# Record and brief — Globe Newspaper Co. v. Superior Court, County of Norfolk > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0447%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 457 U.S. 596 ## Text quouyeg -euojoypsune 3 == 81-611 PIL: SEP 28 198) In the ates Supreme Court of the United States. Ocroser Term, 1981. No. GLOBE NEWSPAPER COMPANY, APPELLANT, v. THE SUPERIOR COURT FOR THE COUNTY OF NORFOLK, APPELLEE. ON APPEAL FROM THE SUPREME JUDICIAL COURT FOR THE COMMONWEALTH OF MASSACHUSETTS. Jurisdictional Statement. James F. McHucu Rosert Haypock, Jr. Marc A. REARDON BincHAM, Dana & GouLp 100 Federal Street Boston, Massachusetts 02110 (617) 357-9300 BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS Question Presented. Whether the First, Sixth and Fourteenth Amendments to the Constitution of the United States render Massachusetts General Laws c. 278, § 16A void as construed by the Supreme Judicial Court to require exclusion of the press and the public from portions of all trials of certain crimes even over the oppo- sition of the defendant and even in the absence of a request by the prosecution or the victim for such exclusion. Table of Contents. Opinions below Jurisdiction Statute involved Statement of the case Raising the federal question I. Massachusetts General Laws c. 278, § 16A as construed by the Supreme Judicial Court violates the First Amendment to the Constitution of the United States as applied to the states through the Fourteenth Amendment A. The First Amendment right to attend criminal trials requires that such trials be open in their entirety unless closure, in whole or in part, rep- resents the least drastic means for achieving an overriding governmental interest B. The interests identified by the Supreme Judi- cial Court are insufficient to require closure of all testimony of all victims at all trials compre- hended by Massachusetts General Laws c. 278, § 16A C. In order to ensure that an order closing a crim- inal trial, in whole or in part, is the least drastic means for achieving an overriding governmen- tal interest, a hearing prior to closure is necessary II. Massachusetts General Laws c. 278, § 16A vio- lates appellant’s rights under the Sixth Amend- ment to the Constitution of the United States Conclusion Appendix Petition for extraordinary relief pursuant to Massa- chusetts General Laws chapter 211, section 3 Ooowownw bd 12 12 14 31 la ii TABLE OF AUTHORITIES CITED. Exhibit A — motion to revoke orders concerning ex- clusion of the press 5a Exhibit B — motion for hearing 6a Exhibit C — motion to intervene 7a Exhibit D — transcript of hearing on motions 8a Order 22a Judgment 23a Opinion of the Supreme Judicial Court for the Com- monwealth of Massachusetts in Globe I 25a Remand order of the Supreme Court 54a Opinion of the Supreme Judicial Court for the Com- monwealtb of Massachusetts in Globe II 57a Notices of appeal to the Supreme Court of the United States 75a Table of Authorities Cited. CASEs. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749 (Ky. App. 1980) 25 Barrows v. Jackson, 346 U.S. 249 (1953) 29 Branzburg v. Hayes, 408 U.S. 665 (1972) 13 Brown v. Board of Education, 347 U.S. 483 (1954) 15 Butler v. Michigan, 352 U.S. 380 (1957) 16n, 21 Carey v. Population Services International, 431 U.S. 678 (1977) 29 Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968) 26 TABLE OF AUTHORITIES CITED. iii Commonwealth v. Aladjem, Norfolk Superior Court Criminal No. 73102-9 3,6 Commonwealth v. Joyce, Mass. Adv. Sh. (1981) 39, N.E.2d 21 Commonwealth v. Marshall, 356 Mass. 432, 253 N.E.2d 333 (1969) 19 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) 22 Davis v. Alaska, 415 U.S. 308 (1974) 21 Detroit Free Press v. Recorder’s Court Judge, 409 Mich. 364, 294 N.W.2d 827 (1980) 25 Dougias v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871 (1976) 16n Eisenstadt v. Baird, 405 U.S. 438 (1972) 29 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) 14, 19, 23 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) 20, 25 Gannett Co. v. DePasquale, 443 U.S. 368 (1979) 13, 15, 16n, 24, 27 et seq. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 17 Gilmore v. Utah, 429 U.S. 1012 (1976) 29n Globe Newspaper Co. v. Superior Court, Mass. Adv. Sh. (1980) 485, 401 N.E.2d 360, 101 S.Ct. 259 (1980), Mass. Adv. Sh. (1981) 1493, N.E.2d 6, 7, 1ln, 14, 16 et seq. Gooding v. Wilson, 405 U.S. 518 (1972) 14 Griswold v. Connecticut, 381 U.S. 479 (1965) 18, 29 Herald Ass'n, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323 (1980) 25 In re Oliver, 333 U.S. 257 (1948) 23 iv TABLE OF AUTHORITIES CITED. In re United States ex rel. Pulitzer Publishing Co. , 635 F.2d 676 (8th Cir. 1980) 25 In re Winship, 397 U.S. 358 (1970) 21 Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905 (Ky. 1980) 19 Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977) 14, 19 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 15 Miller v. California, 413 U.S. 15 (1973) 18n NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) 14, 24 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) 14 NAACP v. Button, 371 U.S. 415 (1963) 14 Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) 30 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ll Oklahoma Publishing Co. v. District Court of Oklaho- ma County, 430 U.S. 308 (1977) 30 Patuxent Publishing Corp. v. State, 48 Md. App. 689, 429 A.2d 554 (1981) 25 Price v. State, 496 S.W.2d 103 (Tex. Crim. App. 1973) = 16n Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) 6, 7, 8, 9, 10 et seq. Schaumburg v. Citizens for Better Environ., 444 U.S. 620 (1980) 14 Shelton v. Tucker, 364 U.S. 479 (1960) 14, 24 Singleton v. Wulff, 428 U.S. 106 (1976) 29, 30 Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) 22, 30 Speiser v. Randall, 357 U.S. 513 (1958) 1] TABLE OF AUTHORITIES CITED. Vv Stanley v. Georgia, 394 U.S. 557 (1969) 18 State v. Green, 395 So. 2d 532 (Fla. 1981) 25 State v. Schmit, 273 Minn. 78, 139 N.W.2d 800 (1966) 19 State v. Sheppard, 42 C.L.J. 23 (Conn. 1980) 19, 25 State v. Sinclair, 274 S.E.2d 411 (S.C. 1981) 25 State v. Wahle, 298 N.W.2d 795 (S.D. 1980) 25 Thornhill v. Alabama, 310 U.S. 88 (1940) 17 Tinker v. Des Moines independent Community School Dist., 393 U.S. 503 (1969) 23 United States v. Edwards, A.2d_—, Nos. 294 and 401 (D.C. May 8, 1981) 25 United States ex rel. Latimore v. Sielaff, 561 F.2d 691 (7th Cir. 1977), cert. denied, 434 U.S. 1076 (1978) 16n CONSTITUTIONAL PROVISIONS. United States Constitution Bill of Rights 30 First Amendment passim Sixth Amendment passim Fourteenth Amendment passim STATUTES. Alabama Code § 12-21-202 (1975) 17n Massachusetts General Laws c. 210 § 5C 2in § 6 2in §7 21n § 8 2in vi TABLE OF AUTHORITIES CITED. ce. 211,§3 c. 220, § 13A c. 278, § 16A New York Jud. Law § 4 (McKinney 1975) North Carolina Gen. Stat. § 15-166 (1975) Vermont Stat., tit. 12, § 1901 Virginia Code § 19.2-266 MISCELLANEOUS. Bickel, The Least Dangerous Branch, 108 (Bobbs- Merrill, 1962) Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970) Schauer, Fear, Risk and the First Amendment: Unrav- eling the “Chilling Effect,” 58 B.U. L. Rev. 685 (1978) 15 14 li In the Supreme Court of the United States. Ocroser Term, 1981. No. GLOBE NEWSPAPER COMPANY, APPELLANT, v. THE SUPERIOR COURT FOR THE COUNTY OF NORFOLK, APPELLEE. ON APPEAL FROM THE SUPREME JUDICIAL COURT FOR THE COMMONWEALTH OF MASSACHUSETTS. Jurisdictional Statement. Globe Newspaper Company appeals from the final judg- ment of the Supreme Judicial Court for the Commonwealth of Massachusetts dated June 30, 1981. In the opinion accompa- nying that judgment, the Supreme Judicial Court, pursuant to the order of this Court entered October 14, 1980, reconsidered an opinion it had rendered in this case on February 24, 1980, and concluded again that Massachusetts General Laws c. 278, § 16A requires exclusion of the press and the public from por- tions of all trials of certain crimes. 2 Opinions Below. The opinion of the Supreme Judicial Court for the Com- monwealth of Massachusetts from which this appeal is taken appears in the appendix hereto, pages 57a-74a, infra, and is reported at Mass. Adv. Sh. (1981) 1493, N.E.2d . The Supreme Judicial Court's original opinion appears in the ap- pendix hereto, pages 25a-53a, infra, and is reported at Mass. Adv. Sh. (1980) 485, 401 N.E.2d 360. The order of this Court vacating the original judgment of the Supreme Judicial Court and remanding the case for fur- ther consideration appears in the appendix hereto, pages 54a- 56a, infra, and is reported at 101 S.Ct. 259 (Oct. 14, 1980). The decisions of the single justice of the Supreme Judicial Court for the County of Suffolk and of the trial judge of the Superior Court for the County of Norfolk were oral and unre- ported. Copies of portions of the transcripts of the hearings held before said courts at which the oral decisions were an- nounced are included in the appendix hereto, pages 8a-lla and 12a-2la, infra. Jurisdiction. This is an appeal from a final judgment of the Supreme Judicial Court for the Commonwealth of Massachusetts en- tered June 30, 1981. In its decision, the court held that M.G.L. c. 278, § 16A requires a trial judge to exclude the press and public from the trial of certain crimes when the minor victims of those crimes are testifying. A notice of appeal to this Court from that judgment was timely filed with the clerks of the Superior Court for the Coun- ty of Norfolk, the Supreme Judicial Court for the County of Suffolk, and the Supreme Judicial Court for the Common- wealth of Massachusetts on September 22, 1981 (App. 75a- 80a). This appeal is being docketed in this Court within 90 . days from June 30, 1981, the date of entry of the final judg- ment of the Supreme Judicial Court. 3 Statute Involved. The text of M.G.L. c. 278, § 16A is as follows: At the trial of a complaint or indictment for rape, in- cest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed, or at the trial of a complaint or indictment for getting a woman with child out of wedlock, or for the non-support of an illegitimate child, the presiding justice shall exclude the general public from the court room, ad- mitting only such persons as may have a direct interest in the case. Statement of the Case. On or about April 19, 1979, the Superior Court for the County of Norfolk, Massachusetts commenced hearings with respect to pretrial motions in a criminal case styled Common- wealth v. Aladjem, Norfolk Superior Court Criminal No. 73102-9. At that time, the trial judge caused a sign reading “Closed” to be placed on the courtroom door. All persons ap- proaching the courtroom doors were told by courtroom per- sonnel that they could not enter (App. 27a). On April 25, 1979, prior to commencement of that day’s proceedings and the trial itself, counsel to Globe Newspaper Company (the “Globe”) filed with the clerk three motions: (1) a motion to revoke orders concerning exclusion of the press from pretrial’ or trial proceedings in the case (App. 5a); (2) a motion for a hearing with respect to any orders excluding the press from pretrial or trial proceedings (App. 6a); and (3) a motion to intervene for the limited purpose of asserting the right of the press to attend the pretrial and trial proceedings (App. 7a). ' This appeal is limited to the order entered by the trial court on April 25, 1979, which excluded the public and the press from the trial itself. No pre- trial issues are presented. 4 The trial judge opened the proceedings that day by identify- ing the three motions filed by the Globe. Then, immediately after the prosecutor stated the age and sex of the victims and the fact that rape was the crime involved, the trial judge orally issued the following two rulings: This Court rules that the Motion to Intervene may not be filed. ... This Court further rules that, consistent with General Laws Chapter 278 Section 16A, this trial will be conducted in such a manner that the general pub- lic shall be excluded from the courtroom, including the press, and that only such persons as may have a direct in- terest in the case will be permitted in the courtroom. [App. 10a]. At that point, counsel to Mr. Aladjem, the defendant in the case, noted his exception to the court’s ruling excluding the general public and the press (App. lla). The prosecutor then stated that the Commonwealth had not requested the exclu- sionary order (App. lla). Thereafter, the trial judge said that the pretrial proceeding scheduled for that day would continue and that the courtroom should be cleared (App. 11a). On April 25, 1979, the day that the closure order was en- tered, the Globe filed a petition for extraordinary relief pursu- ant to M.G.L. c. 211, § 3,* in the Supreme Judicial Court for * Filing such a petition constitutes commencement of a new, and not an ap- pellate, proceeding over which the Supreme Judicial Court has exclusive original jurisdiction. Massachusetts General Laws c. 211, § 3 provides: The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue all writs and processes to such courts and to corporations and individuals which may be necessary to the furtherance of justice and to the regular execution of the laws. In addition to the foregoing, the justices of the supreme judicial court shall also have general superintendence of the administration of all courts of inferior jurisdiction, including, without limitation, the prompt hearing and disposition of matters pending therein, and the functions set forth in section three C; and it may issue such writs, sum- monses and other processes and such orders, directions and rules as 5 the County of Suffolk, contesting the legality and constitu- tionality of the closure order entered pursuant to M.G.L. c. 278, § 16A by the trial court and the procedure pursuant to which the trial court had entered that order. The immediate relief sought by the petition was an injunction which, in ef- fect, would have reversed the closure order and permitted members of the press to attend the criminal trial then about to commence (App. la-4a). A hearing on the petition was held before a single justice of the Supreme Judicial Court for the County of Suffolk on the following day, April 26, 1979. At the hearing, the district at- torney responsible for prosecuting the criminal case represent- ed ‘o the single justice that the prosecuting attorney had dis- cussed the closure order with the victims and that, on behalf of the victims, the district attorney was waiving whatever rights the Commonwealth might have had under § 16A to seek to ex- clude the press from the trial (App. 15a-16a). The single justice, while observing that the procedures util- ized by the Globe in