| Gannett Co., Inc. v. DePasquale
(No. 77-1301)
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| Syllabus
| Opinion
[ Stewart ] | Concurrence
[ Burger ] | Concurrence
[ Powell ] | Concurrence
[ Rehnquist ] | Concurrence
[ Blackmun ] |
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Gannett Co., Inc. v. DePasquale
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
MR. JUSTICE REHNQUIST, concurring.
While I concur in the opinion of the Court, I write separately to emphasize what should be apparent from the Court's Sixth Amendment holding and to address the First Amendment issue that the Court appears to reserve.
The Court today holds, without qualification, that "members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials." Ante at 391. In this case, the trial judge closed the suppression hearing because he concluded that an open hearing might have posed a danger to the defendants' ability to receive a fair trial. Ante at 376. But the Court's recitation of this fact and its discussion of the need to preserve the defendant's right to a fair trial, ante at 378-379, should not be interpreted to mean that, under the Sixth Amendment, a trial court can close [p404] a pretrial hearing or trial only when there is a danger that prejudicial publicity will harm the defendant. [n1] To the contrary, since the Court holds that the public does not have any Sixth Amendment right of access to such proceedings, it necessarily follows that, if the parties agree on a closed proceeding, the trial court is not required by the Sixth Amendment to advance any reason whatsoever for declining to open a pretrial hearing or trial to the public. "There is no question that the Sixth Amendment permits and even presumes open trials as a norm." Ante at 385. But, as the Court today holds, the Sixth Amendment does not require a criminal trial or hearing to be opened to the public if the participants to the litigation agree for any reason, no matter how jurisprudentially appealing or unappealing, that it should be closed.
The Court states that it may assume "arguendo" that the First and Fourteenth Amendments guarantee the public a right of access to pretrial hearings in some situations, because it concludes that, in this case, this "putative right was given all appropriate deference." Ante at 392. Despite the Court's seeming reservation of the question whether the First Amendment guarantees the public a right of access to pretrial proceedings, it is clear that this Court repeatedly has held that there is no First Amendment right of access in the public or the press to judicial or other governmental proceedings. See post at 411; Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974); Pell v. Procunier, 417 U.S. 817, 834 (1974); Branzburg v. Hayes, 408 U.S. 665, 684-685 (1972); Zemel v. Rusk, 381 U.S. 1, 16-17 (1965); Estes v. Texas, 381 U.S. 532, [p405] 539-540 (1965). See also Houchins v. KQED, Inc., 438 U.S. 1, 9-15 (1978) (opinion of BURGER, C.J., joined by WHITE and REHNQUIST, JJ.); id. at 16 (STEWART, J., concurring).
The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally. The Constitution does no more than assure the public and the press equal access once government has opened its doors.
Ibid. Thus, this Court emphatically has rejected the proposition advanced in MR. JUSTICE POWELL's concurring opinion, ante at 400-401, that the First Amendment is some sort of constitutional "sunshine law" that requires notice, an opportunity to be heard, and substantial reasons before a governmental proceeding may be closed to the public and press. Because this Court has refused to find a First Amendment right of access in the past, lower courts should not assume that, after today's decision, they must adhere to the procedures employed by the trial court in this case or to those advanced by MR. JUSTICE POWELL in his separate opinion in order to avoid running afoul of the First Amendment. To the contrary, in my view and, I think, in the view of a majority of this Court, the lower courts are under no constitutional constraint either to accept or reject those procedures. They remain, in the best tradition of our federal system, free to determine for themselves the question whether to open or close the proceeding. [n2] Hopefully, [p406] they will decide the question by accommodating competing interests in a judicious manner. But so far as the Constitution is concerned, the question is for them, not us, to resolve.
1. In fact, as both the Court and the dissent recognize, the instances in which pretrial publicity alone, even pervasive and adverse publicity, actually deprives a defendant of the ability to obtain a fair trial will be quite rare. Ante at 379 n. 6; post at 443-444; see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551-555 (1976); Murphy v. Florida, 421 U.S. 794, 798-799 (1975); Beck v. Washington, 369 U.S. 541, 557 (1962); Stroble v. California, 343 U.S. 181, 191-194 (1952).
2. My Brother POWELL suggests in his concurring opinion that I am wrong in so stating. Ante at 398 n. 2. He believes that the four dissenters -- who expressly reject his First Amendment views, post at 411, and who, instead, rely on a Sixth Amendment analysis that is repudiated by a majority of the Court today -- will join him in any subsequent case to impose constitutional limitations on the ability of a trial court to close judicial proceedings. I disagree with MR. JUSTICE POWELL for two reasons. First, in a matter so commonly arising in the regular administration of criminal justice, I do not so lightly as my Brother POWELL impute to the four dissenters in this case a willingness to ignore the doctrine of stare decisis and to join with him in some later decision to form what might fairly be called an "odd quintuplet," agreeing that the authority of trial courts to close judicial proceedings to the public is subject to limitations stemming from two different sources in the Constitution. But even if this were to occur, the very diversity of views that necessarily would be reflected in any such disposition would seem to me, as a practical matter, to place outside of any limits imposed by the United States Constitution all but the most bizarre orders closing judicial proceedings -- the sort of orders which have spawned the saying that "hard cases make bad law."