Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), argued 19 Feb. 1980, decided 2 July 1980 by vote of 7 to 1; Burger for the Court, Rehnquist in dissent, Powell not participating. After a series of inconclusive and confusing earlier decisions on the right of access to criminal trials,
Richmond Newspapers, Inc. v. Virginia announced that the public and the press have a
First Amendment right to attend criminal trials. This landmark 1980 Supreme Court decision left other issues open, however, some of which have since been resolved.
In a number of cases during the 1970s the Supreme Court supported the media's right, under the First Amendment, to publish whatever information they had in their possession—whether classified and obtained surreptiously (
New York Times Co. v. United States, 1971), or whether obtained in open court (
Nebraska Press Association v. Stuart, 1976). Having established that the press could publish what they knew, the Supreme Court then faced the question of whether the press was constitutionally entitled to access to criminal court proceedings.
In
Gannett v. DePasquale (1979), a newspaper reporter challenged the court‐ordered closure of a pretrial hearing on suppression of evidence in a murder case. The closure resulted from the defendants' concern (shared by the prosecutor) that
pretrial publicity would jeopardize their right to a fair trial. On appeal, the Supreme Court upheld the exclusion of press and public from pretrial hearings on the grounds that only the accused has a
Sixth Amendment right to demand an open trial. In contrast, several dissenters in
Gannett saw the Sixth Amendment as protecting not only the defendant's but also the public's right of access.
The
Gannett decision was close (5 to 4), fragmented (five separate opinions), and ambiguous in its scope (whether this ruling on pretrials would extend to trials) over the application of the First Amendment to the issue of access (which the Court did not decide) and over the findings needed to justify closure. Despite this uncertainty,
Gannett gave new power to trial judges who increasingly granted motions to close all types of criminal proceedings. Representatives of the news media protested
Gannett and urged the Court to reconsider and affirm a public right to access to court.
The Court did so the next year. In
Richmond Newspapers Inc. v.
Virginia, it severely limited the defendant's right to a closed courtroom by holding that the First and
Fourteenth Amendments guarantee the right of the public (including the press) to attend criminal trials. This case began with the fourth murder trial of a defendant whose earlier trials had been reversed or declared mistrials. Out of concern for pretrial publicity and relying on a Virginia statute, the trial court granted the defendant's motion to exclude the press. Richmond Newspapers challenged the order and sued for access to the trial. The Supreme Court affirmed the First Amendment right of access in its 7‐to‐1 decision.
The majority view in
Richmond Newspapers was expressed in six different opinions. Chief Justice Warren
Burger wrote for the Court, emphasizing the long history of criminal trials at
common law and their presumption of openness. Burger concluded that the press exclusion must be overturned since the trial judge had not pursued alternatives to courtroom closure nor had he made specific findings to support the order. Justices Byron
White and John Paul
Stevens joined Burger's opinion but also wrote separately. Justice White, a dissenter in
Gannett, simply noted that this case would have been unnecessary had the Court found a Sixth Amendment right to courtroom access in the earlier decision. Justice Stevens, in his concurrence, extended the principle to prohibit arbitrary governmental restrictions on access to other important and newsworthy information.
In a separate opinion Justice William
Brennan (joined by Justice Thurgood
Marshall) developed a different First Amendment theory to balance the important right of public access with opposing interests. He proposed two principles to determine the right of access: the history and tradition of openness of a given proceeding and the specific structural value or function of the proceeding. Applying these principles to the criminal trial, Brennan found a public right of access and agreed that the Virginia statute was in violation of the First and Fourteenth Amendments.
Justice Potter
Stewart concurred in the Court's judgment and, in his separate opinion, stressed limits that could be placed on the right of access, noting that the right is not absolute. Justice Harry
Blackmun also wrote separately to reiterate his preference for a Sixth Amendment right of access, but accepted the First Amendment protections as well. In dissent, Justice William
Rehnquist argued against Supreme Court intervention in the matter, preferring to let the access issues be resolved by the fifty states without additional constitutional review.
Richmond Newspapers Inc. v.
Virginia left open key questions. Does the First Amendment right of access to trials extend to pretrial hearings and to civil as well as criminal trials? Does it extend to other governmental proceedings besides the courtroom? What restrictions will be allowed on the right of access? What is the underlying First Amendment theory for the right of access, and what standards will be used to guide further cases?
In
Globe Newspaper Co. v. Superior Court (1982), the Court held unconstitutional a Massachusetts statute that required closed trials during testimony of minors who were victims of sexual abuse. For the majority, Justice Brennan emphasized the general functions for self‐governance to be served by an open trial and held that a trial might be closed only in specific cases where there was a documented or reasonable fear of harm to such minors. Chief Justice Burger, in dissent, pointed instead to the historical evidence supporting closure of this particular type of trial. The split between these two approaches from
Richmond Newspapers was also evident in
Press‐Enterprise Co. v.
Superior Court (1984). Here the Court extended the First Amendment right of access to
voir dire proceedings.
In
Waller v. Georgia (1984) the Court found that a defendant's Sixth Amendment right to a public trial precluded a trial court from closing a pretrial suppression hearing over the objections of the accused. The question of a public First Amendment right of access to pretrial hearings, left open in
Waller and in
Richmond Newspapers, was resolved in
Press‐Enterprise Co. v.
Superior Court (1986) in favor of allowing public access to preliminary hearings. In this case the Court also reiterated the principle of
Globe Newspaper that only an overriding governmental interest can justify denial of access. The Court has not yet ruled on the right of access to civil trials, but it is likely that eventually they will also be included.
See also
Speech and the Press.
Lynn Mather
