Amicus Brief — Richmond Newspapers, Inc. v. Virginia

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IN THE ILED |}

Supreme Court of the United 8 1979

No. 79-243 L Mician ROBAK, JR., ELERK

“

RICHMOND NEWSPAPERS, INC., TIMOTHY B. WHEELER, AND

KEVIN MCCARTHY,

Appellants,

COMMONWEALTH OF VIRGINIA,

Appellee.

RICHMOND NEWSPAPERS, INC., TIMOTHY B. WHEELER, AND

KEVIN MCCARTHY,

Appellants,

Vv.

RICHARD H. C. TAYLOR,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE

COMMONWEALTH OF VIRGINIA

BRIEF AMICI CURIAE OF AMERICAN

NEWSPAPER PUBLISHERS ASSOCIATION

AND

AMERICAN SOCIETY OF NEWSPAPER EDITORS

IN SUPPORT OF JURISDICTIONAL STATEMENT

RICHARD M. SCHMIDT, JR. ARTHUR B. HANSON

COHN AND MARKS FRANK M. NORTHAM

1333 New Hampshire Ave., N.W. +MITCHELL W. DALE

Suite 600 ARTHUR D. MCKEY

Washington, D.C. 20036

Attorney for Amicus Curiae HANSON, O’BRIEN, BIRNEY &

American Society of BUTLER

Newspaper Editors 888 Seventeenth Street, N.W.

Suite 1000

Washington, D.C. 20006

Attorneys for Amicus curiae

American Newspaper

Publisher Association

INDEX

PRELIMINARY STATEMENT................0..000000000000. 2

INTEREST OF THE AMICUS ANPA.........00.0000000.0..... 2

INTEREST OF THE AMICUS ASNE ......000.00000000000.... 4

STATEMENT OF THE CASE AND CONSTI-

TUTIONAL PROVISIONS INVOLVED ................. 4

BUMIMEAR YT GP PI URRIIINE 0. .c.ccs.ccccseccessccsccesc000+....., 5

Fr ate ie L5G Ny SE Ra ew 13

I. A Conditional Right Of Access To Judicial

Proceedings Lies In The First, Sixth And

Fourteenth Amendments Of The Unite?

UO RII sa oscccide nsec cvssuecccvccscssescesss 15

II. The Immemorial Tradition Of Open Judicial

Proceedings Is A Fundamental Right Re-

tained By The People Under The Ninth

p RRS ee EEE Ser ag eae SCO Ec nSE a 22

III. The Constitutional Rights Of The Public To

Attend Judicial Proceedings Cannot Be De-

nied Absent A Clear And Present Danger

To A Defendant’s Right To A Fair Trial And

A Clear Showing That Less Intrusive Mea-

sures Will Be Ineffective In Protecting The

IE IO 5 oats cdccsocccesaccscenssscecvesssacase: 28

CI oe nee ee ee a ee 34

APPENDIX A: American Bar Association Standards

Relating To The Administration Of Criminal Justice

TABLE OF CITATIONS

CASES:

Barker v. Wingo, 407 U.S. 24 (1965) ........0.00000000...

Boyd v. United States, 116 U.S. 616 (1886) ..............

Branzburg v. Hayes, 408 U.S. 665 (1972) ................

Cantwell v. Connecticut, 310 U.S. 296 (1940) ..........

Carroll v. President and Commissioners of Prin-

cess Anne, 393 U.S. 175 (1968) ........0...cccceeeeee.

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(2: ) En ae lasnaios H EW Lather ety ety

Craig v. Harney, 331 U.S. 367 (1947) ........00.

Estes v. Texas, 381 U.S. 532 (1965) .............0000.0008.

Faretta v. California, 422 U.S. 806 (1975)...............

Gannett v. DePasquale, ____U.S.____, 61 L.Ed.2d

Oe CE onic sestswsokesiocivacenn apace ataeeeeee

Gooding v. Wilson, 405 U.S. 518 (1978) .......0.0000000...

Griswold v. Connecticut, 381 U.S. 367 (1947)..........

Grosjean v. American Press Co., 297 U.S. 233

CII sei ccc daecisnjnnsessssnaksscecenssetiiaeaaenaae ames

CTD ain csisncncsocscnvvnssscovusccsensoaseneeeeeaieee

Houchins v. KQED, Inc., 488 U.S. 1 (1978) .............

Hutchinson v. Proxmire, ___U.S.___.,, 99 S.Ct.

yee S| | CREE re Mant ey. IS Be

In Re Oliver, 333 U.S. 257 (1948) ........0..0.000cee

In Re Shortridge, 34 Pac. 227 (1898) ...........00000000....

In Re Winship, 397 U.S. 358 (1970) ....000.000cee.

2,17

16,17,31

passim

16,19,20,

5,13,14

17,22,27

iil

Kleindienst v. Mandel, 408 U.S. 753 (1972)............. 16

Lamont v. Postmaster General, 381 U.S. 301

css sh cau yucsoajatiatnsensesivesevinnays 21

Landmark Communications, Inc. v. Virginia, 435

i apaindacuncsdnivorenteineieanniavers 3,17,22

Linmark Associates, Inc. v. Township of Willing-

ee STs | a ee 15,16

Mills v. Alabama, 384 U.S. 214 (1966)......00000000000.... 2

Murphy v. Florida, 421 U.S. 794 (1975) ......00000000..... 32

NAACP v. Alabama, 357 U.S. 449 (1958)... 20

Nebraska Press Association v. Stuart, 427 US.

RSF ALE 6 Secs chdtansagideevssvsiedsaicaseancdcns' 3,17,29,

30,32,33,

Nebraska Press Association v. Stuart, 423 USS.

1327 (1975) (Blackmun, Circuit Justice, mem.) 32

New York Times Co. v. Sullivan, 376 U.S. 254

aa cde Lceasapanaiohanaioed tine 2,16

Oklahoma Pub. Co. v. District Court of Oklahoma

ee Ae | ey } a 3,17

Pell v. Procunier, 417 U.S. 817 (1974) «000.000 16

Procunier v. Martinez, 416 U.S. 396 (1974) ............ 15

ee eR | ye 34

Sheppard v. Maxwell, 384 U.S. 333 (1966) ............... 17

Singer v. United States, 380 U.S. 24 (1965) ............. 31

Smith v. State, ex rel. Daily Mail Publishing Co., et

"ae | 99 S.Ct. 2667 (1979)... 3,30

Stanley v. Georgia, 394 U.S. 557 (1969)... 16

State v. Capp, 15 N.H. 212 (1844).........0.0000000. 28

Thomas v. Collins, 323 U.S. 516 (1945) o.oo. 15,16

Virginia Pharmacy Bd. v. Virginia Consumer

CeeGe, GE Ue. CU CITED ovccnicicsesssccssssncsesenscennas

Wolston v. Reader’s Digest, ___U.S.___., 99 S.Ct.

ES RSS EE ne Geran

OTHER AUTHORITIES:

E. COKE, INSTITUTES OF THE LAW OF ENGLAND,

I Iai fac isl cones chs saaiiapenhjpeptinsscsches

CooLEYy, A TREATISE ON THE CONSTITUTIONAL

LIMITATIONS WHICH REST UPON THE J.EGISLA-

TIVE POWERS OF THE STATES OF THE AMERICAN

Es, CIPI PO Bi iiceccdivnnviadcs Hecsacssebevnesceonsene

2 COOLEY, CONSTITUTIONAL LIMITATIONS (Cov-

SR RA eee Mtoe | ee

H. Cross, THE PEOPLE’S RIGHT TO KNOW, LEGAL

ACCESS TO PUBLIC RECORDS AND PROCEEDINGS

a ee cliche La wales Mea ucebcavhieiataeeteacrasesaly

A. FRIENDLY & R. GOLDFARB, CRIME AND PUBLI-

5 ia SER ihe Cee erate ey oneriran een

F. HELLER, THE SIXTH AMENDMENT TO THE

UNITED STATES: A STUDY IN CONSTITUTIONAL

BOWIE CRUMB D y soccsveicesesicciccsccsccvscscdeiseessncees.

THORPE, AMERICAN CHARTERS, CONSTITUTIONS

AND ORGANIC LAWS, 1492-1908. ...........0....0..000...

II StorRY, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES (5th ed. 1891).................

III Story, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES PPM Svisccsievevsndverseese:

6 WIGMORE, EVIDENCE (J. Chadborn rev. ed.

as cle Decl lt opel A ON butugs oa Tolacabed igh

I ih crip aan ge claadaanatlcasendtbisshncsseictancbavarepancts

Emerson, Legal Foundations of the Right to

Know, 1976 WasH. L. SORE RPS RESINS ia are rercnn

Note, The Right to Attend Criminal Hearings, 78

CoLum. L. Rev. 1908 (1978).......................0..........

Note, The Constitutional Right to Know, 4 HAST-

ote me De cy } ree

Note, 31 N.Y.U. L. REV. 611 (1965)...

