Richmond Newspapers, Inc. v. Virginia

APPEAL FROM THE SUPREME COURT OF VIRGINIA

No. 79-243 Argued: February 19, 1980 --- Decided: July 2, 1980
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE WHITE and MR. JUSTICE STEVENS joined.

The narrow question presented in this case is whether the right of the public and press to attend criminal trials is guaranteed under the United States Constitution. [p559]

I

In March, 1976, one Stevenson was indicted for the murder of a hotel manager who had been found stabbed to death on December 2, 1975. Tried promptly in July, 1976, Stevenson was convicted of second-degree murder in the Circuit Court of Hanover County, Va. The Virginia Supreme Court reversed the conviction in October, 1977, holding that a bloodstained shirt purportedly belonging to Stevenson had been improperly admitted into evidence. Stevenson v. Commonwealth, 218 Va. 462, 237 S.E.2d 779.

Stevenson was retried in the same court. This second trial ended in a mistrial on May 30, 1978, when a juror asked to be excused after trial had begun and no alternate was available. [n1]

A third trial, which began in the same court on June 6, 1978, also ended in a mistrial. It appears that the mistrial may have been declared because a prospective juror had read about Stevenson's previous trials in a newspaper and had told other prospective jurors about the case before the retrial began. See App. 35a-36a.

Stevenson was tried in the same court for a fourth time beginning on September 11, 1978. Present in the courtroom when the case was called were appellants Wheeler and McCarthy, reporters for appellant Richmond Newspapers, Inc. Before the trial began, counsel for the defendant moved that it be closed to the public:

[T]here was this woman that was with the family of the deceased when we were here before. She had sat in the Courtroom. I would like to ask that everybody be excluded from the Courtroom because I don't want any information being shuffled back and forth when we have [p560] a recess as to what -- who testified to what.

Tr. of Sept. 11, 1978 Hearing on Defendant's Motion to Close Trial to the Public 2-3.

The trial judge, who had presided over two of the three previous trials, asked if the prosecution had any objection to clearing the courtroom. The prosecutor stated he had no objection, and would leave it to the discretion of the court. Id. at 4. Presumably referring to Va.Code § 19.2-266 (Supp. 1980), the trial judge then announced: "[T]he statute gives me that power specifically, and the defendant has made the motion." He then ordered "that the Courtroom be kept clear of all parties except the witnesses when they testify." Tr., supra, at 4-5. [n2] The record does not show that any objections to the closure order were made by anyone present at the time, including appellants Wheeler and McCarthy.

Later that same day, however, appellants sought a hearing on a motion to vacate the closure order. The trial judge granted the request and scheduled a hearing to follow the close of the day's proceedings. When the hearing began, the court ruled that the hearing was to be treated as part of the trial; accordingly, he again ordered the reporters to leave the courtroom, and they complied.

At the closed hearing, counsel for appellants observed that no evidentiary findings had been made by the court prior to the entry of its closure order, and pointed out that the court had failed to consider any other less drastic measures within its power to ensure a fair trial. Tr. of Sept. 11, 1978, Hearing on Motion to Vacate 11-12. Counsel for appellants argued that constitutional considerations mandated that, before ordering closure, the court should first decide that the rights of the defendant could be protected in no other way. [p561]

Counsel for defendant Stevenson pointed out that this was the fourth time he was standing trial. He also referred to "difficulty with information between the Jurors," and stated that he "didn't want information to leak out," be published by the media, perhaps inaccurately, and then be seen by the jurors. Defense counsel argued that these things, plus the fact that "this is a small community," made this a proper case for closure. Id. at 118.

The trial judge noted that counsel for the defendant had made similar statements at the morning hearing. The court also stated:

[O]ne of the other points that we take into consideration in this particular Courtroom is layout of the Courtroom. I think that having people in the Courtroom is distracting to the jury. Now, we have to have certain people in here, and maybe that's not a very good reason. When we get into our new Court Building, people can sit in the audience so the jury can't see them. The rule of the Court may be different under those circumstances. . . .

