No. 81-611 Argued: March 29, 1982 --- Decided: June 23, 1982
JUSTICE BRENNAN delivered the opinion of the Court.
Section 16A of Chapter 278 of the Massachusetts General Laws, [n1] as construed by the Massachusetts Supreme Judicial Court, requires trial judges, at trials for specified sexual offenses involving a victim under the age of 18, to exclude the press and general public from the courtroom during the testimony of that victim. The question presented is whether the statute thus construed violates the First Amendment as applied to the States through the Fourteenth Amendment.
The case began when appellant, Globe Newspaper Co. (Globe), unsuccessfully attempted to gain access to a rape trial conducted in the Superior Court for the County of Norfolk, Commonwealth of Massachusetts. The criminal defendant in that trial had been charged with the forcible rape and forced unnatural rape of three girls who were minors at the time of trial -- two 16 years of age and one 17. In April, 1979, during hearings on several preliminary motions, the trial judge ordered the courtroom closed. [n2] Before the trial [p599] began, Globe moved that the court revoke this closure order, hold hearings on any future such orders, and permit appellant to intervene "for the limited purpose of asserting its rights to access to the trial and hearings on related preliminary motions." App. 12a-14a. The trial court denied Globe's motions, [n3] relying on Mass.Gen.Laws Ann., ch. 278, § 16A (West 1981), and ordered the exclusion of the press and general public from the courtroom during the trial. The defendant immediately objected to that exclusion order, and the prosecution stated for purposes of the record that the order was issued on the court's "own motion, and not at the request of the Commonwealth." App. 18a.
Within hours after the court had issued its exclusion order, Globe sought injunctive relief from a justice of the Supreme Judicial Court of Massachusetts. [n4] The next day, the justice conducted a hearing, at which the Commonwealth, "on behalf of the victims," waived "whatever rights it [might] have [had] to exclude the press." Id. at 28a. [n5] Nevertheless, [p600] Globe's request for relief was denied. Before Globe appealed to the full court, the rape trial proceeded and the defendant was acquitted.
Nine months after the conclusion of the criminal trial, the Supreme Judicial Court issued its judgment, dismissing Globe's appeal. Although the court held that the case was rendered moot by completion of the trial, it nevertheless stated that it would proceed to the merits, because the issues raised by Globe were "significant and troublesome, and . . . ‘capable of repetition yet evading review.'" Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 848, 401 N.E.2d 360, 362 (1980), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). As a statutory matter, the court agreed with Globe that § 16A did not require the exclusion of the press from the entire criminal trial. The provision was designed, the court determined,
to encourage young victims of sexual offenses to come forward; once they have come forward, the statute is designed to preserve their ability to testify by protecting them from undue psychological harm at trial.
379 Mass., at 860, 401 N.E.2d at 369. Relying on these twin purposes, the court concluded that § 16A required the closure of sex-offense trials only during the testimony of minor victims; during other portions of such trials, closure was "a matter within the judge's sound discretion." Id. at 864, 401 N.E.2d at 371. The court did not pass on Globe's contentions that it had a right to attend the entire [p601] criminal trial under the First and Sixth Amendments, noting that it would await this Court's decision -- then pending -- in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). [n6]
Globe then appealed to this Court. Following our decision in Richmond Newspapers, we vacated the judgment of the Supreme Judicial Court, and remanded the case for further consideration in light of that decision. Globe Newspaper Co. v. Superior Court, 449 U.S. 894 (1980).
On remand, the Supreme Judicial Court, adhering to its earlier construction of § 16A, considered whether our decision in Richmond Newspapers required the invalidation of the mandatory closure rule of § 16A. 383 Mass. 838, 42 N.E.2d 773 (1981). [n7] In analyzing the First Amendment issue, [n8] the court recognized that there is "an unbroken tradition of openness" in criminal trials. Id. at 845, 423 N.E.2d at 778. But the court discerned "at least one notable exception" to this tradition: "In cases involving sexual assaults, portions of trials have been closed to some segments of the public, even when the victim was an adult." Id. at 846, 423 [p602] N.E.2d at 778. The court also emphasized that § 16A's mandatory closure rule furthered "genuine State interests," which the court had identified in its earlier decision as underlying the statutory provision. These interests, the court stated, "would be defeated if a case-by-case determination were used." Id. at 848, 423 N.E.2d at 779. While acknowledging that the mandatory closure requirement results in a "temporary diminution" of "the public's knowledge about these trials," the court did not think
that Richmond Newspapers require[d] the invalidation of the requirement, given the statute's narrow scope in an area of traditional sensitivity to the needs of victims.