15,16

6,7,8

18,20

ABA TASK FORCE ON FAIR TRIAL AND FREE

PRESS, STANDARDS RELATING TO FAIR TRIAL

Ba We Ie ii ck ele

ANPA SPECIAL COMMITTEE ON FREE PRESS AND

FAIR TRIAL, REPORT OF THE AMERICAN NEWS-

PAPER PUBLISHERS ASSOCIATION ON FREE

i, oY BS bt A ei meee Gaeeere

Inscription from the Tomb of Rekhmire, Vizer to

Tutmosis III, King of Egypt, XVIII Dynasty

(1580-1321 B.C. Ossi: ovcccunts courted Magee

12,14,29

11,12

IN THE

Supreme Court of the United States

No. 79-243

RICHMOND NEWSPAPERS, INC., TIMOTHY B. WHEELER,

AND KEVIN MCCARTHY,

Appellants,

Vis

COMMONWEALTH OF VIRGINIA,

Appellee.

RICHMOND NEWSPAPERS, INC., TIMOTHY B. WHEELER,

AND KEVIN MCCARTHY,

Appellants,

RICHARD. H. C. TAYLOR,

Appellee.

BRIEF AMICI CURIAE OF AMERICAN

NEWSPAPER PUBLISHERS ASSOCIATION

AND

AMERICAN SOCIETY OF NEWSPAPER EDITORS

IN SUPPORT OF JURISDICTIONAL STATEMENT

PRELIMINARY STATEMENT

The American Newspaper Publishers Association

(hereinafter “ANPA’”) and the American Society of

Newspaper Editors (hereinafter “ASNE”’) submit this

brief amici curiae in support of Appellants Richmond

Newspapers, Inc., et al. All parties to this suit have given

ANPA and ASNE written consent to the filing of this

brief. Copies of such consents have been filed with the

Clerk of this Court.

INTEREST OF THE AMICUS ANPA

The ANPA is a non-profit membership corporation

organized under the laws of the Commonwealth of Vir-

ginia. Its membership consists of more than 1,340 news-

papers constituting over 90 percent of the total daily and

Sunday newspaper circulation, and a substantial portion

of the weekly newspaper circulation, in the United States.

ANPA continually seeks to help maintain our

“profound national commitment to 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). “The newspapers, magaznes and other

journals of the country...shed more light on the public

and business affairs of the nation than any other in-

strumentality of publicity...” Grosjean v. American Press

Co., 297 U.S. 233, 250 (1935), and “[t]he Constitution

specifically selected the press. ..to play [this] important

role in the discussion of public affairs.” Mills v. Alabama,

384 U.S. 214, 219 (1966). For “in a society in which each

individual has but limited time and resources with which

to observe at first hand the operations of his government,

he relies necessarily upon the press to bring him in

convenient form the facts of those operations.” Cox Broad -

casting Corp. v. Cohn, 420 U.S. 469, 491 (1975).

In their efforts to preserve an untrammeled press

under our republican form of democracy as a primary

source in our society of newsworthy information and

comment, your amici ANPA and ASNE have in the recent

past addressed this court in other important cases in-

ANolving the right of the press to present for public debate

information concerning the operations of our judicial

system and other activities of government. Some of these

‘are:

Nebraska Press Association v. Stuart, 427 U.S. 539

(1976).

Oklahoma Pub. Co. v. District Court of Oklahoma Coun-

ty, 430 U.S. 308 (1977).

Landmark Communications, Inc. v. Virginia, 485 U.S.

829 (1978).

Herbert v. Lando, —__U.S.___, 60 L.Ed.2d 115

(1979).

Smith v. State, ex rel. Daily Mail Publishing Co., et al.

___U.S.___., 99 S.Ct. 2667 (1979).

Gannett v. DePasquale, ___U.S.____., 61 L.Ed.2d 608

(1979).

ASNE only:

Hutchinson v. Proxmire, US.__, 99 S.Ct. 2675

(1979).

Wolston v. Reader’s Digest, US. , 99S.Ct. 2701

(1979).

In light of the constitutionally prescribed role of our

free press in presenting for public debate matters of

official concern, and the fact that “[t]he operations of the

courts and the conduct of judges are matters of utmost

public concern,” Landmark Communications, Inc. v. Vir-

ginia, 485 U.S. 829 (1978) your amici are alarmed that a

senior state court has determined that this Court’s holding

in DePasquale, supra, has led to a conclusion that criminal

trials can be held in secret. Your amici strongly dispute

the Supreme Court of Virginia’s resolution of the eon-

stitutional values involved. Read at best, the majority

opinion in DePasquale, supra, must be regarded, as Chief

Justice Burger regarded it, as stating that it applied only

to the pretrial conditions availing in that case. DePas-

quale, supra, does not extend the Court’s teaching to trials.

The Supreme Court of Virginia’s reliance on the case for

that teaching is clearly erroneous and, should it be per-

mitted to stand, would lead federal and state trial courts

to routinely disregard their judicial responsibility to

safeguard the constitutional rights of the citizenry under

the First, Sixth, Ninth and Fourteenth Amendments.

INTEREST OF THE AMICUS ASNE

The ASNE is a nationwide, professional organization

of more than 800 persons who hold positions as directing

editors of daily newspapers throughout the United States.

The purposes of the Society, which was founded over fifty

years ago, include the maintenance of the “the dignity

and rights of the profession” (ASNE Constitution, Pre-

amble) and the ongoing responsibility to improve the

manner in which the journalism profession carries out its

responsibilities in providing an unfettered and effective

press in the service of the American people. The ASNE

adopts the legal principles in ANPA’s opening statement.

STATEMENT OF THE CASE AND CONSTITUTIONAL

PROVISIONS INVOLVED

Your amici adopt the statement of the case as set

forth in the Jurisdictional Statement filed by Richmond

Newspapers, Inc. Your amici submit, however, that in

addition to the constitutional provisions of the First, Sixth

and Fourteenth Amendments, cited by Appellants herein,

this case involves the Ninth Amendment, which provides:

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or dis-

parage others retained by the people.

SUMMARY OF ARGUMENT

PREAMBLE

This court is here offered the rare opportunity of an

early review of the drastic effects brought about by its

decision rendered on the last decision day of term, July 2,

1979.1

We would urge upon the Court that in light of the fact

that as of August 23rd 1979 there have been more than

fifty closures of judicial proceedings in the form of pre-

trials, trials or sentencings, that the Court should

summarily reverse the Supreme Court of Virginia’s re-

liance on Gannett v. DePasquale, supra. This would be in

keeping with the views of the minority in that case and in

keeping with the views of Justice Stevens, joined by

Justices Brennan and Powell in dissent in Houchins v.

KQED, Inc. 438 U.S.1 (1978), where Justice Stevens said:

“By express command of the Sixth Amendment the pro-

ceeding must be a ‘public trial.’ It is important not only

that the trial itself be fair, but also that the community at

large have confidence in the integrity of the proceeding.”

Id. at 36-37.

Not only should this Court summarily reverse the

Supreme Court of Virginia but we most respectfully urge

the Court to review its holding in DePasquale, supra. We

1 This Court is still in session. For the first time in history

the Chief Justice did not adjourn until the next term.

would hope to persuade the Court that in our Republic no

judicial proceeding should ever be closed to the public and

concurrently to the press except in the rarest of cases and

then under guidelines spelled out by this Court.

The very fabric of our Republic hangs on the imme-

morial right of judicial proceedings being open to the

public. Where did this principle originate? As in all

efforts to achieve an understanding of evolving social

concepts, we turn to history.

Mankind has sought since earliest recorded times to

cast the light of publicity on the functioning of its

governmental bodies irrespective of whether it related to

a legislative, executive or judicial branch of government,

in whatever form. The first reference to this social

phenomenon found by your amici, dating back to the

fifteenth century B.C., is:

Lo, whenever an administrator hears cases let

there be publicity and let water and air report all

that he may do. Lo, then his conduct is by no

means unperceived. If he does anything (un-

seemly) and he is to blame he is not to be

reinstalled on the authority of an acting official

but men shall learn of it on the authority of his

(proper) judge. . .2

Turning to our own legal heritage, the following from

H. Cross, THE PEOPLE’S RIGHT To KNow, (1953) accura-

tely reflects our Common Law history:

I have something to say to the court about the first

fundamental liberty of an Englishman in order to

his trial; which is that by the laws of this land all

courts of justice ought to be free and open for all

sorts of peaceable people to see, behold, and hear,

2 From the tomb of Rekhmire, Vizer to Tuthmosis III, King

of Egypt, XVIII dynasty (1580-1321 B.C.).

and have free access unto...and yet, Sir, as I came

in, I found the gates shut and guarded, which is

contrary to law and justice.

Thus, in 1649, charged with high treason, spoke

John Lilburne. Such was the law of England, and

his request was granted. While he was the first to

“make the news” in a reported case, the practice

of having trials open to the public was already of

long standing in the common law.

Both Hale and Blackstone state that evi-

dence is presented in open court in the presence

of all bystanders. “Bishop, in his work on the

criminal law, asserts that ‘from immemorial us-

age wherever the common law prevails, all trials

are in open court to which spectators are admit-

ted.” The origin of the practice is more obscure

than evidence of its ancient existence. Yet origin

may have some bearing on the question whether

the right belongs to the accused alone (in which

event he might waive it and thus, with the

prosecution’s acquiescence, close the trial) or

whether it may be claimed in behalf of the public

by a representative thereof.