Id. at 19. The prosecutor again declined comment, and the court summed up by saying:

I'm inclined to agree with [defense counsel] that, if I feel that the rights of the defendant are infringed in any way, [when] he makes the motion to do something and it doesn't completely override all rights of everyone else, then I'm inclined to go along with the defendant's motion.

Id. at 20. The court denied the motion to vacate, and ordered the trial to continue the following morning "with the press and public excluded." Id. at 27; App. 21a.

What transpired when the closed trial resumed the next day was disclosed in the following manner by an order of the court entered September 12, 1978:

[I]n the absence of the jury, the defendant, by counsel, [p562] made a Motion that a mistrial be declared, which motion was taken under advisement.

At the conclusion of the Commonwealth's evidence, the attorney for the defendant moved the Court to strike the Commonwealth's evidence on grounds stated to the record, which Motion was sustained by the Court.

And the jury having been excused, the Court doth find the accused NOT GUILTY of Murder, as charged in the Indictment, and he was allowed to depart.

Id. at 22a. [n3]

On September 27, 1978, the trial court granted appellants' motion to intervene nunc pro tunc in the Stevenson case. Appellants then petitioned the Virginia Supreme Court for writs of mandamus and prohibition, and filed an appeal from the trial court's closure order. On July 9, 1979, the Virginia Supreme Court dismissed the mandamus and prohibition petitions and, finding no reversible error, denied the petition for appeal. Id. at 23a-28a.

Appellants then sought review in this Court, invoking both our appellate, 28 U.S.C. § 1257(2), and certiorari jurisdiction. § 1257(3). We postponed further consideration of the question of our jurisdiction to the hearing of the case on the merits. 444 U.S. 896 (1979). We conclude that jurisdiction by appeal does not lie; [n4] however, treating the filed [p563] papers as a petition for a writ of certiorari pursuant to 28 U.S.C. § 2103 we grant the petition.

The criminal trial which appellants sought to attend has long since ended, and there is thus some suggestion that the case is moot. This Court has frequently recognized, however, that its jurisdiction is not necessarily defeated by the practical termination of a contest which is short-lived by nature. See, e.g., Gannett Co. v. DePasquale, 443 U.S. 368, 377-378 (1979); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-547 (1976). If the underlying dispute is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), it is not moot.

Since the Virginia Supreme Court declined plenary review, it is reasonably foreseeable that other trials may be closed by other judges without any more showing of need than is presented on this record. More often than not, criminal trials will be of sufficiently short duration that a closure order "will evade review, or at least considered plenary review in this Court." Nebraska Press, supra, at 547. Accordingly, we turn to the merits.

II

We begin consideration of this case by noting that the precise issue presented here has not previously been before this [p564] Court for decision. In Gannett Co. v. DePasquale, supra, the Court was not required to decide whether a right of access to trials, as distinguished from hearings on pretrial motions, was constitutionally guaranteed. The Court held that the Sixth Amendment's guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access to a pretrial suppression hearing. One concurring opinion specifically emphasized that "a hearing on a motion before trial to suppress evidence is not a trial. . . ." 443 U.S. at 394 (BURGER, C.J., concurring). Moreover, the Court did not decide whether the First and Fourteenth Amendments guarantee a right of the public to attend trials, id. at 392, and n. 24; nor did the dissenting opinion reach this issue. Id. at 447 (opinion of BLACKMUN, J.).

In prior cases, the Court has treated questions involving conflicts between publicity and a defendant's right to a fair trial; as we observed in Nebraska Press Assn. v. Stuart, supra at 547, "[t]he problems presented by this [conflict] are almost as old as the Republic." See also e.g., Gannett, supra; Murphy v. Florida, 421 U.S. 794 (1975); Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965). But here, for the first time, the Court is asked to decide whether a criminal trial itself may be closed to the public upon the unopposed request of a defendant, without any demonstration that closure is required to protect the defendant's superior right to a fair trial, or that some other overriding consideration requires closure.

