Amicus Brief — Richmond Newspapers, Inc. v. Virginia

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—— —

~ Gupreme Court, U. &

FILED

> NOV 30

be Tan \ NOV 1979 :

Supreme Court of the United Suutes z N. cere

No. 79-243 —

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

KEVIN MCCARTHY,

Appellants,

COMMONWEALTH OF VIRGINIA

| Appellee.

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

KEVIN MCCARTHY,

Appellants,

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 APPELLANTS

RIichARD M. SCHMIDT, JR. ARTHUR B. HANSON

DAVID M. RICKLESS FRANK M. NORTHAM

COHN AND MARKS MITCHELL W. DALE

1333 New Hampshire Ave., N.W. ARTHUR D. McCKEY

Suite 600

Washington, D.C. 20036

Attorneys 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

Publishers Association

„54 „„

i a

INDEX

Page

PRELIMINARY STATEMENT. enn 1

INTEREST OF THE AMI CI... 2

STATEMENT OF THE CASE AND CON-

STITUTIONAL PROVISIONS INVOLVED D. 4

SUMMARY OF ARGUMENT... 4

. TU SOS Le RE lt TS 12

I. Right of the Public and the Press to

Attend Judicial Proceedings Lies In

The First, Sixth And Fourteenth

Amendments To The United States

— AVA ˙ 14

II. The Immemorial Tradition Of Open Ju-

dicial Proceedings Is A Fundamental

Right Retained By The People Under

The Ninth Amendment 21

III. The Constitutional Rights Of The Pub-

lie To Attend Judicial Proceedings Can-

not Be Denied Absent A Clear And

Present Danger To A Defendant's

Right To A Fair Trial And A Clear

Showing That Less Intrusive Measures

Will Be Ineffective In Protecting The

Defendant's Rights. 32

. T. ERE 38

APPENDIX A: American Bar Association Standards

_ Relating To The Administration Of Criminal Justice

TABLE OF CITATIONS

Page

CASES: 7

Barker v. Wingo, 407 U.S. 24 (1965) 29,35

Boyd v. United States, 116 U.S. 616 (1886) 20

Branzburg v. Hayes, 408 U.S. 665 (1972) 16

Cantwell v. Connecticut, 310 U.S. 296 (1940) 88

Carrol v. President and Commissioners of Prin-

cess Anne, 393 U.S. 175 (1968) 37

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

(6... ne eiaenen aa 2-3,17

Craig v. Harney, 331 U.S. 367 (1947) 16,35

Duncan v. Louisiana, 391 U.S. 145 (1968) 30

Embry v. Palmer, 107 U.S. 3 (1882) 31

Estes v. Texas, 381 U.S. 532 (1965) 35

Faretta v. California, 422 U.S. 806 (1975)............... 35

Gannett v. DePasquale, U. S., 61 L. Ed. 2d a

ne le iainenaannnannamnS passim

Gooding v. Wilson, 405 U.S. 518 (1973) 37

Griswold v. Connecticut, 381 U.S. 367 (1947) 189081

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ............. 4,13

In re Oliver, 333 U.S. 257 (1948) 17,24,28

In re Winship, 397 U.S. 358 (1970) eee 16

Kleindienst v. Mandel, 408 U.S. 753 (1972)............. 15

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

. eae 21

Landmark Communications, Inc. v. Virginia, 435

is ET} | ee PR ce UG es SS 9

Lin mark Associates, Inc. v. Township of Willing -

doro, 481 U.S. 85 (1977) . . . . . q 15,16

iii

Page

Murphy v. Florida, 421 U.S. 794 (1975) 36

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

Nebraska Press Association v. Stuart, 427 US.

e passim

Nebraska Press Association v. Stuart, 423 U.S.

1327 (1975) (Blackmun, Circuit Justice, mem.) 36

New York Times Co. v. Sullivan, 876 U.S. 254

enen 10,16

Oklahoma Pub. Co. v. District Court of Oklahoma

County, 430 U.S. 308 (1977) . 3,16

Patton v. United States, 281 U.S. 276 (1935) 29

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

Pennsylvania v. Board o Directors, 353 U.S. 230,

reh. denied, 353 U. S. 989 (1957) 4

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

Scott v. Scott, A.C. (1918) 41777. 38

Sheppard v. Maxwell, 384 U.S. 333 (1966) 10,17

Singer v. United States, 380 U.S. 24 (1965) 35

Smith v. Daily Mail Publishing Co.. U.S.