Id. at 851, 423 N.E.2d at 781. The court accordingly dismissed Globe's appeal. [n9]
Globe again sought review in this Court. We noted probable jurisdiction. 454 U.S. 1051 (1981). For the reasons that follow, we reverse, and hold that the mandatory closure rule contained in § 16A violates the First Amendment. [n10]
In this Court, Globe challenges that portion of the trial court's order, approved by the Supreme Judicial Court of Massachusetts, that holds that § 16A requires, under all circumstances, the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial. Because the entire order expired with the completion of the rape trial at which the defendant was acquitted, we must consider at the outset whether a live controversy remains. Under Art. III, § 2, of the Constitution, our jurisdiction extends only to actual cases or controversies. Nebraska Press [p603] Assn. v. Stuart, 427 U.S. 539, 546 (1976).
The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one "capable of repetition, yet evading review."
Ibid., quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. at 515.
The controversy between the parties in this case is indeed "capable of repetition, yet evading review." It can reasonably be assumed that Globe, as the publisher of a newspaper serving the Boston metropolitan area, will someday be subjected to another order relying on § 16A's mandatory closure rule. See Gannett Co. v. DePasquale, 443 U.S. 368, 377-378 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 563 (plurality opinion). And because criminal trials are typically of "short duration," ibid., such an order will likely "evade review, or at least considered plenary review in this Court." Nebraska Press Assn. v. Stuart, supra, at 547. We therefore conclude that the controversy before us is not moot within the meaning of Art. III, and turn to the merits.
The Court's recent decision in Richmond Newspapers firmly established for the first time that the press and general public have a constitutional right of access to criminal trials. Although there was no opinion of the Court in that case, seven Justices recognized that this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment. 448 U.S. at 558-581 (plurality opinion); id. at 584-598 (BRENNAN, J., concurring in judgment); id. at 598-601 (Stewart, J., concurring in judgment); id. at 601-604 (BLACKMUN, J., concurring in judgment). [n11] [p604]
Of course, this right of access to criminal trials is not explicitly mentioned in terms in the First Amendment. [n12] But we have long eschewed any "narrow, literal conception" of the Amendment's terms, NAACP v. Button, 371 U.S. 415, 430 (1963), for the Framers were concerned with broad principles, and wrote against a background of shared values and practices. The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 579-580, and n. 16 (plurality opinion) (citing cases); id. at 587-588, and n. 4 (BRENNAN, J., concurring in judgment). Underlying the First Amendment right of access to criminal trials is the common understanding that "a major purpose of that Amendment was to protect the free discussion of governmental affairs," Mills v. Alabama, 384 U.S. 214, 218 (1966). By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government. See Thornhill v. Alabama, 310 U.S. 88, 95 (1940); Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 587-588 (BRENNAN, J., concurring in judgment). See also id. at 575 (plurality opinion) (the "expressly guaranteed freedoms" of the First Amendment "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government"). Thus, to the extent that the First Amendment embraces a right of access to criminal [p605] trials, it is to ensure that this constitutionally protected "discussion of governmental affairs" is an informed one.
Two features of the criminal justice system, emphasized in the various opinions in Richmond Newspapers, together serve to explain why a right of access to criminal trials in particular is properly afforded protection by the First Amendment. First, the criminal trial historically has been open to the press and general public. "[A]t the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open." Richmond Newspapers, Inc. v. Virginia, supra, at 569 (plurality opinion). And since that time, the presumption of openness has remained secure. Indeed, at the time of this Court's decision in In re Oliver, 333 U.S. 257 (1948), the presumption was so solidly grounded that the Court was "unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country." Id. at 266 (footnote omitted). This uniform rule of openness has been viewed as significant in constitutional terms not only "because the Constitution carries the gloss of history," but also because "a tradition of accessibility implies the favorable judgment of experience." Richmond Newspapers, Inc. v. Virginia, supra, at 589 (BRENNAN, J., concurring in judgment). [n13] [p606]
Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. [n14] Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. [n15] And, in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process -- an essential component in our structure of self-government. [n16] In sum, the institutional value of the open criminal trial is recognized in both logic and experience.