the trial court “adequately raised the question whether the Globe has any right to have the trial public” (App. 14a), denied the petition. He ruled orally that M.G.L. c. 278, § 16A was “mandatory in its terms” (App. 19a), and that even if not “utterly mandatory” (App. 19a), there had been no showing that the trial court had abused its discretion in closing the trial. He then ruied that the Globe had no First-Amendment right to attend the trial and had no standing to raise any Sixth-Amendment conten- tions (App. 20a-2la). A written order denying the Globe’s petition was entered later the same day (App. 22a),° and final may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration. Nothing herein contained shall affect existing law governing the selec- tion of officers of the couris, or limit the existing authority of the of- ficers thereof to appoint administrative personnel. > The record contains the transcript of a brief lobby conference which took place on April 30, 1979, four days later. At the conference, attended by counsel for the parties to the criminal trial and the trial judge, the prosecut- 6 judgment dismissing the petition was entered eleven days later on May 7, 1979 (App. 23a). Following entry of the single justice’s order of April 26, 1979 denying the petition, impanelment of the jury in the underlying criminal action, Commonwealth v. Aladjem, began and that case was tried. On May 10, 1979, Mr. Alad- jem was found not guilty (App. 28a). The trial was closed to the press and public throughout its course (App. 25a). On May 17, 1979, the Globe filed its notice of appeal to the Supreme Judicial Court for the Commonwealth of Massachu- setts from the May 7 judgment dismissing its petition. On February 26, 1980, the Supreme Judicial Court rendered its judgment. Globe Newspaper Co. v. Superior Court, Mass. Adv. Sh. (1980) 485, 401 N.E.2d 360 (hereinafter referred to as “Globe I’). In its opinion, the Supreme Judicial Court held that the is- sues raised before the single justice were moot, but that they were “significant and troublesome, and. . . ‘capable of repeti- tion yet evading review’” (App. 26a). Thus, while dismissing the Globe's appeal on grounds of mootness, the Supreme Judi- cial Court deemed it appropriate to express its views on the issues the appeal raised (App. 26a). The court did not, however, address the constitutional claims raised by the Globe. Although it acknowledged that such issues had been raised, it decided to await this Court's decision in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), for their resolution. Proceeding solely on the basis of statutory construction, the court ruled that § 16A required exclusion of the press and public from trials of certain crimes while the minor victims of these crimes were testifying ing attorney said that she had spoken to the victims again and that they had told her that they had no objection to the presence of the press at the trial if the press would agree not to print their names, their photographs, where they went to school or other personal data about them. No action was taken with respect to the prosecuting attorney's comments, no examination of the victims with respect to their views thereafter was undertaken by anyone, and the trial proceeded in accordance with the trial court's earlier order of clos- ure. As will be seen, the concerns voiced by the victims on April 30 were concerns with which § 16A was not equipped to deal. 7 (App. 42a). It also ruled that the statute granted to the trial court discretion to exclude the press and the public from the entire trial of such crimes if exclusion was “necessary . . . to preserve evidence required for a just conviction” (App. 44a). On May 4, 1980, the Globe filed a notice of appeal to this Court from the judgment of the Supreme Judicial Court just described. Within two months thereafter, this Court rendered its opinion in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), holding that the First Amend- ment to the Constitution of the United States guarantees the right of the public to attend criminal trials. Three months later, on October 14, 1980, this Court entered an order vacat- ing the Supreme Judicial Court’s judgment of February 26, 1980 and remanding the case for further consideration in light of Richmond Newspapers. 101 S.Ct. 259 (1980) (App. 54a). The judgment of the Supreme Judicial Court on remand was entered on June 30, 1981. Globe Newspaper Co. v. Superior Court, Mass. Adv. Sh. (1981) 1493, N.E.2d (hereinaf- ter referred to as “Globe IT’). In light of this Court’s remand order and the considerations regarding mootness expressed in Globe I, the Supreme Judicial Court held that the case was not moot as to First-Amendment issues raised by the Globe, thus reversing the conclusion it had reached in Globe I (App. 6la n.5). It also held, however, that this Court’s remand order did not require consideration of the claim raised by the Globe under the Sixth Amendment. As a result, the court simply reiterated the conclusion expressed in Globe I, that the Globe had no standing to assert any such claim (App. 6la n.5). The court then held that § 16A in its mandatory aspect did not violate the Globe's First-Amendment rights as those rights were articulated by this Court in Richmond Newspapers (App. 72a). The court’s decision was based in large part on what it said were the state interests underlying a “notable ex- ception” to the unbroken historical tradition of openness of criminal trials. That exception, in the court’s view, concerned cases involving sexual assaults, particularly those involving minor victims. The relevant state interests were those identi- fied in Globe I, i.e., sparing minor victims the embarrassment 8 of public testimony and promoting the “sound and orderly ad- ministration of justice” by encouraging minor victims of sexual assaults to come forward and give credible testimony (App. 68a). The court also held that, even though § 16A might appear designed to protect the minor victims of certain assaults, a minor victim who desired to testify in open court could not “waive” the statute’s provisions, and thus that a trial the statute governed must proceed behind closed doors while the victim was testifying even if the victim objected (App. 69a n.15). Be- cause the statute said nothing about public release of transcripts of the victim's testimony, however, the court left that to the “sound discretion of the trial judge” exercised in accordance with Globe I, Globe II and Richmond Newspapers (App. 68a n.14). With respect to closure of portions of trials other than those during which minor victims were testifying, the court revised the standard announced in Globe I for determining whether closure was appropriate. Stating that after Richmond News- papers, a trial judge was “obliged to recognize the constitu- tional right of the press and public to attend trials,” the court held simply that the justification for any such closure “must comply with the standards of Richmond Newspapers” (App. 72a). The court specifically declined to articulate fur- ther the standard for discretionary closure to be applied by the trial judge under § 16A (App. 72a).‘ Justice Wilkins, one of the five members of the panel which heard the case on remand, concurred specially for the purpose of stating his doubts that, in its mandatory aspect, § 16A was con- stitutional. Observing that the applicability of imputed legisla- tive findings supporting § 16A was not assured in each case, and using the example of the minor victim who wanted the public to know precisely what a heinous crime the defendant had commit- ted, Justice Wilkins would have construed § 16A as entirely per- missive and would have required specific findings before closure, in whole or in part, was ordered in any case (App. 74a). * The reluctance of the court to articulate standards to inform the trial court's exercise of discretion with respect to closure was perhaps based on its professed inability to find in Richmond Newspapers a constitutionally required standard for permissible closure which commanded majority support. See App. 62a n.8. 9 Raising the Federal Question. At the earliest possible stage in the relevant proceedings, the Globe raised the claim that M.G.L. c. 278, § 16A violated the First and Sixth Amendments to the Constitution of the United States. In the petition filed by the Globe with the Supreme Judicial Court for Suffolk County on the day of the trial court’s closure order — the petition which commenced the action on which this appeal is based — the Globe asserted that the order excluding the press from the trial was in “violation of the First Amendment to the Constitution of the United States” (App. 3a, J 9), and “in violation of the Sixth Amendment to the Constitution” (App. 3a, § 10). At the hearing before the single justice the following day, the Globe argued that the stat- ute itself, if construed to require exclusion from the trial, vio- lated both the First and Sixth Amendments (App. 14a). The same federal constitutional claims were reiterated by the Globe before the Supreme Judicial Court for the Common- wealth during the proceedings leading up to that court’s deci- sions in both Globe I and Globe II and in its prior appeal to this Court. In both Globe I and Globe II, the Supreme Judi- cial Court, by requiring the exclusion of the press and public from portions of certain criminal trials, denied the Globe's federal constitutional claims. In Giobe I, the Globe's claims were effectively denied by the court’s failure to reach the fed- eral constitutional questions. In Globe II, the Globe’s federal constitutional claims were denied expressly on the basis of the court’s interpretation of Richmond Newspapers. It is review of that denial which is here sought. The Question is Substantial. The question presented by this appeal requires the attention of this Court in order to ensure that rights guaranteed by the First, Sixth and Fourteenth Amendments to the Constitution are not compromised by failure to comply with the principles of law this Court announced in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). Moreover, the issue which this 10 appeal presents is novel and has not been squarely presented to this Court before. The Virginia statute involved in Richmond Newspapers provided the trial judge with discretion to deter- mine whether a trial should be closed. There was no manda- tory provision in the statute and, in fact, its very language recognized the countervailing interest in public trials. The Massachusetts statute at issue here, as construed by the Su- preme Judicial Court, does contain a mandatory provision, a provision which absolutely forecloses any consideration by the trial court of the rights of the press and the public, the defend- ant or the minor victim in the context of a particular factual situation presented. It even requires closure in the face of opposition to closure by the victim, the presumed beneficiary of the statute’s design. In both of these respects, the statute appears to stand alone amidst the plethora of discretionary state statutes dealing with the same subject.® Beyond that, since this Court’s decision in Richmond News- papers, trial-closure orders have been reviewed by numerous state and federal appellate courts in light of the standards set forth in Richmond Newspapers. With the exception of the Su- preme Judicial Court, those courts have reached the unani- mous conclusion that Richmond Newspapers mandates a pre- cise inquiry, on a case-by-case basis, into the existence and intensity of interests underlying a closure request as well as a canvass of alternatives less burdensome on First-Amendment rights than closure itself. A number of those decisions have voiced that conclusion in the context of trials of crimes involv- ing sexual assaults on, or physical abuse of, minors. The inter- pretation of M.G.L. c. 278, § 16A in Globe II, which requires the trial judge to close portions of certain trials, does not per- mit that precise and focused inquiry and never permits explor- ation or utilization of less burdensome alternatives which may in fact exist. Finally, the expressed uncertainty of the Supreme Judicial Court as to the “binding rule of law” established in Richmond See discussion at p. 16, infra. ® See cases cited at p. 25, infra. 1] Newspapers (App. 62a n.§) enhances the substantial nature of the federal question presented here.” By its own analysis, the court’s conclusions required it to give this Court’s opinion in Richmond Newspapers a “close reading” (App. 6la). The court also found “some difficulty in determining the binding rule of law in a decision which lacks reasoning to which a ma- jority of the Court has agreed” (App. 62a n.8). In his concur- ring opinion, Justice Wilkins expressed the view that the Supreme Judicial Court had “no guidance yet on whether the mandatory closing of all criminal trials during the testimony of minor victims of sex crimes is permissible under the First Amendment” (App. 73a). The degree of uncertainty ex- pressed by the Supreme Judicial Court, however warranted, see Richmond Newspapers at 603 (Blackmun, J., concurring), is troublesome precisely because it is uncertainty over the pa- rameters of an important constitutional right. To the extent that that uncertainty gives rise to the likelihood of erroneous decisions in future cases, its very existence is inconsistent with the First Amendment itself. See generally Speiser v. Randall, 357 U.S. 513, 525-26 (1958); New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964); Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 701-05 (1978). 