Gannett Co., Inc. v. DePasquale

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

No. 77-1301 Argued: November 7, 1978 --- Decided: July 2, 1979
MR. JUSTICE STEWART delivered the opinion of the Court.

The question presented in this case is whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding, even though [p371] the accused, the prosecutor, and the trial judge all have agreed to the closure of that proceeding in order to assure a fair trial.

Wayne Clapp, aged 42 and residing at Henrietta, a Rochester, N.Y. suburb, disappeared in July 1976. He was last seen on July 16, when, with two male companions, he went out on his boat to fish in Seneca Lake, about 40 miles from Rochester. The two companions returned in the boat the same day and drove away in Clapp's pickup truck. Clapp was not with them. When he failed to return home by July 19, his family reported his absence to the police. An examination of the boat, laced with bulletholes, seemed to indicate that Clapp had met a violent death aboard it. Police then began an intensive search for the two men. They also began lake-dragging operations in an attempt to locate Clapp's body.

The petitioner, Gannett Co., Inc., publishes two Rochester newspapers, the morning Democrat & Chronicle and the evening Times-Union. [n1] On July 20, each paper carried its first [p372] story about Clapp's disappearance. Each reported the few details that were then known, and stated that the police were theorizing that Clapp had been shot on his boat and his body dumped overboard. Each stated that the body was missing. The Times-Union mentioned the names of respondents Greathouse and Jones and said that Greathouse "was identified as one of the two companions who accompanied Clapp Friday" on the boat; said that the two were aged 16 and 21, respectively; and noted that the police were seeking the two men and Greathouse's wife, also 16. Accompanying the evening story was a 1959 photograph of Clapp. The report also contained an appeal from the state police for assistance.

Michigan police apprehended Greathouse, Jones, and the woman on July 21. This came about when an interstate bulletin describing Clapp's truck led to their discovery in Jackson County, Mich., by police who observed the truck parked at a local motel. The petitioner's two Rochester papers on July 22 reported the details of the capture. The stories recounted how the Michigan police, after having arrested Jones in a park, used a helicopter and dogs and tracked down Greathouse and the woman in some woods. They recited that Clapp's truck was located near the park.

The stories also stated that Seneca County police theorized that Clapp was shot with his own pistol, robbed, and his body thrown into Seneca Lake. The articles provided background on Clapp's life, sketched the events surrounding his disappearance, and said that New York had issued warrants for the arrest of the three persons. One of the articles reported that the Seneca County District Attorney would seek to extradite the suspects and would attempt to carry through with a homicide prosecution even if Clapp's body were not found. The paper also quoted the prosecutor as stating, however, that [p373] the evidence was still developing and "the case could change." The other story noted that Greathouse and Jones were from Texas and South Carolina, respectively.

Both papers carried stories on July 23. These revealed that Jones, the adult, had waived extradition, and that New York police had traveled to Michigan and were questioning the suspects. The articles referred to police speculation that extradition of Greathouse and the woman might involve "legalities" because they were only 16, and considered juveniles in Michigan. The morning story provided details of an interview with the landlady from whom the suspects had rented a room while staying in Seneca County at the time Clapp disappeared. It also noted that Greathouse, according to state police, was on probation in San Antonio, Tex., but that the police did not know the details of his criminal record.

The Democrat & Chronicle carried another story on the morning of July 24. It stated that Greathouse had led the Michigan police to the spot where he had buried a .357 magnum revolver belonging to Clapp, and that the gun was being returned to New York with the three suspects. It also stated that the police had found ammunition at the motel where Greathouse and the woman were believed to have stayed before they were arrested. The story repeated the basic facts known about the disappearance of Clapp and the capture of the three suspects in Michigan. It stated that New York police continued to search Seneca Lake for Clapp's body.

On July 25, the Democrat & Chronicle reported that Greathouse and Jones had been arraigned before a Seneca County Magistrate on second-degree murder charges shortly after their arrival from Michigan; that they and the woman also had been arraigned on charges of second-degree grand larceny; that the three had been committed to the Seneca County jail; that all three had "appeared calm" during the court session; and that the Magistrate had read depositions signed by three witnesses, one of whom testified to having heard "five or six [p374] shots" from the lake on the day of the disappearance, just before seeing Clapp's boat "veer sharply" in the water.

Greathouse, Jones, and the woman were indicted by a Seneca County grand jury on August 2. The two men were charged, in several counts, with second-degree murder, robbery, and grand larceny. The woman was indicted on one count of grand larceny. Both the Democrat & Chronicle and the Times-Union on August 3 reported the filing of the indictments. Each story stated that the murder charges specified that the two men had shot Clapp with his own gun, had weighted his body with anchors and tossed it into the lake, and then had made off with Clapp's credit card, gun, and truck. Each reported that the defendants were held without bail, and each again provided background material with details of Clapp's disappearance. The fact that Clapp's body still had not been recovered was mentioned. One report noted that, according to the prosecutor, if the body were not recovered prior to trial, "it will be the first such trial in New York State history." Each paper on that day also carried a brief notice that a memorial service for Clapp would be held that evening in Henrietta. These notices repeated that Greathouse and Jones had been charged with Clapp's murder and that his body had not been recovered.