A

The origins of the proceeding which has become the modern criminal trial in Anglo-American justice can be traced back beyond reliable historical records. We need not here review all details of its development, but a summary of that history is instructive. What is significant for present purposes is that, throughout its evolution, the trial has been open to all who cared to observe. [p565]

In the days before the Norman conquest, cases in England were generally brought before moots, such as the local court of the hundred or the county court, which were attended by the freemen of the community. Pollock, English Law Before the Norman Conquest, in 1 Select Essays in Anglo-American Legal History 88, 89 (1907). Somewhat like modern jury duty, attendance at these early meetings was compulsory on the part of the freemen, who were called upon to render judgment. Id. at 89-90; see also 1 W. Holdsworth, A History of English Law 10, 12 (1927). [n5]

With the gradual evolution of the jury system in the years after the Norman Conquest, see, e.g., id. at 316, the duty of all freemen to attend trials to render judgment was relaxed, but there is no indication that criminal trials did not remain public. When certain groups were excused from compelled attendance, see the Statute of Marlborough, 52 Hen. 3, ch. 10 (1267); 1 Holdsworth, supra, at 79, and n. 4, the statutory exemption did not prevent them from attending; Lord Coke observed that those excused "are not compellable to come, but left to their own liberty." 2 E. Coke, Institutes of the Laws of England 121 (6th ed. 1681). [n6]

Although there appear to be few contemporary statements [p566] on the subject, reports of the Eyre of Kent, a general court held in 1313-1314, evince a recognition of the importance of public attendance apart from the "jury duty" aspect. It was explained that

the King's will was that all evil doers should be punished after their deserts, and that justice should be ministered indifferently to rich as to poor; and for the better accomplishing of this, he prayed the community of the county by their attendance there to lend him their aid in the establishing of a happy and certain peace that should be both for the honour of the realm and for their own welfare.

1 Holdsworth, supra at 268, quoting from the S.S. edition of the Eyre of Kent, vol. i., p. 2 (emphasis added) .

From these early times, although great changes in courts and procedure took place, one thing remained constant: the public character of the trial at which guilt or innocence was decided. Sir Thomas Smith, writing in 1565 about "the definitive proceedinges in causes criminall," explained that, while the indictment was put in writing as in civil law countries:

All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide.

T. Smith, De Republica Anglorum 101 (Alston ed.1972) (emphasis added). Three centuries later, Sir Frederick Pollock was able to state of the "rule of publicity" that, "[h]ere we have one tradition, at any rate, which has persisted through all changes." F. Pollock, The Expansion of the Common Law 31-32 (1904). See also E. Jenks, The Book of English Law 73-74 (6th ed.1967):

[O]ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the [p567] public have free access, . . . appears to have been the rule in England from time immemorial.

We have found nothing to suggest that the presumptive openness of the trial which English courts were later to call "one of the essential qualities of a court of justice," Dabney v. Cooper, 10 B. & C. 237, 240, 109 Eng.Rep. 438, 440 (K.B. 1829), was not also an attribute of the judicial systems of colonial America. In Virginia, for example, such records as there are of early criminal trials indicate that they were open, and nothing to the contrary has been cited. See A. Scott, Criminal Law in Colonial Virginia 128-129 (1930); Reinsch, The English Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American Legal History 367, 405 (1907). Indeed, when in the mid-1600's the Virginia Assembly felt that the respect due the courts was

by the clamorous unmannerlynes of the people lost, and order, gravity and decoram which should manifest the authority of a court in the court it selfe neglected,

the response was not to restrict the openness of the trials to the public, but, instead, to prescribe rules for the conduct of those attending them. See Scott, supra at 132.

In some instances, the openness of trials was explicitly recognized as part of the fundamental law of the Colony. The 1677 Concessions and Agreements of West New Jersey, for example, provided:

That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner.

Reprinted in Sources of Our Liberties 188 (R. Perry ed.1959). See also 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971). [p568] The Pennsylvania Frame of Government of 1682 also provided "[t]hat all courts shall be open . . . ," Sources of Our Liberties, supra at 217; 1 Schwartz, supra at 140, and this declaration was reaffirmed in § 26 of the Constitution adopted by Pennsylvania in 1776. See 1 Schwartz, supra at 271. See also §§ 12 and 76 of the Massachusetts Body of Liberties, 1641, reprinted in 1 Schwartz, supra at 73, 80.