Although the right of access to criminal trials is of constitutional stature, it is not absolute. See Richmond Newspapers, Inc. v. Virginia, supra, at 581, n. 18 (plurality opinion); Nebraska Press Assn. v. Stuart, 427 U.S. at 570. But the circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, [p607] it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. See, e.g., Brown v. Hartlage, 456 U.S. 45, 52-54 (1982); Smith v. Daily Mail Publishing Co., 443 U.S. 97, 101-103 (1979); NAACP v. Button, 371 U.S. at 438. [n17] We now consider the state interests advanced to support Massachusetts' mandatory rule barring press and public access to criminal sex offense trials during the testimony of minor victims.
The state interests asserted to support § 16A, though articulated in various ways, are reducible to two: the protection of minor victims of sex crimes from further trauma and embarrassment; and the encouragement of such victims to come forward and testify in a truthful and credible manner. [n18] We consider these interests in turn.
We agree with appellee that the first interest -- safeguarding the physical and psychological wellbeing of a minor [n19] -- is a compelling one. But as compelling as that interest is, it [p608] does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. [n20] Among the factors to be weighed are the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, [n21] and the interests of parents and relatives. Section 16A, in contrast, requires closure even if the victim does not seek the exclusion of the press and general public, and would not suffer injury by their presence. [n22] In the case before us, for example, the names of the minor victims were already in the public record, [n23] and the record indicates that the victims [p609] may have been willing to testify despite the presence of the press. [n24] If the trial court had been permitted to exercise its discretion, closure might well have been deemed unnecessary. In short, § 16A cannot be viewed as a narrowly tailored means of accommodating the State's asserted interest: that interest could be served just as well by requiring the trial court to determine on a case-by-case basis whether the State's legitimate concern for the wellbeing of the minor victim necessitates closure. Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State's interest. [n25]
Nor can § 16A be justified on the basis of the Commonwealth's second asserted interest -- the encouragement of minor victims of sex crimes to come forward and provide accurate testimony. The Commonwealth has offered no empirical support for the claim that the rule of automatic closure contained in § 16A will lead to an increase in the number of minor sex victims coming forward and cooperating with state authorities. [n26] Not only is the claim speculative in empirical [p610] terms, but it is also open to serious question as a matter of logic and common sense. Although § 16A bars the press and general public from the courtroom during the testimony of minor sex victims, the press is not denied access to the transcript, court personnel, or any other possible source that could provide an account of the minor victim's testimony. Thus, § 16A cannot prevent the press from publicizing the substance of a minor victim's testimony, as well as his or her identity. If the Commonwealth's interest in encouraging minor victims to come forward depends on keeping such matters secret, § 16A hardly advances that interest in an effective manner. And even if § 16A effectively advanced the State's interest, it is doubtful that the interest would be sufficient to overcome the constitutional attack, for that same interest could be relied on to support an array of mandatory closure rules designed to encourage victims to come forward: surely it cannot be suggested that minor victims of sex crimes are the only crime victims who, because of publicity attendant to criminal trials, are reluctant to come forward and testify. The State's argument based on this interest therefore proves too much, and runs contrary to the very foundation of the right of access recognized in Richmond Newspapers: namely, "that a presumption of openness inheres in the very nature of a criminal trial under our system of justice." 448 U.S. at 573 (plurality opinion).
For the foregoing reasons, we hold that § 16A, as construed by the Massachusetts Supreme Judicial Court, violates [p611] the First Amendment to the Constitution. [n27] Accordingly, the judgment of the Massachusetts Supreme Judicial Court is
1. Massachusetts Gen. Laws Ann., ch. 278, § 16A (West 1981), provides in pertinent part:
At the trial of a complaint or indictment for rape, incest, 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, . . . the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case.
The court caused a sign marked "closed" to be placed on the courtroom door, and court personnel turned away people seeking entry.
Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 848, 401 N.E.2d 360, 362-363 (1980) (footnote omitted).
3. The court refused to permit Globe to file its motion to intervene, and explicitly stated that it would not act on Globe's other motions. App. 17a-18a.
4. Globe's request was contained in a petition for extraordinary relief filed pursuant to Mass.Gen.Laws Ann., ch. 211, § 3 (West 1958 and Supp.1982-193).