The United States Supreme Court has said

that the traditiona! Anglo-Saxon distrust of

secret trials has been variously ascribed to the

notorious use thereof by the Spanish Inquisition,

to the excesses of the English Court of Star

Chamber, and to the French Monarchy’s abuse of

the lettre de cachet. Inquisition, Star Chamber,

and lettre de cachet symbolized a menace to

liberty; each had become an instrument for the

suppression of political and religious heresies in

ruthless disregard of the right of the accused to a

fair trial.

Despite the modern usage of the term “Star

Chamber” to designate secret legislative, judi-

cial, or official proceedings, it seems likely that in

actual fact in many, if not most, instances the

trials in the English tribunal of that name were

conducted in public, and that its unpopularity

was due, not to secrecy but to use of torture in

obtaining confessions, to fines and penalties

which were so excessive as to be in reality

oppressive royal revenue measures, and to

frequent disregard of the ordinary rules of law.

News had been printed in England for only some

eighteen years when Star Chamber was abol-

ished by the Long Parliament. The rather wide-

spread public knowledge of Star Chamber pro-

ceedings indicates that people were attending

its sessions.

But whatever its origin the common law

concept of a public trial had come to be regarded

(at the time of the adoption of the Sixth

Amendment) as an essential guarantee against

attempts to employ the courts as instruments of

persecution. The knowledge that every criminal

trial was subject to contemporaneous review in

the forum of public opinion was regarded as an

effective restraint on possible abuse of judicial

power. It was also thought that if trials were

public important witnesses unknown to the

parties might thus be informed of developments

and voluntarily come forward to testify, and

spectators might learn enough about the admin-

istration of the law to acquire confidence in

seeking judicial remedies for their own real or

fancied wrongs.?

3H. Cross, THE PEOPLE’S RIGHT To KNow, LEGAL ACCESS TO

PUBLIC RECORDS AND PROCEEDINGS, (1953).

We would remind the Court that nowhere in the world

are people free without a free press and a free judiciary,

each able to operate under rules of law guiding both. The

history of Nazi Germany reminds us that the first right of

the Weimar Republic’s people which Hitler destroyed was

that of press freedom. And, shortly after the destruction

of a free press in Germany, that Republic’s independent

judicial system also was subverted and destroyed by

appointment of Hilter supporters to the bench.

Who can forget the demise of La Prensa and the free

press of Argentina concurrent with the rise of Juan

Peron? And, again in that Republic, the subsequent de-

struction of the judicial system left protest impossible.

Our memories would be short indeed, if we did not

sadly note how India, once looked upon as a progressing

Asian democracy, first censored and gagged its press and

then cowed its judiciary into upholding the government

excesses perpetrated by Indira Ghandi.

In today’s lexicon who can forget the destruction of

the prosecutorial and judicial branches of the Chinese

government in 1964 and 1965? What free judiciary and

free press do you believe exist in Cambodia and Viet Nam

today?

It can be truly said that absent the “Fourth Estate”

the Executive Branch of Government, in the form of

dictatorship of whatever kind, inevitably overwhelms both

the judicial and legislative branches in whatever form

they may be created in a given country.

Stated another way, without the public’s free partici-

pation with full knowledge, the governing process be-

comes one of invariable dictatorship and oppression.

Under our republican form of democracy our fore-

bearers created the First Amendment to provide for our

people a means to assist them in casting light and publi-

city on all branches of government. As a result, our

country has become the envy of the world as being a

country of true freedom of expression.

Now to the problem at hand as it derives from our

United States’ constitutional experience.

Your amici summarize their argumenc as follows:

The Commonwealth of Virginia adopted protection of

the right of free speech and press well before the adoption

of same in the Constitution of the United States. This

protection sounded in the struggle during Colonial times

which eventuated in the Revolutionary War and brought

about a realization on the part of the revolutionary states-

men such as Jefferson, Madison, Bushrod Washington,

Adams, Hancock, Mason and others, that contrary to the

unwritten Constitution of the Mother Country, in order to

ensure the rights of the people of the aborning country,

some basic philosophies would have to be placed in specific

language in a written constitution for all under a republi-

can form of «temocracy. In reaching these conclusions, it is

clear fron: the early writings that one right upon which

there existed no doubt was that, in the tradition of

England, open trials went back to the Middle Ages. At one

time they were the primary social event of villages and

towns in England, Scotland, Wales and Ireland. It is clear

that there was never any doubt in the minds of our

constitutional forebearers that the right of open trial was

a right so clearly preserved to the people that it need not

be spelled out in the Constitution; as will be shown later, it

was one of those immemorial basic rights which are

guaranteed under the Ninth Amendment. The rights of

free press, speech, religion, freedom of assembly and the

right to petition were considered necessary to be pre-

served in writing in light of the conflict in the British

Parliament which continued up to 1855.4

It should be noted that the states refused to adopt the

Constitution unless a Bill of Rights was adopted. It is

interesting to note that James Madison’s proposals in the

House of Representatives in the First Congress of the

United States under our present form of government,

used the language “the powers not delegated by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively.” This was part of

Proposal Seventh as the proposal went from Madison to

the House Committee. The House Committee, charged

with draftsmanship, proposed Proposal Ninth which read,

“the powers not delegated by the Constitution, nor pro-

hibited by it to the States, are reserved to the States

respectively.” Then the House, reviewing these proposals

from Madison and the Committee, and after full debate,

sent to the Senate Article XV which read, “the enumera-

tion in the Constitution of certain rights, shall not be

construed to deny or disparage others, retained by the

people.” In doing so, it recognized the immemorial rights

of the people.

When the Senate of the United States sent twelve

proposed amendments to the people for ratification, Ar-

ticle the Eleventh read, “the enumeration in the Con-

stitution of certain rights shall not be construed to deny or

disparage others retained by the people.” It also is inter-

esting to note that the House of Representatives sent to

the Senate an Article XIV: “no state shall infringe the

right of trial by jury in criminal cases, nor the right of

conscience, nor freedom of speech, or of the press.”” When

these proposals were sent from the Senate to the states,

freedom of religion, speech and press, the right of the

4 Appendix “A” to Report of American Newspaper Pub-

lishers Association on Free Press and Fair Trial, page 18.

people to peaceably assemble and to petition the govern-

ment for a redress of grievances were placed in Article the

Third and the right of an accused to enjoy a speedy and

public trial was placed under Article the Eighth. Since the

people refused to ratify Article the First and Article the

Second, Article the Third became the First Amendment

and Article the Eighth became the Sixth Amendment.5

The foregoing clearly illustrates that the First Con-

gress recognized fully the difference between immemorial

rights reserved to the people, such as the right to attend

open trials, as contrasted to those rights which because of

their recent historical experience the constitutional draft-

ers felt must be spelled out.

In concluding this summary of argument your amici

most respectfully call to the Court’s attention the Ameri-

can Bar Association Standards Relating To The Adminis-

tration Of Criminal Justice, second edition tentative draft

Fair Trial and Free Press, adopted by the House of

Delegates of the American Bar Association without dis-

sent on August the Ninth, 1978, and specifically call the

Court’s attention to Standard 8-3.2, “Pretrial proceed-

ings: exclusion of public and sealing of records.” This

Standard was adopted after eleven years of study and

controversy caused by the Reardon Report which had been

adopted by the American Bar Association in 1967. The

predecessor to Standard 8-3.2 had caused great confusion

in the courts of the country, just as the decision in

DePasquale, supra, already has caused similar confusion in

courts throughout the country. It is particularly notable

5 Appendix “A” to Report of American Newspaper Pub-

lishers Association on Free Press and Fair Trial.

that in the Commentary accompanying this Standard this

language follows: “Although this standard deals only with

pretrial proceedings, the general principle extends to

every phase of judicial proceedings in a criminal case.”

ARGUMENT

In the instant case, the Supreme Court of Virginia

summarily dismissed appellants’ petitions for writ of

mandamus and writ of prohibition and refused appellants’

petition for appeal, without opinion, merely citing this

Court’s recent decision in Gannett Co., Inc. v. DePasquale,

supra. In so doing the Supreme Court of Virginia sanc-

tioned the closing of entire criminal trials. Yet, despite

the confusion which has been caused by the majority

opinion in DePasquale, it is clear that at least seven

members of this Court are of the opinion that criminal

trials must be public in the absence of extraordinary

circumstances mandating the imposition of reasonable

restrictions to safequard the rights of the defendant and

the public alike.

Justices Blackmun, Brennan, White and Marshall,

dissenting in DePasquale, stated that no part of any

criminal proceedings should be closed “‘unless a defendant

carries his burden to demonstrate a strict and inescapable

necessity for closure.” Jd. at 661. Chief Justice Burger filed

a separate concurring opinion in DePasquale to emphasize

his view that the majority opinion was applicable only to

pretrial proceedings. Finally, although Justices Stevens

and Powell joined the majority opinion in DePasquale,

both had unequivocally stated that the Sixth Amendment

prohibits closed trials, as recently as the last term. Justice

Stevens, joined in dissent by Justices Brennan and Powell

in Houchins v. KQED, Inc., supra, wrote:

[A] trial...must conform to the dictates of the

Constitution. By express command of the Sixth

Amendment the proceeding must be a “public

trial.” It is important not only that the trial

itself be fair, but also that the community at

large have confidetice in the integrity of the

proceeding.

Id. at 36-37 (footnotes cznitted).