ee ascccccscesesesossccccssecesesecoossss. 34

Stanley v. Georgia, 349 U.S. 557 (1969) ) 10,15,16

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

United States v. Nixon, 418 U.S. 683 (1974) 31

Virginia Pharmacy Bd. v. Virginia Consumer

Council, 425 U.S. 748 (1976). 10, 15,16

OTHER AUTHORITIES:

3 W. BLACKSTONE, COMMENTARIES .........-.cccccccsccesese. 29

E. COKE, INSTITUTES OF THE LAW OF ENGLAND,

D Ra a aaa 25

CooLEVY, A TREATISE ON THE CONSTITUTIONAL

LIMITATIONS WHICH REST UPON THE LEGISLA-

TIVE POWERS OF THE STATES OF THE AMERICAN

2 COOLEY, CONSTITUTIONAL LIMITATIONS (Cov-

, ̃ aE RIT eS

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

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

r RAPPORT 0 UE Tae ae eo

M. HALE, THE HISTORY OF THE COMMON LAW IN

ENGLAND (6TH ed. 1820) ccceeeeeeeeeees

F. HELLER, THE SIXTH AMENDMENT TO THE

UNITED STATES: A STUDY IN CONSTITUTIONAL

THORPE, AMERICAN CHARTERS, CONSTITUTIONS

AND ORGANIC LAWS, 1492-19098

II StoRY, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES (5TH ed. 1891)

III StoRY, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES (1883 ed.) ........0..000ccce.

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

P SI arin ee irk Sed, ae ee

— (

1 15840 OF CONGRESS (GALES & SEATON ED.

DUNBAR, James Madison and the Ninth Amend-

ment, 42 VA. L. REV. 627 (1956)

Emerson, Legal Foundations of the Right to

BRON, BO PME, Big Bosca scsscsssisccscerevensnisecsenssese

The Federalist No. 84 (A. Hamilton) (Modern

e ̃ RSM taey each

22,23

11,23

14-15

Note, The Right to Attend Criminal Hearings, 78

COLUM. L. REV. 1808 (1978)

Note, The Constitutional Right to Know, 4 HAST-

INGS CONST. L. Q. 109 (1977)...

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

Note, The Ninth Amendment: Guidepost to

Fundamental Rights, 8 WM. & MARY L. REV.

, ae ee

Redlich, Are There “Certain Rights ... Retained

by the People?”, 37 N.Y.U. L. REV. 787 (1962)

ABA TASK FORCE ON FAIR TRIAL AND FREE

PRESS, STANDARDS RELATING TO FAIR TRIAL

n csc...

ANPA SPECIAL COMMITTEE ON FREE PRESS AND

FAIR TRIAL, REPORT OF THE AMERICAN NEWS-

PAPER PUBLISHERS ASSOCIATION ON FREE

PRESS AND FAIR TRIAL 0000.0...ccccccccccccccecececececseeesesn.

Inscription from the Tomb of Rekhmire, Vizer to

Tutmosis III, King of Egypt, XVIII Dynast

(1580-1321 B.C.) a .

SPOT SHEE %%% „„ „„ „ „„ „„ „„ „„ „„

Page

18,20

IN THE

Supreme Court of the United States

No. 79-243

RICHMOND NEWSPAPERS, INC., TIMOTHY B. WHEELER,

AND KEVIN McCCaRTnY,

Appellants,

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 APPELLANTS

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 AMICI

ANPA is a non-profit membership corporation or-

ganized under the laws of the Commonwealth of Virginia.

Its membership consists of more than 1,360 newspapers

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. Rich-

mond Newspapers, Inc. and twenty-six other newspapers

in the Commonwealth of Virginia are members of ANPA.

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.

Both ANPA and ASNE are committed to the proposi-

tion that, pursuant to the First Amendment, the press has

an obligation to provide the citizenry of this country with

complete and accurate reports of the affairs of govern-

ment—be they executive, legislative, or judicial. For “in a

society in which each individual has but limited time and

resources with which to observe at first hand the oper-

ations of his government, he relies necessarily upon the

press to bring him in convenient form the facts of those

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

‘

491 (1975). This Court has consistently recognized the

important role played by a free press in providing such

information to the public and has acknowledged both the

right of the press to report on and the public’s right to be

informed of incidents of judicial proceedings. See, Land-

mark Communications, Inc. v. Virginia, 435 U.S. 829

(1978); Oklahoma Pub. Co. v. District Court of Oklahoma

County, 430 U.S. 308 (1977); Nebraska Press Association v.