7The Supreme Judicial Court's stated uncertainty with regard to the meaning of Richmond Newspapers takes on added significance because the court in Globe II directed trial courts to follow the standards established in Richmond Newspapers in determining whether to close trials under § 16A at times other than when the victim was testifying. The court's expressed un- certainty over the “binding rule of law” emanating from Richmond News- papers thus is likely to have an impact on its supervision of the discretionary aspect of § 16A. 12 I. Massacuusetts GENERAL Laws c. 278, § 16A as CoNSTRUED BY THE SUPREME JUDICIAL Court VIOLATES THE First AMEND- MENT TO THE CONSTITUTION OF THE UNITED STATES AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT. A. The First Amendment Right to Attend Criminal Trials Requires that Such Trials be Open in Their Entirety Un less Closure, in Whole or in Part, Represents the Least Drastic Means for Achieving an Overriding Govern- mental Interest. This Court’s recent decision in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), made explicit for the first time that the First Amendment, as applied to the states through the Fourteenth Amendment, embodies a right on the part of the press and the public to attend criminal trials. Richmond News- papers involved the fourth trial of a criminal defendant on murder charges stemming from the 1975 stabbing death of a hotel manager. Before the trial began, counsel for the defend- ant moved that it be closed to the public. The prosecution did not object and the trial judge, exercising the discretion he thought was conferred upon him by Virginia Code § 19.2-266, ordered the courtroom closed to all parties except witnesses dur- ing the course of their testimony. Appellant Richmond News- papers moved to vacate the closure order and that motion was denied in a closed hearing. The trial of the criminal case pro- ceeded in a closed courtroom until the trial judge entered a finding of “Not Guilty” at the conclusion of the prosecution's case. Thereafter, the newspaper filed petitions for writs of mandamus and prohibition and an appeal from the trial court’s closure order, all of which were denied by the Virginia Supreme Court. The newspaper then filed an appeal with this Court. In what was described by Justice Stevens as a “watershed case,” this Court reversed the judgment of the Virginia Su- preme Court. Although no single opinion was adopted by a majority of the Court, the basic theme to which all but one of the members of this Court subscribed was that the right to attend criminal trials is implicit in the guar- antees of the First Amendment; without the freedom to 13 attend such trials, which people have exercised for cen- turies, important aspects of freedom of speech and “of the press could be eviscerated.”. . . Richmond Newspapers at 580, quoting Branzburg v. Hayes, 408 U.S. 665, 681 (1972). To be sure, none of the opinions rendered in Richmond Newspapers stated that the rights there described were abso- lute. The plurality opinion, however, did indicate that the standard for closure should be high indeed, and that the deci- sion to close trials should be made by the trial judge on a case- by-case basis. Thus, as the plurality opinion put it, “[a]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.” Richmond News- papers at 581. Several of the concurring opinions also advert- ed to the very limited circumstances under which closure was appropriate. Justice Stewart, for example, suggested that closure was appropriate only when, and to the degree, neces- sary to serve what might be viewed as mechanical interests similar to those which historically have given rise to reasonable “time, place, and manner” restrictions on First-Amendment rights. Id. at 600. Justice Blackmun implicitly reaffirmed the standard for trial closures which he first advanced in Gannett Co. v. DePasquale, 443 U.S. 368, 440 (1979) (Blackmun, J., dissenting), i.e., that closure is permissible only when “strictly and inescapably necessary.” Richmond Newspapers at 601 (Blackmun, J., concurring). Notwithstanding the absence of a unified dispositional prin- ciple, the plurality and concurring opinions in Richmond Newspapers all subscribed to the basic proposition that, where governmental action potentially infringes on First-Amend- ment rights, the action must be exactingly crafted to achieve the governmental interest at stake without unnecessary abridgement of important rights. In that regard, the decision, despite its potentially far-reaching consequences, traversed a well-blazed path. Countless decisions of this Court prior to Richmond Newspapers have clearly established that “[b]road prophylactic rules in the area of free expression are sus- pect... . Precision of regulation must be the touchstone in 14 an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963). Phrased another way, “a governmental purpose to control or prevent activities constitutionally subject to. . . regulation may not be achieved by means which sweep unnecessarily broadly and thereby in- vade the area of protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964). Accord, Schaumburg v. Citizens for Better Environ., 444 U.S. 620, 635 (1980). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970). In order to avoid undue im- precision, it is always necessary under the First Amendment to focus precisely on the state interest asserted, to reach a judg- ment concerning its importance, and then to determine whether the interest can be achieved through measures less drastic than those the government has implemented. See, e.g., Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 95-96 (1977); Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18 (1975); Gooding v. Wilson, 405 U.S. 518, 521-22 (1972); Shelton v. Tucker, 364 U.S. 479, 488 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463-64 (1958). At bottom, all of the opinions in Richmond Newspapers, save one, recognized the principles just described. While, for various reasons, several of those who concurred in the judg- ment found it unnecessary to examine in detail the strength of conceivable state interests or the possibility that they could have been achieved through less drastic means, all recognized, at least implicitly, the necessity for the Court to do so in an ap- propriate case. This is that case, for the Supreme Judicial Court's decision simply does not reflect proper application of standard First-Amendment analysis. B. The Interests Identified by the Supreme Judicial Court are Insufficient to Require Closure of All Testimony of All Vic- tims at All Trials Comprehended by M.G.L. c. 278, § 16A. In its opinion in Globe II, the Supreme Judicial Court held that, to determine the constitutionality of the mandatory closure requirement of § 16A, a three-fold inquiry was necessary. That 15 inquiry, in the court’s view, required it to ascertain: (1) whether closing the testimony of the minor victim of a sex- ual assault violated the same tradition of open proceedings as the closing of an entire murder trial; (2) whether closure im- peded the flow of information necessary to the functioning of democratic institutions; and (3) whether there were substan- tial state interests underlying the statute which could not be furthered by more tightly drawn regulations intruding to a lesser degree on the constitutionally protected interests of the press and public (App. 65a). As will be discussed, the first two inquiries engaged in by the Supreme Judicial Court are not the appropriate inquiries in light of the standards estab- lished by Richmond Newspapers. The outcome of the court’s analysis with respect to the third inquiry reflects the court’s misapprehension of the central meaning of Richmond News- papers itself. In analyzing the first question, relating to the role of tradi- tion, the Supreme Judicial Court concluded that trials of crimes involving sexual assaults were a “notable exception” to the “unbroken tradition of openness” which inheres in the trial of other crimes (App. 65a). The court’s reliance on a per- ceived exception to the historic tradition of open trials both misses the point established in Richmond Newspapers and mis- apprehends the strength and nature of that tradition. To be sure, all opinions in Richmond Newspapers, as well as all opinions in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), reviewed in some detail the presumption of openness which has historically attended the trial of criminal cases. Ul- timately, however, it was the “constitution that [the Court was] expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (emphasis in original). While history may help shape the meaning of the Constitution as applied to a current problem, surely history does not freeze constitutional rights in a mold formed by years gone by. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954); A. Bickel, The Least Dangerous Branch, 108-10 (Bobbs-Merrill, 1962). This is not to say that history is irrelevant but simply that it is not disposi- tive in the current interpretation of constitutional rights. 16 Moreover, to give a “notable exception” the weight to which it is entitled in forming current judgments, it is necessary to have an accurate understanding of what the exception is. Stat- utes and judicial decisions of numerous states do in fact per- mit, and for years have permitted, a trial judge to exclude the press and public from portions of certain types of criminal trials, including trials of crimes involving sexual assaults.® Even prior to this Court’s decision in Richmond Newspapers, however, these statutes and cases were uniformly permissive only. Despite a thorough search, the Globe has been unable to find any state statute, other than § 16A, containing manda- tory provisions for exclusion of the press or general public from all or part of a criminal trial.° Thus, if there is a »otable ex- ception to the tradition of openness for trials of crines involv- ing sexual assaults, it is one which permits the trial judge to close portions of the trial but does not require him to do so. A review of the authorities cited by the Supreme Judicial Court in Globe II in support of the “notable exception” makes the extremely limited nature of that perceived exception abun- dantly clear (App. 65a-66a, 67 n.12). None of the cases cited by the court involved mandatory closure of all or ceri» a por- tions of a trial. In each case, closure resulted from an exercise of discretion on the part of the trial judge.'° The same is true ® See, e.g., authorities cited in Gannett Co. v. DePasquale, 443 U.S. 368, 388 n.19 (1979). *Some state statutes do require exclusion of minors from certain criminal trials unless it is necessary for them to be present. E.g., Vermont Stat., tit. 12, § 1901. But see M.G.L. c. 220, § 13A. Those statutes, however, rest on very particular grounds and cannot be viewed as a springboard for “traditional” exclusion of adults. See generally Butler v. Michigan, 352 U.S. 380, 383 (1957). ‘© It also should be noted that the cases cited by the court call into question the very existence of an exception to the rule of openness, at least as it applies to the Globe. In three of the six cases cited by the court for the proposition that there is an exception to the tradition of openness for trials of crimes in- volving sexual assaults, the press was allowed to remain despite the exclusion of members of the general public. United States ex rel. Latimore v. Sielaff, 561 F.2d 691 (7th Cir. 1977), cert. denied, 434 U.S. 1076 (1978); Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871 (1976); Price v. State, 496 S.W.2d 103, 107-08 (Tex. Crim. App. 1973). 17 with respect to the three state statutes cited by the court — each is permissive and not mandatory.'! There is, in sum, no “notable exception” to the history of open trials which uni- formly and without leeway requires exclusion of the public from any part of a trial involving a sexual offense. The court answered the second question it posed, i.e., whether the mandatory closure aspect of § 16A impedes the flow of information necessary to the functioning of democratic institutions, by concluding that the impediment undoubtedly flowing from closure was offset by the general ability of the public to observe trials of sex-related crimes which did not in- volve minors (App. 67a-68a). In essence, then, the court con- cluded that the partial closure in cases like this one would have a de minimus impact on the flow of information necessary for the sound operation of a democracy because of the general availability of different information elsewhere. With all due respect, to draw such a conclusion is to enter dangerous territory. With good reason has this Court ex- pressed serious reservations about the wisdom of committing to “the conscience of judges” the task of determining what in- formation is or is not relevant to democratic institutions. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). In- stead, because “[f]reedom of discussions, if it would fulfill its historic purposes, must embrace al! issues about which infor- mation is needed or appropriate in order to enable the mem- bers of society to cope with the exigencies of their period,” Thornhill v. Alabama, 310 U.S. 88, 102 (1940), this Court has '! Alabama Code § 12-21-202 (1975) (“In all prosecutions for rape and as- sault with intent to ravish, the court may, in its discretion, exclude from one courtroom all persons, except such as may be necessary in the conduct of the trial”) (emphasis added); New York Jud. Law § 4 (McKinney 1975) (“in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein”) (emphasis added); North Carolina Gen. Stat. § 15-166 (1975) (“In the trial of cases for rape or a sex offense or attempt to commit rape or at- tempt to commit a sex offense, the trial judge may, during the taking of testi- mony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case”) (emphasis added). 18 interpreted the First Amendment broadly to protect traffic in all ideas “regardless of their social worth.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). See generally Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.”). Bluntly put, it is not the business of the judiciary — indeed, it is not the business of any governmental institution under our system — to make value judgments about the social worth of information" or to measure the impact on democratic institutions of suppressing some information by reference to the quantum of information which remains in the public domain. The final inquiry engaged in by the Supreme Judicial Court was whether the mandatory closure aspect of § 16A served “substantial state interests” which could not be furthered by more tightly drawn regulations. The court found that § 16A served essentially three state interests: (1) an interest in spar- ing juveniles the “public degradation, humiliation, demorali- zation and psychological damage” of testifying in an open courtroom and the allied interest of promoting the “likelihood of credible testimony” by juvenile victims; (2) an interest in protecting minors from the stigma of having been victims of sex crimes; and (3) an interest in the “sound and orderly ad- ministration of justice,” including an interest in encouraging victims to come forward and institute complaints (App. 68a). Moreover, it found that these interests could not be furthered by the less restrictive alternative of granting the trial judge dis- cretion to make a case-by-case decision on closure or permit- ting the victim to waive the statute’s protection. The court felt that any hearing prior to closure would become an elabo- rate “side trial,” destructive of the very interests sought to be protected (App. 69a n.15). A waiver procedure, in the court's '? This Court's treatment of pornography perhaps represents an exception to the thoughts just expressed. See Miller v. California, 413 U.S. 15, 24 (1973). To identify that exception, however, is also to identify the quagmire into which one is ineluctably led when one begins to measure the scope of constitutional protection by the “worth” of the information for which protec- tion is sought. 