On August 6, each paper carried a story reporting the details of the arraignments of Greathouse and Jones the day before. The papers stated that both men had pleaded not guilty to all charges. Once again, each story repeated the basic facts of the accusations against the men and noted that the woman was arraigned on a larceny charge. The stories noted that defense attorneys had been given 90 days in which to file pretrial motions.

During this 90-day period, Greathouse and Jones moved to suppress statements made to the police. The ground they asserted was that those statements had been given involuntarily. [n2] [p375] They also sought to suppress physical evidence seized as fruits of the allegedly involuntary confessions; the primary physical evidence they sought to suppress was the gun to which, as petitioner's newspaper had reported, Greathouse had led the Michigan police.

The motions to suppress came on before Judge DePasquale on November 4. [n3] At this hearing, defense attorneys argued that the unabated buildup of adverse publicity had jeopardized the ability of the defendants to receive a fair trial. They thus requested that the public and the press be excluded from the hearing. The District Attorney did not oppose the motion. Although Carol Ritter, a reporter employed by the petitioner, was present in the courtroom, no objection was made at the time of the closure motion. The trial judge granted the motion.

The next day, however, Ritter wrote a letter to the trial judge asserting a "right to cover this hearing," and requesting that "we . . . be given access to the transcript." The judge responded later the same day. He stated that the suppression hearing had concluded and that any decision on immediate release of the transcript had been reserved. The petitioner then moved the court to set aside its exclusionary order. [p376]

The trial judge scheduled a hearing on this motion for November 16 after allowing the parties to file briefs. At this proceeding, the trial judge stated that, in his view, the press had a constitutional right of access although he deemed it "unfortunate" that no representative of the petitioner had objected at the time of the closure motion. Despite his acceptance of the existence of this right, however, the judge emphasized that it had to be balanced against the constitutional right of the defendants to a fair trial. After finding on the record that an open suppression hearing would pose a "reasonable probability of prejudice to these defendants," the judge ruled that the interest of the press and the public was outweighed in this case by the defendants' right to a fair trial. The judge thus refused to vacate his exclusion order or grant the petitioner immediate access to a transcript of the pretrial hearing.

The following day, an original proceeding in the nature of prohibition and mandamus, challenging the closure orders on First, Sixth, and Fourteenth Amendment grounds, was commenced by the petitioner in the Supreme Court of the State of New York, Appellate Division, Fourth Department. On December 17, 1976, that court held that the exclusionary orders transgressed the public's vital interest in open judicial proceedings, and further constituted an unlawful prior restraint in violation of the First and Fourteenth Amendments. It accordingly vacated the trial court's orders. 55 App.Div.2d 107, 389 N.Y.S.2d 719 (1976).

On appeal, the New York Court of Appeals held that the case was technically moot, [n4] but, because of the critical importance of the issues involved, retained jurisdiction and reached the merits. The court noted that, under state law, [p377] "[c]riminal trials are presumptively open to the public, including the press," but held that this presumption was overcome in this case because of the danger posed to the defendants' ability to receive a fair trial. Thus, the Court of Appeals upheld the exclusion of the press and the public from the pretrial proceeding. 43 N.Y.2d 370, 372 N.E.2d 544 (1977). Because of the significance of the constitutional questions involved, we granted certiorari. 435 U.S. 1006.

II

We consider, first, the suggestion of mootness, noted and rejected by the New York Court of Appeals. 43 N.Y.2d at 376, 372 N.E.2d at 547. We conclude that this aspect of the case is governed by Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-547, and that the controversy is not moot. The petitioner, of course, has obtained access to the transcript of the suppression hearing. But this Court's jurisdiction is not defeated, id. at 546,

simply because the order attacked has expired, if the underlying dispute between the parties is one "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

To meet that test, two conditions must be satisfied:

(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149.

Those conditions have been met. The order closing a pretrial hearing is too short in its duration to permit full review. And, to the extent the order has the effect of denying access to the transcript, termination of the underlying criminal proceeding by a guilty plea, as in this case, or by a jury verdict, nearly always will lead to a lifting of the order before appellate review is completed. The order is, "by nature, short-lived." Nebraska Press, supra, at 547. Further, it is reasonably to [p378] be expected that the petitioner, as publisher of two New York newspapers, will be subjected to similar closure orders entered by New York courts in compliance with the judgment of that State's Court of Appeals. We therefore turn to the merits.

