Majority

Following are excerpts from the Supreme Court opinions in a case involving access to court proceedings in a criminal case. The first opinion, written by Justice Potter Stewart, was joined by Justice John Paul Stevens. Chief Justice Warren E. Burger and Justice Lewis F. Powell Jr. and William H. Rehnquist concurred in separate opinions.

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 ordinarly carry with it the right to insist upon the opposite of that right." . . . But the issue here is not whether the defendant can compel a private trial. Rather the issue 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 social 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. . . 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 . . . Similarly, the public has an interest in having a criminal case heard by a jury, an interest disinct from the defendant's interest in being tried by a jury of his peers. . . .

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 a 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 fact-finding in criminal cases, a defendant cannot waive a jury trial without the consent of the prosecutor and judge. . . . But if the defendant waivers his right to a jury trial, 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 fact-finding. . . .

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 adversay system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation.

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 on more than the existence of a common law rule of open civil and criminal proceedings. . .

Under English common law, the public had no right to attend pretrial proceedings. . .

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." . . . Indeed eight of the states that have retained all or part of the Field Code have kept the explicit provision relating to closed pretrial hearings.

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

Dissenting

Following are excerpts from the dissenting opinion, written by Justice Harry A. Blackmun, with Justices William J. Brennan, Thurgood Marshall and Byron R. White concurring in part and dissenting in part.

I, for one, am unwilling to allow trials and suppression hearings to be closed with no way to ensure that the public interest is protected. Unlike the other provisions of the Sixth Amendment, the public trial interest cannot adequately be protected by the prosecutor and judge in conjunction, or connivance, with the defendant. The specter of trial or suppression hearing where a defendant of the same political party as the prosecutor and the judge - both of whom are elected officials perhaps beholden to the very defendant they are to try - obtains closure of the proceeding without any consideration for the substantial public interest at stake is sufficiently real to cause me to reject the Court's suggestion that the parties be given complete discretion to dispose of the public's interest as they see fit.

The decision of the parties to close a proceeding in such a circumstance, followed by suppression of vital evidence or acquital by the bench, destroys the appearance of justice and undermines confidence in the judicial system in a way no subsequent provision of transcript might remedy. But even where no connivance occurs, prosecutors and judges may have their own reasons for preferring a closed proceeding. And a prosecutor, who seeks to obtain a conviction free from error, and a judge who seeks the same while protecting the defendant's rights, may lack incentive to assert some notion of the public interest in the face of a motion by a criminal defendant to close a trial.

At the same time, I do not deny that the publication of information learned in an open proceeding may harm irreparably, under certain circumstances, the ability of a defendant to obtain a fair trial. This is especially true in the context of a pretrial hearing, where disclosure of information, determined to be inadmissible at trial, may severely affect a defendant's rights. Although the Sixth Amendment's public trial provision establishes a strong presumption in favor of open proceedings, it does not require that all proceedings be held in open court when to do so would deprive a defendant of a fair trial.

No court has held that the Sixth Amendment imposes an absolute requirement that courts be open at all times. On the contrary, courts on both the state and federal levels have recognized exceptions to the public trial requirement even when it is the accused who objects to the exclusion of the public or a portion thereof. Thus it is clear that the court may exclude unruly spectators or limit the number of spectators. This court (has) held that a court may place restriction on the access of the electronic media in particular, and certain types of news gathering in general inside the courthouse doors.

If, after considering the essential factors, the trial court determines that the accused has carried his burden of establishing that closure is necessary, the Sixth Amendmtnt is no barrier to reasonable restrictions on public access designed to meet that need. Any restrictions imposed, however, should extend no further than the circumstances reasonably require. Thus it might well be possible to exclude the public from only those portions of the proceeding at which the prejudicial information would be disclosed while admitting to other portions where the information the accused seeks to suppress would not be revealed . . . Further, closure should be temporary in that the court should ensure that an accurate record is made of those proceeding held in camera and that the public is permitted proper access to the record as soon as the threat to the defendant's fair right has passed.

I thus reject the suggestion that the defendant alone may determine when closure should occur. I also reject any notion that the decision whether to permit closure should be in the hands of the prosecutor on the theory that he is the representative of the public's interest.It is in part the public's interest in observing the conduct of the prosecutor, and the police with whom he is closely associated, that the public trial provision serves. To cloak his own actions or those of his associates from public scrutiny, a prosecutor thus may choose to close a hearing where the acts do not warrant it. . .

The Sixth Amendment, in establishing the public's right of access to a criminal trial and pretrial proceeding, also fixes the rights of the press in this regard. Petitioner, as a newspaper publisher, enjoys the same right of access to the hearing at issue in this case as does the general public. And what petitioner sees and hears in the courtroom it may, like any other citizen, publish or report consistent with the First Amendment. "Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom.". . .

Reporters for newspaper, television, and radio are entitled to the same rights as the general public" to have access to the courtroom, . . . where they "are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media." (Once) a public hearing [has] been held, what transpired there could not be subject to prior restraint.' . . .

Petitioner acknowledges that it seeks no greater rights than those due the general public. But it argues that, the Sixth Amendment aside, the First Amendment protects the free flow of information about judicial proceedings, and this flow may not be cut off without meeting the standards required to justify the imposition of a prior restraint under the First Amendment. Specifically, petitioner argues that the First Amendment prohibits closure of a pretrial proceeding except in accord with the standards established in Nebraska Press and only after notice and hearing and a stay pending appeal.

I do not agree. As I have noted, this case involves no restraint upon publication or upon comment about information already in the posession of the public or the press. It involves an issue of access to a judicial proceeding. To the extent the Constitution protects a right of public access to the proceeding the standards enunciated under the Sixth Amendment suffice to protect that right, I therefore need not reach the issue of First Amendment access.