Other contemporary writings confirm the recognition that part of the very nature of a criminal trial was its openness to those who wished to attend. Perhaps the best indication of this is found in an address to the inhabitants of Quebec which was drafted by a committee consisting of Thomas Cushing, Richard Henry Lee, and John Dickinson and approved by the First Continental Congress on October 26, 1774. 1 Journals of the Continental Congress, 1774-1789, pp. 101, 105 (1904) (Journals). This address, written to explain the position of the Colonies and to gain the support of the people of Quebec, is an "exposition of the fundamental rights of the colonists, as they were understood by a representative assembly chosen from all the colonies." 1 Schwartz, supra at 221. Because it was intended for the inhabitants of Quebec, who had been "educated under another form of government" and had only recently become English subjects, it was thought desirable for the Continental Congress to explain "the inestimable advantages of a free English constitution of government, which it is the privilege of all English subjects to enjoy." 1 Journals 106.

[One] great right is that of trial by jury. This provides that neither life, liberty nor property can be taken from the possessor until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse to [p569] attend, shall pass their sentence upon oath against him. . . .

Id. at 107 (emphasis added).

B

As we have shown, and as was shown in both the Court's opinion and the dissent in Gannett, 443 U.S. at 384, 386, n. 15, 418-425, the historical evidence demonstrate conclusively that, at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality. See, e.g., M. Hale, The History of the Common Law of England 343-345 (6th ed. 1820); 3 W. Blackstone, Commentaries *372-*373. Jeremy Bentham not only recognized the therapeutic value of open justice but regarded it as the keystone:

Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.

1 J. Bentham Rationale of Judicial Evidence 524 (1827). [n7]

Panegyrics on the values of openness were by no means confined to self-praise by the English. Foreign observers of English criminal procedure in the 18th and early 19th centuries [p570] came away impressed by the very fact that they had been freely admitted to the courts, as many were not in their own homelands. See L. Radzinowicz, A History of English Criminal Law 715, and n. 96 (1948). They marveled that "the whole juridical procedure passes in public," 2 P. Grosley, A Tour to London; or New Observations on England 142 (Nugent trans. 1772), quoted in Radzinowicz, supra at 717, and one commentator declared:

The main excellence of the English judicature consists in publicity, in the free trial by jury, and in the extraordinary despatch with which business is transacted. The publicity of their proceedings is indeed astonishing. Free access to the courts is universally granted.

C. Goede, A Foreigner's Opinion of England 214 (Horne trans. 1822) (emphasis added.) The nexus between openness, fairness, and the perception of fairness was not lost on them:

[T]he judge, the counsel, and the jury, are constantly exposed to public animadversion, and this greatly tends to augment the extraordinary confidence which the English repose in the administration of justice.

Id. at 215.

This observation raises the important point that "[t]he publicity of a judicial proceeding is a requirement of much broader bearing than its mere effect upon the quality of testimony." 6 J. Wigmore, Evidence § 1834, p. 435 (J. Chadbourn rev.1976). [n8] The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame [p571] the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.

When a shocking crime occurs, a community reaction of outrage and public protest often follows. See H. Weihofen, The Urge to Punish 130-131 (1956). Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated, and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "committees" on our frontiers.

The accusation and conviction or acquittal, as much perhaps as the execution of punishment, operat[e] to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent "urge to punish."

Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U.Pa.L.Rev. 1, 6 (1961).

Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done -- or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." Supra at 567. It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view, an unexpected outcome can cause a reaction that the system, at best, has failed, and, at worst, has been corrupted. To work effectively, it is important that society's criminal [p572] process "satisfy the appearance of justice," Offutt v. United States, 348 U.S. 11, 14 (1954), and the appearance of justice can best be provided by allowing people to observe it.

Looking back, we see that, when the ancient "town meeting" form of trial became too cumbersome, 12 members of the community were delegated to act as its surrogates, but the community did not surrender its right to observe the conduct of trials. The people retained a "right of visitation" which enabled them to satisfy themselves that justice was, in fact, being done.