19 view, would involve “the same kind of potentially damaging in- quiry” to determine the victim's psychological vulnerability (App. 69a n.15). None of the interests identified by the Su- preme Judicial Court, however, is sufficient to support § 16A’s global reach and all can be achieved through closure decisions made on a case-by-case basis. As stated, the first interest identified by the court in Globe II is the interest in sparing juveniles the embarrassment of tes- tifying candidly and accurately in an open courtroom (App. 68a). Several courts, however, have found that what might be called the “embarrassment” interest is, in and of it- self, insufficient to support closure of a criminal trial to press and public. State v. Sheppard, 42 C.L.J. 23 (Conn. 1980) (in- volving minor rape victim); Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905 (Ky. 1980) (involving minor sodomy victim); State v. Schmit, 273 Minn. 78, 85, 139 N.W.2d 800 (1966) (“Mere embarrassment of adult witnesses with no showing of inability to testify is not a sufficient reason to de- feat . . . an overbalancing constitutional right”). Beyond that, for several reasons, the “embarrassment” inter- est, even when coupled with a desire to ensure candid testi- mony, simply is not precise or focused enough to override in all cases the presumptive right of the public to attend criminal trials. See generally Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). To begin with, given the language of § 16A, given the Supreme Judicial Court’s prior interpretations of that stat- ute, e.g., Commonwealth v. Marshall, 356 Mass. 432, 253 N.E.2d 333 (1969) (defen:iant’s father, mother, brother, sister and friends have a right to attend a trial governed by § 16A), and given the requirements of the Sixth Amendment to the Constitution, it is clear that in virtually every trial comprehend- ed by § 16A the testimony of the complaining witness will take place before a sizeable group of unknown court personnel, jurors, attorneys and spectators. The quantum of embarrass- ment or impediment to candid testimony necessarily added by the presence in the courtroom of a few additional members of the public or of the press thus must remain a matter of conjecture. 20 The record in this case illustrates the point, for it is wholly insufficient to permit a reasoned conclusion that the Common- wealth in fact was in danger of losing the complainants’ testi- mony if the press were admitted while they were on the wit- ness stand. Indeed, as was mentioned earlier, p. 5 n.3, supra, the concerns over press attendance which the victims voiced, albeit after the order of closure was entered for different rea- sons, were not concerns with which § 16A was equipped to deal and there is no suggestion that they would not have testi- fied, or would have testified differently, had the press been ad- mitted. Beyond that, a tangible risk of the possibility of lost or inaccurate testimony always can be addressed on a case-by- case basis. Couched as it is in mandatory terms, however, that portion of § 16A which requires closure of a portion of the trial does not permit case-by-case analysis and may thus extin- guish constitutional rights where their exercise would burden no state interest whatsoever. Moreover, § 16A is not triggered by the request of a victim for a closed hearing; in fact § 16A requires a closed hearing even if the victim is indifferent to, or, as Justice Wilkins postu- lated (App. 74a), desires, an open hearing (App. 69a n.15). Surely, a desire to prevent embarrassment of the unembar- rassed cannot give rise to an overriding state interest if, in- deed, it gives rise to any state interest at all. In any event, a statute which protects even those who would eschew its pro- tection, and which does so at the expense of the First-Amend- ment rights of others, is clearly overbroad. First National Bank of Boston v. Bellotti, 435 U.S. 765, 794-95 (1978). A second interest which the Supreme Judicial Court found underlying § 16A was the general paternal interest a state has in preventing stigmatization of minors. As identified, this in- terest was served not only by § 16A, but also by a group of other statutes “designed to protect the identity of minors who are subjects of litigation” (App. 7la n.16). The court, point- ing to a number of the Commonwealth’s juvenile-delinquency statutes, stated that it would be “anomalous” if the state legis- lature could protect juvenile offenders by closed hearings but could not do the same for juvenile victims (App. 71a). 21 However well-motivated, paternalistic state designs do not automatically sweep from their path all countervailing consid- erations. E.g., Davis v. Alaska, 415 U.S. 308 (1974); In re Winship, 397 U.S. 358 (1970); Butler v. Michigan, 352 U.S. 380 (1957); Commonwealth v. Joyce, Mass. Adv. Sh. (1981) 39, N.E.2d_ _. _ Moreover, the juvenile-delinquency stat- utes cited by the court are designed in essence to limit the stig- matizing effects of the state’s exercise of its penal authority when juveniles are charged with crimes.'* But the “stigma” which a juvenile criminal may suffer as a result of state action is not analogous to the “stigma” which a victim may suffer as the result of individual criminal activity of some third person acting beyond the control of the state. In the first case, stigma attaches because of state action which brands a juvenile with the potentially indelible mark of criminality. In the second case, state action in the form of a criminal trial serves to re- move whatever stigma might otherwise attach. By seeking to prove beyond a reasonable doubt that the defendant was guil- ty of criminal behavior, the state seeks simultaneously to show that the victim was the innocent target of unlawful aggression. The state interest in conducting that purifying process in secret is much to be doubted.'* '3One of the statutes cited by the court, M.G.L. c. 210, § 5C, which preserves the privacy of adoption records, does not appear intended to pre- vent stigma. No one is permitted to inspect these records, not even the adopted child or the adoptive parents, without judicial permission. It seems evident that the legislature intended the statute to assist in a different pur- pose, i.e., creation of a new legal relationship between child and adoptive parents which could not be later questioned by anyone, including the child or the parents who were the subjects of the adoption decree. See M.G.L. c. 210, §§ 6, 7, 8. '* As several Justices of this Court have put the matter: Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done — or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no communi- ty catharsis can occur if justice is “done in a corner [or] in any covert manner.”. . . It is not enough to say that results alone will satiate the natural community desire for “satisfaction.” A result considered un- toward may undermine public confidence, and where the trial has 22 Moreover, if prevention of stigma is the interest the statute is designed to serve, it inevitably must fail to do so. On the one hand, if a minor is, or feels, stigmatized as the result of being the victim of a crime, it is the occurrence of the crime which engenders that perception or feeling. Closing portions of the trial thus comes too late to prevent either untoward re- sult. On the other hand, if publicity is thought to exacerbate existing stigma, then the only solution is to prevent all public- ity by closing portions of all such trials and prohibiting the identification of the prosecuting witnesses. That, however, § 16A does not — indeed, could not — do. E.g., Cox Broad- casting Corp. v. Cohn, 420 U.S. 469 (1975); Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979).'5 The Supreme Judi- cial Court perhaps underscored the inability of the statute to achieve its perceived objectives in this regard when it held that the mandatory aspect of § 16A is not applicable to transcripts containing the minor victim’s testimony (App. 68a n.14). The inability of the statute to achieve its stated purpose thus under- scores its constitutionally impermissibility. Smith v. Daily been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been cor- rupted. To work effectively, it is important that society's criminal process “satisfy the appearance of justice,” . . . and the appearance of justice can best be provided by allowing people to observe it. Richmond Newspapers at 571-72 (plurality opinion). ‘5S As the Commonwealth itself stated in the motion to dismiss this case it filed with this Court during the prior appeal: [Section] 16A does not bar the press from requesting a transcript of the testimony; it does not bar it from independent interviews with and reports from courtroom observers including family and friends of the victim and accused who have a “direct interest” in the trial and who therefore are admitted to it under § 16A; it does not bar the press from the entire remainder of the trial unless the judge finds and explains overriding justification for further exclusion; and, of course, it does not bar the press from post-trial contact with any of the participants in the proceeding. In short, the press need only temporarily report around the testimony of the child victim. Motion to Dismiss at 12. Put another way, if stigma is going to attach, § 16A will not stop it from doing so. 23 Mail Publishing Co., 443 U.S. 97, 104-05 (1979); Erznoznik v. City of Jacksonville, 422 U.S. 205, 214-15 (1975).'* The third interest identified by the Supreme Judicial Court is the state’s interest in “sound and orderly administration of justice,” including an interest in encouraging victims to come forward and institute complaints (App. 68a). Again, the basis for asserting that that interest will be served by § 16A is, at best, speculative. The speculative nature of the interest is amply demonstrated by the manner in which the court ex- pressed it in Globe I. For example, the court reasoned that the possibility of testifying in public “might” lead a young woman to choose not to cooperate with the prosecution. It also rea- soned that “[s]he might be deterred from coming forward at all” (App. 41a) (emphasis added). Moreover, the court said that the victim’s knowledge that some of the people in the courtroom were “reporters who might publish her testimony ... would probably increase ... her sense of exposure” (App. 43a) (emphasis added). So described, the interest amounts to the kind of “undifferentiated fear or apprehen- sion” this Court views as insufficient to override First-Amend- ment rights. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 508 (1969). It is, moreover, a contradiction in terms to state that closing a trial will assist in securing a “just” conviction when one of the main purposes for having public trials is prevention of overzeal- ous prosecution or biased judgments. This Court emphasized in Richmond Newspapers the historical importance of openness in assuring “that the proceedings were conducted fairly to all con- cerned, and [in discouraging] perjury, the misconduct of partici- pants, and decisions based on secret bias or partiality.” Rich- mond Newspapers at 569. See also In re Oliver, 333 U.S. 257, 266-70 (1948). There is simply no evidence that closure will do more to secure a “just” conviction than it will do to damage the integrity of the judicial process and thus the justice in which that process results. See generally Richmond Newspapers at 569-73. ‘©The underinclusive nature of § 16A is underscored by the fact that, as construed, the statute would not have met the only concerns over press at- tendance at trial voiced by the victims in the case at hand. See n.2, supra. 24 In summary, none of the interests identified in Globe II which the Supreme Judicial Court found § 16A designed to serve is sufficiently precise to justify mandatory exclusion of the press and public from all testimony of all minor victims during all trials of all crimes covered by § 16A. In the words of the Court in Richmond Newspapers, “(t}he explicit, guar- anteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily.” Rich- mond Newspapers at 576-77. C. In Order to Ensure that an Order Closing a Criminal Trial, in Whole or in Part, is the Least Drastic Means for Achieving an Overriding Governmental Interest, a Hear- ing Prior to Closure is Necessary. Returning to the theme with which this discussion started, the analysis just concluded shows that a statute like § 16A, which requires the closure of portions of all trials of certain crimes, is inherently overbroad. That is to say nothing more, but certainly nothing less, than that the statute seeks to achieve its perceived objectives “by means which sweep un- necessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964). Ultimately, the concept of overbreadth if a relative one. Assuming the existence of an identifiable and “compelling” or “overriding” state interest, the question be- comes in every case whether the government has pursued that interest with sufficient precision in light of available alterna- tives. Shelton v. Tucker, 364 U.S. 479, 488 (1960). The mechanism expressly contemplated by the plurality in Richmond Newspapers and the dissenters in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), for avoiding unnecessarily broad closure orders, is a hearing prior to closure at which the trial judge could explore in some detail the precise interests at stake and alternatives less burdensome than closure by which those interests might be served. Such a hearing permits the judge to base his decision on the particularized factual situa- tion presented. As Justice Wilkins acknowledged in his con- 25 curring opinion (App. 74a), a legislature’s decision is necessarily based on general findings which bv their nature cannot be ac- curate in each individual case. See generally First National Bank of Boston vy. Bellotti, 435 U.S. 765, 784-86 (1978). A hearing is thus necessary to ensure that the First-Amendment rights ot the press and the public will not be abridged unneces- sarily. ‘ihat, at least, is the conclusion of every decision save Globe