Stuart, 427 U.S. 536 (1976).

This Court’s decision last term in Gannett v. DePas-

quale, US. , 61 L.Ed.2d 608 (1979), while os-

tensibly based on the Sixth Amendment, seemed to ne-

gate, or at least draw into question, much of the learning

espoused in the Court’s prior rulings. As the result of an

apparent misconception of the Gannett decision, the Su-

preme Court of Virginia has sanctioned the closing of an

entire criminal trial.

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-

ginta, 435 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 con-

stitutional values involved. The Supreme Court of Vir-

ginia’s reliance on DePasquale for the proposition that

entire criminal proceedings may be closed to the public is

clearly erroneous and, should it be permitted to stand,

would lead federal and state trial courts to routinely

disregard their judicial responsibility to safequard the

constitutional rights of the citizenry under the First,

Sixth, Ninth and Fourteenth Amendments.

STATEMENT OF THE CASE AND CONSTITUTIONAL

PROVISIONS INVOLVED

Your amici adopt the statement of the case as set

forth in the Brief for Appellants 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 there-

in, this case involves the Ninth Amendment, which pro-

vides:

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

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

that as of October 8, 1979 there had been more than fifty

closures of judicial proceedings in the form of pretrials,

trials or sentencings, the Court should summarily reverse

the Supreme Court of Virginia’s reliance 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 proceeding must be a ‘public

trial.’ It is important not only that the trial itself be fair,

1 Being aware of this Court’s stated reservations as to its

jurisdiction in this case, your amici urge, that should the Court

determine that it lacks jurisdiction through appeal under 28

U.S.C. § 1257(2), the Court should treat “the papers whereon

the appeal was taken as a petition for writ of certiorari” and

grant the petition. See, Pennsylvania v. Board of Directors, 353

US. 230, reh. denied, 353 U.S. 989 (1957).

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

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 standards spelled out by this Court.

While in DePasquale this Court found no occasion to

address or delineate the First Amendment interests af-

fected by the closing of judicial proceedings, your amici

submit that such interests are necessarily implicated

whenever a decision is made to hold part or all of a judicial

proceeding in secret. Although neither the literal lan-

guage of the First Amendment nor of the Sixth Amend-

ment explicitly provides a right of the public to attend

criminal judicial proceedings, such a right flows from an

analysis of the goals which those amendments were in-

tended to achieve. Absent recognition of such a right, the

specific rights guaranteed will be less secure.

Further, your amici contend that, even if the First

and Sixth Amendments do not provide a right of the

public and the press to attend judicial proceedings, this

right has been reserved to the people under the Ninth

Amendment. The latter was included in the Bill of Rights

to guard against advancement of the theory that the

enumeration of certain rights implied the disparagement

or nonexistence of other fundamental rights. Historical

analysis, such as that engaged in by Justice Blackmun in

DePasquale, demonstrates that there was an unbroken

tradition of open judicial proceedings both in England and

colonial America. The Framers of the Constitution and

the Bill of Rights never intended to put an end to that

tradition; rather, they understood it to be the established

course of common law which would be carried forward

under the Constitution. See, III StoRY, COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES, 662 (1833).

Finally, your amici contend that in those rare in-

stances where a part of a judicial proceeding is to be closed

to the public and press, such a closing may only be allowed

after a strong showing of a clear and present danger to

the fair administration of justice, and a strong indication

that alternative measures will be ineffective in preserving

the fairness of the proceeding.

Any analysis of the right of the public and press to

attend judicial proceedings, whether under the First,

Sixth and/or Ninth Amendments, requires an exploration

of the historical background which led to adoption of those

amendments. Such an exploration demonstrates that the

right to open judicial proceedings has long been viewed to

be of utmost importance.

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

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

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

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,

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

usage wherever the common law prevails, all

trials are in open court to which spectators are

admitted.” The origin of the practice is more

obscure than evidence of its ancient existence.

Yet origin may have some bearing on the ques-

tion 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 traditional 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.

* * *

But whatever its origin the common law

concept of a publie 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.

It was against this background that the Bill of Rights

evolved. The Commonwealth of Virginia adopted protec-

tion 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 revolutionary

3H. Cross, THE PEOPLE’S RIGHT TO KNOW, 155-56 (1953).

statesmen such as Jefferson, Madison, Bushrod Washing-

ton, 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

republican form of democracy. In reaching these con-

clusions, it is clear from 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 Ire-

land. 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 Amend-

ment.