People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case:

The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.

6 Wigmore, supra, at 438. See also 1 J. Bentham, Rationale of Judicial Evidence, at 525.

In earlier times, both in England and America, attendance at court was a common mode of "passing the time." See, e.g., 6 Wigmore, supra, at 436; Mueller, supra, at 6. With the press, cinema, and electronic media now supplying the representations or reality of the real life drama once available only in the courtroom, attendance at court is no longer a widespread pastime. Yet

[i]t is not unrealistic, even in this day, to believe that public inclusion affords citizens a form of legal education, and hopefully promotes confidence in the fair administration of justice.

State v. Schmit, 273 Minn. 78, 87-88, 139 N.W.2d 800, 807 (1966). Instead of acquiring information about trials by firsthand observation or by word [p573] of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This

contribute[s] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system. . . .

Nebraska Press Assn. v. Stuart, 427 U.S. at 587 (BRENNAN, J., concurring in judgment).

C

From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice. This conclusion is hardly novel; without a direct holding on the issue, the Court has voiced its recognition of it in a variety of contexts over the years. [n9] Even while holding, in Levine v. [p574] United States, 362 U.S. 610 (1960), that a criminal contempt proceeding was not a "criminal prosecution" within the meaning of the Sixth Amendment, the Court was careful to note that more than the Sixth Amendment was involved:

[W]hile the right to a "public trial" is explicitly guaranteed by the Sixth Amendment only for "criminal prosecutions," that provision is a reflection of the notion, deeply rooted in the common law, that "justice must satisfy the appearance of justice." . . . [D]ue process demands appropriate regard for the requirements of a public proceeding in cases of criminal contempt . . . as it does for all adjudications through the exercise of the judicial power, barring narrowly limited categories of exceptions. . . .

Id. at 616. [n10] And recently, in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), both the majority, id. at 384, 386, n. 15, and dissenting opinion, id. at 423, agreed that open trials were part of the common law tradition. [p575]

Despite the history of criminal trials being presumptively open since long before the Constitution, the State presses its contention that neither the Constitution nor the Bill of Rights contains any provision which, by its terms, guarantees to the public the right to attend criminal trials. Standing alone, this is correct, but there remains the question whether, absent an explicit provision, the Constitution affords protection against exclusion of the public from criminal trials.

III

A

The First Amendment, in conjunction with the Fourteenth, prohibits governments from

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.

These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. Plainly it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted; as we have shown, recognition of this pervades the centuries-old history of open trials and the opinions of this Court. Supra at 564-575, and n. 9.

The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials "before as many of the people as chuse to attend" was regarded as one of "the inestimable advantages of a free English constitution of government." 1 Journals 106, 107. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.

[T]he First Amendment goes beyond protection of the press and the self-expression [p576] of individuals to prohibit government from limiting the stock of information from which members of the public may draw.

First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Free speech carries with it some freedom to listen. "In a variety of contexts, this Court has referred to a First Amendment right to ‘receive information and ideas.'" Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.

For the First Amendment does not speak equivocally. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

Bridges v. California, 314 U.S. 252, 263 (1941) (footnote omitted). It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a "right of access," cf. Gannett, supra at 397 (POWELL, J., concurring); Saxbe v. Washington Post Co., 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974), [n11] or a "right to gather information," for we have recognized that, "without some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681 (1972). The explicit, guaranteed rights to speak and to publish concerning what takes place at a [p577] trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily. [n12]

B

The right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press; and their affinity to the right of assembly is not without relevance. From the outset, the right of assembly was regarded not only as an independent right, but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. [n13] [p578] "The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental." De Jonge v. Oregon, 299 U.S. 353, 364 (1937). People assemble in public places not only to speak or to take action, but also to listen, observe, and learn; indeed, they may "assembl[e] for any lawful purpose," Hague v. CIO, 307 U.S. 496, 519 (1939) (opinion of Stone, J.). Subject to the traditional time, place, and manner restrictions, see, e.g., Cox v. New Hampshire, 312 U.S. 569 (1941); see also Cox v. Louisiana, 379 U.S. 559, 560-564 (1965), streets, sidewalks, and parks are places traditionally open, where First Amendment rights may be exercised, see Hague v. CIO, supra, at 515 (opinion of Roberts, J.); a trial courtroom also is a public place where the people generally -- and representatives of the media -- have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. [n14] [p579]