III

This Court has long recognized that adverse publicity can endanger the ability of a defendant to receive a fair trial. E.g., Sheppard v. Maxwell, 384 U.S. 333; Irvin v. Dowd, 366 U.S. 717; Marshall v. United States, 360 U.S. 310. Cf. Estes v. Texas, 381 U.S. 532. To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, supra. And because of the Constitution's pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary.

Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U.S. 368. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.

The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means. [n5] When such information is publicized during a pretrial [p379] proceeding, however, it may never be altogether kept from potential jurors. Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun. Cf. Rideau v. Louisiana, 373 U.S. 723. [n6]

IV

A

The Sixth Amendment, applicable to the States through the Fourteenth, surrounds a criminal trial with guarantees such as the rights to notice, confrontation, and compulsory process that have as their overriding purpose the protection of the accused from prosecutorial and judicial abuses. [n7] Among the guarantees that the Amendment provides to a person charged with the commission of a criminal offense, and to him alone, is the "right to a speedy and public trial, by an impartial jury." The Constitution nowhere mentions any right of access to a criminal trial on the part of the public; its guarantee, [p380] like the others enumerated, is personal to the accused. See Faretta v. California, 422 U.S. 806, 848 ("[T]he specific guarantees of the Sixth Amendment are personal to the accused.") (BLACKMUN, J., dissenting).

Our cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant. In In re Oliver, 333 U.S. 257, this Court held that the secrecy of a criminal contempt trial violated the accused's right to a public trial under the Fourteenth Amendment. The right to a public trial, the Court stated,

has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.

Id. at 270. In an explanatory footnote, the Court stated that the public trial guarantee

. . . "is for the protection of all persons accused of crime -- the innocently accused, that they may not become the victim of an unjust prosecution, as well as the guilty, that they may be awarded a fair trial -- that one rule [as to public trials] must be observed and applied to all." Frequently quoted is the statement in [1] Cooley, Constitutional Limitations (8th ed.1927) at 647:

The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. . ..

Id. at 270 n. 25. [n8]

Similarly, in Estes v. Texas, supra, the Court held that a defendant was deprived of his right to due process of law under the Fourteenth Amendment by the televising and [p381] broadcasting of his trial. In rejecting the claim that the media representatives had a constitutional right to televise the trial, the Court stated that "[t]he purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned." 381 U.S. at 538-539. See also id. at 588 ("Thus the right of ‘public trial' is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered") (Harlan, J., concurring); id. at 583 ("[T]he public trial provision of the Sixth Amendment is a ‘guarantee to an accused' . . . [and] a necessary component of an accused's right to a fair trial . . .") (Warren, C.J., concurring).

Thus, both the Oliver and Estes cases recognized that the constitutional guarantee of a public trial is for the benefit of the defendant. There is not the slightest suggestion in either case that there is any correlative right in members of the public to insist upon a public trial. [n9] [p382]

B

While the Sixth Amendment guarantees to a defendant in a criminal case the right to a public trial, it does not guarantee the right to compel a private trial. "The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right." Singer v. United States, 380 U.S. 24, 34-35. [n10] But the issue here is not whether the defendant can compel a private trial. [n11] Rather, the issue [p383] is whether members of the public have an enforceable right to a public trial that can be asserted independently of the parties in the litigation.

There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system. Estes v. Texas, 381 U.S. at 583 (Warren, C.J., concurring). But there is a strong societal interest in other constitutional guarantees extended to the accused, as well. The public, for example, has a definite and concrete interest in seeing that justice is swiftly and fairly administered. See Barker v. Wingo, 407 U.S. 514, 519. Similarly, the public has an interest in having a criminal case heard by a jury, an interest distinct from the defendant's interest in being tried by a jury of his peers. Patton v. United States, 281 U.S. 276, 312.

Recognition of an independent public interest in the enforcement of Sixth Amendment guarantees is a far cry, however, from the creation of a constitutional right on the part of the public. In an adversary system of criminal justice, the public interest in the administration of justice is protected by the participants in the litigation. Thus, because of the great public interest in jury trials as the preferred mode of factfinding in criminal cases, a defendant cannot waive a jury trial without the consent of the prosecutor and judge. Singer v. United States, supra at 38; Patton v. United States, supra at 312. But if the defendant waives his right to a jury trial, [p384] and the prosecutor and the judge consent, it could hardly be seriously argued that a member of the public could demand a jury trial because of the societal interest in that mode of factfinding. Cf. Fed.Rule Crim.Proc. 3(a) (trials to be by jury unless waived by a defendant, but the court must approve and the prosecution must consent to the waiver). Similarly, while a defendant cannot convert his right to a speedy trial into a right to compel an indefinite postponement, a member of the general public surely has no right to prevent a continuance in order to vindicate the public interest in the efficient administration of justice. In short, our adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation. [n12]

V

In arguing that members of the general public have a constitutional right to attend a criminal trial, despite the obvious lack of support for such a right in the structure or text of the Sixth Amendment, the petitioner and amici rely on the history of the public trial guarantee. This history, however, ultimately demonstrates no more than the existence of a common law rule of open civil and criminal proceedings.

