"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.…" The language of the Sixth Amendment appears to assure that criminal courtrooms in the United States will be open—that there will be no secret trials. But the issue of openness in the process of criminal justice has only recently reached a point of consensus in the Supreme Court after nearly forty years of experimentation with successive constitutional tests.
Conflicting values underlay the debate. One was that of the open society, with the public free to observe and criticize the activities of government, including the courts. The other was fairness to someone accused of a crime: his or her right to a trial uninfluenced by public passion or prejudice. The two values do not usually conflict, but it hardly needs to be said that they may clash in a country that has known mob-dominated courtrooms and lynchings.
The constitutional conflict first surfaced in a series of cases starting with bridges v. california (1941). The issue was whether American, like British, judges could punish as a contempt of court any comment on a pending criminal case that had a tendency to interfere with the administration of justice. In Bridges two persons had been held in contempt: a labor leader for a telegram criticizing a judicial decision against his union, and a newspaper editor for an editorial admonishing a judge not to grant probation to two convicted union members. By a 5–4 vote the Supreme Court reversed both contempt convictions. The Court's opinion, by Justice hugo l. black, said the first amendment barred punishment for such comments unless they presented a clear and present danger—the test framed by Justice oliver wendell holmes in the early sedition cases such as abrams v. united states (1919)—of causing "disorderly and unfair administration of justice." Later decisions made plain that it would be extremely difficult for authorities to meet that test. Justice william o. douglas said in Craig v. Harney (1947): "A trial is a public event. What transpires in the courtroom is public property.… There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."
Nevertheless, concern remained about the possible effect of outside comment on the criminal justice process, especially on the impartiality of jurors. Justice felix frankfurter felt so strongly about the matter that he wrote an impassioned opinion in Maryland v. Baltimore Radio Show (1950), when the Supreme Court refused to review a state appellate court decision reversing on First Amendment grounds the contempt conviction of a radio broadcaster who had broadcast, before a murder trial, the record of the defendant and alleged evidence of his guilt.
The Supreme Court dealt with the problem of prejudicial press comment on criminal cases another way: by reversing convictions when there was reason to think the jury might have been improperly influenced by the outside comment. The Court first found that prejudicial comment had violated a defendant's constitutional right to fair trial in irvin v. dowd (1961). Justice Frankfurter, still preferring to proceed against the press itself, wrote bitterly in a concurring opinion: "The Court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade." But the device of contempt to prevent prejudicial comment never found favor with a majority. In Sheppard v. Maxwell (1966) the Court outlined other measures to prevent the prejudicing of juries in notorious cases: delaying or moving the trial, for example, or sequestering the jury once it had been selected.
Then a new prophylactic device was taken up by some trial courts around the country: injunctions against press institutions and representatives forbidding reports, before trial, of evidence and other material that might prejudice potential jurors. These gag orders, as the press angrily called them, followed the approach adopted by Britain in the Criminal Justice Act of 1967. That act allowed the press to attend pretrial committal proceedings, thereby assuring scrutiny of the process, but forebade reporting on them until after the trial itself was completed—unless the defendant waived the restriction. But in 1976 the Supreme Court held that the First Amendment stood in the way of this approach, too. In nebraska press association v. stuart the press had been enjoined from reporting, before trial, the alleged confession and other especially prejudicial matters about the defendant in a gruesome multiple murder case in a small Nebraska town. The Court's opinion, by Chief Justice warren e. burger, declined to adopt an absolute rule against such restraints. But the decision against them, on the extreme facts of that case, made it most unlikely that gag orders would ever be permissible; and trial courts stopped issuing them.
A last round of the constitutional debate about fair trial and free speech tested still another prophylactic device: closing the courtroom to the public and the press during sensitive phases of pretrial or trial proceedings. In gannett v. depasquale (1979) counsel for the defendants moved to close a pretrial hearing on motions to suppress confessions and other evidence, arguing that reports of the hearing would prejudice future jurors if the evidence were in fact suppressed. The prosecutor did not object, and the trial judge closed the courtroom. A newspaper then challenged the order. The Supreme Court decided that the "public trial" clause of the Sixth Amendment was for the benefit of the defendant alone, who could waive it, and that outsiders had no standing to insist on an open courtroom. The majority put aside First Amendment considerations.
A year later the Court did consider the First Amendment and decided that it limited the closing of courtrooms. In richmond newspapers v. virginia a 7–1 majority found unconstitutional the exclusion of the public (and with it the press) from a criminal trial. There was no opinion of the Court, but various Justices shared the view expressed by Chief Justice Burger that the First Amendment assures the public a "right of access" to criminal trials that can be denied only for strong and articulated reasons. Indications are that the right extends also to civil cases, and to pretrial proceedings as well as trials.
The decision was an extraordinary doctrinal conclusion to the long cycle of constitutional litigation. For the Supreme Court had for the first time said that the First Amendment was not only a shield protecting the right to speak or publish but also a sword helping the public to gain access to information about government institutions. How far that new doctrine would be taken was uncertain. But in American courtrooms, at least, a constitutional presumption favors openness.
Lewis, Anthony 1980 A Public Right to Know about Public Institutions: The First Amendment as Sword. The Supreme Court Review 1980:1–25.
Schmidt, Benno C. 1977 Nebraska Press Association: An Expansion of Freedom and Contraction of Theory. Stanford Law Review 29:431–476.