C

The State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that, accordingly, no such right is protected. The possibility that such a contention could be made did not escape the notice of the Constitution's draftsmen; they were concerned that some important rights might be thought disparaged because not specifically guaranteed. It was even argued that, because of this danger, no Bill of Rights should be adopted. See, e.g., The Federalist No. 84 (A. Hamilton). In a letter to Thomas Jefferson in October, 1788, James Madison explained why he, although "in favor of a bill of rights," had "not viewed it in an important light" up to that time: "I conceive that, in a certain degree . . . , the rights in question are reserved by the manner in which the federal powers are granted." He went on to state that "there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." 5 Writings of James Madison 271 (G. Hunt ed.1904). [n15]

But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable [p580] doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. [n16] The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.

We hold that the right to attend criminal trials [n17] is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated." Branzburg, 408 U.S. at 681.

D

Having concluded there was a guaranteed right of the public under the First and Fourteenth Amendments to attend the trial of Stevenson's case, we return to the closure order challenged by appellants. The Court in Gannett made clear that, although the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial. 443 U.S. at 382. Despite the fact that this was the fourth trial of the accused, the trial judge made no findings to support closure; no inquiry was made as to whether alternative [p581] solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial. In contrast to the pretrial proceeding dealt with in Gannett, there exist in the context of the trial itself various tested alternatives to satisfy the constitutional demands of fairness. See, e.g., Nebraska Press Assn. v. Stuart, 427 U.S. at 563-565; Sheppard v. Maxwell, 384 U.S. at 357-362. There was no suggestion that any problems with witnesses could not have been dealt with by their exclusion from the courtroom or their sequestration during the trial. See id. at 359. Nor is there anything to indicate that sequestration of the jurors would not have guarded against their being subjected to any improper information. All of the alternatives admittedly present difficulties for trial courts, but none of the factors relied on here was beyond the realm of the manageable. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. [n18] Accordingly, the judgment under review is

Reversed.

MR. JUSTICE POWELL took no part in the consideration or decision of this case.

1. A newspaper account published the next day reported the mistrial and went on to note that

[a] key piece of evidence in Stevenson's original conviction was a bloodstained shirt obtained from Stevenson's wife soon after the killing. The Virginia Supreme Court, however, ruled that the shirt was entered into evidence improperly.

App. 34a.

2. Virginia Code § 19.2-266 (Supp. 1980) provides in part:

In the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court may, in its discretion, exclude from the trial any persons whose presence would impair the conduct of a fair trial, provided that the right of the accused to a public trial shall not be violated.

3. At oral argument, it was represented to the Court that tapes of the trial were available to the public as soon as the trial terminated. Tr. of Oral Arg. 36.

4. In our view, the validity of Va.Code § 19.2-266 (Supp. 1980) was not sufficiently drawn in question by appellants before the Virginia courts to invoke our appellate jurisdiction.

It is essential to our jurisdiction on appeal . . . that there be an explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws.

Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 185 (1945). Appellants never explicitly challenged the statute's validity. In both the trial court and the State Supreme Court, appellants argued that constitutional rights of the public and the press prevented the court from closing a trial without first giving notice and an opportunity for a hearing to the public and the press and exhausting every alternative means of protecting the defendant's right to a fair trial. Given appellants' failure explicitly to challenge the statute, we view these arguments as constituting claims of rights under the Constitution, which rights are said to limit the exercise of the discretion conferred by the statute on the trial court. Cf. Phillips v. United States, 312 U.S. 246, 252 (1941) ("[A]n attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority . . ."). Such claims are properly brought before this Court by way of our certiorari, rather than appellate, jurisdiction. See, e.g., Kulko v. California Superior Court, 436 U.S. 84, 90, n. 4 (1978); Hanson v. Denckla, 357 U.S. 235, 244, and n. 4 (1958). We shall, however, continue to refer to the parties as appellants and appellee. See Kulko, supra.