Given the stated positions of these seven members of

the Court, it is inconceivable that they would permit to

stand the closing of an entire criminal proceeding on the

sole basis of the defendant’s complaint that: “I don’t want

any information being shuffled back and forth when we

have a recess as to what—who testified to what.”

Jurisdictional Statement, App.D at 7a. If, indeed, a crimi-

nal trial ever may be closed in its entirety to the public,

such a basis for closure falls far short of meeting the

Standards Relating to Fair Trial and Free Press approved

by the American Bar Association House of Delegates® and

fails entirely to comport with the guarantees of the First,

Sixth, Ninth and Fourteenth Amendments.

Nevertheless, the very fact that the Supreme Court of

Virginia has sanctioned a closing on such grounds demon-

strates the confusion which has arisen as a result of this

Court’s decision in DePasquale. As has been noted pre-

viously, the massive misinterpretations emanating from

the DePasquale decision have resulted in more than 50

closings of judicial proceedings (pretrial, trial and post-

trial). Your amici respectfully urge this Court not only to

summarily reverse the decision of the Supreme Court of

Virginia, but also to grasp this early opportunity to review

the decision rendered in Gannett v. DePasquale, supra. The

following arguments are submitted in an effort to aid the

Court in considering the constitutional guarantees which

must be examined and balanced where the rights of

defendants and the public to open judicial proceedings

come inte conflict.

6 See Appendix A

el 0 LTP

A CONDITIONAL RIGHT OF ACCESS TO

JUDICIAL PROCEEDINGS LIES IN THE

FIRST, SIXTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION

An essential protection against arbitrary and oppres-

sive exercise of the powers delegated to our federal and

state governments lies in the First Amendment freedoms

of speech and press. The freedom of speech permits the

unfettered communication of political grievances. In ad-

dition, it forecloses governmental control or manipulation

of the sentiments uttered by and to the public and, by

protecting our right to full information concerning the

doings or misdoings of governmental officials and in-

stitutions, whether they be judicial, legislative or execu-

tive, it guards against the maladministration of govern-

ment. Thus, the right of the public to speak and the press

to publish is unfulfilled without a correlative public right

to receive information. See generally, Emerson, Legal

Foundations of the Right to Know, 1976 WASH. U.L.Q., 6-7

(1976); Note, The Constitutional Right to Know, 4 HAST-

INGS CONST. L.Q. 109 (1977). This Court has recognized

this right on several occasions. In Linmark Associates, Inc.

v. Township of Willingboro, 431 U.S. 85 (1977), this Court

struck down a city ordinance prohibiting the posting of

real estate “For Sale” or “Sold” signs, based on both the

speaker’s right to communicate and the listener’s “First

Amendment interest in the subject matter of the speech.”

Id. at 92; see also Virginia Pharmacy Bd. v. Virginia

Consumer Council, 425 U.S. 748 (1976). The case of

Procunier v. Martinez, 416 U.S. 396 (1974) recognized a

right to receive personal correspondence. In Thomas v.

Collins, 323 U.S. 516 (1945) this Court held that both “a

labor organizer’s right to speak and the right of workers

‘to hear what he had to say,’.. .were abridged by a state

law requiring organizers to register before soliciting

union membership.” Kleindienst v. Mandel, 408 U.S. 753 at

763 (1972), citing Thomas v. Collins, supra, at 534.

In Stanley v. Georgia, 394 U.S. 557 (1969), this Court

noted that “[It] is now well established that the Con-

stitution protects the right to receive informational

ideas... This right to receive informational ideas ... is

fundamental to our free society.” Jd. at 564. And in

Griswold v. Connecticut, 381 U.S. 479, 482 (1965), the Court

referred to a right to receive information as falling within

the penumbra of the First Amendment freedoms of

speech and press.

- Your amici submit that the First Amendment was

intended to protect both free and informed discussion of

governmental affairs and that the flow to the public of

information on the conduct of judicial proceedings neces-

sarily is encompassed within the protections of the First

Amendment.’

Over thirty years ago, this Court held: “A trial is a

public event. What transpires in the courtroom is public

property.” Craig v. Harney, 331 U.S. 367, 374 (1947). This

principle is more than simply an observation that criminal

defendants generally elect to exercise their Sixth Amend-

ment right to public trial; rather, it reflects the belief that

"(t]he operations of the courts and the judicial conduct of

judges are matters of utmost public concern,” Landmark

7 Information gathering is clearly entitled to variable de-

grees of constitutional protection. See, 2.g., Branzburg v.

Hayes, 408 U.S. 665, 681 (1972); Pell v. Procunier, 417 U.S. 817,

833 (1974). This protection necessarily complements that

protection accorded the public under the First Amendment to

receive information and ideas. See, e.g., Virginia Pharmacy

Board v. Virginia Consumer Council, 425 U.S. 748, 756 (1976);

Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85

(1977); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266-270 (1964);

Stanley v. Georgia, 394 U.S. 557 (1969).

Communications, Inc. v. Virginia, 485 U.S. 829 (1978),

which therefore must be open to public scrutiny and

comment. Your amici respectfully submit that cases) such

as Craig v. Harney, supra, Nebraska Press Ass’n. v. Stuart,

427 U.S. 539 (1976), and Oklahoma Publishing Company v.

District Court of Oklahoma County, 430 U.S. 308 (1977)

cannot be construed to rest solely on the narrow ground

that the First Amendment prohibits prior restraints on

publication. They reflect the common understanding that

open judicial proceedings protect the public’s right to

know and preserve “the respect and confidence of the

community in applications of the criminal law.” Jn re

Winship, 397 U.S. 358, 364 (1970). Thus, open eriminal

proceedings, which make possible contemporaneous public

scrutiny and comment on our judicial system, “are of

eritical importance to our type of government in which

the citizenry is the final judge of the proper conduct of

public business.” Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 495 (1975).

At the same time, public attendance at criminal trials

and the publicity and debate they generate promote that

fair treatment which the Sixth Amendment public trial

guarantee is designed to provide. “[J]ustice cannot

survive behind walls of silence,” and “[a] responsible press

has always been regarded as the handmaiden of effective

judicial administration, especially in the criminal field.

The press ... guards against the miscarriage of justice by

subjecting the police, prosecutors, and judicial processes to

extensive public scrutiny and criticism.” Sheppard v. Maz-

well, 384 U.S. 333, 349, 350 (1966); see also, Cox Broad-

casting Corp. v. Cohn, supra at 492 (1975). This Court in

In Re Oliver, 333 U.S. 257, 271 (1948) quoted Jeremy

Bentham as follows:

) ... suppose the proceedings to be completely se-

cret, and the court, on the occasion, to consist of

no more than a single judge,—that judge will be

at once indolent and arbitrary: how cerrupt

soever his inclination may be, it will find no

check, at any rate no tolerably efficient check, to

oppose it. Without publicity, all of the checks are

insufficient: in comparision of publicity, all other

checks are of small account.

in holding, inter alia, that secret proceedings were viola-

tive of the Fourteenth Amendment.

One contemporary commentator has argued

that:

recognizing a[n] [independent] right of

attendance [at criminal judicial proceedings]

would actually promote the protective policies of

the Sixth Amendment. Individual defendants

are given the right of public trial on the theory

that their enforcement of the right will preserve

the norm of openness and thus achieve the goal

of fairness. Ultimately, the goal is fairness for all

defendants, and its attainment depends upon

public awareness, discussion, and criticism of the

criminal process. Public scrutiny of criminal

prosecutions, and especially of pretrial proceed-

ings, preserves and enhances the quality of

criminal justice.

Note, The Right to Attend Criminal Hearings, 78 COLUM. L.

REV. 1308, 1825. (1978) (Footnotes omitted)

Thus, although neither the First Amendment nor the

Sixth Amendment alone explicitly provide an independent

right of the public to attend criminal judicial proceedings,

a constitutional basis for a penumbral right of attendance

arises nonetheless from the interplay of these two con-

stitutional texts. Attendance at criminal judicial proceed-

ings promotes the protective policy of the First and Sixth

Amendments by subjecting the judicial process to public

scrutiny which both informs the people of the operations

of their judiciary and, over the long term, secures judicial

accountability and fairness for criminal defendants.

Ane! cane Dita tt LtiTiad alta ann

ae til tn te sat ON “Caplan Seat all NAAT

OLD 1p VG tle A neds AD AEE OP Pa Me Olt on

Rett IS AL,

Therefore, to assure implementation of these dual,

fundamental constitutional goals, this Court should recog -

nize a qualified constitutional right on the part of the

public and its representative, the news media, to attend

criminal proceedings, and, insofar as not prohibited by

lawful protective order, speak and publish on the events

that transpire at such hearings.