A

Not many common law rules have been elevated to the status of constitutional rights. The provisions of our Constitution [p385] do reflect an incorporation of certain few common law rules and a rejection of others. The common law right to a jury trial, for example, is explicitly embodied in the Sixth and Seventh Amendments. The common law rule that looked upon jurors as interested parties who could give evidence against a defendant [n13] was explicitly rejected by the Sixth Amendment provision that a defendant is entitled to be tried by an "impartial jury." But the vast majority of common law rules were neither made part of the Constitution nor explicitly rejected by it.

Our judicial duty in this case is to determine whether the common law rule of open proceedings was incorporated, rejected, or left undisturbed by the Sixth Amendment. In pursuing this inquiry, it is important to distinguish between what the Constitution permits and what it requires. It has never been suggested that, by phrasing the public trial guarantee as a right of the accused, the Framers intended to reject the common law rule of open proceedings. 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. [n14] The history upon which the petitioner and amici rely totally fails to demonstrate that the Framers of the Sixth Amendment intended to create a constitutional right in strangers to attend a pretrial proceeding, [p386] when all that they actually did was to confer upon the accused an explicit right to demand a public trial. [n15] In conspicuous contrast with some of the early state constitutions that provided [p387] for a public right to open civil and criminal trials, [n16] the Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case.

B

But even if the Sixth and Fourteenth Amendments could properly be viewed as embodying the common law right of the public to attend criminal trials, it would not necessarily follow that the petitioner would have a right of access under the circumstances of this case. For there exists no persuasive evidence that, at common law, members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary. [n17] By the time of the adoption of the Constitution, public trials were clearly associated with the protection of the defendant. [n18] And pretrial proceedings, [p388] precisely because of the same concern for a fair trial, were never characterized by the same degree of openness as were actual trials. [n19] [p389]

Under English common law, the public had no right to attend pretrial proceedings. E.g., E. Jenks, The Book of English Law 75 (6th ed.1967) ("It must, of course, be remembered, that the principle of publicity only applies to the actual trial of a case, not necessarily to the preliminary or prefatory stages of the proceedings . . ."); F. Maitland, Justice and Police 129 (1885) (The "preliminary examination of accused persons has gradually assumed a very judicial form. . . . The place in which it is held is indeed no ‘open court,' the public can be excluded if the magistrate thinks that the ends of justice will thus be best answered . . ."). See also Indictable Offences Act, 11 & 12 Vict., ch. 42, § 19 (1848) (providing that pretrial proceedings should not be deemed an open court, and that the public could therefore be excluded); Magistrates' Courts Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55, § 4(2) (1952) (same). [n20] [p390]

Closed pretrial proceedings have been a familiar part of the judicial landscape in this country as well. The original New York Field Code of Criminal Procedure published in 1850, for example, provided that pretrial hearings should be closed to the public "upon the request of a defendant." [n21] The explanatory report made clear that this provision was designed to protect defendants from prejudicial pretrial publicity:

If the examination must necessarily be public, the consequence may be that the testimony upon the mere preliminary examination will be spread before the community, and a state of opinion created which, in cases of great public interest, will render it difficult to obtain an unprejudiced jury. The interests of justice require that the case of the defendant should not be prejudged, if it can be avoided; and no one can justly complain that, until he is put upon his trial, the dangers of this prejudgment are obviated. [n22]

Indeed, eight of the States that have retained all or part of the [p391] Field Code have kept the explicit provision relating to closed pretrial hearings. [n23]

For these reasons, we hold that members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials.

VI

The petitioner also argues that members of the press and the public have a right of access to the pretrial hearing by reason of the First and Fourteenth Amendments. In Pell v. Procunier, 417 U.S. 817, Saxbe v. Washington Post Co., 417 U.S. 843, and Houchins v. KQED, Inc., 438 U.S. 1, this Court upheld prison regulations that denied to members of the press access to prisons superior to that afforded to the public generally. Some Members of the Court, however, took the position in those cases that the First and Fourteenth Amendments do guarantee to the public in general, or the press in [p392] particular, a right of access that precludes their complete exclusion in the absence of a significant governmental interest. See Saxbe, supra at 850 (POWELL, J., dissenting); Houchins, supra at 19 (STEVENS, J., dissenting). See also id. at 16 (STEWART, J, concurring).

