Gannett Co. v. DePasquale

Me. Justice Powell,

concurring.

Although I join the opinion of the Court, I would address the question that it reserves. Because of the importance of the public’s having accurate information concerning the operation of its criminal justice system, I would hold explicitly that petitioner’s reporter had an interest protected by the' First and Fourteenth Amendments in being present at the pretrial suppression hearing.1 As I have argued in Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974) (Powell, J., dissenting), this constitutional protection derives, not from any special status of members of the press as such, but rather *398because “[i]n seeking out the news the press . . . acts as an agent of the public at large,” each individual member of which cannot obtain for himself “the information needed for the intelligent discharge of his political responsibilities.” Id., at 863. Cf. First National Bank of Boston v. Bellotti, 435 U. S. 765, 776-778 (1978).

The right of access to courtroom proceedings, of course, is not absolute. It is limited both by the constitutional right of defendants to a fair trial, see, e. g., Estes v. Texas, 381 U. S. 532 (1965), and by the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants. Cf. Procunier v. Martinez, 416 U. S. 396, 412-413 (1974); Houchins v. KQED, Inc., 438 U. S. 1, 34-35 (1978) (Stevens, J., dissenting) ; Saxbe v. Washington Post Co., supra, at 872-873 (dissenting opinion). The task of determining the application of these limitations in each individual trial necessarily falls almost exclusively upon the trial court asked to exclude members of the press and public from the courtroom. For it would be entirely impractical to require criminal proceedings to cease while appellate courts were afforded an opportunity to review a trial court’s decision to close proceedings. It is all the more important, therefore, that this Court identify for the guidance of trial courts the constitutional standard by which they are to judge whether closure is justified, and the minimal procedure by which this standard is to be applied.2

In cases such as this, where competing constitutional rights must be weighed in the context of a criminal trial, *399the often difficult question is whether unrestrained exercise of First Amendment rights poses a serious danger to the fairness of a defendant’s trial. “As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged.” Sheppard v. Maxwell, 384 U. S. 333, 358 (1966) (footnote omitted); see Estes v. Texas, supra, at 539. In striking this balance there are a number of considerations to be weighed. In Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976), we concluded that there is a strong presumption against prohibiting members of the press from publishing information already in their possession concerning courtroom proceedings. Excluding all members of the press from the courtroom, however, differs substantially from the “gag order” at issue in \Nebraska Press, as the latter involved a classic prior restraint,' “one of the most extraordinary remedies known to our jurisprudence,” id., at 562, and applied to information irrespective of its source. In the present case, on the other hand, we are confronted with a trial court’s order that in effect denies access only to one, albeit important, source. It does not in any way tell the press what it may and may not publish.

Despite these differences between Nebraska Press and the present case, petitioner asks the Court to impose a severe burden upon defendants seeking closure. The approach taken in Me. Justice Blackmun’s opinion would grant this request, limiting closure to those cases where “it is strictly and inescapably necessary in order to protect the fair-trial guarantee.” See post, at 440. It is difficult to imagine a case where closure could be ordered appropriately under this standard. A rule of such apparent inflexibility could prejudice defendants’ rights and disserve society’s interest in the fair and prompt disposition of criminal trials. As a result of pretrial publicity, defendants could be convicted after less than the meticulously fair trial that the Constitution demands. There *400also could be an increase in reversal of convictions on appeal. In either event, it seems to me that the approach suggested by petitioner would not adequately safeguard the defendant's right to a fair trial, a right of equal constitutional significance to the right of access. The better course would be a more flexible accommodation between First and Sixth Amendment rights which are protected from state-law interference by the Fourteenth Amendment — an accommodation under which neither defendants' rights nor the rights of members of the press and public should be made subordinate. Cf. Branzburg v. Hayes, 408 U. S. 665, 709-710 (1972) (Powell, J., concurring) . The question for the trial court, therefore, in considering a motion to close a pretrial suppression hearing is whether a fair trial for the defendant is likely to be jeopardized by publicity, if members of the press and public are present and free to report prejudicial evidence that will not be presented to the jury.

Although the strict standard of Nebraska Press is not applicable to decisions concerning closure of courtroom proceedings, much of the discussion in that case of the factors to be considered in making decisions with respect to “gag orders” is relevant to closure decisions. Thus, where a defendant requests the trial court to exclude the public, it should consider whether there are alternative means reasonably available by which the fairness of the trial might be preserved without interfering substantially with the public’s interest in prompt access to information concerning the administration of justice. Similarly, because exclusion is justified only as a protection of the defendant’s right to a fair trial and the State’s interest in confidentiality, members of the press and public objecting to the exclusion have the right to demand that it extend no farther than is likely to achieve these goals. Thus, for example, the trial court should not withhold the transcript of closed courtroom proceedings past the time when no prejudice is likely to result to the defendant or the State from its release.