5. That there is little in the way of a contemporary record from this period is not surprising. It has been noted by historians, see E. Jenks, A Short History of English Law 3-4 (2d ed.1922), that the early Anglo-Saxon laws

deal rather with the novel and uncertain than with the normal and undoubted rules of law. . . . Why trouble to record that which every village elder knows? Only when a disputed point has long caused bloodshed and disturbance, or when a successful invader . . . insists on a change, is it necessary to draw up a code.

Ibid.

6. Coke interpreted certain language of an earlier chapter of the same statute as specifically indicating that court proceedings were to be public in nature:

These words [In curia Domini Regis] are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the King's Courts openly in the King's Courts, whither all persons may resort. . . .

2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681) (emphasis added).

7. Bentham also emphasized that open proceedings enhanced the performance of all involved, protected the judge from imputations of dishonesty, and served to educate the public. Rationale of Judicial Evidence at 522-525.

8. A collateral aspect seen by Wigmore was the possibility that someone in attendance at the trial or who learns of the proceedings through publicity may be able to furnish evidence in chief or contradict "falsifiers." 6 Wigmore at 436. Wigmore gives examples of such occurrences. Id. at 436, and n. 2.

9. "Of course, trials must be public, and the public have a deep interest in trials." Pennekamp v. Florida, 328 U.S. 331, 361 (1946) (Frankfurter, J, concurring).

A trial is a public event. What transpires in the court room is public property.

Craig v. Harney, 331 U.S. 367, 374 (1947) (Douglas, J.).

[W]e have been 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. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641, and whether that court ever convicted people secretly is in dispute. . .

This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial.

In re Oliver, 333 U.S. 257, 266 (1948) (Black, J.) (footnotes omitted).

One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right.

Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920 (1950) (Frankfurter, J., dissenting from denial of certiorari) .

It is true that the public has the right to be informed as to what occurs in its courts, . . . reporters of all media, including television, are always present if they wish to be, and are plainly free to report whatever occurs in open court. . . .

Estes v. Texas, 381 U.S. 532, 541-542 (1965) (Clark, J.); see also id. at 583-584 (Warren, C.J., concurring). (The Court ruled, however, that the televising of the criminal trial over the defendant's objections violated his due process right to a fair trial.)

The principle that justice cannot survive behind walls of silence has long been reflected in the "Anglo-American distrust for secret trials."

Sheppard v. Maxwell, 384 U.S. 333, 349 (1966) (Clark, J.).

10. The Court went on to hold that, "on the particular circumstances of the case," 362 U.S. at 616, the accused could not complain on appeal of the "so-called ‘secrecy' of the proceedings," id. at 617, because, with counsel present, he had failed to object or to request the judge to open the courtroom at the time.

11. Procunier and Saxbe are distinguishable in the sense that they were concerned with penal institutions which, by definition, are not "open" or public places. Penal institutions do not share the long tradition of openness, although traditionally there have been visiting committees of citizens, and there is no doubt that legislative committees could exercise plenary oversight and "visitation rights." Saxbe, 417 U.S. at 849, noted that

limitation on visitations is justified by what the Court of Appeals acknowledged as "the truism that prisons are institutions where public access is generally limited." 161 U.S.App.D.C. at 80, 494 F.2d at 999. See Adderley v. Florida, 385 U.S. 39, 41 (1966) [jails].

See also Greer v. Spock, 424 U.S. 828 (196) (military bases).

12. That the right to attend may be exercised by people less frequently today, when information as to trials generally reaches them by way of print and electronic media, in no way alters the basic right. Instead of relying on personal observation or reports from neighbors as in the past, most people receive information concerning trials through the media whose representatives "are entitled to the same rights [to attend trials] as the general public." Estes v. Texas, 381 U.S. at 540.