The petitioner in this case urges us to narrow our rulings in Pell, Saxbe, and Houchins, at least to the extent of recognizing a First and Fourteenth Amendment right to attend criminal trials. [n24] We need not decide in the abstract, however, whether there is any such constitutional right. For even assuming, arguendo, that the First and Fourteenth Amendments may guarantee such access in some situations, a question we do not decide, this putative right was given all appropriate deference by the state nisi prius court in the present case.

Several factors lead to the conclusion that the actions of the trial judge here were consistent with any right of access the petitioner may have had under the First and Fourteenth Amendments. First, none of the spectators present in the courtroom, including the reporter employed by the petitioner, objected when the defendants made the closure motion. Despite this failure to make a contemporaneous objection, counsel for the petitioner was given an opportunity to be heard at a proceeding where he was allowed to voice the petitioner's objections to closure of the pretrial hearing. At this proceeding, which took place after the filing of briefs, the trial court balanced the "constitutional rights of the press and the public" against the "defendants' right to a fair trial." The trial judge concluded, after making this appraisal, that the press and the public could be excluded from the suppression hearing, and could be denied immediate access to a transcript, [p393] because an open proceeding would pose a "reasonable probability of prejudice to these defendants." Thus, the trial court found that the representatives of the press did have a right of access of constitutional dimension, but held, under the circumstances of this case, that this right was outweighed by the defendants' right to a fair trial. In short, the closure decision was based

on an assessment of the competing societal interests involved . . . , rather than on any determination that First Amendment freedoms were not implicated.

Saxbe, supra at 860 (POWELL, J., dissenting).

Furthermore, any denial of access in this case was not absolute, but only temporary. Once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. The press and the public then had a full opportunity to scrutinize the suppression hearing. Unlike the case of an absolute ban on access, therefore, the press here had the opportunity to inform the public of the details of the pretrial hearing accurately and completely. Under these circumstances, any First and Fourteenth Amendment right of the petitioner to attend a criminal trial was not violated. [n25]

VII

We certainly do not disparage the general desirability of open judicial proceedings. But we are not asked here to declare [p394] whether open proceedings represent beneficial social policy, or whether there would be a constitutional barrier to a state law that imposed a stricter standard of closure than the one here employed by the New York courts. Rather, we are asked to hold that the Constitution itself gave the petitioner an affirmative right of access to this pretrial proceeding, even though all the participants in the litigation agreed that it should be closed to protect the fair trial rights of the defendants.

For all of the reasons discussed in this opinion, we hold that the Constitution provides no such right. Accordingly, the judgment of the New York Court of Appeals is affirmed.

Is is so ordered.

1. The Democrat & Chronicle and the Times-Union are published in Rochester, N.Y. Rochester, in Monroe County, is approximately 40 miles from the Seneca County line. The circulation of the newspapers is primarily in Monroe County. There are some subscribers, however, in Seneca County. In 1976, when this case arose, the Democrat & Chronicle had a Seneca County daily circulation of 1,022, giving it a 9.6% share of the market in that county, and a Sunday circulation of 1,532, for a 14.3% share of the market. The Times-Union published only a daily edition, and had but one subscriber in Seneca County. American Newspaper Markets, Inc., Circulation '77/'78, pp. 522, 541. The Bureau of the Census estimated Seneca County's 1976 population at 34,000. U.S. Department of Commerce, Bureau of the Census, Current Population Reports, Series P-26, No. 76-32, Population Estimates 3 (Aug.1977).

The petitioner in 1976 also owned a Rochester, N.Y., television station. And there were other newspapers in Seneca County at that time. See Circulation '77/'78, supra at 522. The record in this case, however, contains no evidence concerning newspaper coverage of Clapp's disappearance and the subsequent prosecution of respondents Greathouse and Jones other than that which appeared in the Democrat & Chronicle and the Times-Union.

2. Under N.Y.Crim.Proc.Law §§ 710.40 and 255.20 (McKinney Supp. 1978), a defendant was required to file in advance of trial any motion to suppress evidence. The statutes permitted a defendant to make such a motion for the first time during trial only when he did not have a reasonable opportunity to do so prior to trial, or when the State failed to provide notice before trial that it would seek to introduce a confession of the defendant. §§ 710.30 and 710.40.2.

3. The hearing on the motion of defendants Greathouse and Jones to suppress their confessions as involuntary was held before trial in accordance with the decision in People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179 (1965). In Huntley, the New York Court of Appeals ruled that the separate inquiry into the voluntariness of a confession, required by this Court's decision in Jackson v. Denno, 378 U.S. 368 (1964), was to be made in a preliminary hearing. 15 N.Y.2d at 78, 204 N.E.2d at 183.

4. Shortly before the entry of judgment by the Appellate Division, both defendants had pleaded guilty to lesser included offenses in satisfaction of the charges against them. Immediately thereafter, a transcript of the suppression hearing was made available to the petitioner.

