# Amicus Curiae Brief — Times-Picayune Publishing Corp. v. Edwards > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0461%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 - **Citation:** 485 U.S. 934 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1987 THE TIMES-PICAYUNE PUBLISHING CORP., et ai. Petitioners, v. EDWIN W. EDWARDS, et ai., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, THE AMERICAN SOCIETY OF NEWSPAPER EDITORS, THE ASSOCIATED PRESS, THE NATIONAL ASSOCIATION OF BROADCASTERS, AND THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION IN SUPPORT OF THE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT | ANTHONY C. EPSTEIN Counsel of Record JOHN T. NAKAHATA Jenner & Block 21 Dupont Circle, N.W. Washington, D.C. 20036 (202) 223-4400 Counsel for Amici Curiae (List of counsel continued inside February 10, 1988 cover.) CASILLAS PRESS INC. — 1717 K STREET NW WASHINGTON DC 20036 — 223-1220 Of Counsel: JANE E. KIRTLEY SUSAN E. BRAY 800 18th Street, N.W. Washington, D.C. 20006 © - (202) 466-6313 Counsel for Amicus Curiae The Reporters Committee for Freedom of the Press RICHARD N. WINFIELD Rogers & Wells Two Hundred Park Avenue New York, N.Y. 10166 (212) 878-8000 Counsel for Amicus Curiae The Associated Press HENRY L. BAUMANN STEVEN A. BOOKSHESTER 1771 N Street, N.W. Washington, D.C. 20036 (202) 429-5454 Counsel for Amicus Curiae National Association of Broadcasters J. LAURENT SCHARFF Pierson, Ball & Dowd 1200 18th Street, N.W. Washington, D.C. 20036 (202) 331-8566 Counsel for Amicus Curiae Radio-Television. News Directors. Association ee ee TABLE OF CONTENTS TABLE OF AUTHORITIES........-.- INTERESTS OF AMICI CURIAE.... STATEMENT OF THE CASE........- REASONS FOR GRANTING THE WRIT CONCLUSION... ccceccsccccasses is TABLE OF AUTHORITIES A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964)...... -Associated Press v. United States District Court, 705 F.2d 1143 (9th Cle. TOG ices cece ek hacia Bridges v. California, 314 ids Bee. REET ks sawn Carroll v. President ‘ind Commissioners of Princess Anne, 353 oe ee Be | eran ae Globe Newspaper Co. v. Court, 457. U.&. SPO. C29ER) a-< 0 «% Te Cree Se ‘In re Oliver, 333 U.S. 257 (1948)...... at ae aoe In re Globe Newspaper Co., 729 F.2d 47 (lst Cir. SOUS is eas ek a awa ae >In re Knight Publishing CO.,° 743 F.42G@ aaa (atm Cie. RONG i vic c dicks a jk = Page(s) 11 12 Page(s) In re Iowa Freedom of Information Council, 724 F.2d 658 (8th as IR i eaboe sd 0 oa 0 12 In re Washington Post Co., 807 F.2d 383 (4th OS a re 12 Matter of Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir. 1984)..... 8 Newman v. Graddick, 696 F.2d 796 (11th Cir. eee 12 Press-Enterprise Co. v. Superior Court, 106 Mes 86 eee 9 Richmond Newspaper v. Virginia, 448 U.S. ge re 7 Sacramento Bee v. United States District Court for the Eastern District of California, 656 F.2d 477 (9th Cir. 1981), cert. denied 456 U.S. 983 (1982)...... 12 United States v. Brooklier, 685 F.2d 1162 (9th ED sa anig bse SA wee 12 ~ 443 = Page(s) United States v. Criden, 675 F.2d 550 (3rd Cale BOR ceedwadaescacce 11 United States v. Raffoul, 826 F.2d 218 (3rd a. Se ee 11 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1987 No. 87-872 THE TIMES-PICAYUNE PUBLISHING CORP., ET AL., Petitioners, Vv. EDWIN W. EDWARDS, ET AL., Respondents. BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, THE AMERIC .. SOCIETY OF NEWSPAPER EDITORS, THE ASSOCIATED PRESS, THE NATIONAL ASSOCIATION OF BROADCASTERS, AND THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION IN SUPPORT OF THE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT INTERESTS OF AMICI CURIAE The news organizations filing this brief have a vital interest in the outcome of this case. If the decision below is allowed to stand, the news media’s ability to gather the news will be severely impaired. Under the Fifth Circuit’s decision, proceedings involving juror corruption in criminal trials will be presumptively closed even in cases of vital public interest, and the amici will generally be denied any reasonable oppor- tunity even to find out that such proceed- ings occurred until well after the trials are completeda.?