II, which has treated the issue in the wake of Richmond Newspapers. See In re United States ex rel. Pulitzer Publishing Co., 635 F.2d 676 (8th Cir. 1980); State v. Sheppard, 42 C.L.J. 23 (Conn. 1980); United States v. Edwards, A.2d_~ , Nos. 294 and 401 (D.C. May 8, 1981); State v. Green, 395 So.2d 532 (Fla. 1981); Ashland Publishing Co. v. Asbury, 612 S.W.2d 749 (Ky. App. 1980); Patuxent Publishing Corp. v. State, 48 Md. App. 689, 429 A.2d 554 (1981); Detroit Free Press v. Recorder's Court Judge, 409 Mich. 364, 294 N.W.2d 827 (1980); State v. Sinclair, 274 S.E.2d 411 (S.C. 1981); State v. Wahle, 298 N.W.2d 795 (S.D. 1980); Herald Ass’n, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323 (1980). To state that the First Amendment requires a hearing prior to closure is, however, not to agree with the Supreme Judicial Court’s views that the hearing necessarily would be a full- blown evidentiary hearing in which all participants had the right to present expert testimony and to examine and cross- examine the victim (App. 69a n.15). In State v. Green, 395 So.2d 532 (Fla. 1981), for example, the Supreme Court of Florida held that, while a hearing prior to closure was required, that hearing did not necessarily have to be an evidentiary hear- ing. The court held that the trial judge in many instances could hold a hearing which gave all parties an opportunity to be heard and could make a decision on the basis of affidavits. In some circumstances, like the one envisioned by Justice Wilkins in his separate opinion in Globe II concerning the victim who wants the public to know precisely what a heinous crime the de- fendant committed (App. 74a), the hearing required by Rich- mond Newspapers could be very abbreviated. With respect to the role of the press and public, it is neces- sary, but also sufficient, to provide that reasonable degree of 26 participation at the hearing which is necessary to guarantee a meaningful opportunity to influence the court’s determina- tion. See generally Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 183-84 (1968). With respect to the scope of the inquiry, i.e., the type of evidence that could be present- ed, whether oral examination of the witnesses would be al- lowed or whether the victim could be examined or cross-exam- ined, the sound discretion of the trial court, informed by the necessity for creating a record susceptible to appellate review under the standards enunciated in Richmond Newspapers, would surely suffice. Thus, the hearing mandated by Rich- mond Newspapers need not be the elaborate, “cumbersome”"” one envisioned by the Supreme Judicial Court, but rather could take a number of forms depending on the circumstances of the individual case. The object of such a hearing, of course, ultimately is an in- formed conclusion that, in the case then before the court, the interests asserted in support of closure are tangible and substan- tial and that they can be achieved by measures no less drastic than closure itself. More concretely, in a case arising under § 16A, the object of the hearing should be to determine whether closure is necessary to prevent a high degree of likelihood of serious psychological harm to the victim if testimony is taken in public, whether alternatives to closure will adequately protect against such harm, and whether closure will be effective in pro- tecting against the perceived psychological harm to the young victim. By requiring closure in all cases, § 16A permits no such inquiry and thus invites, indeed requires, closure in cases like this one where closure is wholly unnecessary for achievement of any state interest at all. On its face and as applied to this case, the statute thus is unconstitutional to the extent that it requires closure while the minor victim is testifying. '’ It is difficult to square the Supreme Judicial Court's concern that the pre- exclusion hearing would be a “cumbersome,” time-consuming “side trial” with its statement in Globe I that the hearing with regard to closure of por- tions of the trial other than the minor victim's testimony “should be com- pleted exneditiously and should not ordinarily involve lengthy legal argu- ment” (App. 45a). The reason for the distinction between hearings with re- spect to different portions of trials is not apparent. 27 II. Massacuusetts Generat Laws c. 278, § 16A VIOLATES APPELLANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. In addition to the First-Amendment principles just can- vassed, the Sixth Amendment, which provides in pertinent part that “[iJn all criminal prosecutions, the accused shall en- joy the right to a speedy and public trial,” also conferred on the Globe a right to attend the entire trial of Albert Aladjem, a right that both § 16A and the closure order violated. The Supreme Judicial Court declined to address the Globe's Sixth- Amendment claims in any comprehensive fashion on the grounds that the Globe had no standing to raise those claims, claims the court considered personal to Mr. Aladjem. The court also held that the Globe did not bear a relationship to Mr. Aladjem which might allow it to raise those claims on his behalf. Under the narrow circumstances of this case, how- ever, the mere fact that Mr. Aladjem, acquitted below, is not actually present before the Court should not end the Sixth- Amendment inquiry.'® To begin with, there is little that can be said about the Sixth-Amendment issue here posed which was not said in one or more of the opinions in Gannett Co. v. DePasquale, 443 ‘The Supreiie Judicial Court also concluded that this Court’s remand order requirea .. to consider First-Amendment issues only because “the vari- ous opinions in Richmond Newspapers are based on the First Amendment, not the Sixth Amendment” (App. 6la n.5). Thus, in effect, the court con- strued the order of this Court to reconsider the case in light of Richmond Newspapers as an affirmance of its denial of the Globe's Sixth-Amendment claims. That interpretation of this Court's order seems unwarranted. This Court's order vacated the Globe I judgment completely, not simply with re- gard to its First-Amendment aspects. Moreover, the plurality opinion in Richmond Newspapers expressly stated that Gannett Co. v. DePasquale, 443 U.S. 368 (1979), holding that the press and public have no standing to assert a Sixth-Amendment right in the teeth of a desire by all parties to a criminal proceeding for a closed hearing, was limited to pretrial proceedings alone. Richmond Newspapers at 564. As a result, it appears that four current mem- bers of this Court believe that the Sixth Amendment does afford the press and public a right to attend pretrial hearings as well as trials and at least two others are of the view that Gannett did not foreclose the possibility that the Sixth Amendment embraces a public right of attendance at trials themselves. 28 U.S. 368 (1979). The appropriate question, therefore, con- cerns the impact of that decision on this case. At the outset, the Sixth-Amendment issue with which the majority dealt in Gannett concerned pretrial hearings alone, despite the some- times broad language of its opinion. In this Court’s words: There is no question that the Sixth Amendment permits and even presumes open trials as a norm. But the issue here is whether the Constitution requires that a pretrial proceeding such as this one be opened to the public, even though the participants in the litigation agree that it should be closed to protect the defendants’ right to a fair trial. The history [of the Sixth Amendment demonstrates that the Amendment was not] . . . intended to create a constitutional right in strangers to attend a pretrial pro- ceeding, . . . [but] was to confer upon the accused an ex- plicit right to demand a public trial. . . . Id. at 385-86 (emphasis in original). That the Gannett holding applies only to pretrial proceed- ings and not to the trial itself was further discussed in Rich- mond Newspapers: In Gannett Co. v. DePasquale, supra [443 U.S. 368 (1979)], the Court was not required to decide whether a right of access to trials, as distinguished from hearings on pretrial motions, was constitutionally guaranteed. The Court held that the Sixth Amendment’s guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access to a pretrial suppres- sion hearing. . . . Richmond Newspapers at 564 (plurality opinion) (emphases in original). The narrow holding of Gannett thus is that the public may not raise the Sixth Amendment as a constitutional bar to an order closing a pretrial hearing where an open hearing poses a “reasonable probability of prejudice” to a defendant's right to a fair trial and where all participants in the hearing agree on closure. Gannett at 393-94. 29 To state this Court’s holding in Gannett, then, is to distin- guish it at once from the present case. Here we are dealing with a trial, not with a pretrial proceeding. Here the prose- cutor did not request closure, and here the defendant specifi- cally objected to the closure order. Whatever might be said of a “stranger’s” standing to assert a Sixth-Amendment right to a public trial when the criminal defendant abjures that Amend- ment’s protections, it seems clear that standing should exist when the defendant himself seeks to assert at a trial the rights the Amendment provides.'® A number of decisions of this Court support the conclusion, albeit by way of analogy, that the public and the press have standing to assert rights under the Sixth Amendment when the defendant himself demands a public trial. This Court has rec- ognized, for example, that a party has standing to assert the constitutional rights of third parties if the litigating party alleges a sufficient interest in the cutcome, if “the enjoyment of [a] right [by the third party] is inextricably bound up with the activity the litigant wishes to pursue” and if there is some practical impediment to the third party's ability to assert his own rights. Singleton v. Wulff, 428 U.S. 106, 112-16 (1976) (opinion of Blackmun, J.). See also Carey v. Population Serv- ices International, 431 U.S. 678, 684 (1977) (parties are per- mitted “to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or function”); Griswold v. Connecticut, 381 U.S. 479, 481 (1965); Barrows v. Jackson, 346 U.S. 249 (1953). Granting standing to such third parties is particularly appro- ptiate where the challenged statute will have a direct adverse impact on that third party. Eisenstadt v. Baird, 405 U.S. 438, 445-46 (1972) (distributor of contraceptives can assert consti- tutional rights of individuals to receive contraceptives). This factor alone demonstrates the important difference between the present situation and that presented in Gilmore v. Utah, 429 U.S. 1012 (1976), cited by the Supreme Judicial Court (App. 61a n.5). In Gilmore, it was determined that the defendant had affirmatively waived any rights he had to appeal his conviction to this Court and that he was in fact opposed to the application for a stay of execution of the lower court's sentence sought by his mother as “next friend.” Gilmore at 1013-15 (Burger, C.J., concurring). 30 Principles drawn from the foregoing cases strongly support a conclusion that, as a party directly affected by a closure order entered under § 16A, the Globe has standing to assert the Sixth-Amendment rights of Mr. Aladjem who desired a public trial. The closure order had a direct impact on the Globe be- cause it prohibited activity in which the Globe desired to en- gage. The Globe’s interests are “inextricably bound up” with the criminal defendant's interest in having this trial publicized so that abuses may be detected and curbed and so that poten- tial witnesses will come forward and testify. Particularly where, as here, the criminal trial ends in an acquittal, the criminal defendant’s public-trial claim may be moot in every sense of the word for he cannot be retried for the same offense, and any assertion that he might be faced with a closure order in a future trial for a future alleged violation of the same stat- ute would be wholly speculative. Imminent mootness of the criminal defendant's public-trial claims thus is a very real and practical impediment to its vindication each time that claim is made. Compare Singleton v. Wulff, 428 U.S. 106, 117-18 (1976) (opinion of Blackmun, J.). Turning to the merits, there can be no doubt that the right to a public trial is firmly engrained in our notions of ordered liberty. Indeed, it stands among very few of the absolutes contained in the Bill of Rights to which this Court, despite the passage of nearly 200 years, has not squarely announced an ex- ception. That fact, coupled with the critical role in the pur- suit of justice played by the public trial, implies, if indeed it does not dictate, that a criminal trial may not be closed, in whole or in part, at least over the objection of a defendant un- less closure is inescapably necessary to safeguard a state inter- est of the highest order, unless there are no less drastic methods available for pursuing that interest and unless it is clearly dem- onstrated that the closure order will effectively guard against the perTeived danger. See Gannett Co. v. DePasquale, 443 U.S. 368, 441-42 (1979) (Blackmun, J., concurring in part and dissenting in part). See generally Smith v. Daily Mail Publish- ing Co., 443 U.S. 97 (1979); Oklahoma Publishing Co. v. Dis- trict Court of Oklahoma County, 430 U.S. 308 (1977); Nebras- ka Press Ass'n v. Stuart, 427 U.S. 539 (1976). 31 Section 16A as construed and applied in this case meets none of those criteria. The state interests served by the statute are both speculative and vaguely defined. The statute in its man- datory aspect takes no account of the desires of the individual it is supposed to protect, countenances no suggestion that pro- tection may be afforded through more moderate means, and permits no evaluation of the harm from which protection is sought. Finally, as an effective refuge from conceivable harm, the statute is seriously deficient. In sum, when mea- sured against a Sixth-Amendment right to a public trial, § 16A simply must give way. Conclusion. For the foregoing reasons, probable jurisdiction should be noted and M.G.L. c. 278, § 16A as construed by the Supreme Judicial Court to require exclusion of the press and the public from portions of the trials of certain crimes should be declared unconstitutional. Respectfully submitted, JAMES F. McHUGH, ROBERT HAYDOCK, JR., MARC A. REARDON, BINGHAM, DANA & GOULD, 100 Federal Street, Boston, Massachusetts 02110. (617) 357-9300 la Appendix. COMMONWEALTH OF MASSACHUSETTS SuPREME JupIciAL Court SUFFOLK, SS. THE GLOBE NEWSPAPER COMPANY Vv. THE SUPERIOR COURT FOR THE COUNTY OF NORFOLK. Petition for Extraordinary Relief Pursuant to Mass. General Laws Chapter 211, Section 3 Now comes plaintiff, The Globe Newspaper Company, (the “plaintiff”) and resr<* “ly represents: 1. Plaintiff is 2 «st» «stion organized and existing under and by virtue of ©» ic + «' the Commonwealth of Massachu- setts with a principal place of business in Boston, Massachu- setts. It is the publisher of The Boston Globe, a newspaper of general circulation in the City of Boston and elsewhere. 