The states refused to adopt the Constitution unless a

Bill of Rights was adopted. When the Senate of the

United States sent twelve proposed amendments to the

people for ratification, Article the Eleventh read, “the

enumeration in the Constitution of certain rights shall not

be construed to deny or disparage others retained by the

people.” 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 people to

peaceably assemble and to petition the government 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.‘

This Court has frequently held that the First Amend-

ment not only guarantees the freedom to speak and to

publish but also the freedom of the public to receive

informational ideas. See Virginia Pharmacy Board v.

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

Georgia, 394 U.S. 557 (1969); Griswold v. Connecticut, 381

U.S. 479 (1965); New York Times v. Sullivan, 376 U.S. 254

(1964). In so doing the Court has recognized that the

First Amendment was intended to ensure both free and

informed discussion of governmental affairs. Especially in

connection with the judicial branch of government, the

Court has recognized that “[t]he operations of the courts

and the juaicial conduct of judges are matters of utmost

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

ginia, 435 U.S. 829 (1978). See Nebraska Press Association

v. Stuart 427 U.S. 539 (1976); Sheppard v. Maxwell, 384

U.S. 333 (1966). Open judicial proceedings promote the

goals of the First and Sixth Amendments by subjecting

the judicial process to public scrutiny and by assuring

judicial accountability and fairness for criminal defend-

ants as a result of such scrutiny. While neither amend-

ment explicitly provides that judicial proceedings shall be

open, the guarantees sought to be provided therein cannot

be achieved in the absence of recognition that a right of

attendance at judicial proceedings is encompassed in those

amendments.

In DePasquale, only Justice Powell considered the

First Amendment interests at stake. Your amici believe

that a proper consideration of the interplay of the First

and Sixth Amendments, when considering the closing of

Appendix “A” to Report of American Newspaper Pub-

lishers Association on Free Press and Fair Trial.

judicial proceedings, leads to the conclusion that such

proceedings may be closed only in the rarest of circum-

stances. Should the Court be unable so to conclude,

however, we submit that open judicial proceedings are a

guarantee to the people encompassed within the Ninth

Amendment and the emanations of the First and Sixth

Amendments. When it was determined that a Bill of

Rights was required, the Ninth Amendment was inserted

specifically to ensure that those fundamental rights not

enumerated in the first eight amendments would not be

lost. Dunbar, James Madison and the Ninth Amendment,

42 VA. L. REV. 627 (1956). The historical background

recited by Justice Blackmun, dissenting in DePasquale,

fully supports the proposition that open judicial proceed-

ings were a tradition of such long standing at common

law, that the Framers could not have intended to sacrifice

such a fundamental right by failing explicitly to enumer-

ate it in the first eight amendments. In DePasquale, this

Court seemed to suggest that the “public trial“ guarantee

of the Sixth Amendment is not a guarantee to the public

but one which belongs to the criminal defendant, and

possibly the prosecutor and the trial judge. Your amici

suggest that analysis of the First and Ninth Amend-

ments, as well as the Sixth Amendment, and the pe-

numbras surrounding them requires recognition of the

immemorial tradition of open judicial proceedings.

Whether the right to open judicial proceedings lies in

the First, Sixth and/or Ninth Amendments, it has been

suggested that the right may be overridden. Gannett v.

DePasquale, supra at 629; Id. at 632 (Powell, J. con-

curring). In light of Nebraska Press Association v. Stuart,

supra, your amici are aware that there may be rare

instances in which a criminal defendant’s Sixth Amend-

ment rights may take precedence over other con-

stitutional rights. Jd. at 551. Recognizing the distinction

between cases involving prior restraints on publication,

and those involving the public’s right to attend criminal

proceedings, your amici submit that the latter right is a

fundamental one of constitutional stature requiring the

same degree of judicial protection set forth in Nebraska

Press. Nothing less than a strong showing of clear and

present danger to the fairness of the proceeding must be

required prior to closing a criminal trial.

Your amici urge this Court to clarify the confusion

which has ensued from the recent DePasquale decision.

Whether it be based in the First, Sixth or Ninth Amend-

ments or in the emanations stemming from the guaran-

tees contained therein, the right of both the public and

the press to attend criminal proceedings is of vital impor-

tance to our form of democracy and is mandated by the

Constitution.