This Court on previous occasions has upheld claims of

constitutional rights which are not explicitly encompassed

within the text of a single constitutional provision. In

Griswold v. Connecticut, 381 U.S. 479 (1965) (plurality

opinion), the Court struck down a state statute which

penalized the use by married couples of “any drug, medici-

nal article, or instrument for the purpose of preventing

conception.” The Court held that such a statute violated a

constitutional right of privacy which is not found in the

express terms of a constitutional amendment, but which

emanates from the First, Third, Fourth, Fifth and Ninth

Amendments, each of which has “a penumbra where

privacy is protected from governmental intrusion.” Jd. at

483.8 Justice Douglas, writing for the Court in Griswold,

also discussed the penumbra surrounding the explicit

terms of the First Amendment:

8“The ... cases suggest that specific guarantees in the Bill

of Rights have penumbras, formed by emanations from those

guarantees that help give them life and substance... Various

guarantees create zones of privacy. The right of association

contained in the penumbra of the First Amendment is one, as

we have seen. The Third Amendment in its prohibition against

the quartering of soldiers ‘in any house’ in time of peace without

the consent of the owner is another facet of that privacy. The

Fourth Amendment explicitly affirms the ‘right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.’ The Fifth Amendment in

its Self- Incrimination Clause enables the citizen to create a zone

of privacy which government may not force him to surrender to

his detriment. The Ninth Amendment provides: ‘The enumera-

tion in the Constitution, of certain rights, shall not be construed

to deny or disparage others retained by the people.’ ” Jd. at 484.

The association of people is not mentioned in the

Constitution nor in the Bill of Rights. The right

to educate a child in a school of the parent’s

choice—whether public or private or paro-

chial—is also not mentioned. Nor is the right to

study any particular subject or foreign language.

Yet the First Amendment has been construed to

include certain of those rights.

* * * *

The right of freedom of speech and press in-

cludes not only the right to utter or to print, but

the right to distribute, the right to receive, the

right to read and freedom of inquiry, freedom of

thought, and freedom to teach—indeed the free-

dom of the entire university community. With-

out those peripheral rights, the specific rights

would be less secure. (citations omitted) (empha-

sis added).

Id. at 482

Thus, in assessing the existence or nonexistence of a

constitutional right, this Court is not limited to strict

statutory construction of the explicit guarantees found in

one or more constitutional amendments. It may focus “on

the nature of the activity at issue and the extent to which

the allowance—or encouragement—of that activity is

necessary to achieve the goals of separate texts. Note, The

Right to Attend Criminal Hearings, 78 COLUM. L. REV.

1308, 13827 (1978).

Griswold cites two other cases where this functional

analytical approach was taken in recognizing a non-

explicit constitutional right. In NAACP v. Alabama, 357

U.S. 449 (1958) this Court looked at the activity in-

volved—the anonymous association with others for the

purpose of promoting a political cause—and found that it

Sten we te iam

BN he sintcticne es sen ee tne

was not expressly protected under the terms of either the

free speech clause or the free assembly clause of the First

Amendment. Nonetheless, the Court found that such ac-

tivity promoted the fundamental purposes of each clause,

while denial of constitutional protection over such activity

would undermine those purposes. As a result, the Court

found “in the close nexus between the freedoms of speech

and assembly,” a constitutional right of association.

In Boyd v. United States, 116 U.S. 616 (1886), a

constitutional challenge was raised to a state statute

which authorized the compulsory production by citizens of

their personal records for use as physical-evidence against

their owner. The Court found that the statute was not

invalidated under a literal interpretation of the Fourth

Amendment prohibition on “unreasonable searches and

seizures” or the Fifth Amendment prohibition on com-

pelling a person “to be a witness against himself.” The

Court found that in protecting individual privacy and

security, the Fourth and Fifth Amendments “run almost

into one another.”

a close and literal construction deprives them of

half their efficacy and leads to gradual deprecia-

tion of the right, as if it consisted more in sound

than in substance.

Id. at 635.

®The need for an analysis which goes beyond the express

terms of the Bill of Rights and confers protection on those

personal rights necessary to give meaningful effect to the

express guarantees was adverted to by Justice Brennan in

Lamont v. Postmaster General, 381 U.S. 301 (1965):

“[T}he protection of the Bill of Rights goes beyond

the specific guarantees to protect from abridgement

those equally fundamental personal rights necessary

to make the express guarantee fully meaningful.” Jd.

at 308 (Brennan, J., concurring).

Thus, where two disparate constitutional provisions

may reinforce one another to a significant degree, they

may be considered, in combination, to sustain a con-

stitutional right which effectuates their policies but which

cannot be found in the express language of either provi-

sion. There being no dispute that public criminal proceed -

ings promote fair treatment before the courts of this

country, through judicial accountability and “public scru-

tiny and discussion of governmental affairs which the

First Amendment was adopted to protect,” Landmark

Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978),

a defendant’s election to close presumptively open judicial

proceedings may be subjected to constitutional limitation

and, as Justice Powell has stated in Gannett v. DePasquale,

U.S. ,61 L.Ed.2d 608, 632 (1979), closure must not be

permitted unless the public’s First and Sixth Amend-

ments rights to attend are balanced against a compelling

state interest in closure.

THE IMMEMORIAL TRADITION OF OPEN JUDICIAL

PROCEEDINGS IS A FUNDAMENTAL RIGHT

RETAINED BY THE PEOPLE UNDER

THE NINTH AMENDMENT

As historial analysis clearly shows, the common law

right of the people to attend judicial proceedings is

fundamental and deeply rooted in our common law tradi-

tions. See Gannett v. DePasquale, supra at 624-26, 646-54;

In Re Oliver, 333 U.S. 257, 266 (1948). From ancient times

in England, through the periods of Anglo-Saxon rule,

Norman conquest and the rebellion of the Royal colonies in

America, there was an unbroken tradition of open judicial

proceedings in criminal cases. Trials were conducted

“openlie in the presence of Judges, the Justices, the

enquest, the prisoner, and so manie as well or can come so

neare as to heare it,...that all men may heare from the

mouth of the depositors and witnesses what is said.”

Gannett v. DePasquale, supra at 647 (Blackmun, J., dis-

senting) quoting T. Smith, De Republica Anglorum (Als-

ton ed. 1972).

Although Justice Stewart in Gannett v. DePasquale,

supra at 622, n.9, cites several twentieth century com-

mentators who regard enactment of the Sixth Amend-

ment right of public trial as reflecting the evolution of a

personal right, or at least primarily a personal right, of

the accused, the English judicial system began requiring

public trials at a time when that system had very little

regard for the rights of the accused. See 31 N.Y.U.L. REV.

611 (1956); 6 WIGMORE, EVIDENCE §1834 (J. Chadbourne

rev. ed. 1976) and authorities cited therein. Criminal

proceedings were uniformly held in public both long

before and after criminal defendants were first accorded

such protections as the right to counsel, jury trial,

prior notice of the charges and the right to con-

frontation—protections subsequently incorporated into

the United States Constitution and proposed by the First

Congress to the legislatures of the several states for

ratification in 1789. Thus, the concept that public proceed-

ings may serve to protect criminal defendants from judi-

cial overreaching arose subsequent to the public’s inde-

pendent right to open criminal proceedings.

A fundamental tenet of the common law, both in

England and in America, is that trials are to be public

occurrences. This right of the people to access to judicial

proceedings is founded on the belief that courts are public

instrumentalities and that their activities are a proper

matter for public scrutiny. In 2 E. COKE, INSTITUTES OF

THE LAWS OF ENGLAND (6th ed. 1681), Lord Coke, com-

menting upon the words “Jn curia domini regis” as they

are used in the Statute of Marlebridge, 1267, 52 Hen. 3, c.

1, said:

These words are of great importance, for all

causes ought to be heard, ordered, and deter-

mined before the Judges of the Kings Courts

openly in the Kings Courts, whither all persons

may resort; and in no chambers or other private

places.

Id. at 103-04.

This heritage of the common law has been evident in

American jurisprudence from the earliest days of the

colonies. Its first appearance in a public document may

have been in the Charter of the Fundamental Laws of

New Jersey, drafted in 1676, whose Chapter XXIII pro-

vided:

That in all publick courts of justice for tryals of

causes, civil or criminal any person or persons,

inhabitants of the said Province, may freely

come into, and attend said courts, and hear and

be present, at all or any such tryals as shall be

there had or passed, that justice may not be done

in a corner nor in any covert manner, being

intended and resolved, by the help of the Lord,

and by these our Concessions and Fundamentals,

that all and every person and persons inhabiting

the said Province shall, as far as in us lies, be free

from oppression and slavery.

5 THORPE, AMERICAN CHARTERS, CONSTITUTIONS AND OR-

GANIC LAWS, 1492-1908, at 3060.

This right of the people that the courts of justice shall

be public was included in the Bills of Rights of many states

and territories. The most common phrase was: “That all

courts shall be open.”’'0

In 1789, the Congress enacted the Sixth and Ninth

Amendments. The Ninth Amendment states: “The

enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by

the people.” In commenting on the argument raised by

Alexander Hamilton and others, that a Bill of Rights was

unnecessary or undesirable because the Federal Govern-

ment was a government of delegated powers without

authority in any event to intrude upon fundamental

personal rights, Mr. Justice Story wrote:

In regard ... [a] suggestion, that the affir-

mance of certain rights might disparage others,

or might lead to argumentative implications in

favor of other powers, it might be sufficient to

say that such a course of reasoning could never

be sustained upon any solid basis.... But a

conclusive answer is, that such an attempt may

be interdicted (as it has been) by a positive

declaration in such a bill of rights that the

enumeration of certain rights shall not be con-

strued to deny or disparage others retained by

the people.

II StoRY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 1867 at 626-627 (5th ed. 1891).