/ The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of news report- ers and editors dedicated to protecting the First Amendment interests of the news media. The Reporters Committee has appeared in virtually every Supreme Court case involving the First Amendment rights 1/ This amicus brief is being filed with the consent of all parties. See Letter of William Jeffress, Jr.; Letter of Jack Weiss; Letter of Michael Fawer. -2- of reporters to gather and disseminate news and information. It has provided representation, information, legal guid- ance or research in virtually every major press freedoms case litigated since 1970. The American Society of Newspa- per Editors is a nationwide, professional organization of more than 950 persons who hold positions as directing editors of daily newspapers throughout the United States. The Associated Press, the world’s largest newsgathering organiza- tion, is a mutual news cooperative organ- ized under the Not-for-Profit Corporation Law of the State of New York. The Associ- ated Press gathers and distributes news of local, national and international impor- tance to its member newspapers and broad- cast stations across the United States and throughout the world. The National Association of Broadcasters is a non-profit, incorporated association of more than 5,000 radio stations, 940 television stations, and the major commercial broadcast networks. The Radio-Television News Directors Association is a professional association of electronic journalists. The Association has over 2,500 members who gather, edit and disseminate news and other public affairs information carried by the national networks, local radio and television broadcast stations and cable television systems throughout the nation. STATEMENT OF THE CASE Amici adopt Petitioners’ State- ment of the Case. REASONS FOR GRANTING THE WRIT By closing two mid-trial hear- ings concerning suspected jury tampering and misconduct during the criminal -4- racketeering trial of Louisiana’s incunm- bent governor, the trial judge prevented the public and the news media from ascer- taining, until weeks after the verdict, whether the jury was fair and impartial and whether the tampering and misconduct charges were properly investigated and resolved. The Court of Appeals affirmed, concluding that "for first amendment purposes, no presumption of openness attaches to proceedings involving the midtrial questioning of jurors" (App. 12a) and that the First Amendment allows access to be automatically delayed until after trial and to be routinely limited to portions of the cold transcript. The First Amendment, however, guarantees contemporaneous public scrutiny of criminal trials and thereby ensures their integrity and judicial account- ability. As this Court has stated, "the knowledge that every criminal trial is -5- subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. "2/ This value underlies the consistent holdings of this Court and the other Courts of Appeals that the right of access to criminal trial proceedings is vital to assure that such proceedings are conducted fairly in fact and appearance, that the public can "serve as a check upon the judicial process -- an_ essential 2/ In re Oliver, 333 U.S. 257, 270 (1948) (emphasis added). See Bridges v. California, 314 U.S. 254, 268 (1941) ("public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist."); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 182 (1968), quoting A_ Quantity of Copies of Books v. Kansas, 378 U.S. 205, 224 (1964) ("It is vital to the operation of democratic government that the citizens have facts and ideas on important issues before them. A delay of even a day or two many be of crucial importance in some instances."). component in our structure of self-govern- ment," and that adjudications are not based on secret bias or corruption. 