5. The Commonwealth's representative stated:
[O]ur position before the trial judge [was], and it is before this Court, that in some circumstances a trial judge, where the defendant is asserting his right to a constitutional, public trial, . . . may consider that as outweighing the otherwise legitimate statutory interests, particularly where the Commonwealth [acts] 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.
App. 28a. Some time after the trial began, the prosecuting attorney informed the judge at a lobby conference that she had "spoke[n] with each of the victims regarding . . . excluding the press." Id. at 48a. The prosecuting attorney indicated that the victims had expressed some "privacy concerns" that were based on "their own privacy interests, as well as the fact that there are grandparents involved with a couple of these victims." Ibid. But according to the prosecuting attorney, the victims "wouldn't object to the press being included" if "it were at all possible to obtain a guarantee" that the press would not attempt to interview them or publish their names, photographs, or any personal information. Ibid. In fact, their names were already part of the public record. See 383 Mass. 838, 849, 423 N.E.2d 773, 780 (1981). It is not clear from the record, however, whether or not the victims were aware of this fact at the time of their discussions with the prosecuting attorney.
6. Justice Quirico dissented, being of the view that the mandatory closure rule of § 16A was not limited to the testimony of minor victims, but was applicable to the entire trial.
7. The court again noted that the First Amendment issue arising from the closure of the then-completed trial was "‘capable of repetition yet evading review.'" Id. at 841, n. 4, 423 N.E.2d at 775, n. 4, quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). But in contrast to the view it had taken in its prior opinion, supra at 600, the court held that the case was not moot, because of this possibility of repetition without opportunity for review.
8. The court found it unnecessary to consider Globe's argument that the mandatory closure rule violated the Sixth Amendment rights of the criminal defendant who had been acquitted in the rape trial. Those Sixth Amendment rights, the court stated, were "personal rights" that, "at least in the context of this case, [could] only be asserted by the original criminal defendant." 383 Mass. at 842, 423 N.E.2d at 776 (footnote omitted).
9. Justice Wilkins filed a concurring opinion in which he expressed concern whether a statute constitutionally could require closure "without specific findings by the judge that the closing is justified by overriding or countervailing interests of the Commonwealth." Id. at 852, 423 N.E.2d at 782.
10. We therefore have no occasion to consider Globe's additional argument that the provision violates the Sixth Amendment.
11. JUSTICE POWELL took no part in the consideration or decision of Richmond Newspapers. But he had indicated previously in a concurring opinion in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), that he viewed the First Amendment as conferring on the press a right of access to criminal trials. Id. at 397-398.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S.Const., Amdt. 1.
13. Appellee argues that criminal trials have not always been open to the press and general public during the testimony of minor sex victims. Brief for Appellee 13-22. Even if appellee is correct in this regard, but see Gannett Co. v. DePasquale, supra, at 423 (BLACKMUN, J., concurring in part and dissenting in part), the argument is unavailing. In Richmond Newspapers, the Court discerned a First Amendment right of access to criminal trials based in part on the recognition that, as a general matter, criminal trials have long been presumptively open. Whether the First Amendment right of access to criminal trials can be restricted in the context of any particular criminal trial, such as a murder trial (the setting for the dispute in Richmond Newspapers) or a rape trial, depends not on the historical openness of that type of criminal trial, but rather on the state interests assertedly supporting the restriction. See Part III-B, infra.
14. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 569 (plurality opinion); id. at 596-597 (BRENNAN, J., concurring in judgment); Gannett Co. v. DePasquale, 443 U.S. at 383; id. at 428-429 (BLACKMUN, J., concurring in part and dissenting in part).
15. See Levine v. United States, 362 U.S. 610, 616 (1960); In re Oliver, 333 U.S. 257, 268-271 (1948); Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 570-571 (plurality opinion); id. at 595 (BRENNAN, J., concurring in judgment); Gannett Co. v. DePasquale, supra, at 428-429 (BLACKMUN, J., concurring in part and dissenting in part).
16. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 570-571 (plurality opinion); id. at 596 (BRENNAN, J., concurring in judgment); Gannett Co. v. DePasquale, 443 U.S. at 394 (BURGER, C.J., concurring); id. at 428 (BLACKMUN, J., concurring in part and dissenting in part).
