All of these institutions obviously symbolized a menace to liberty. . . . Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.”39
The Supreme Court has cited many civic and process-related purposes served by open trials: they help to ensure the criminal defendant a fair and accurate adjudication of guilt or innocence; they provide a public demonstration of fairness; they discourage perjury, the misconduct of participants, and decisions based on secret bias or partiality. Open trials educate the public about the criminal justice system, give legitimacy to it, and have the prophylactic effect of enabling the public to see justice done.40 Though the Sixth Amendment expressly grants the accused a right to a public trial,41 the Court has found the right to be so fundamental to the fairness of the adversary system that it is independently protected against state deprivation by the Due Process Clause of the Fourteenth Amendment.42 The First Amendment right of public access to court proceedings also weighs in favor of openness.43
The Court has borrowed from First Amendment cases in protecting the right to a public trial under the Sixth Amendment. Closure of trials or pretrial proceedings over the objection of the accused may be justified only if the state can show “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”44 In Waller v. Georgia,45 the Court held that an accused’s Sixth Amendment rights had been violated by closure of all 7 days of a suppression hearing in order to protect persons whose phone conversations had been taped, when less than 2½ hours of the hearing had been devoted to playing the tapes. The need for openness at suppression hearings “may be particularly strong,” the Court indicated, because the conduct of police and prosecutor is often at issue.46 Relying on Waller and First Amendment precedent, the Court similarly held that an accused’s Sixth Amendment right to a public trial had been violated when a trial court closed jury selection proceedings without having first explored alternatives to closure on its own initiative.47
The Sixth Amendment right to a public trial and the First Amendment right to public access both presume that opening criminal proceedings helps ensure their fairness, but there are circumstances in which an accused might consider openness and its attendant publicity to be unfairly prejudicial. In this regard, the Sixth Amendment right of an accused to a public trial does not carry with it a right to a private trial. Rather, it is the accused’s broader right to a fair trial and the government’s interest in orderly judicial administration that are weighed in the balance against the public’s First Amendment right to access.
The Court has no preset constitutional priorities in resolving these conflicts. Still, certain factors are evident in the Court’s analysis, including whether restrictions on access are complete or partial, permanent or time-limited, or imposed with or without full consideration of alternatives. When the complete closure of the record of a normally open proceeding is sought, the accused faces a formidable burden. Thus, in Press-Enterprise Co. v. Superior Court the Court reversed state closure of a preliminary hearing in a notorious murder trial, a closure signed off on by the defendant, prosecution, and trial judge: “If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made 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.”48 In the earlier decision of Gannett Co. v. DePasquale, by contrast, the Court upheld a temporary denial of public access to the transcript of a hearing to suppress evidence, emphasizing that the Sixth Amendment guarantee to a public trial is primarily a personal right of the defendant, not an embodiment of a common law right to open proceedings in favor of the public,49 and further finding that any First Amendment right to access that might have existed was outweighed by the circumstances of the case.50 Other cases disfavoring open access have involved press coverage that was found to be so inflammatory or disruptive as to undermine the basic integrity, orderliness, and reliability of the trial process.51 Nevertheless, a First Amendment right to public access has found firmer footing over time, and the Court is reluctant to recognize any per se rules to wall off criminal proceedings, preferring instead that any restrictions be premised on particularized findings by the trial judge and an exploration of less restrictive options.52
- In re Oliver, 333 U.S. 257, 268–70 (1948) (citations omitted). Other panegyrics to the value of openness, accompanied with much historical detail, are Gannett Co. v. DePasquale, 443 U.S. 368, 406, 411–33 (1979) (Justice Blackmun concurring in part and dissenting in part); Richmond Newspapers v. Virginia, 448 U.S. 555, 564–73 (1980) (plurality opinion of Chief Justice Burger); id. at 589–97 (Justice Brennan concurring); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603–07 (1982).
- Richmond Newspapers v. Virginia, 448 U.S. 555, 569–73 (1980) (plurality opinion of Chief Justice Burger); id. at 593–97 (Justice Brennan concurring).
- Estes v. Texas, 381 U.S. 532, 538–39 (1965).
- In re Oliver, 333 U.S. 257 (1948); Levine v. United States, 362 U.S. 610 (1960). Both cases were contempt proceedings which were not then “criminal prosecutions” to which the Sixth Amendment applied (for the modern rule see Bloom v. Illinois, 391 U.S. 194 (1968)), so that the cases were wholly due process holdings. Cf. Richmond Newspapers v. Virginia, 448 U.S. 555, 591 n.16 (1980) (Justice Brennan concurring).
- The Court found a qualified First Amendment right for the public to attend criminal trials in Richmond Newspapers v. Virginia. 448 U.S. 555 (1980) (opinion of Chief Justice Burger); id. at 582 (Justice Stevens concurring); id. at 584 (Justice Brennan concurring); id. at 598 (Justice Stewart concurring); id. at 601 (Justice Blackmun concurring). See First Amendment, “Government and the Conduct of Trials,” supra.
- Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I).
- 467 U.S. 39 (1984).
- Waller v. Georgia, 467 U.S. 39, 47 (1984) (indicating that the Press-Enterprise I standard governs such 6th Amendment cases).
- Presley v. Georgia, 558 U.S. ___, No. 09–5270, slip op. (2010) (per curiam).
- Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (Press-Enterprise II).
- See Estes v. Texas, 381 U.S. 532, 538–39 (1965).
- 443 U.S. 368 (1979). Cf. Nixon v. Warner Communications, 435 U.S. 589, 610 (1978).
- Estes v. Texas, 381 U.S. 532 (1965); see also Sheppard v. Maxwell, 384 U.S. 333 (1966). Compare Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (prior restraint on pretrial publicity held unconstitutional). Estes found that live television coverage of criminal trials was an inherent violation of due process, requiring no specific showing of actual prejudice. This holding was overturned in Chandler v. Florida. 449 U.S. 560 (1981)
- Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Chandler v. Florida, 449 U.S. 560 (1981); Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).