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 safeguard 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 em-

phasize his view that the majority opinion was applicable

only to pretrial proceedings. Finally, although Justices

Stevens and Powell joined the majority opinion in DePas-

quale, both had unequivocally stated that the Sixth

Amendment prohibits closed trials, as recently as the last

term. Justice Stevens, joined in dissent by Justices Bren-

nan 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 confidence in the integrity of the

proceeding. ~ = -. -

Id. at 36-37 (footnotes omitted).

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

s See Appendix A

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 into conflict.

A RIGHT OF THE PUBLIC

AND THE PRESS TO ATTEND

JUDICIAL PROCEEDINGS LIES IN THE

FIRST, SIXTH AND FOURTEENTH AMENDMENTS

TO 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 Procu-

nier v. Martinez, 416 U.S. 396 (1974) recognized a right to

receive personal correspondence. This Court further has

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. Man-

del, 408 U.S. 753 at 763 (1972), citing Thomas v. Collins,

323 U.S. 516 (1945).

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

ut jhe operations of the courts and the judicial conduct of

judges are matters of utmost public concern,” Landmark

Communications, Inc. v. Virginia, 435 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.” In re

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

proceedings, which make possible contemporaneous public

scrutiny and comment on our judicial system, “are of

critical importance to our type of government in which

.. ®Information gathering is clearly entitled to variable de-

grees of constitutional protection. See, eg., 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).

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 it generates, promotes that

fair treatment which the Sixth Amendment public trial

guarantee is designed to provide. Justice 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). In holding,

inter alia, that secret proceedings were violative of the

Fourteenth Amendment, this Court quoted Jeremy Bent-

ham 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 corrupt

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 comparison of publicity, all other

checks are of small account.

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

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, 1325. (1978) (Footnotes omitted)

Thus, although neither the First Amendment nor the

Sixth Amendment alone explicitly provides an independ-

ent right of the public to attend criminal judicial proceed-

ings, a constitutional basis for a penumbral right of

attendance arises nonetheless from the interplay of these

two constitutional texts. Attendance at criminal judicial

proceedings 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. Therefore, to assure implementation of these

dual, fundamental constitutional goals, this Court should

recognize a qualified constitutional right on the part of

both the public and its representative, the news media, to

attend criminal proceedings, and 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

——

— tins

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. Justice Douglas, writing for the Court in Griswold,

also discussed the penumbra surrounding the explicit

terms of the First Amendment:

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) (em-

phasis 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, 1327 (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

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

activity 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 associ-

ation.

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.” After an analysis of the historical

underpinnings of the Fourth and Fifth Amendments, the

Court determined that “a close and literal construction

[would] deprive them of half their efficacy and lead to

gradual depreciation of the right[s]” guaranteed there-

under. The Court, therefore, held the statute uncon-

stitutional as violating the meaning and thrust of the

Fourth and Fifth Amendments, despite the particular

wordings of those Amendments.’

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. De Pusquale,

.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

To a considerable degree, the controversy in this case

has centered on the question of whether the First or Sixth

7 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):

The 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.“ Id.

at 308 (Brennan, J., concurring).

Amendments, or both of them, guarantee to the public the

right to attend trials. That is, to be sure, the first question

to be addressed by the Court since an affirmative answer

would—as we have urged—require reversal in this case.

But it is not the only question.

If, for any reason, the Court should conclude that

neither the First nor the Sixth Amendment, of their own

force, protects the right of open judicial proceedings, the

Court could and, we believe, should nonetheless rule that

the Ninth Amendment protects that right.

The Ninth Amendment was added to the Constitution

to preclude any risk that courts would apply the maxim

expressio unius est exclusio alterius to the Bill of Rights.

Many state conventions had opposed ratification of the

original Constitution unless a bill of rights was included,

but concern was expressed that inclusion of such a docu-

ment would do more harm than good. One opponent, for

example, argued:

There is a maxim in law, and it will apply to

bills of rights, that when you enumerate ex-

ceptions, the exceptions operate to the exclusion

of all circumstances that are omitted; con-

sequently, unless you except every right from the

grant of power, those omitted are inferred to be

resigned to the discretion of the Government.

1 ANNALS OF CONGRESS 747 (Gales & Seaton ed. 1834)

(Rep. Jackson of Georgia). See G. WOOD, THE CREATION OF

AMERICAN REPUBLIC 537-40 (1969).