2. Defendant, The Superior Court for the County of Nor- folk, (“Norfolk Superior Court”) is the court which by statute has jurisdiction over certain criminal cases arising within the Commonwealth of Massachusetts and within the venue of Norfolk County. 3. On or about April 19, 1979, the Norfolk Superior Court commenced hearings with respect to preliminary motions in the case of Commonwealth of Massachusetts v. Albert Alad- jem, Norfolk Superior Court, No. 73102-9. At that time, the Norfolk Superior Court caused to be placed on the courtroom 2a door a sign which stated “closed.” All persons approaching the courtroom doors were told by courtroom personnel that they may not enter the courtroom. Subsequently, certain members of the press were told by court personnel that they could enter the courtroom during the preliminary hearings. On information and belief, one reporter was allowed to enter the courtroom and was informed by Judge Mulkern that the reporter could remain in the courtroom, but should not pub- lish any information that was disclosed in the course of the hearings on preliminary motions. 4. On, April 24, 1979, counsel to the plaintiff went to the Norfolk Superior Court. Counsel was informed that the hear- ings for that day had been terminated. Tudge Mulkern told counsel that the hearings would continue the following day. 5. On April 25, 1979, at the commencement of the proceed- ings before Judge Mulkern, counsel for the plaintiff filed with the clerk three motions (1) a motion to revoke orders concern- ing exclusion of the press; (2) a motion for hearing; and (3) a motion to intervene. These documents are attached hereto as Exhibits A-C respectively. The motion to intervene requests that the plaintiff be allowed to intervene for the limited pur- pose of asserting its rights to access to the trial and hearings on the related preliminary motions. The motion to revoke prior orders refers to prior proceedings of the Court, where the press had been excluded, and requested a transcript of those pro- ceedings. The motion for hearing requested that the plaintiff be granted an opportunity to be heard before the Court with respect to orders excluding the press from the trial and related hearings on preliminary motions. 6. At the commencement of the proceedings, before the Court, Judge Mulkern held that plaintiff’s motions would not be accepted for filing. Without the opportunity for hearing requested by plaintiff and without argument of counsel, the Court further ordered that pursuant to C.L. c. 278, § 16A, the 3a trial would be closed and the press and general public would be excluded. A copy of the transcript relating to these orders is attached hereto as Exhibit D. 7. Counsel to the defendant objected to the Court’s order that excluded the press and public. 8. The Assistant District Attorney for the Commonwealth stated that the exclusion of the press and public is not request- ed by the Commonwealth. 9. The refusal of the Norfolk Superior Court to permit members of the press to be present at the trial constitutes an impermissible burden on the plaintiff's right to gather and dis- seminate news, is supported by no compelling state interest and is in violation of the First Amendment to the Constitution of the United States and Articles XVI and XXIX of the Massa- chusetts Constitution. 10. To the extent that G.L. c. 278, § 16A is construed as authority to exclude members of the press from a tria! where the defendant requests a public trial and the presence of the press, that statute is in violation of the Sixth Amendment to the Constitution of the United States and Article XII of the Massachusetts Constitution. 11. The trial, including the inpanelment of the jury in this case is scheduled to commence tomorrow, April 26, 1979 and the orders barring entry to those proceedings by the press re- main in effect. 12. Plaintiff has no plain, speedy or adequate remedy at law. WHEREFORE, plaintiff prays that: 1. Ashort order of notice issue to defendant commanding it to appear forthwith and answer the allegations of this Com- plaint. 2. That a temporary restraining order issue forthwith com- manding defendant to permit members of the press to attend the trial in the case, Commonwealth of Massachusetts v. Alad- jem, Norfolk Superior Court, Docket No. 73102-9. 4a 3. That this Court issue a permanent injunction ordering defendant to permit members of the press to attend the trial and proceedings in the case of Commonwealth of Massachu- setts v. Aladjem. 4. For such other, or further, relief as this Court deems meet and just. By its attorneys, Tuomas H. Wa tsi, Jr. James F. McHucn Janis M. Berry BINGHAM, DANA & GOULD 100 Federal Street Boston, Massachusetts 02110 (617) 357-9300 5a Exhibit A. COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. Superior Court A3102-9 COMMONWEALTH OF MASSACHUSETTS Vv. ALBERT ALADJEM Motion to Revoke Orders Concerning Exclusion of the Press The Globe Newspaper Company (the “Globe” ) moves that this Court enter an Order revoking any prior Orders of the Court which exclude the press, including the Globe from the trial and related hearings on preliminary motions in the above- captioned case and/or which prohibit the publication of infor- mation disclosed in said proceedings. The Globe also moves that a transcript of the proceedings be made available. By their attorneys, Tuomas H. Watsu, Jr. James F. McHucu Janis M. Berry BINGHAM, DANA & GOULD 100 Federal Street Boston, Massachusetts 02110. (617) 357-9300 DATED: April 25, 1979 6a Exhibit B. COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. Supeniorn Court 73102-9 COMMONWEALTH OF MASSACHUSETTS Vv. ALBERT ALADJEM Motion for Hearing The Globe Newspaper Company moves that it be granted an opportunity for hearing before this Court with respect to any Orders of this Court which exclude the press from the trial and related hearings on preliminary motions in the above-cap- tioned case and/or which prohibit the publication of informa- tion disclosed in said proceedings. By their attorneys, Tuomas H. WaALsH, Jr. James F. McHucu Janis M. Berry BINGHAM, DANA & GOULD 100 Federal Street Boston, Massachusetts 02110. (617) 357-9300 DATED: April 25, 1979 Ta Exhibit C. COMMONWEALTH OF MASSACHUSETTS NORFOLK, SS. Superior Court 73102-9 COMMONWEALTH OF MASSACHUSETTS Vv. ALBERT ALADJEM Motion to Intervene The Globe Newspaper Company hereby moves for leave to intervene in these proceedings for the limited purpose of asserting its rights to access to the trial and hearings on related preliminary motions in connection with the above-captioned case. By their attorneys, Tuomas H. Waisn, Jr. James F. McHucu Janis M. Berry BINGHAM, DANA & GOULD 100 Federal Street Boston, Massachusetts 02110. (617) 357-9300 DATED: April 25, 1979 8a Exhibit D. COMMONWEALTH OF MASSACHUSETTS NORFOLK, SS: Superior Court No. 73102-9 COMMONWEALTH v. ALBERT T. ALADJEM, JR. Third Criminal Session Dedham, Massachusetts Wednesday, April 25, 1979 Transcript of Hearing on Motions Berore: Hon. Robert V. Mulkern, Associate Justice APPEARANCES: Ms. Ruth MeNiff, Assistant District Attorney, For the Commonwealth Paul T. Smith, Esq. and Harvey R. Peters, Esq. Co-Counsel, For the Defendant [2] Wednesday, April 25, 1979 Tue Court. Now, with respect to the case on trial, I have been handed three motions. Do counsel for the respective parties have copies of these motions? 9a Ms. McNirr. No, Your Honor. Mr. Peters. No, Your Honor. Tue Court. One is entitled a “ Motion to Intervene” and it is signed by Attorney Thomas Walsh, I believe, and another attorney. Another is a Motion For Hearing With Respect to Any Orders of the Court Relating to Exclusion of The Press. And the third is a Motion to Revoke Orders concerning ex- clusion of the press. Would counsel for the respective parties now have copies of those motions? Mr. SmitH. Yes, Your Honor. Tue Court. Do you, Miss McNiff? Ms. McNirr. Yes, Your Honor, I do. Tue Court. Would you like a moment to read them? Ms. McNirr. Yes, I would. Tue Court. Please do. [ Pause. } [3] THe Court. Have counsel now had an opportunity to read this motion? Ms. McNirr. Yes, Your Honor. Mr. Perens. Yes, Your Honor. Tue Covar. I will take, first, the Motion to Intervene, which has not been filed. It has simply been handed to the Court. The case before the Court, the criminal case of Commonwealth v. Aladjem, in- volves three high school girls, ages at the time of the offense, 15, 16 and 17, respectively; and I ask to be corrected by Miss MeNiff if I am wrong in what I say. Ms. McNirr. You are correct, Your Honor. Tue Court. The ages, now, are 16 and 17; am I correct on that? Ms. McNirr. Sixteen, sixteen and seventeen. Tue Court. Sixteen, sixteen and seventeen. 10a The three girls are high school students as of this time. The allegations of the indictments contain allegations of forcible rape and allegation of forced unnatural rape, in at least one in- stance. Am I correct, Miss McNiff? Ms. McNirr. You are correct, Your Honor. Tue Court. The statute in question is General Laws Chap- ter 278 Section 16A, which provides that at a [4] trial of indict- ments such as are before the Court, when the alleged victims are under eighteen years of age, the presiding justice shall ex- clude the general public from the cou*troe™, admitting only such persons as may have a direct interest im the case. This statute parallels, in a general way, General Laws Chapter 119 Section 65, which provides that in a juvenile session, where a defendant is a juvenile, the Court shall exclude the general public from the room admitting only such persons as may have a direct interest in the case. This Court rules that the Motion to Intervene may not be filed. That the Globe Newspaper Company, which is named in the body of the motion, is not a party to the litigation on trial before the Court. This Court further rules that, consistent with General Laws Chapter 278 Section 16A, this trial will be conducted in such a manner that the general public shall be excluded from the courtroom, including the press, and that only such persons as may have a direct interest in the case will be permitted in the courtroom. This ruling and Order results from a reading of the statute and from the feeling of the Court that a child-victim of an alleged sexual attack is entitled minimally to at least the same protection that a child-[5] defendant in a case involving sexual matters has. I will advise the representatives of the Globe newspaper that are present in the courtroom that it is not anticipated that impanelment of this case will commence until tomorrow, for whatever action those representatives care to take. lla Okay. I am returning the papers which have been presented to the Court. Ms. Barry. Pardon me, Your Honor. My name is Janice Barry and I represent the Globe Newspaper Company. Is Your Honor also ruling that the Globe’s Motion For a Hearing on the Closure Order is also denied? Tue Court. Well, Miss Barry, I took the motions in what I thought was an appropriate order. Since I will not accept for filing the Motion to Intervene, for the reason that I have indi- cated, basically a question of standing, then I am not going to act upon any other motions. Ms. Barry. Then, Your Honor, as I understand, is saying that the Globe has not standing to be heard before Your Honor? Tue Court. I am saying no more. I am not [6] accepting for filing the Motion to Intervene. Ms. Barry. Thank you, Your Honor. Tue Court. You are welcome. Mr. Perens. Would Your Honor note the Defendant’s ex- ception to so much of Your Honor’s ruling as excludes the gen- eral public and the press from the trial in this case. Tue Court. You have made your exception. [Defendant's exception noted. ] Ms. McNirr. Not to be technical, Your Honor, but, for purposes of the record, may the record indicate that Your Honor’s ruling was on Your Honor’s own motion and not at the request of the Commonwealth? Tue Court. His Honor’s ruling was made on the basis of the statute which appears at least to be mandatory. Ms. McNirr. I understand that, Your Honor. Thank you. Okay. Let’s proceed with the — I am sorry, gentlemen. 