5. In addition to excluding inadmissible evidence, a trial judge may order sequestration of the jury or take any of a variety of protective measures. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 562-565; Sheppard v. Maxwell, 384 U.S. 333, 358 362.

6. All of this does not mean, of course, that failure to close a pretrial hearing, or take other protective measures to minimize the impact of prejudicial publicity, will warrant the extreme remedy of reversal of a conviction. But it is precisely because reversal is such an extreme remedy, and is employed in only the rarest cases, that our criminal justice system permits, and even encourages, trial judges to be overcautious in ensuring that a defendant will receive a fair trial.

7. The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

8. The Court also recognized that while the right to a public trial is guaranteed to an accused, publicity also provides various benefits to the public. 333 U.S. at 270 n. 24.

9. Numerous commentators have also recognized that only a defendant has a right to a public trial under the Sixth Amendment. E.g., Radin, The Right to a Public Trial, 6 Temple L.Q 381, 392 (1932) (a public right to a public trial "cannot be derived from the Constitution because the Constitution certainly does not mention a public trial as the privilege of the public, but expressly as that of the accused"); Boldt, Should Canon 35 Be Amended?, 41 A.B.A.J. 55, 56 (1955) ("[T]he guarantee of public trial is for the benefit of persons charged with crime. . . . It is significant that the Constitution does not say that the public has the right to ‘enjoy' or even attend trials. There is nothing in the constitutional language indicating that any individual other than the accused in a criminal trial . . . [has] either a right to attend the trial or to publicity emanating from the trial"); Note, The Right to Attend Criminal Hearings, 78 Colum.L.Rev. 1308, 1321 (1978) (since the Sixth Amendment confers a right to a public trial to the accused, "to elaborate a parallel and possibly adverse public right of access from the public trial guarantee clause strains even flexible constitutional language beyond its proper bounds"); Note, The Right to a Public Trial in Criminal Cases, 41 N.Y.U.L.Rev. 1138, 1156 (1966) ("Despite the importance of the public's interest, however, it does not appear that a public right is ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,' . . . particularly in view of the uncertain status of this right in the majority of the state courts").

See also Powell, The Right to a Fair Trial, 51 A.B.A.J. 534, 538 (1965) ("We must bear in mind that the primary purpose of a public trial and of the media's right as a part of the public to attend and report what occurs there is to protect the accused"); 1 T. Cooley, Constitutional Limitations 647 (8th ed.1927) ("The requirement of a public trial is for the benefit of the accused . . .").

It appears that, before today, only one court, state or federal, has ever held that the Sixth and Fourteenth Amendments confer upon members of the public a right of access to a criminal trial. United States v. Cianfrani, 573 F.2d 835 (CA3 1978). The Cianfrani case has been criticized for its departure from the plain meaning of the Sixth Amendment. See Note, 78 Colum.L.Rev. at 1321-1322.

10. In Faretta v. California, 422 U.S. 806, by contrast, the Court held that the Sixth and Fourteenth Amendments guarantee that an accused has a right to proceed without counsel in a criminal case when he voluntarily and intelligently elects to do so. In reaching this result, the Court relied on the Language and structure of the Sixth Amendment which grants to the accused the right to make a defense. As part of this right to make a defense, the Amendment speaks of the "assistance" of counsel, thus contemplating a norm in which the accused, and not a lawyer, is master of his own defense. Id. at 819-820.

11. The question in this case is not, as the dissenting opinion repeatedly suggests, post at 411, 415, 418, 425, 426, whether the Sixth and Fourteenth Amendments give a defendant the right to compel a secret trial. In this case, the defendants, the prosecutor, and the judge all agreed that closure of the pretrial suppression hearing was necessary to protect the defendants' right to a fair trial. Moreover, a transcript of the proceedings was made available to the public. Thus, there is no need to decide the question framed by the dissenting opinion. If that question were presented, it is clear that the defendant would have no such right. See Singer v. United States, 380 U.S. 24, 35 ("[A]lthough a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial").

12. The Court has recognized that a prosecutor

is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is, in a peculiar and very definite sense, the servant of the law. . ..

Berger v. United States, 295 U.S. 78, 88. The responsibility of the prosecutor as a representative of the public surely encompasses a duty to protect the societal interest in an open trial. But this responsibility also requires him to be sensitive to the due process rights of a defendant to a fair trial. A fortiori, the trial judge has the same dual obligation.

13. Blackstone, for example, stated that it "universally obtains" that, if a juror knows of a matter in issue, he may "give his evidence publicly in court." 3 W. Blackstone, Commentaries *375.