Alexander Hamilton, as well, had objected to the adoption

of a Bill of Rights on the ground, inter alia, that to

enumerate such rights might permit the disparagement

of others. See The Federalist No. 84 (A. Hamilton), at 559

(Modern Library ed.)

Answering such objections on the floor of the House of

Representatives, James Madison stated:

It has been objected also against a bill of

rights, that, by enumerating particular ex-

ceptions to the grant of power, it would dis-

parage those rights which were not placed in

that enumeration; and it might follow, by impli-

cation, that those rights which were r singled

out, were intended to be assigned int che hands

of the General Government, and were con-

sequently insecure. This is one of the most

plausible arguments that I have ever heard

urged against the admission of a bill of rights

into this system; but, I conceive, that it may be

guarded against. I have attempted it, as gentle-

men may see by turning to the last clause of the

fourth resolution.

1 ANNALS OF CONGRESS, supra, at 439.

The result was the Ninth Amendment.® Drafted by Madi-

son, it was adopted simply to insure “that by enumeration

of rights in the Constitution nothing has been lost; that the

rights of the people would have rested on as firm ground

without enumeration, because they do not lie within the

purview of powers granted to Congress”. Dunbar, James

Madison and the Ninth Amendment, 42 VA. L. REV. 627,

643 (emphasis in original) (1956).9

8 It provides:

“The enumeration in the Constitution of certain

rights, shall not be construed to deny or disparage

others retained by the people.”

Accord, e.g., 2 J. STORY, COMMENTARIES ON THE CON-

STITUTION OF THE UNITED SYATES 626-27, 651 (6th ed. 1891);

Redlich, Are There “Certain Rights. Retained by the People?

37 N.Y.U. L. REV. 787, 805 (1962); Note, The Ninth Amendment:

Guidepost to Fundamental Rights, 8 WM. & MARY L. REV. 101,

102-07 (1966).

The right to attend criminal proceedings, we submit,

is a right “retained by the people” within the meaning of

the Ninth Amendment. It was common ground for the

majority and the dissenters in Gannett that the right of

the people to attend judicial proceedings is deeply rooted

in our common law traditions. See 61 L. Ed. 2d 624-26 &

nn.15 & 18; id. at 646-55 (Blackmun, J., joined by Bren-

nan, White & Marshall, JJ., dissenting). Cf. id. at 630

(Burger, C.J., concurring) (“It is the practice of Western

societies, and has been part of the common law tradition

for centuries, that trials generally be public.”); id. at 632

(Powell, J., concurring) (by implication) (recognizing

First Amendment right based on “the importance of the

public’s having accurate information concerning the oper-

ation of its criminal justice system”). Accord, 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 saide.” Gannett, supra, 61 L. Ed.2d at 647 (Black-

mun, J., dissenting) (quoting T. Smith, De Republica

Anglorum (Alston ed. 1972)).

Although the Gannett majority cites several twentieth

century commentators who regard enactment of the Sixth

Amendment right of public trial as reflecting the evolu-

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

right, of the accused, 61 L. Ed.2d at 622, n.9, 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. V. U. L. REV. 611 (1956); 6 J.

WIGMORE, EVIDENCE § 1834 (J. Chadbourne rev. ed. 1976)

and authorities cited therein. Criminal proceedings were

uniformly held in public long before criminal defendants

were first accorded such protections as the right to coun-

sel, jury trial, prior notice of the charges, and the right to

confrontation—protections subsequently incorporated in-

to the United States Constitution and proposed by the

First Congress to the legislatures of the several states for

ratification in 1789. The public right to attend a trial

therefore arose entirely independently of the subsequent

recognition that public proceedings may also serve to

protect criminal defendants from judicial overreaching.

It is a fundamental tenet of the common law, both in

England and in America, 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. Lord (ke, commenting upon

the words “Jn curia domini regis” as they are used in the

Statute of Marlebridge, 1267, 52 Hen. 3, c. I, 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.

2 E. COKE, INSTITUTES OF THE LAWS OF ENGLAND, 103-04

(6th Ed. 1681).

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 the Charter of the Fundamental Laws of New

Jersey, drafted in 1676, whose Chapter XXIII provided:

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 be 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 court of justice shall

be public was included in the Bill 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. 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

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. II, Id. 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.

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 con-

clusive answer is, that such an attempt may be

interdicted (as it has been) by a positive declar-

ation in such a bill of rights that the enumera-

tion of certain rights shall not be construed 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).