2/ Even the decision below acknowl- edges that "(t]he issue of potential juror misconduct goes to the very heart of public confidence in the fairness or appearance of fairness in judicial pro- ceedings." App. 10a. It recognizes that "Tojnce the spectre of a tainted jury is raised, public scrutiny of the resolution 3/ Globe Newspaper Co. Vv. Superior Court, 457 U.S. 596, 606 (1982); Richmond Newspapers v. Virginia, 448 U.S. 555, 570 (1980) (plurality opinion). Moreover, when their impartiality has been put at issue, jurors in the Fifth Circuit will now be questioned behind closed doors, without the incentive to truthfulness provided by public testimony. Contrary to the Fifth Circuit’s speculation (App. lla-12a), public proceedings are generally more likely to improve than to worsen the quality of testimony. Globe Newspaper, 457 U.S. at 610 n.26. -7- of the issue is essential, especially when, as here, the jury acquits." Id. It is for precisely these reasons that "the presumption of access normally involves a right of contemporane- ous access[.)"4/ Contrary to the Fifth Circuit’s approach, First Amendment freedom does _not bear "an inverse ratio to the timeliness and importance of the ideas seeking expression. "2/ By its paradoxical holding that the First Amendment creates a presumption in favor of delayed but not contemporaneous access to hearings on 4/ Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1310 (7th Cir. 1984) (emphasis in original). Continental [Illinois involves a civil case, but its holding applies a fortiori to criminal trials. See also Associated Press v. United States District Court, 705 F.2d 1143, 1147 & n.3 (9th Cir. 1983) (holding unconstitutional a 48-hour delay in access to pretrial criminal hearing). 5/ Bridges v. California, 314 U.S. at 269. juror misconduct, the decision below undermines ~ these values and turns this Court’s decisions on their head. Abandoning the presumption of contemporaneous access, along with its requirement of a pre-closure notice and hearing, creates a presumption of closure and in fact guarantees closure as a practical matter. The decision below allows mid-trial proceedings concerning jury tampering and juror misconduct to be automatically closed without any justifi- cation, much less the constitutionally- required "specific, on the record findings . « « demonstrating that ‘closure is essential to preserve higher values, .)/"&/ 6/ Press-Enterprise Co. v. Superior Court, 106° «3S. Ct. 2735, 2743 (1986) (citation omitted). Although it purported to preserve judicial discretion to decide whether probes of suspected juror misconduct ought to be public or secret (Footnote Continued) -9- Without reasonable notice of potential closure, the public and press are denied any effective opportunity to contest requests for secret proceedings. The lack of pre-closure notice and hearing creates a substantial risk that the public will not even suspect that the integrity of the jury has been questioned, or that it has been shut out of significant proceed- ings. 2/ (Footnote Continued) (App. 10a-1la), the Court of Appeals in effect decided that the trial court need not exercise any judgment at all before closing these proceedings. Neither precedent, empirical evidence, nor logic suggests that any compelling interests cannot be protected here, as in other trial proceedings, through closure on a case-by-case basis consistent with strict First Amendment standards. T/ Here, the public was deprived any opportunity to learn of the existence of serious charges until after the trial ended with the jury’s verdict of acquittal. Apparently deliberately, the district court’s opaque descriptions of the sealed proceedings gave no hint about (Footnote Continued) -10- To avoid these kinds of prob- lems, "individualized determinations are always required before the right of access may be deniea. "8/ To ensure a proper adjudication of the need for — of criminal proceedings, six other Circuits have required not only a case-by-case determination but also reasonable notice of potential closure and a ‘pre-closure hearing.2’ The Fifth Circuit is the first to hold otherwise. (Footnote Continued) the gravity of the allegations explored at the secret hearing. See Order, United States v. Edwards, Criminal No. 85-0078 (E.D. La. April 17, 1986) (App. 22a); Order, United States v. Edwards, Criminal No. 85-0078 (E.D. La. April 22, 1986) (App. 24a). 