IN HIS brief concurring opinion to the Supreme Court's decision on public trials last week, Justice John Paul Stevens said that a majority of the members of the court had finally come to accept at least a part of the concept that is usually summed up in the phrase (which has no legal standing), "the public's right to know." They have suggested that there is a public right of access to whatever goes on during criminal and, perhaps, civil trials.
Although no more than three justices agreed on any one view of the public trial case, the theme on which Justice Stevens focused runs through several opinions. Chief Justice Burger, for example, wrote that "without the freedom to attend such trials . . . important aspects of freedom of speech and of the press could be eviscerated." The same idea, expressed in different language, appears to have been accepted by at least seven of the nine justices.
This right of access to trials, or, more broadly, to information is -- or so it seems to us -- an important element of freedom of speech and of the press. Freedom to publish information wouldn't mean much in a society where government is as complicated as ours unless there were some kind of freedom to gather it. Freedom of speech is equally limited in effectiveness if the public doesn't enjoy freedom to hear.
Yet the court in the past has been reluctant to give those key parts of the communication process any First Amendment protection. Indeed, a majority of the court had seemed headed in the opposite direction in prior decisions upholding the power of government officials to curtail press and public access to certain kinds of official information.
If the court has changed directions now as Justice Stevens believes to be the case, it may be because the justices had worked their way into a corner. By ruling a year ago that the "pubic trial" guaranteed by the Sixth Amendment is a right that belongs exclusively to defendants, they had left themselves no way to head off an era of secret trials except by ruling that the public and the press have a First Amendment right of access. The reaction they encountered to last summer's decision -- now clearly limited to pretrial proceedings -- demonstrated that the people weren't prepared to tolerate much judicial secrecy.
We don't know whether this apparent change of direction is real. If it is, the court cannot confine this right of access to trials, so enforcement of the right will limit the ability of other parts of government to hide their work in secrecy.