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

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.

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

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 In Re Oliver,

333 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.” Id. at 270); T. COOLEY, A TREATISE ON

THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE

LEGISLATIVE POWERS OF THE STATES OF THE AMERICAN

UNION, 647 (8th ed. 1977).

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, Justice

Story noted:

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 OF THE

UNITED STATES, 662 (1833).

Unlike some common law rules, such as the dis-

qualification of witnesses because of interest, the require-

ment that judicial proceedings are public is not a mere

—— tail

form whose justification has long since faded, a relic of a

bygone era. Instead, as both the majority and dissent in

Gannett recognized, public access to criminal proceedings

is an integral and necessary part of a democratic govern-

ment. Public belief in, and support of, the process of

justice is crucial to a government that is based on the

consent of the governed. The public’s perception that

justice is being done is especially important when the

government through the criminal process denies a citizen

liberty or even life itself. 1e But this is not the only value

served by continuing to keep the courts open to the public.

The courts are servants of the people, who are entitled to

observe and evaluate the efficiency, comportment, and

dedication of judges, prosecutors, and other attorneys.

This social interest in public trials is of overriding

importance independent of, and qualitatively different

from, other constitutionally protected interests. No one

could doubt, for example, the enormous societal interest in

the swift and fair administration of justice, see Barker v.

Wingo, 407 U.S. 514, 519 (1972), or in having a criminal

case heard by a jury, see Patton v. United States, 281 U.S.

276, 312 (1935). But the openness of criminal trials is a

right which is more fundamental still, for its principal

purpose is to ensure the maintenance of other specific

rights such as the two listed above. It would thus be

entirely consistent to recognize a Ninth Amendment

right of access to trials and not recognize similar rights of

12 See 3 W. BLACKSTONE, COMMENTARIES 372; M. HALE, THE

HISTORY OF THE COMMON LAW IN ENGLAND 344 (6th ed. 1820).

These values were recognized by the Gannett majority, 61 L.

Ed.2d at 623-24 as well as the dissent, which authoritatively

canvassed the history. Jd. 646-49. The majority and dissent

differed only on the weight to be accorded these values in the

context of a Sixth Amendment analysis. The resolution of the

disagreement with respect to the Sixth Amendment in no way

forecloses the distinct analysis suggested here in the context of

the Ninth Amendment.

the public to compel a speedy trial or a trial by jury,

beyond those set forth in the Fifth and Sixth Amend-

ments themselves. A long-delayed bench trial, for exam -

ple, though hardly desirable in any respect, may nonethe-

less be tolerable because the trial, when it does take place,

will be open to the public so that all may judge whether

the delays were supportable and the proceedings just. Yet

one need only imagine the public response to, say, a

criminal case repeatedly continued at the defendant’s

request then tried only to the court, in secret, and finally

dismissed on an unexplained verdict of “not guilty,” to

realize the necessary preeminence of the right of public

access to trials.

This Court has not hesitated to conclude that the

dictates of history and the requisites of our democratic

form of government require that certain constitutional

rights be recognized, notwithstanding the fact that there

is no explicit reference to them in the Constitution itself.

That is precisely the path this Court takes when deter-

mining whether a certain right is so fundamental to the

“Anglo-American regime of ordered liberty” that it is

enforceable against the states under the due process clause

of the Fourteenth Amendment. See, eg., Duncan v.

Louisiana, 391 U.S. 145, 149-50 n.14 (1968). Indeed, this

Court has frequently examined the interstices of the

Constitution to find rights not specifically enumerated in

the text. In Griswold v. Connecticut, 881 U.S. 479 (1965),

for example, the Court struck down a state statute that

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

nal article, or instrument for the purpose of preventing

conception.” The right of privacy relied upon by the Court

was found nowhere in the express terms of the Con-

stitution but was held to be of constitutional stature

nevertheless. It 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. Cf. id. at 500 (Harlan, J., con-

curring) (right of privacy is “implicit in the concept of

ordered liberty” protected by due process and need not be

based in any specific guaranty of Bill of Rights).

Nor is this mode of analysis limited to protection of

highly personal rights such as marital! privacy. It has been

accepted at least since Embrey v. Palmer, 107 U.S. 3

(1882), that state courts must respect the judgments of

federal courts, although neither the full faith and credit

clause of the Constitution, U.S. Const. art. IV, § 1, nor its

implementing statute, Act of May 26, 1790, Ch. XI, 1 Stat.