10 Constitutions of Alabama 1819, Sec. 14, 1 Thorpe, p. 97;

Colorado 1876, Art. II, Sec. 6, Jd. p. 475; Connecticut 1818, Art. I,

Sec. 12, Id. at 538; Delaware 1792, Art. 1, Sec. 9, Id. at 569;

Florida 1838, Art. I, Sec. 9, 2 Thorpe at 665; Idaho 1889, Art. 1,

Sec. 18, Jd. at 920; Indiana 1816, Art. I, Sec. 11, Jd. at 1058;

Kansas 1855, Art. I, Sec. 16, Jd. at 1181; Kentucky 1792, Art. XII,

Sec. 13, 3 Thorpe at 1275; Nebraska 1867, Art. I, Sec. 9, 4 Thorpe

at 2350; North Dakota 1889, Art. I, Sec. 22, 5 Thorpe at 2858;

Ohio 1851, Art. I, Sec. 16, Jd. at 2915; South Dakota 1889, Art. VI,

Sec. 20, 6 Thorpe at 3371; Tennessee 1870, Art. I, Sec. 17, Id. at

3450; Wyoming 1899, Art. I, Sec. 8, 7 Thorpe at 4418.

James Madison, principal author of the Ninth Amend-

ment, also rejected the argument “that those rights which

were not singled out [in the Bill of Rights], were intended

to be assigned into the hands of the General Government

and were consequently insecure.” J Annals of Congress 456

(Gales and Seaton ed. 1834).

In Gannett v. DePasquale, supra, this Court was not

presented with, and therefore did not address, the argu-

ment that an immemorial right to attend judicial pro-

ceedings is reserved to the people under the Ninth

Amendment. Justice Stewart based his decision upon

analysis of the Sixth Amendment." He interpreted the

failure of the Congress to explicitly prescribe in the Sixth

Amendment an independent public right of open proceed -

ings as a decision to elevate the defendant’s right to

protection from a biased jury over and above the public’s

protection from secret proceedings. Yet, we respectfully

submit that Justice Blackmun is correct in saying, “there

is no indication that the First Congress, in proposing what

became the Sixth Amendment, meant to depart from the

common law practice” of open proceedings. Gannett v.

DePasquale, supra at 651 (Blackmun, J., dissenting opin-

ion). Although the historical debate between Justice

Stewart (see 61 L.Ed.2d at 624-28) and Justice Blackmun

(61 L.Ed.2d. at 646-55) points up the fact that history

unfortunately sheds little clear light on the specific in-

tention of the authors of the public trial guarantee, see

generally F. HELLER, THE SIXTH AMENDMENT TO THE

UNITED STATES: A STUDY IN CONSTITUTIONAL DEVEL-

OPMENT (1951), your amici respectfully submit that the

11 Justice Stewart declined to decide whether members of

the press and public have a right of access to judicial pretrial

proceedings under the First and Fourteenth Amendments be-

cause “even assuming arguendo that the First and Fourteenth

Amendments may guarantee such access . . . this putative right

was given all appropriate deference by the state nisi prius court

in the present case.” 61 L.Ed.2d. at 629.

public trial provision of the Sixth Amendment was not

intended to protect defendants from press comment.

Rather, it was intended to protect defendants and the

public from abuse of judicial authority. See Jn Re Oliver

383 U.S. 257, 268, 270-273 (1948) (“Contemporaneous

review of criminal trials in the forum of public opinion

constitutes an effective restraint on possible abuse of

judicial process.” Jd. at 270); T. COOLEY, A TREATISE ON

bio ae ea) LIMITATIONS WHICH REST UPON THE

ISLATIVE POWERS OF THE STATES

UNION, 647 (8th ed. 1977). ei Re

Another clause of the Sixth Amendment guarantees

an accused a trial before an impartial jury. And there is

no historical evidence to suggest that the framers con-

templated the opposite of a public trial, guaranteed in one

part of the Sixth Amendment, as a legitimate means

of securing an impartial jury, which is guaranteed in

another.

In discussing the intent of Congress in enacting the

public trial, as opposed to fair trial, guarantee i

Story noted: bs are

In declaring, that the accused shall enjoy the

right to a speedy and public trial [the Sixth

Amendment] does but follow out the established

course of the common law in all trials for crimes.

The trial is always public.

III StoRY, COMMENTARIES ON THE CONSTITUTION

‘ fe)

UNITED STATES, 662 (1833). schoo

State courts have subsequently recognized that the

tradition of open proceedings reflects a fundamental right

of the public as well as the accused. “In this country it is

the first principle that the people have the right to know

what is done in their courts,” Jn Re Shortridge, 34 Pac. 227,

ee © . . f

228 (1893). “The right to have the courts open Is a right o

the public...” State v. Capp, 15 N.H. 212, 215 (1844).

Thus, your amici submit that the unbroken pattern of

open judicial proceedings in England prior to Colonial

independence, and in the United States thereafter, is

more than a tradition. It is an “immemorial right

reflecting very significant democratic social policies, and it

is “retained by the people” under the Ninth Amendment.

To use the words of Justice Goldberg in Griswold v.

Connecticut, supra at 491:

To hold that a right . .. so basic and fundamental

and deep-rooted ... may be infringed because

that right is not guaranteed in so many words by

the first eight amendments to the Constitution is

to ignore the Ninth Amendment and to give it

no effect whatsoever.

Ill

THE CONSTITUTIONAL RIGHTS OF THE PUBLIC

TO ATTEND JUDICIAL PROCEEDINGS CANNOT BE

DENIED ABSENT A CLEAR AND PRESENT DANGER

TO A DEFENDANT’S RIGHT TO A FAIR TRIAL AND

A CLEAR SHOWING THAT LESS INTRUSIVE MEA-

SURES WILL BE INEFFECTIVE IN PROTECTING THE

DEFENDANT’S RIGHTS

The fundamental question which this Court must

address is whether the First, Sixth and Ninth Amend-

ments to the Constitution guarantee to the public a right

of access to criminal trials. Because of the fundamental

character of the rights asserted and their constitutional

foundations, this Court should impose the highest stan-

dard of judicial protection for such rights. Nothing less

than a showing of clear and present danger to a con-

stitutional right of equal stature, a defendant’s right to a

fair trial, must be required prior to closing a criminal

trial.

In Gannett v. DePasquale, supra, this Court clearly

delineated cases involving access to criminal proceedings

from cases wherein prior restraints on publication are

imposed. Recognizing this distinction, your amici respect-

fully submit that the immemorial right of the people to

attend criminal trials deserves the same judicial protec-

tion as the right of the press to publish accurate informa-

tion lawfully obtained.

The American Bar Association Task Force on Fair

Trial and Free Press chaired by Judge Alfred T. Goodwin

of the Ninth Circuit Court of Appeals, after eleven years

of intensive study, has adopted the standards set forth in

Nebraska Press Ass’n. v. Stuart, supra, with regard to

closure of pretrial proceedings. See Appendix A (full

text). Standard 8-3.2 states that closure may be ordered

only if:

(1) dissemination of information from the pre-

trial proceeding and its record would create a

clear and present danger to the fairness of the

trial, and,

(2) the prejudicial effect of such information

upon trial fairness cannot be avoided by any

reasonable alternative means.

The Commentary on this Standard suggests the following

specific alternatives: “(1) continuance, (2) severance, (3)

change of venue, (4) change of venire, (5) intensive voir

dire, (6) additional peremptory challenges, (7) sequestra-

tion of the jury, and (8) admonitory instructions to the

jury.”

In addition to the American Bar Association provi-

sions cited above, your amici respectfully urge this Court

‘ to adopt a rule that would forbid closure of a criminal

proceeding in the absence of an assessment of the prob-

able efficacy of the action. In Nebraska Press Ass'n. v.

Stuart, supra, Chief Justice Burger, writing for the ma-

jority, required such an assessment of the Court’s order

“as a workable method of protecting the defendant’s right

to a fair trial prior to the setting aside of First Amend-

ment rights.” Jd. at 565. In rejecting the efficacy of the

gag order, Chief Justice Burger recognized the dangers

inherent in the transmission of rumors where accurate

reports of criminal trials are not available to the public:

[G]iven the generative propensities of rumors;

they could well be more damaging than reason-

ably accurate news accounts.

Id. at 567. Secret trials clearly give rise to a much greater

degree of speculation. Under a gag order, such as the one

in Nebraska Press, accurate oral reports.may be dis-

seminated by those in attendance. Under a closure order

where only the parties are present, totally unfounded

speculation concerning a conviction or acquittal is inevit-

able.

The importance of assessing the efficacy of any state

action which inhibits a constitutional right was affirmed

as recently as the last term of this Court in Smith v. Datly

Mail Publishing Co., ____U.S.___, 61 L.Ed.2d 399 (1979).

Justice Rhenquist addressed this issue in his con-

curring opinion:

I believe that an obvious failure of a state statute

to achieve its purpose is entitled to considerable

weight in the balancing process that is employed

in deciding issues arising under the First and

Fourteenth Amendment protections accorded

freedom of expression.

Id. at 409 n. 3.

Oe ee - “

Your amici respectfully urge this Court to clarify this

area of the law by adopting the standards set forth in

Nebraska Press Ass'n. v. Stuart, supra.

The majority opinion of this Court in DePasquale,

while acknowledging that a defendant has no absolute

right to compel a private trial, does not prescribe adequate

standards against which, in the context of potentially

prejudicial pretrial publicity, a defendant’s motion for

closure must be weighed. Justice Stewart has correctly

observed in DePasquale, that, with the possible exception

of the right to assistance of counsel,12 Sixth Amendment

guarantees do not, as a matter of law, confer on a criminal

defendant the right to demand their opposites. 61

L.Ed.2d at 623. See also, Singer v. United States, 380 U.S.