14. Thus, it is not enough to say, in the words of the dissenting opinion, that there is no "evidence that casting the public trial concept in terms of a right of the accused signaled a departure from the common law practice," post at 425, and that

there is no indication that the First Congress, in proposing what became the Sixth Amendment, meant to depart from the common law practice. . ..

Post at 46.

15. An additional problem with the historical analysis of the petitioner and amici is that it is equally applicable to civil and criminal cases, and therefore proves too much. For many centuries, both civil and criminal trials have traditionally been open to the public. As early as 1685, Sir John Hawles commented that open proceedings were necessary so "that truth may be discovered in civil as well as criminal matters" (emphasis added). Remarks upon Mr. Cornish's Trial, 11 How.St.Tr. 455, 460. English commentators also assumed that the common law rule was that the public could attend civil and criminal trials without distinguishing between the two. E.g., 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681) ("all Causes ought to be heard . . . openly in the Kings Courts"); 3 W. Blackstone, Commentaries *372; M. Hale, The History of the Common Law of England 343, 345 (6th ed. 1820); E. Jenks, The Book of English Law 73-74 (6th ed.1967).

The experience in the American Colonies was analogous. From the beginning, the norm was open trials. Indeed, the 1677 New Jersey Constitution provided that any person could attend a trial whether it was "civil or criminal," Concessions and Agreements of West New Jersey (1677), ch. XXIII, quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971) (emphasis added). Similarly, the 1682 and 1776 Pennsylvania Constitutions both provided that "all courts shall be open," 1 Schwartz, supra at 140, 271 (emphasis added).

If the existence of a common law rule were the test for whether there is a Sixth Amendment public right to a public trial, therefore, there would be such a right in civil as well as criminal cases. But the Sixth Amendment does not speak in terms of civil cases at all; by its terms, it is limited to providing rights to an accused in criminal cases. In short, there is no principled basis upon which a public right of access to judicial proceedings can be limited to criminal cases if the scope of the right is defined by the common law, rather than the text and structure of the Constitution.

Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. While the operation of the judicial process in civil cases is often of interest only to the parties in the litigation, this is not always the case. E.g., Dred Scott v. Sandford, 60 U.S. 393"]19 How. 393; 19 How. 393; Plessy v. Ferguson, 163 U.S. 537"]163 U.S. 537; 163 U.S. 537; Brown v. Board of Education, 347 U.S. 483"]347 U.S. 483; 347 U.S. 483; University of California Regents v. Bakke, 438 U.S. 265. Thus, in some civil cases, the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.

16. See n. 15, supra.

17. Although pretrial suppression hearings were unknown at common law, other preliminary hearings were formalized by statute as early as 1554 and 1555. 1 & 2 Phil. & M., ch. 13 (1554); 2 & 3 Phil. & M., ch. 10 (1555).

18. After the abolition of the Star Chamber in 1641, defendants in criminal cases began to acquire many of the rights that are presently embodied in the Sixth Amendment. Thus, the accused now had the right to confront witnesses, call witnesses in his own behalf, and generally the right to a fair trial as we now know it. It was during this period that the public trial first became identified as a right of the accused. As one commentator has stated:

The public trial, although it had always been the custom, acquired new significance. It gave the individual protection against being denied any of his other fundamental rights. A public trial would make it difficult for a judge to abuse a jury or the accused. Any such abuses would cause much public indignation. Thus, it must have seemed implicit that the public trial was as much an essential element of a fair trial as any of the newer conventions.

Note, Legal History: Origins of the Public Trial, 35 Ind.L.J. 251, 255 (1960).

It was during this period that we first find defendants demanding a public trial. See The Trial of John Lilburne, 4 How.St. Tr. 1270, 1273 (1649), in which Lilburne, on trial for treason, referred to a public trial as "the first fundamental liberty of an Englishman." Indeed, the fact that the Framers guaranteed to an accused the right to a public trial in the same Amendment that contains the other fair trial rights of an accused also suggests that open trials were by then clearly associated with the rights of a defendant.

19. Even with respect to trials themselves, the tradition of publicity has not been universal. Exclusion of some members of the general public has been upheld, for example, in cases involving violent crimes against minors. Geise v. United States, 262 F.2d 151 (CA9 1958). The public has also been temporarily excluded from trials during testimony of certain witnesses. E.g., Beauchamp v. Cahill, 297 Ky. 505, 180 S.W.2d 423 (1944) (exclusion justified when children forced to testify to revolting facts); State v. Callahan, 100 Minn. 63, 110 N.W. 342 (1907) (exclusion justified when embarrassment could prevent effective testimony); Hogan v. State, 191 Ark. 437, 86 S.W.2d 931 (1935) (trial judge properly closed trial to spectators during testimony of 10-year-old rape victim); United States ex rel. Smallwood v. LaValle, 377 F.Supp. 1148 (EDNY), aff'd, 508 F.2d 837 (1974). Exclusion has also been permitted when the evidence in a case was expected to be obscene. State v. Croak, 167 La. 92, 118 So. 703 (1928). Finally, trial judges have been given broad discretion to exclude spectators to protect order in their courtrooms. United States e rel. Orlando v. Fay, 350 F.2d 967 (CA2 1965) (exclusion of general public justified after an outburst in court by defendant and his mother).