17. Of course, limitations on the right of access that resemble "time, place, and manner" restrictions on protected speech, see Young v. American Mini Theatres, Inc., 427 U.S. 50, 63, n. 18 (1976), would not be subjected to such strict scrutiny. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 581-582, n. 18 (plurality opinion); id. at 598, n. 23 (BRENNAN, J., concurring in judgment); id. at 600 (Stewart, J., concurring in judgment).
18. In its opinion following our remand, the Supreme Judicial Court of Massachusetts described the interests in the following terms:
(a) to encourage minor victims to come forward to institute complaints and give testimony . . . ; (b) to protect minor victims of certain sex crimes from public degradation, humiliation, demoralization, and psychological damage . . . ; (c) to enhance the likelihood of credible testimony from such minors, free of confusion, fright, or embellishment; (d) to promote the sound and orderly administration of justice . . . ; (e) to preserve evidence and obtain just convictions.
383 Mass. at 848, 423 N.E.2d at 779.
19. It is important to note that, in the context of § 16A, the measure of the State's interest lies not in the extent to which minor victims are injured by testifying, but rather in the incremental injury suffered by testifying in the presence of the press and the general public.
20. Indeed, the plurality opinion in Richmond Newspapers suggested that individualized determinations are always required before the right of access may be denied: "Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public." 448 U.S. at 581 (footnote omitted) (emphasis added).
[I]f the minor victim wanted the public to know precisely what a heinous crime the defendant had committed, the imputed legislative justifications for requiring the closing of the trial during the victim's testimony would in part, at least, be inapplicable.
383 Mass. at 853, 423 N.E.2d at 782 (Wilkins, J., concurring).
22. It appears that, while other States have statutory or constitutional provisions that would allow a trial judge to close a criminal sex-offense trial during the testimony of a minor victim, no other State has a mandatory provision excluding both the press and general public during such testimony. See, e.g., Ala.Code § 12-21-202 (1975); Ariz.Rule Crim.Proc. 9.3; Ga.Code § 81-1006 (1978); La.Rev.Stat.Ann. § 15:469.1 (West 1981); Miss. Const., Art. 3, § 26; N.H.Rev.Stat.Ann. § 632-A:8 (Supp.1981); N.Y.Jud. Law § 4 (McKinney 1968); N.C.Gen.Stat. § 15-166 (Supp.1981); N.D.Cent.Code § 271-02 (1974); Utah Code Ann. § 78-7-4 (1953); Vt.Stat.Ann., Tit. 12, § 1901 (1973); Wis.Stat. § 970.03(4) (1979-1980). See also Fla.Stat. § 918.16 (1979) (providing for mandatory exclusion of general public, but not press, during testimony of minor victims). Of course, we intimate no view regarding the constitutionality of these state statutes.
23. The Court has held that the government may not impose sanctions for the publication of the names of rape victims lawfully obtained from the public record. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). See also Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979).
24. See n. 5, supra.
25. Of course, for a case-by-case approach to be meaningful, representatives of the press and general public "must be given an opportunity to be heard on the question of their exclusion." Gannett Co. v. DePasquale, 443 U.S. at 401 (POWELL, J., concurring). This does not mean, however, that, for purposes of this inquiry, the court cannot protect the minor victim by denying these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim's future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences. See Richmond Newspaper, Inc. v. Virginia, supra, at 598, n. 23 (BRENNAN, J., concurring in judgment). Without such trial court discretion, a State's interest in safeguarding the welfare of the minor victim, determined in an individual case to merit some form of closure, would be defeated before it could ever be brought to bear.
26. To the extent that it is suggested that, quite apart from encouraging minor victims to testify, § 16A improves the quality and credibility of testimony, the suggestion also is speculative. And while closure may have such an effect in particular cases, the Court has recognized that, as a general matter, "[o]penness in court proceedings may improve the quality of testimony." Gannett Co. v. DePasquale, supra, at 383 (emphasis added). In the absence of any showing that closure would improve the quality of testimony of all minor sex victims, the State's interest certainly cannot justify a mandatory closure rule.
27. We emphasize that our holding is a narrow one: that a rule of mandatory closure respecting the testimony of minor sex victims is constitutionally infirm. In individual cases, and under appropriate circumstances, the First Amendment does not necessarily stand as a bar to the exclusion from the courtroom of the press and general public during the testimony of minor sex offense victims. But a mandatory rule, requiring no particularized determinations in individual cases, is unconstitutional.