24 (1965) (right to jury trial); Barker v. Wingo, 407 U.S.

514 (1972) (right to speedy trial). This principle is

buttressed by the fact that, regardless of whether the

public’s right to attend judicial proceedings is of con-

stitutional magnitude, “there is a strong societal interest

in public trials.” Gannett v. DePasquale, supra at 623.

Courts do not have unrest~cted power to “suppress, edit,

or censor events or publication thereon which transpire in

— before it.” Craig v. Harney, 331 U.S. 367

The law ... favors publicity in legal proceedings

so far as that object can be attained without

Injustice to the persons immediately concerned.

2 COOLEY, CONSTITUTIONAL LIMITATIONS 931-9382 (Cov-

- ington ed. 1927)

In hoiding that the television media do not have the right

to overcrowd a courtroom with reporters, lighting and

camera equipment so as to deny in a pretrial hearing the

“Judicial serenity and calm to which [a defendant is]

'2 See Faretta v. California 422 U.S. 806 (1975)

entitled, “Estes v. Texas, 381 U.S. 532 (1965), this Court

observed:

It is true that the public has the right to be

informed as to what occurs in its courts, but

reporters of all media, including television, are

always present if they wish to be...

Id. at 541.

Thus, it becomes the defendant’s burden to justify closure

of presumptively open proceedings. See, e.g., Nebraska

Press Ass'n. v. Stuart, 427 U.S. 539 at 562, 569, 571;

Nebraska Press Ass'n. v. Stuart, 423 U.S. 1327, 1333 (1975)

(Blackmun, Circuit Justice, mem.). This burden requires

the defendant to establish a causal relationship between

the exercise of the right to attend open proceedings, and

the substantive evil which the government is empowered

to regulate (the unfair trial). This burden is necessarily

heavy because, in the first place, “in the overwhelming

majority of criminal trials, pretrial publicity presents few

unmanageable threats to this important [Sixth Amend-

ment] right.” Nebraska Press Ass'n. v. Stuart, 427 U.S. 539

at 551.

Of course, it cannot be denied that extremely in-

flammatory and prejudicial publicity may create “ten-

sions... between the right of the accused to trial by an

impartial jury and the rights guaranteed others by the

First Amendment.” Jd. Yet, “cases such as these are

relatively rare, and we have held that trials have been fair

in spite of widespread publicity.” Jd. at 554.

The reason why “pretrial publicity—even pervasive,

adverse publicity—does not [ necessarily ] lead to an unfair

trial” is that “the capacity of the jury eventually impan-

eled to decide the case fairly is influenced by the tone and

extent of the publicity .. .”” Nebraska Press Ass'n. v. Stuart,

supra at 554-555; see also, Murphy v. Florida, 421 U.S. 794

(1975).

Requiring that a defendant present some factual

justification for conducting judicial proceedings in secret

is made difficult, yet all the more appropriate, because any

determination that conducting a trial or pretrial hearing

in public will ultimately deny a defendant a trial before an

impartial jury is “of necessity speculative, dealing .. . with

factors unknown and unknowable.” Nebraska Press Ass’n.

supra, at 563. Accord, Id. at 599, 604 (Brennan, J.,

concurring opinion). The court must speculate about the

amount and nature of the evidence which will be publicly

disclosed and its impact upon the veniremen. Lastly, the

judge must consider whether the information suppressed

through closure might leak out in any event, or perhaps

“become available through rumors and gossip, whether or

not the press is enjoined from [attending the proceed-

ing].” Nebraska Press Ass’n., supra, at 599, n. 22 (Bren-

nan, J., concurring opinion).'3

But more importantly, the burden of establishing the

need for closure must remain heavy because there are

measures available to a trial court which can protect

against impartial juror prejudice in ways much less dam-

aging to the First Amendment and other societal policies

served through public proceedings. ‘[M]embers of the

press and public objecting to the exclusion have the right

to demand that it extend no further than is likely to

achieve these goals.” Gannett v. DePasquale, supra, at 634

(Powell, J., concurring opinion).‘4 This principle is in

'3“Indeed, the media in such situations could help dispel

erroneous conceptions circulating among the populace.” Jd. at

599 fn.22 (Brennan, J., concurring opinion).

‘4“There can be no ducking of the problem of the press

prejudging trials even if the occurrence is seldom and is almost

solely confined to causes celebres. But the solutions that we seek

must be appropriate to the difficulties, both to their nature and

to their frequency. The question is not a matter of neglecting to

find a remedy but to find one no more painful than the illness

demands.” A. FRIENDLY AND R. GOLDFARB, CRIME AND PUBLI-

CITY, 71 (1967)

accord. with the holdings in previous cases that First

Amendment freedoms cannot be subordinated by one

means, where alternative means less restrictive of First

Amendment liberties, yet effective, are available. See, e.g.,

Nebraska Press Ass'n. v. Stuart, supra, at 562-565; Gooding

v. Wilson, 405 U.S. 518, 522 (1973); Carroll v. President and

Commissioners of Princess Anne, 393 U.S. 175, 183 (1968);

Cantwell v. Connecticut, 310 U.S. 296, 304 (1940); Scott v.

Scott, (1918) A.C. 417, 488 (Vicount Haldane L.C.). (Be-

fore the Courts of England may be closed, those who would

close them “must satisfy the Court that by nothing short

of the exclusion of the public can justice be done.”)

Your amici urge this Court to adopt the rule which the

Constitution requires that a criminal trial may be closed to

the public only where:

(1) there is a strong showing that prejudicial

publicity will create a clear and present danger

to the fairness of the trial;

(2) the prejudicial effect of such information

cannot be avoided by alternative means; and

(3) a strong showing is made that closure will

accomplish its purpose of preventing jury pre-

judice.

CONCLUSION

It would indeed be a sad day in the history <“ our

country’s jurisprudence if the Commonwealth of Virginia,

the birthplace of the Bill of Rights, should cause the loss of

an immemorial right to open trials in our society. George

Wythe, Patrick Henry, Thomas Jefferson, George Mason,

James Madison and many other great patriots would

wonder at what has happened to their dream! Your amici

cannot but believe that this Court will devote sufficient

time, effort and legal historical research to this question to

undo the confusion that has been allowed to grow in this

field. We plead with you, with all the respect and vigor in

our minds, to correct the misapprehension that has been

permitted to arise from what appear to be narrow

attempts to address broad constitutional questions of the

greatest significance to the social fabric of our Nation. We

most respectfully urge that the Supreme Court of Virginia

be found in error and that this Court reconsider its ruling

made in DePasquale so that once and for all, certainly in

this century and hopefully for the constitutional future of

our Nation, no one will question the fact that open judicial

proceedings must be maintained for the good of our entire

society. Only in the most egregious circumstances, exam-

ples of which are almost nonexistent in our constitutional

history, should any judicial proceeding be closed to the

public and under our republican form of democracy to the

public’s representative, the press.

Your amici appreciate this opportunity to have

presented these views to this distinguished body and we

await with great interest the resolution of these vital

questions.

Respectfully submitted,

RICHARD M. SCHMIDT, JR. ARTHUR B. HANSON

COHN AND MARKS FRANK M. NORTHAM

1333 New Hampshire Ave. MITCHELL W. DALE

N.W., Suite 600 ARTHUR D. MCKEY

Washington, D.C. 20036

Attorney for Amicus Curiae HANSON, O’BRIEN, BIRNEY &

American Society of BUTLER

Newspaper Editors 888 Seventeenth Street, N.W.

Suite 1000

Washington, D.C. 20006

Attorneys for Amicus Curiae

American Newspapers

Publishers Association

APPENDIX

par

ets .

ETE cece

APPENDIX A

AMERICAN BAR ASSOCIATION STANDARDS

RELATING TO THE ADMINISTRATION

OF CRIMINAL JUSTICE

Standard 8-3.2. Pretrial proceedings: exclusion of public

and sealing of records

Except as provided below, pretrial proceedings and

their record shall be open to the public, including repre-

sentatives of the news media. If at the pretrial proceeding

testimony or evidence is adduced that is likely to threaten

the fairness of a trial, the presiding officer shall advise

those present of the danger and shall seek the voluntary

cooperation of the news media in delaying dissemination

of potentially prejudicial information by means of public

communication until the inpaneling of the jury or until an

earlier time consistent with the fair administration of

justice. The presiding officer may close a preliminary

hearing, bail hearing, or any other pretrial proceeding,

including a motion to suppress, and may seal the record

only if:

(i) the dissemination of information from the

pretrial proceeding and its record would create a clear

and present danger to the fairness of the trial, and

(ii) the prejudicial effect of such information on

trial fairness cannot be avoided by any reasonable

alternative means.

The defendant may move that all or part of the

proceeding be closed to the public (including representa-

tives of the news media), or, with the consent of the

defendant, the presiding officer may take such action sua

sponte or at the suggestion of the prosecution. Whenever

under this rule all or part of any pretrial proceeding is

held in chambers or otherwise closed to the public, a

complete record shall be kept and made available to the

public following the completion of trial or earlier if con-

sistent with trial fairness.