It is not enough, however, that trial courts apply a certain *401standard to requests for closure. If the constitutional right of the press and public to access is to have substance, representatives of these groups must be given an opportunity to be heard on the question of their exclusion. But this opportunity extends no farther than the persons actually present at the time the motion for closure is made, for the alternative would require substantial delays in trial and pretrial proceedings while notice was given to the public. Upon timely objection to the granting of the motion, it is incumbent upon the trial court to afford those present a reasonable opportunity to be heard on the question whether the defendant is likely to be deprived of a fair trial if the press and public are permitted to remain in attendance. At this hearing, it is the defendant’s responsibility as the moving party to make some showing that the fairness of his trial likely will be prejudiced by public access to the proceedings. Similarly, if the State joins in the closure request, it should be given the opportunity to show that public access would interfere with its interests in fair proceedings or preserving the confidentiality of sensitive information. On the other hand, members of the press and public who object to closure have the responsibility of showing to the court’s satisfaction that alternative procedures are available that would eliminate the dangers shown by the defendant and the State.

The question, then, is whether the First Amendment right of access outlined above was adequately respected in the present case. As the Court notes, the reporter ordered from the courtroom upon the motion of the defendants did not object to the closure order until the suppression hearing was all but completed. Petitioner’s right to be heard on the question of closure, therefore, was not invoked until the closure was an accomplished and irrevocable fact.3 Upon *402petitioner’s request, counsel for the newspaper was allowed within a reasonable time after the request to present written and oral arguments to the court challenging its closure order.

At this oral argument, the trial court applied a standard similar to that set forth above. It first reviewed for petitioner’s counsel the factual basis for its finding that closure had been necessary to preserve the fairness of the defendants’ trial. In the court’s view, the nature of the evidence to be considered at the hearing, the young age of two of the defendants, and the extent of the publicity already given the case had indicated that an open hearing would substantially jeopardize the fairness of the defendants’ subsequent trial. Moreover, the court emphasized the fact that the prosecutor, as well as each of the defense lawyers, had endorsed the closure motion. On the other hand, the court found that petitioner had not presented any basis for changing the court’s views on the need for closure. Throughout oral argument, the court recognized the constitutional right of the press and public to be present at criminal proceedings. It concluded, however, that in the “unique situation” presented to it, closure had been appropriate, and that the seal it had placed upon the transcript of the suppression hearing should continue in effect.4

*403In my view, the procedure followed by the trial court fully comported with that required by the Constitution. Moreover, the substantive standard applied was essentially correct, and, giving due deference to the proximity of the trial judge to the surrounding circumstances, I cannot conclude that it was error in this case to exclude petitioner’s reporter. I therefore agree that the judgment of the New York Court of Appeals must be affirmed.

In the present case, members of the press and public were excluded from a pretrial suppression hearing, rather than from the trial itself. In our criminal justice system as it has developed, suppression hearings often are as important as the trial which may follow. The government’s case may turn upon the confession or other evidence that the defendant seeks to suppress, and the trial court’s ruling on such evidence may determine the outcome of the case. Indeed, in this case there was no trial as, following the suppression hearing, plea bargaining occurred that resulted in guilty pleas. In view of the special significance of a suppression hearing, the public’s interest in this proceeding often is comparable to its interest in the trial itself. It is to be emphasized, however, that not all of the incidents of pretrial and trial are comparable in terms of public interest and importance to a formal hearing in which the question is whether critical, if not conclusive, evidence is to be admitted or excluded. In the criminal process, there may be numerous arguments, consultations, and decisions, as well as depositions and interrogatories, that are not central to the process and that implicate no First Amendment rights. And, of course, grand jury proceedings traditionally have been held in strict confidence. See Houchins v. KQED, Inc., 438 U. S. 1, 34-35 (1978) (Stevens, J., dissenting).

Contrary to Me. Justice Rehnqtjist’s suggestion, post, at 405, lower courts cannot assume after today’s decision that they are “free to determine for themselves the question whether to open or close the proceeding” free from all constitutional constraint. For although I disagree with my four dissenting Brethren concerning the origin and the scope of the constitutional limitations on the closing of pretrial proceedings, I agree with their conclusion that there are limitations and that they require the careful attention of trial courts before closure can be ordered.

Indeed, during subsequent oral argument, the trial court told counsel for petitioner: “It is very unfortunate that you were not here when the [closure] motion was made, but the motion was made and it was made with the moving force behind the motion being the rights of the defendants *402to a fair trial.” App. 13. “The Gannett newspapers knew that the matter was scheduled for a hearing, they did have an opportunity to have counsel present on that particular morning that the [closure] motion was made, and unfortunately there was no representative of the Gannett newspapers.” Id., at 17.

It does not appear from the record that the trial court gave any explicit consideration to the alternatives to closure and the sealing of the transcript. Although generally such consideration is necessary in order to determine whether the Constitution permits closure, see supra, at 400, in the circumstances of the present case I cannot find error in the trial court’s method of proceeding. Petitioner’s counsel, when he appeared after the closure order had been effectuated, suggested only obliquely that the court should consider alternatives such as a change of venue. At oral argument before the court, the lawyer insisted that “there must be a *403factual showing that there are no alternative means of remedying that problem [of prejudicial publicity], and the only thing that has been mentioned today ... is that there is a reasonable probability that the defendants’ ease would be prejudiced.” Insofar as this remark suggested that the burden was on the defendants to prove that there were no alternatives to closure, the court properly rejected the suggestion. See discussion, supra, at 401. And it appears that petitioner’s counsel, for his part, made no effort to show that any alternative method of proceeding would be satisfactory. In light of the unsettled state of the law confronting the trial court, and the uncertain nature of the claims petitioner was making, I conclude that there was no material deviation from the guidelines set forth above.