12a COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS: SuPREME JuDICIAL Court No. 79-191 Crv. BRAUCHER, J. THE GLOBE NEWSPAPER v. THE SUPERIOR COURT FOR THE COUNTY OF NORFOLK Appearances: Charles J. Hely, Assistant District Attorney 618 High Street Dedham, Massachusetts 02026 Margot Botsford, Assistant Attorney General 1 Ashburton Place Boston, Massachusetts James F. McHugh, Esq. 100 Federal Street Boston, Massachusetts April 26, 1979 Full Court Room-13th floor New Court House Boston, Massachusetts [Partial Transcript of Proceedings. ] 13a The Proceeding Court: Mr. McHugh, this is your application, I believe. Mr. McHucu: Thank you, Your Honor. Your Honor, this is an application, as the complaint reveals, under General Laws 211, Section 3, for an order requiring the Justices of the Norfolk County Superior Court to open to the press a criminal trial, which yesterday the Court ordered closed. Factually, the matter arose in essentially the following manner. There had been a series of pretrial hearings, which the Court was holding in this case. A case which involves allegations of rape of three women, ages [2] sixteen, sixteen, and seventeen, I believe, current ages, in the town of Wellesley. During the last several days a number of pretrial hearings had been held by the Court and all of those hearings had been closed to the press and to the public. At some point yesterday, the Globe became aware of the possibility that an order would be entered seeking to close, or ordering closed, the trial itself. And there- upon, counsel for the Globe went to the Norfolk Superior Court and attempted to talk with the Judge and determine what the Court’s views in that regard were. The Court said, as I understand it, that it would take the matter under advise- ment and would have some kind of a decision ready the fol- lowing day, which was yesterday, April 25th. On yesterday, the Globe filed with the Court . . ., or more precisely, went to the Court after attempting to determine who the appropriate Clerk to receive the papers was, and finally finding the Judge’s court room Clerk, gave to that Clerk a motion to intervene for the limited purpose of asserting its right to attend the trial ses- sions. A motion for a hearing, prior to entry of any cloture order, and a motion for a revocation of any prior cloture orders that had been entered. The Court, as the transcript at- tached to our complaint reveals, denied the Globe’s motion to intervene and said that it would not take up any of the other l4a motions, and in addition, entered an order stating that the trial would be closed to the press and to the public under the [3] authority of General Laws Section 16A. Court: Well, I don’t want to foreclose anybody else from making a point. But, it seems to me, that your procedure ade- quately raised the question whether the Globe has any right to have the trial public. . . Mr. McHucn: All right. Court: . . . In the face of the statute. And, I think, maybe you should direct your attention to that. Mr. McHucu: All right, Your Honor. We believe, and I am going to urge the Court today, that chiefly for three rea- sons . . . four reasons the lower court’s order was invalid. Suc- cinctly and in summary form put, those are that Section 16A does not by construction require the result the Court reached in this case. Second, that if it does, it is unconstitutional under the First Amendment to the Constitution of the United States. In addition, if it does, it is unconstitutional under the Sixth Amendment to the Constitution of the United States. And finally, that wholly apart from the substantive result one reaches in consideration of those issues, it is a denial of the First Amendment Rights of the press to enter such an order without some form of a preliminary hearing addressed to the merits of the issue concerning whether the trial should be closed. [11] Courr: Thank you, Mr. McHugh. Now, Ms. Bots- ford [Assistant Attorney General Representing the Superior Court for the County of Norfolk] I understand the District At- torney wants to be heard here. I don’t know whether you want to be heard before or after. Ms. Botsrorp: I'll be heard after. Mr. Hey: Just briefly, Your Honor. \Sa Court: This is Mr.? Mr. Hety: Hely. [12] Court: Hely. Mr. He ty: and I don’t purport to interfere with, or attempt to represent the Justices of the Court, Your Honor, simply as an intervenor, or as amicus to the Court making clear the District Attorney’s position in the underlying criminal action. And, that was before the trial judge, and before this Court to- day, that we do not oppose the presence of the press in this case. We are fully aware of the statute, Chapter 278, Section 16A. And the interests that we identify primarily are the in- terests of persons under eighteer. who are victims of sex crimes, or as so labeled in the statute. And a special privacy interest in those persons, which according to the statute, outweigh the normal rights of the defendant to a public trial and the normal rights of the public to have access to those trials. And in these special circumstances they outweigh. But our position before the trial judge, and it is before this Court, that in some circum- stances a trial judge, when the defendant is asserting his right to a constitutional, public trial, a trial judge may consider that as outweighing the otherwise legitimate statutory interests, particularly where the Commonwealth on behalf of the vic- tims, and this is literally on behalf of the victims in the sense that they were consulted fully by the prosecutor in this case. The Commonwealth waives whatever rights it may have to ex- clude the press. The constitutionality of the statute, we are not seeking to undermine in [12] any sense. We are simply seeking to have a fair trial in this case in which the guilty per- son can be found guilty if he is guilty. And the fair trial can proceed without error in the record to subject the Common- wealth and the victims to a new trial. And we also wanted to make it clear here this morning that the victims have been held for trial, the three victims, ages 15, 16, and 17, have been held in the courthouse, held for trial since April 17th and today, I 16a think, is the eighth day where we are ready to impound. We have had a long series of pretrial motions in which the victims have testified, been subjected to a lot of cross-examination, and it is an extremely high level of anxiety and emotional stress on these people. And, the Commonwealth just simply seeks to go forward today and not have a stay in this case, regardless of your determination of the correctness of the trial judge's ruling we ask that it be a prompt determination one way or the other. And we simply wanted the Court to know that we didn’t op- pose the access to the press in this case. Court: Thank you, Mr. Hely. Before we hear from Ms. Bots- ford, I would like to also inquire . . . I have not gotten a proof of service here . . . Oh, I do have affidavit of notice, delivery to the Attorney General. But, you said notice was given to the defendants here? Mr. McHucu: It was by telephone, Your Honor. Court: Telephone notice. [14] Mr. McHucu: We, also, yesterday afternoon called the Clerk of the Norfolk Superior Court to inform her that the action was pending here with a request to so notify the defend- ant in the event that we weren't able to reach them, but we did reach them last night. Court: All right, thank you. Mr. Hery: But the defendants, I think, were also under direct order from Judge Muikern to be there today at 10:00 in Dedham, ready for the Judge’s final ruling on the motion to suppress and possibly an impoundment this morning. So, I can understand their absence here today. Court: I understand. All right, Ms. Botsford. Ms. Botsrorp: Your Honor, I have a memorandum here, which I can give to you. Court: Go ahead. Ms. Botsrorp: Your Honor, Judge Mulkern opposes any reversal of his order precluding the press from the trial on sev- 17a eral grounds. First, as he interprets Section 16A, it requires the exclusion of the press. Second, even if the Court should . this Court should find that it is not a mandatory exclu- sion, he would exercise his discretion and require the exclusion of the press, because he thinks that the rights of the minor vic- tims here demand . . . the rights of privacy demand protec- tion. We believe that if Section 16A is construed to require, or at least to [15] authorize in a Judge’s discretion the exclusion of the press, it is constitutional. It does not violate the First Amendment Rights of the press, nor the Sixth Amendment Rights of the defendant. We also contend that the press does not have standing to raise the rights of the defendant to a public trial under the Sixth Amendment. [24] Court: I am not disposed to postpone decision here. As I understand it, it was scheduled to go on with the selection of the jury today. Now, I have been informed that Judge Mul- kern has put that off until tornozrow. Ms. Borsrorp: Oh. Court: So Ghat we exe ast ender on pastiede: on - Ms. Borsrorp: When I spoke to him he said he would wait until 11:00, but I guess he has pushed it back some more. Court: Well, this is all the information . . . just a report. . . Ms. Borsrorp: Right. It is later than when I spoke to him. Court: But, either way I am not disposed to . . . I mean this thing . . . Obviously, they are trying to expedite the trial of that case. And I think it can go forward either with, or with- out the press and I am not disposed to delay things. So, I am getting ready to. . . I've been reading your memorandum, so I won't be accused of denying the Commonwealth a hearing. I am getting ready to. . . I think I am going to decide this before I leave the bench. So, I don’t need that . . . I do want to get 18a some help from Mr. McHugh on what he has to say about De- pasquale. Have I correctly [25] inferred what that is about? Mr. McHucu: You have, Your Honor. But, that case, as Your Honor correctly observed, involved the defendant who wanted things closed, and it only dealt with pretrial proceed- ings... Court: Pretrial? Mr. McHucu: It has nothing to do with the trial itself. Court: Now, in the case before us, we are talking about the trial itself, exclusively. There is no problem . . . The stat- ute, in terms, talks about trial and does not seem to say any- thing about pretrial. Mr. McHucu: That is correct, Your Honor. And we have intentionally not raised here any issues about pretrial . . . Court: I mean it might well be read that the trial is a whole process and the pretrial proceedings are a part of it. But, on its face, it just says trial. And that is what we are talk- ing about here is trial. Mr. McHucu: That is correct. Court: All right. Mr. McHucnu: On another day we might be back to visit with you... Court: But, I am right that the New York Court of Appeals, is that who it was in Depasquale .. . Mr. McHucu: Depasquale. That is correct. The Court of Appeals for the State of New York. Court: This is all not memory, but inference . . . [26] Mr. McHucu: Well, basically. . . Court: ... That I just associate Gannett Co. with upstate New York. Mr. McHucu: Let me tell you briefly what happened, if Your Honor would like me to. 19a [27] Mr. McHucu: One other point that was raised, Your Honor. The objection of the defendants to the cloture of these hearings is incorporated in the transcript, which is attached to the complaint. And on the last page of the transcript the de- fendant asks that his objection to the Court’s order closing the proceedings be noted. Court: I think I had seen that, but I . . . Who is counsel for the... Mr. McHucu: Mr... Court: Mr. Peters is it? Mr. McHucn: Peters. Court: Because 1. . . It says, “Mr. Peters: Would Your Honor note the defendant’s exception to so much of Your Honor’s ruling as excludes the general public and the press from the trial in this case? Court: You have made your ex- ceptions.” So, I think that supports your point. [29] Court: Thank you. I do think that this is one which I ought not to take time to write a great essay about. I propose to go through the issues right now and dispose of this. What I rule on the [30] law is not likely to conclude the matter. These are large issues which are dealt with at a higher level. But we do have to decide what is to happen on this particular case. First as to the statute, it is mandatory in its terms. But, I don’t . . » I think I have to decide whether it is utterly mandatory so that it overrides the desires of everybody, prosecutor, victims, defendants, judge and so forth, because even if you allow some room for waiver by the defendant and the prosecutor, I think the Judge must have some discretion as to what he will do with that. And, I am not in the position here to say that he abused such discretion as he had, because, obviously, he had been 20a through a number of proceedings with respect to this case, which are entirely a closed book to most of us who are here this morning. So I think we are confronted with the constitutional issue. My reading of the First Amendment cases on this is that if you once open a trial there is no such thing as opening it part way. Once you have opened it, it is opened all the way. And the only way to avoid complete publicity is to close the hear- ing. Now, you can close it and still allow certain people in, obviously the people who have to be there. And apparently, our court has said you can bring in relatives and friends of the defendant. I cannot believe that giving the Judge some discre- tion in matters of this kind violates the First Amendment any- more than an order for the sequestration of witnesses violates the First Amendment. I don’t understand [31] that a news- paper reporter is anything but another citizen who . . . and there is no such thing as having a status conferred by law by being employed by a newspaper or by some other . . . one of the public media that any citizen is free to write a book, fill out a handbill, circulate it, publish it, put it on a plaque and publicize it. And he has just as much right as any newspaper reporter. Now, .. . I’m leaving aside the question whether there may be a difference between the relatives and friends of the defendant and members of the public generally. I suppose you can be admitted ... For example, a lawyer may be ad- mitted to a proceeding on some understanding that he, at least, will not become a newspaper reporter. So, I don’t think the First Amendment point is made out. If there is a require- ment under the First Amendment of having a hearing, it seems to me that probably that was satisfied. Although rather sum- marily satisfied when the Judge did hold a hearing on the question of whether the Globe should be permitted to inter- vene. I take it, not a great deal of argument was permitted on that. But, it is not clear to me that much had to be said. So, that brings us to the Sixth Amendment right. And I must say, 2la I find that the most troublesome part of this. And what I say will not conclude the matter. And, I take it this is where the District Attorney is in a rather difficult situation here. If this case goes forward over the defendants’s objection and excep- tion as a closed trial and that turns out at some later date [32] to have been an error, the trial may turn out to be a wasted ex- ercise which will have to be done over again. And, what I say today isn’t going to have any effect on that, because I don’t think even though the defendant has been notified of these proceedings, I don’t think he can be thought to be a party in the sense that he would be bound by any ruling that I would make. And that of all this is, that I am not going to interfere on an interlocutory basis with the ruling of the trial judge. My power to do so, under Chapter 211, Section 3, is a power which exists only when no other remedy is provided. And the defendant, a least, has a remedy by appeal. I don’t want to try and advise the Clobe Newspaper Co. as to whether they have any other remedy, but I am doubtful about their stand- ing to raise the Sixth Amendment issue. So the result will be that this petition will be denied. The Court will be in recess. ——~ THE END OF TAPE — 22a COMMONWEALTH OF MASSACHUSETTS. SUFFOLK, SS. SUPREME JUDICIAL Court For SuFFOLK CouNTY No. 79-191 Crvit THE BOSTON GLOBE bv. THE SUPERIOR COURT FOR THE COUNTY OF NORFOLK Order This case came before the Court on the plaintiff's petition for extraordinary relief pursuant to G. L. c. 211, § 3. There was argument by counsel for the plaintiff and by the assistant attorney general. The assistant district attorney made a statement to the Court on behalf of the prosecution in the underlying criminal matter. Upon consideration thereof, it is ORDERED that the peti- tion be, and it is hereby, denied. By THE Court (BraucHenr, J.) Joun E. Powers, Enterep: April 26, 1979 CLERK. A true copy. Attest: 4-27-79 Jean M. KENNETT Asst. Clerk. 