13. When the First Congress was debating the Bill of Rights, it was contended that there was no need separately to assert the right of assembly, because it was subsumed in freedom of speech. Mr. Sedgwick of Massachusetts argued that inclusion of "assembly" among the enumerated rights would tend to make the Congress

appear trifling in the eyes of their constituents. . . . If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question. . . .

1 Annals of Cong. 731 (1789). Since the right existed independent of any written guarantee, Sedgwick went on to argue that, if it were the drafting committee's purpose to protect all inherent rights of the people by listing them, "they might have gone into a very lengthy enumeration of rights," but this was unnecessary, he said, "in a Government where none of them were intended to be infringed." Id. at 732.

Mr. Page of Virginia responded, however, that, at times "such rights have been opposed," and that "people have . . . been prevented from assembling together on their lawful occasions":

[T]herefore it is well to guard against such stretches of authority by inserting the privilege in the declaration of rights. If the people could be deprived of the power of assembling under any pretext whatsoever, they might be deprived of every other privilege contained in the clause.

Ibid. The motion to strike "assembly" was defeated. Id. at 733.

14. It is, of course, true that the right of assembly in our Bill of Rights was, in large part, drafted in reaction to restrictions on such rights in England. See, e.g., 1 Geo. 1, stat. 2, ch. 5 (1714); cf. 36 Geo. 3, ch. 8 (1795). As we have shown, the right of Englishmen to attend trials was not similarly limited; but it would be ironic indeed if the very historic openness of the trial could militate against protection of the right to attend it. The Constitution guarantees more than simply freedom from those abuses which led the Framers to single out particular rights. The very purpose of the First Amendment is to guarantee all facets of each right described; its draftsmen sought both to protect the "rights of Englishmen" and to enlarge their scope. See Bridges v. California, 314 U.S. 252, 263-265 (1941).

There are no contrary implications in any part of the history of the period in which the First Amendment was framed and adopted. No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.

Id. at 265.

15. Madison's comments in Congress also reveal the perceived need for some sort of constitutional "saving clause," which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined. See 1 Annals of Cong. 438-440 (1789). See also, e.g., 2 J. Story, Commentaries on the Constitution of the United States 651 (5th ed. 1891). Madison's efforts, culminating in the Ninth Amendment, served to allay the fears of those who were concerned that expressing certain guarantees could be read as excluding others.

16. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958) (right of association); Griswold v. Connecticut, 381 U.S. 479 (1965), and Stanley v. Georgia, 394 U.S. 557 (1969) (right to privacy); Estelle v. Williams, 425 U.S. 501, 503 (1976), and Taylor v. Kentucky, 436 U.S. 478, 483-486 (1978) (presumption of innocence); In re Winship, 397 U.S. 358 (1970) (standard of proof beyond a reasonable doubt); United States v. Guest, 383 U.S. 745, 757-759 (1966), and Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (right to interstate travel).

17. Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.

18. We have no occasion here to define the circumstances in which all or parts of a criminal trial may be closed to the public, cf., e.g., 6 J. Wigmore, Evidence § 1835 (J. Chadbourn rev.1976), but our holding today does not mean that the First Amendment rights of the public and representatives of the press are absolute. Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, see, e.g., Cox v. New Hampshire, 312 U.S. 569 (1941), so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial.

[T]he question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge . . . the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.


Id. at 574. It is far more important that trials be conducted in a quiet and orderly setting than it is to preserve that atmosphere on city streets. Compare, e.g., Kovacs v. Cooper, 336 U.S. 77 (1949), with Illinois v. Allen, 397 U.S. 337 (1970), and Estes v. Texas, 381 U.S. 532 (1965). Moreover, since courtrooms have limited capacity, there may be occasions when not every person who wishes to attend can be accommodated. In such situations, reasonable restrictions on general access are traditionally imposed, including preferential seating for media representatives. Cf. Gannett, 443 U.S. at 397-398 (POWELL, J., concurring); Houchins v. KQED, Inc., 438 U.S. 1, 17 (1978) (STEWART, J., concurring in judgment); id. at 32 (STEVENS, J., dissenting).
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