8/ Globe Newspaper, 457 U.S. at 609 n.20 (emphasis in original and supplied); see id. at 609 n.25. 9/ In re Globe Newspaper Co., 729 F.2d 47, 56 (lst Cir. 1984); United States v. Ratfonl, “836 .24- 216, -226-" (ied Cir. 1987)? United States v. Criden, 675 F.2d (Footnote Continued) -ll- In sum, using reasoning that could apply to a range of hearings regu- larly conducted during criminal trials, the Fifth Circuit has created an open- ended exemption from the First Amendment’s requirement that substantive proceedings in criminal trials be closed, if at all, only after a case-by-case determination of the need for closure and after public notice and opportunity to be heard. This Court should review this fundamentally unsound decision in order to reassert the substantive and procedural protections (Footnote Continued) 550, 557-60 (3228 Cir. 1982); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986); In re Knight Publishing Co., 743 F.2d 231, 234 (4th Cir. 1984); In re Iowa Freedom of Information Council, 724 F.2d 658, 661, 664 (8th Cir. 1984); United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982); Sacramento Bee v. United States District Court for _ the Eastern District of California, 656 F.2d 477, 482 (9th Cir. 1981), cert. denied 456 U.S. 983 (1982); Newman v. Graddick, 696 F.2d 796, 802 (11th Cir. 1983). -12- embodied in the First Amendment right of contemporaneous access. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, a Ayton fc a a ANTHONY q- EPSTEIN Counsel’ of Record JOHN T. NAKAHATA Jenner & Block 21 Dupont Circle, N.W. Washington, DC 20036 (202) 223-4400 Counsel for Amici Curiae February 10, 1988 Of counsel: JANE E. KIRTLEY SUSAN E. BRAY 800 18th Street, N.W. Washington, D.C. 20006 (202) 466-6313 Counsel for Amicus Curiae The Reporters Committee for Freedom of the Press -13- RICHARD N. WINFIELD Rogers & Wells Two Hundred Park Avenue New York, N.Y. 10166 (212) 878-8000 Counsel for Amicus Curiae The Associated Press HENRY L. BAUMANN STEVEN A. BOOKSHESTER 1771 N Street, N.W. Washington, D.C. 20036 (202) 429-5454 Counsel for Amicus Curiae National Association of Broadcasters J. LAURENT SCHARFF Pierson, Ball & Dowd 1200 18th Street, N.W. Washington, D.C. 20036 (202) 331-8566 Counsel for Amicus Curiae Radio-Television News Directors Association -14- CERTIFICATE OF SERVICE I, Anthony C. Epstein, counsel of record for amici and a member of the Bar of this Court, hereby certify that three copies of Brief of Amici Curiae in Support of the Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit were deposited in a mailbox, with first class postage prepaid, addressed to each of the following counsel for the parties: Jack M. Weiss, Esq. Phelps, Dunbar, Marks, Claverie & Sims Thirtieth Floor, Texaco Center 400 Poydras Street New Orleans, Louisiana 70130 William H. Jeffress, Jr., Esq. Miller, Cassidy, Larocca & Lewin Suite 500 2555 M Street, NW Washington, DC 20037 Michael Fawer, Esq. 530 Natchez Street New Orleans, Louisiana 70130 Camille F. Gravel, Jr., Esq. 780 North Street Baton Rouge, Louisiana 70802 Risley C. Triche, Esq. Post Office Drawer 339 Napoleonville, Louisiana 70390 Joseph LaSage, Esq. 330 Marshall Street 12th Floor Shreveport, Louisiana 71101 John R. Martzell, Esq. 338 Lafayette Street New Orleans, Louisiana 70130 Dennis R. Bagneris, Esq. Perrouillet & Perrouillet 2640 Barracks Street New Orleans, Louisiana 70119 Richard T. Simmons, Esq. 3121 2ist Street Metairie, Louisiana 70002 Pwtory C Eps bene Anthony .- = bikin Counsel of Record for Amici --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0461%3A3. Public record. Not legal advice.