23a COMMONWEALTH OF MASSACHUSETTS. SUFFOLK, ss. SUPREME JupiciaAL Court For SuFFOLK CouNTY No. 79-191 Crvit THE GLOBE NEWSPAPER vs. THE SUPERIOR COURT FOR THE COUNTY OF NORFOLK Judgment This case came on for hearing before the Court, Braucher, J. presiding, and the issues having been duly heard and an order entered, It is ORDERED and ADJUDGED, that the petition be, and it is hereby, dismissed. Dated at Boston, Massachusetts, this seventh day of May, 1979. Joun E. Powers Clerk of Court A true copy. Attest: Joun E. Powens, Clerk of Court May 8, 1979 24a COMMONWEALTH OF MASSACHUSETTS. SUPREME JupiciaL Court FoR THE COMMONWEALTH, At Boston, February 26, 1980 IN THE CASE No. SJC- 1825 GLOBE NEWSPAPER COMPANY vs. SUPERIOR COURT pending in the Superior Court for the County of Norfolk No. 79-191 Orvenen, that the following entry be made in the docket; viz., — Appeal dismissed in accordance with the opinion. By THe Court, Patrick J. Hurtey, Clerk. February 26, 1980 See opinion on file. 25a SUPREME JUDICIAL COURT GLOBE NEWSPAPER COMPANY vs. SUPERIOR COURT Suffolk. October 9, 1979. — February 26, 1980. Present: Hennessey, C.J., Quauco, Kaptan, Wizsins, Liacos, Asnams, JJ. Civit action commenced in the Supreme Judicial Court for the county of Suffolk on April 25, 1979. The case was heard by Braucher, J. James F. McHugh (Janis M. Berry with him) for the plaintiff. Mitchell J. Sikora, Jr., Assistant Attorney General (Allen B. Sherr, Assistant Attorney General, with him) for the de- fendant. Marguerite M. Dolan, for the Greenfield Recorder, ami- cus curiae, submitted a brief. James C. Heigham, for the Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief. Thomas G. Simons, District Attorney, & Stephen R. Kaplan, Assistant District Attorney, for the District Attor- ney for the Northwestern District, amicus curiae, submitted a brief. Liacos, J. On April 25, 1979, the plaintiff, Globe News- paper Company (Globe), petitioned a single justice of this court for extraordinary relief pursuant to G. L. c. 211, § 3. The petition challenged the April 25, 1979, order of a trial judge of defendant Superior Court, who acted under the au- thority of G. L. c. 278, § 16A, to close a criminal trial to the general public. The judge had denied the Globe's motion to 26a intervene and had denied the Globe’s motion for a hearing and motion to revoke the order concerning exclusion of the press. Thus, the Globe sought from the single justice a tem- porary restraining order and permanent injunction ordering the judge to permit members of the press to attend the trial and related proceedings. On April 26, 1979, as the jury in the criminal trial were being empanelled, a single justice conducted a hearing on the Globe’s petition and denied it after stating orally his reasons for his decision. A judgment was entered on May 7, 1979.' The Globe appeals. Mass. R.A.P. 1 (b), 365 Mass. 844 (1974). During the pendency of this appeal, the criminal trial proceeded to its conclusion. Thus, the issue raised before the single justice is now moot, and the appeal from his judg- ment must be dismissed. The issues raised by this record, however, are significant and troublesome, and are “capable of repetition yet evading review.” Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911); Gannett Co. v. DePasquale, U.S. : (1979).* We deem it appropriate therefore to express our views on the issues argued. Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943). In so doing, we consider matters now part of the record, but which were not put be- fore the single justice. Although neither the single justice nor this court is com- pelled to take the allegations in the Globe’s petition as true, we may do so in light of the circumstances that the Com- monwealth did not file an answer, Mass. R. Civ. P. 8 (d), 365 Mass. 749 (1974), and that the facts alleged in the peti- tion are not disputed. The petition shows that on or about April 19, 1979, the Superior Court in the County of Norfolk commenced hearings with respect to preliminary motions in the case of Commonwealth vs. Albert Aladjem, Norfolk Su- ‘The opinion of the United States Supreme Court in Gannett Co. v. DePasquale, U.S. (1979) (99 S. Ct. 2898 [1979]), had not been given at the time of the hearing before the single justice. *99 S. Ct. 2898, 2904 (1979). 27a perior Court, No. 73102-9. The court caused a sign marked “closed” to be placed on the courtroom door, and court per- sonnel turned away people seeking entry.* After failing to gain entry on April 24, 1979, counsel for the Globe on April 25 attempted to file with the court the motion to intervene and the other two motions. At the commencement of pro- ceedings before the court, the judge ruled that he would not accept the Globe’s motions as being proper for filing. With- out holding a hearing and without argument of counsel, the judge ordered that the trial be closed and the press and gen- eral public excluded. Counsel for the defendant objected to the closure order, and the assistant district attorney stated that the Commonwealth did not request closure. The transcript of the hearing before the judge is annexed to plaintiff’s petition. It reveals that the Aladjem case in- volved three girls, ages sixteen, sixteen and seventeen at the time of trial. The indictments contained allegations of for- cible rape and forced unnatural rape. The judge ruled that G. L. c. 278, § 16A, requires closure. He stated, “This rul- ing and Order results from a reading of the statute and from the feeling of the Court that a child-victim of an alleged sex- ual attack is entitled minimally to at least the same protec- tion that a child-defendant in a case involving sexual mat- ters has.” At the April 26 hearing before the single justice, the Globe and the Attorney General appeared. The assistant district attorney also appeared and stated: “[{W)here the de- fendant is asserting his right to a constitutional, public trial, a trial judge may consider that as outweighing the otherwise legitimate statutory interest, particularly where the Com- monwealth on behalf of the victims, and this is literally on behalf of the victims in the sense that they were consulted fully by the prosecutor in this case. The Commonwealth waives whatever rights it may have to exclude the press.” * Court personnel later told some members of the press that they could enter during the preliminary hearings. y one reporter did enter, but the judge told him that he should not publish information ro- ceived at the hearing. 28a In a supplemental statement, the parties stipulated to facts concerning events after the April 26 hearing. In an April 30 conference with the trial judge, the assistant dis- trict attorney represented that she had spoken with the three victims about the presence of the press in the court- room; the victims stated that they would not object to inclu- sion of the press if the press promised not to print any per- sonal data about them, photograph them, or attempt to in- terview them. On May 10, 1979, following a jury trial, the defendant Aladjem was found not guilty. The Globe argues that the single justice erred in denying its petition, claiming that G. L. c. 278, § 16A, did not au- thorize the judge to exclude the press from the Aladjem trial. This argument relies not only on statutory language and purpose, but also the principle that a statute should be construed to avoid constitutional doubts. We agree in part that the order closing the entire trial was in error. The Globe also raises several constitutional issues. The Globe contends that the First Amendment to the Constitution of the United States and art. 16 of the Declaration of Rights to the Constitution of Massachusetts protect the right of the public and press to be present during the conduct of crimi- nal trials. In particular, the Globe argues that G. L. c. 278, § 16A, is overbroad and was applied unconstitutionally in this case. Also, the Globe maintains that the trial court’s failure to hold a hearing on the closure issue violated the Globe's rights to due process of law. Finally, the Globe argues that the Sixth Amendment creates a right in the pub- lic to attend criminal trials. We reach only some of these questions today.? ? Indeed, the single justice could have refrained trom deciding any issue on the merits. Ordinarily, we will exercise our jurisdiction under GC. L. c. 211, § 3, only “if no other remedy is expressly provided.” Here it is arguable that the Globe might have sought a declaratory judgment that G. L. c. 278, § 16A, does not authorize exclusion of the press, and that even if it does, the statute violates the First and Sixth Amendments to the 29a 1. The Globe argues that G. L. c. 278, § 16A, is ambigu- ous and is unconstitutional. Before we can turn to these constitutional arguments, we must construe G. L. c. 278, § 16A, in light of the asserted ambiguity.‘ See Bellotti v. Baird, U.S. , 1.24(1979);> Poulos v. New Hamp- shire, 345 U.S. 395, 402 (1953). In considering the claimed ambiguity, we are mindful of two principles of statutory construction. First, “[w]Jords or phrases in a statute are to be given their ordinary meaning. They are to be construed according to their natural import and approved usage.” Burke v. Chief of Police of Newton, Mass. , (1978). “[T]he statutory language itself is the principal source of insight into the legislative purpose... . [WJhere the language of the statute is plain and unam'>iguous, . . . legislative history is not ordinarily a proper source of con- struction.” Hoffman v. Howmedica, Inc., 373 Mass. 32, (1977).2 However, “[i}f the language of a provision is unclear, a court may look to outside sources for assistance in 1 -/e eee 16 of the Declaration of Rights. GC. L. c. 231A. However, we think the single justice was correct in hearing this matter in view of the doubts concerning the practicality of an alternative remedy in the circumstances, and in view of the significant public issues raised by the petition. We state our views fur similar reasons. See Ottaway News- papers, Inc. v. Appeals Court, 372 Mass. 539, 550-551 (1977). *General Laws c. 278, § 16A, reads as follows: “ At the trial of a com- plaint or indictment for rape, incest, carnal abuse or other crime involv- ing sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have committed, or at the trial of a complaint or indictment fer getting a woman with child out of wedlock, or for the non-support of an illegitimate child, the presiding justice shall exclude the public from the court room, admitting only such persons as may have a direct interest in the case.” As to the con- stitutionality of the “begetting” statute, C. L. c. 273, § 11, see Common- wealth v. MacKenzie, 368 Mass. 613 (1975). General Laws c. 273, § 11, was subsequently repealed by St. 1977, c. 848, § 7. >99 S. Ct. 3035, 3049 n.24 (1979). © Mass. Adv. Sh. (1978) 425, 427. 4 Mass. Adv. Sh. (1977) 1488, 1493. 30a determining the correct construction.” Rosenbloom v. Kokofsky, 373 Mass. 778, (1977).* We consider three possible ambiguities in G. L. c. 278, § 16A. First, to what part or parts of a judicial proceeding does the locution, “At the trial . . . the presiding justice shal) exclude the general public,” refer? Second, is the word, “shall” used in a mandatory or directory sense? Third, are members of the press “persons” with “a direct in- terest” in the case? The Globe urges that the latter two questions mark ambiguities in the statute, and it is at least clear that the language “a direct interest” has required con- struction in the past. Commonwealth v. Marshall, 356 Mass. 432 (1969). Commonwealth v. Blondin, 324 Mass. 564 (1949), cert. denied, 339 U.S. 984 (1950). Because neither party has recognized the ambiguity underlying our first question, we take time to explicate it here. The word “trial” is itself ambiguous. In determining the meaning of a word in a statute, we look to its ordinary lex- ical meaning. Burke v. Chief of Police of Newton, supra. “Rather than using terms in their everyday sense, ‘(t]he law uses familiar legal expressions in their familiar legal sense.’” Bradley v. United States, 410 U.S. 605, 609 (1973) (citation omitted). In its legal definition of “trial,” Webster's New International Dictionary 2705 (2d ed. 1959) suggests that the term has several senses: “In a general sense trial includes all proceedings from the time when issue is joined, or more usually when the parties are called to try their case in court, to the time of its final determination; in criminal law the term trial is, however, generally restricted to proceedings subsequent to swearing in the jury.” This range of mean- ings also appears in Black’s Law Dictionary 1675 (rev. 4th ed. 1968). Despite the dictionaries’ suggestion that “crimi- nal trial” should be defined restrictively, our older cases have endorsed a definition of “trial” as “the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of * Mass. Adv. Sh. (1977) 2534, 2537. 3la determining such issue.” Commonwealth v. Soderquest, 183 Mass. 199, 201 (1903), overruled on other grounds, Commonwealth v. Penrose, 363 Mass. 677, 679-681 (1973). This definition is broader than the lexical definition. Fact- finding hearings may occur before the jury are empanelled. A hearing to determine whether there is probable cause to bind a defendant over for trial is an example. It is not clear whether a hearing on a motion to suppress would constitute “examination . . . of the facts put in issue in a cause.” Cf. Commonwealth v. Soderquest, supra (arraignment is not trial). According to our cases’ definition, then, the distinc- tion between “trial” and “pretrial” is not plain. But com- pare Mass. R. Crim. P. 13, 14, Mass. (1979), with Mass. R. Crim. P. 19,20, | Mass. (1979). The recent disagreement among members of the United States Supreme Court concerning the applicability to a motion to suppress of the word “trial,” appearing in the Sixth Amendment, is further evidence that the distinction is blurred. See Gan- nett Co. v. DePasquale, supra. Indeed, it is not clear that the “trial” necessarily encompasses all events occurring after the jury are empanelled. For example, a side bar con- ference, a hearing of legal arguments, or a voir dire hearing held in the absence of the jury to determine the admissibility of evidence may not meet [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0447%3A0. Public record. Not legal advice.