History of Standard

This is original standard 3.1. Several changes have

been made; some are organizational or for clarification,

while others are substantive. First, the standard governs

both the closing of pretrial proceedings and the sealing of

court records. Second, the standard establishes a clear-cut

presumption in favor of the openness of pretrial proceed-

ings and court records. As an alternative to either proce-

dure, the standard encourages the development of volun-

tary agreements between the press and the courts con-

cerning the publication of information which might affect

the defendant’s right to a fair trial. Finally, if a motion is

made for closure of a pretrial proceeding or the sealing of

court records, a two-part standard applies that combines

the clear and present danger and least restrictive alterna-

tive tests. This standard is more rigorous than the test in

original standard 3.1, which was based on the “substantial

likelihood of interference” formulation.

Related Standards

None

Commentary

The policy underlying this standard is a strong pre-

sumption in favor of open judicial proceedings and free

access to records in a criminal case. Although this stan-

dard deals only with pretrial proceedings, the general

principle extends to every phase of judicial proceedings in

a criminal case.

The sixth amendment speaks in terms of the right of

the accused to a public trial,’ but this right does not belong

solely to the accused to assert or forgo as he or she desires.2

Many courts have recognized that the public generally has

an overlapping and compelling interest in public trials.

The defendant’s interest, primarily, is to ensure fair

treatment in his or her particular case. While the public’s

more generalized interest in open trials includes a concern

for justice to individual defendants, it goes beyond that.

The transcendent reason for public trials is to ensure

efficiency, competence, and integrity in the overall oper-

ation of the judicial system.‘ Thus, the defendant’s will-

ingness to waive the right to a public trial in a criminal

‘“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial .. .” U.S. Const. amend. VI See

In re Oliver, 333 U.S. 257 (1948). The Supreme Court has also

held that due process “demands appropriate regard for the

requirements of a public proceeding in...all adjudications

through the exercise of the judicial power.” Levine v. United

States, 362 U.S. 610, 616 (1962).

Although there is authority holding that preliminary pro-

ceedings are not within the meaning of the sixth amendment,

Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 372 N.E.2d 544, 401

N.Y.S.2d 756 (1977), the great majority of courts have rejected

that view. See, e.g., United States v. Clark, 475 F.2d 240 (2d Cir.

1973); Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969) (en banc).

2 United States v. Cianfroni, F.2d, 3 Med. L. Rptr. 1961,

1970-72 (March 16, 1978); United States v. Kobli, 172 F.2d 919,

924 (3d Cir. 1949) (en banc); United States v. Lopez, 328

F.Supp. 1077, 1087 (E.D.N.Y. 1971); Commercial Printing Co. v.

Lee, 553 S.W.2d 270 (Ark. 1977); Keene Publishing Co. v. Keene

Dist. Court, 380 A.2d 261 (N.H. 1977); People v. Marino, 383

N.Y.S.2d 147 (Cty. Ct. 1976). See also Singer v. United States,

380 U.S. 24 (1965).

3 See cases cited in note 2 supra.

4 These themes are emphasized to varying degrees in all 6f

the cases cited in note 2 supra. The theme of judicial integrity,

however, has been a paramount concern to the Supreme Court,

and the role of the press in promoting that value has been

(footnote continued on next page)

case cannot be the deciding factor. This holds true no

matter how personally beneficial private proceedings in a

criminal case might be to the defendant. It is just as

important to the public to guard against undue harshness

or discrimination.5

The role of the news media in this process is especially

significant. Few individuals have the time or inclination

to observe personally the operation of the criminal justice

system. Representatives of the news media largely serve

that function. It has been argued that the press has a first

amendment right of access to the courts and court records

that exceeds such rights of members of the public general-

ly. This view has been rejected by the courts.é

The policy in this standard in favor of open proceed-

ings and free access to court records rests on sixth amend-

ment grounds. It is subject to important limitations.

When there is a threat to the defendant’s right to a fair

trial, the trial judge is obligated to take steps to neutralize

that threat. The first step in the process should be to seek a

voluntary agreement with members of the news media

about the timing and scope of coverage. It is undesirable

to resolve such questions by litigation without first consid-

ering informal and less antagonistic measures. The use of

voluntary fair trial/free press agreement is already a

practice in many jurisdictions, and the trend should be

(footnote continued from previous page)

consistently recognized. Landmark Communications, Inc. v.

Virginia, 46 U.S.L.W. 4889, 4392-93 (May 1, 1978); Nebraska

Press Ass’n v. Stuart, 427 U.S. 539, 559-60, 606 (1976); Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-96 (1975); Shep-

pard v. Maxwell, 384 U.S. 333, 350 (1966); In re Oliver, 333 U.S.

257, 270-71 (1948).

5 In re Edens, 226 S.E.2d (N.C. 1976).

§ Pell v. Procunier, 417 U.S. 817 834-35 (1974); Saxbe v.

Washington Post Co., 417 U.S. 848, 850 (1974); United States v.

Gurney, 558 F.2d 1202, 1208-09 (5th Cir. 1977); Garrett v.

Estelle, 556 F.2d 1274, 1277-78 (5th Cir. 1977).

encouraged.’ In any event, if a voluntary agreement is

reached between representatives of the news media and

the court, any delay in the publication of potentially

prejudicial information should be only until the impanel-

ing of the jury, and shorter if possible.

The principles embodied in standard 8-3.2 represent a

significant departure from original standard 3.1. The

substance of the standard, however, is the option of

closing pretrial proceedings and sealing judicial records.

Before pretrial proceedings can be closed or any record

sealed, the two-part test of the standard must be met. The

moving party must establish that: (1) a clear and present

danger to the fairness of the trial would exist if the

information were publicly disclosed, and (2) the pre-

judicial effect of such information on the fairness of the

trial cannot be avoided by reasonable alternative means.

The standard does not enumerate possible procedural

alternatives, but the effectiveness of the following should

_ receive serious consideration: (1) continuance, (2) sev-

erance, (3) change of venue, (4) change of venire, (5)

intensive voir dire, (6) additional peremptory challenges,

(7) sequestration of the jury, and (8) admonitory instruc-

tions to the jury.®

The public interest in open proceedings and free

access to courts in a criminal case is at least as strong as

the first amendment policy against prior restraints. Con-

sequently, this standard follows the basic approach taken

_ 7 As of June 1974, twenty-three states adopted voluntary

fair trial/free press guidelines. ABA, FAIR TRIAL/FREE PRESS

VOLUNTARY AGREEMENTS (1974).

8The Supreme Court noted several of these measures in

Nebraska Press Ass’n v. Stuart, 427 U.S. 589, 562-65 (1976).

Others are enumerated in a report to the Senate Subcommitiee

on Constitutional Rights. STAFF OF SUBCOMM. ON CON-

STITUTIONAL RIGHTS OF THE SENATE COMM. ON THE JUDICIARY,

FREE PRESS-FAIR TRIAL, 94th Cong., 2d Sess. 8-10 (1976).

by the Supreme Court in Nebraska Press Association v.

Stuart.2 Although developed in the context of a prior

restraint case, that approach or its equivalent has been

applied in the present context by a number of courts.'° The

question might legitimately be raised, however, why the

Nebraska Press Association test is adopted in this stan-

dard but rejected in standard 8-3.1. The answer lies in the

fact that there is a crucial difference between imposing

prior restraints against the press on the one hand and the

denial of access to news sources on the other. The adminis-

tration of a system of prior restraints necessarily involves

the courts in overseeing the press; the entanglement of

the courts and the press results in unavoidable and per-

haps unintended suppression of first amendment values no

matter how carefully or conscientiously a court may draw

the line between protected and unprotected speech."

There is less difficulty where closure of judicial proceedings

and sealing of court records are at issue. Hence, case-by-

case adjudication is acceptable under this standard, but

not under standard 8-3.1.

The last paragraph in standard 8-3.2 requires that

any motion to close a pretrial proceeding or seal court

records be made with the consent of the defendant. The

motion, however, cannot be granted unless the court

affirmatively concludes that the requirements of the clear

and present danger and least restrictive alternative tests

have been met. The burden of proof is on the party

making the motion. The standard thus clarifies the lan-

guage of original standard 3.1 stating that the motion to

9.427 U.S. 539, 562-65 (1976).

10 See e.g., United States v. Cianfroni, F.2d, 3 Med. L. Rptr.

1961 (March 16, 1978); Keene Publishing Corp. v. Keene Dist.

Court, 380 A.2d 261 (N.H. 1977); State v. Allen, 73 N.J. 132, 373

A.2d 377 (1977).

11T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 506

(1970). See generally L. TRIBE, AMERICAN CONSTITUTIONAL LAW

724-31 (1978).

close a pretrial hearing “shall be granted unless the

presiding officer determines that there is no substantial

likelihood”’'2 of interference with the defendant’s right to

a fair trial by an impartial jury.

The last sentence in standard 8-3.2 provides that

when a procedure is held in chambers or otherwise closed

to the public, a complete transcript shall be kept and made

available after the conclusion of the trial! or disposition

‘without trial. The purpose of this requirement is to pro-

vide a surrogate method of examining the conduct of

closed proceedings. The transcript is the only possible

substitute for the denial of access.

‘2 ABA, FAIR TRIAL AND FREE PRESS 113 (1968).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.