122 (now codified at 28 U.S.C. § 1738 (1976) ) may fairly

be read to require such a result. Similarly, one may search

Article II of the Constitution in vain for any mention of

executive privilege, but there is now no question that the

privilege exists:

[T]he privilege can be said to derive from

the supremacy of each branch within its own

assigned area of constitutional duties. Certain

powers and privileges flow from the nature of

enumerated powers; the protection of the con-

fidentiality of Presidential communications has

similar constitutional underpinnings.

United States v. Nixon, 418 U.S. 683, 705-06 (1974) (foot-

note omitted).

In none of these cases did the Court find rights in

specific constitutional text: in each instance, it explored

the limits of governmental authority inherent in the

political structure established by the Framers. We ask no

more.

These cases demonstrate, as well, that the Ninth

Amendment analysis need not and should not be a license

for judicial freewheeling reminiscent of Lochner-era

substantive due process. See, e.g., Griswold v. Connecticut,

381 U.S. 479, 527-28 (1967) (Stewart J., dissenting).

Rather, it is a vehicle for preserving those values—and

only those values—that have been a part of the structure

of our society since well before our nation’s independence.

The citizen’s right to attend court and see justice done has

been an attribute of Anglo-American law for over a

thousand years. The failure to refer specifically to that

right in the First or Sixth Amendment cannot be held to

deny the right the constitutional stature it deserves.

Surely nothing in the First or Sixth Amendment requires

such a result; the Ninth Amendment and centuries of our

jurisprudence forbid it.

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

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 cf 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, and the ABA House of

Delegates has approved, the standards set forth in Neb-

raska Press Ass n. v. Stuart, supra, with regard to closure

of pretrial proceedings. See Appendix A (full text). Stan-

dard 8-3.2 states that closure may be ordered only if:

(i) 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:

[Gliven 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. Daily

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.

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,’ 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 society interest

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

Courts do not have unrestricted power to “suppress, edit,

or censor events or publication thereon which transpire in

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

(1947).

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 931-932 (Cov-

ington ed. 1927)

In holding 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]

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.

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

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 “tensions

... 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 I 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 554-55; 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., con-

curring). 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 proceeding ].“ Neb-

raska Press Ass n., supra, at 599, n. 22 (Brennan, J

concurring opinion).

More importantly, the burden of establishing the

need for elosure 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. Mlembers 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).'5 This principle is in

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. Sce e.g.,

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

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

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

Indeed, the media in such situations could help dispel

erroneous conceptions circulating among the populace.” Jd. at

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

1s 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)

Cantwell v. Connecticut, 310 U.S. 296, 204 (1904); Scott v.

Scott, (1913) 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 proceeding 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 of 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 criminal proceedings in our

society. Such open proceedings are, without doubt, an

intregal part of the system of civil liberties envisioned by

George Wythe, Patrick Henry, Thomas Jefferson, James

Madison and other great patriots. We most respectfully

urge that the Supreme Court of Virginia be found in error

and that this Court reconsider its ruling in DePasquale so

that, once and for all, no one will question the fact that

open judicial proceedings must be maintained in a

participatory government such as ours. Only in the most

egregious circumstances 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

DAVID M. RICKLESS FRANK M. NORTHAM

COHN AND MARKS MITCHELL W. DALE

1333 New Hampshire Ave. ARTHUR D. McKEy

N.W., Suite 600

Washington, D.C. 20036

Attorneys 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

Publishers Association

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.3

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.

These themes are emphasized to varying degrees in all of

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 nert 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.®

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. 4389, 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); Jn re Oliver, 333 US.

257, 270-71 (1948).

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

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

Washington Post Co., 417 U.S. 843, 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

significant departure from original trate egg

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) ad g .

: ’ mon ‘

tions to the jury.® (8) itory instruc

The public interest in open i

st 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 vol

fair trial/free press guidelines. ABA ion aan

ra, AGREEMENTS (1974). VVV

e Supreme Court noted several of these m i

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562.65 (1976).

Others are enumerated in a report to the Senate Subcommittee

on Constitutional Rights. STAFF or SUBCOMM. ON CON-

STITUTIONAL RIGHTS OF THE SENATE COMM. ON THE JUDICIARY

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

by the Supreme Court in Nebraska Press Association v.

Stuart.s 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. o 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

9427 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).

11 T. 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“ ie 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.

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.