Approximately half the States also have statutory provisions containing limitations upon public trials. E.g., Ala.Code § 12-21-202 (1975) (public can be excluded in rape cases); Ga.Code § 81-1006 (1978) (public can be excluded where evidence is vulgar); Mass.Gen.Laws Ann., ch. 278, § 16A (West 1972) (general public can be excluded from all trials of designated crimes); Minn.Stat. § 631.04 (1978) (no person under 17 who is not a party shall be present in a criminal trial); Va.Code § 19.2266 (1975) ("In the trial of all criminal cases . . . the court may, in its discretion, exclude . . . any persons whose presence would impair the conduct of a fair trial . . .").

The petitioner and amici appear to argue that, since exclusion of members of the public is relatively rare, there must be a constitutional public right to a public trial. This argument, however, confuses the existence of a constitutional right with the common law tradition of open civil and criminal proceedings. See n. 15, supra. This common law tradition, coupled with the explicit right of the accused to a public trial in criminal cases, fully explains the general prevalence of open trials.

20. Similarly, the press had no privilege for the reporting of pretrial judicial proceedings under English common law. Thus, in the well known case of King v. Fisher, 2 Camp. 563, 170 Eng.Rep. 1253 (N. P. 1811), the court forbade the dissemination of information about a pretrial hearing to protect the right of the accused to receive a fair trial. In distinguishing between the privilege accorded the reporting of trials and the absence of such a privilege of reporting pretrial proceedings, Lord Ellenborough declared:

If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide with minds pure and unprejudiced. . . . Trials at law, fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. . . . But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice.

Id. at 570-571, 170 Eng.Rep. at 1255. See also King v. Parke, [1903] 2 K.B. 432, 438.

Restrictions of public access and reporting of pretrial proceedings did not involve suppression hearings, because such hearings did not exist in early common law. But the rationale for the lack of a public right of access to pretrial judicial proceedings -- protection of the right of the accused to a fair trial -- is equally applicable to pretrial suppression hearings. Indeed, the entire purpose of a pretrial suppression hearing is to ensure that the accused will not be unfairly convicted by contaminated evidence.

21. Commissioners on Practice and Pleadings, Code of Criminal Procedure, § 202 (Final Report 1850).

22. Id. at 94. To protect a defendant's right to a public trial, however, closure could be ordered only at the request of the defendant:

To guard the rights of the defendant against a secret examination, the section provides that it shall not be conducted in private, unless at his request.

Id. at 95.

23. Ariz.Rule Crim. Proc. 9.3; Cal.Penal Code Ann. § 868 (West 1970); Idaho Code § 19-811 (1979); Iowa Code § 761.13 (1973); Mont.Code Ann. § 46-10-201 (1978); Nev.Rev.Stat. § 171.204 (1975); N.D.Cent.Code § 29-07-14 (1974); Utah Code Ann. § 77-15-13 (1978). Other States have similar provisions. E.g., Pa.Rule Crim.Proc. 323(f) (providing that suppression hearings shall be open "unless defendant moves that it be held in the presence of only the defendant, counsel for the parties, court officers and necessary witnesses"). Still other States allow closure of pretrial hearings without statutory authorization. Nebraska Press Assn. v. Stuart, 427 U.S. at 568.

Until a year ago, the American Bar Association also endorsed the view that presiding officers should close pretrial hearings at the request of a defendant unless there was no "substantial likelihood" that the defendant would be prejudiced by an open proceeding. ABA Project on Standards for Criminal Justice, Fair Trial and Free Press § 3.1 (App. Draft 1968). The ABA, following the "approach taken by the Supreme Court in Nebraska Press Association v. Stuart," has now changed this standard. ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 3.2, p. 16 (App.Draft 1978). The Nebraska Press case, however, is irrelevant to the question presented here. See n. 25, infra.

24. The petitioner argues that trials have traditionally been open to the public, in contrast to prisons from which the public has been traditionally excluded. We need not decide in this case whether this factual difference is of any constitutional significance.

25. This Court's decision in Nebraska Press Assn. v. Stuart, supra, is of no assistance to the petitioner in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. Since

it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication,


Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713, the Court held that the order violated the constitutional guarantee of a free press. See also Oklahoma Publishing Co. v. District Court, 430 U.S. 308. The exclusion order in the present case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry, therefore, is whether the petitioner was denied any constitutional right of access.
Comments