Appellee Massachusetts trial court, relying on a Massachusetts
statute providing for exclusion of the general public from trials
of specified sexual offenses involving a victim under the age of
18, ordered the exclusion of the press and public from the
courtroom during the trial of a defendant charged with rape of
three minor girls. Appellant newspaper publisher challenged the
exclusion order, and ultimately, after the trial had resulted in
the defendant's acquittal, the Massachusetts Supreme Judicial Court
construed the Massachusetts statute as requiring, under all
circumstances, the exclusion of the press and public during the
testimony of a minor victim in a sex-offense trial.
Held:
1. The fact that the exclusion order expired with completion of
the trial at which the defendant was acquitted does not render the
controversy moot within the meaning of Art. III. The controversy is
"capable of repetition, yet evading review," since it can
reasonably be assumed that appellant will someday be subjected to
another order relying on the Massachusetts statute, and since
criminal trials are typically of short duration. Pp.
457 U. S.
602-603.
2. The Massachusetts statute, as construed by the Massachusetts
Supreme Judicial Court, violates the First Amendment as applied to
the States through the Fourteenth Amendment. Pp.
457 U.S. 603-607.
(a) To the extent that the First Amendment embraces a right of
access to criminal trials, it is to ensure that the
constitutionally protected "discussion of governmental affairs" is
an informed one. The right of access to criminal trials in
particular is properly afforded protection by the First Amendment
both because such trials have historically been open to the press
and public and because such right of access plays a particularly
significant role in the functioning of the judicial process and the
government as a whole. Pp.
457
U.S. 603-606.
(b) The right of access to criminal trials is not absolute, but
the circumstances under which the press and public can be barred
are limited. The State must show that denial of such right is
necessitated by a compelling governmental interest and is narrowly
tailored to serve that interest. Pp.
457 U. S.
606-607.
Page 457 U. S. 597
3. The Massachusetts statute cannot be justified on the basis of
either the State's interest in protecting minor victims of sex
crimes from further trauma and embarrassment or its interest in
encouraging such victims to come forward and testify in a truthful
and credible manner. Pp.
457 U. S.
607-610.
(a) Compelling as the first interest is, it does not justify a
mandatory closure rule. Such interest could be just as well served
by requiring the trial court to determine on a case-by-case basis
whether the State's legitimate concern for the minor victim's
wellbeing necessitates closure. Such an approach ensures that the
constitutional right of the press and public to gain access to
criminal trials will not be restricted except where necessary to
protect the State's interest. Pp.
457 U. S.
607-609.
(b) The second asserted interest is not only speculative in
empirical terms, but is also open to serious question as a matter
of logic and common sense. Although the statute was construed to
bar the press and public from the courtroom during a minor sex
victim's testimony, the press is not denied access to the
transcript, court personnel, or any other source that could provide
an account of such testimony, and thus the statute cannot prevent
the press from publicizing the substance of that testimony, as well
as the victim's identity. Pp.
457 U. S.
609-610.
383 Mass. 838,
423
N.E.2d 773, reversed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and POWELL, JJ., joined. O'CONNOR, J., filed an
opinion concurring in the judgment,
post, p.
457 U. S. 611.
BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
457 U. S. 612.
STEVENS, J., filed a dissenting opinion,
post, p.
457 U. S.
620.
Page 457 U. S. 598
JUSTICE BRENNAN delivered the opinion of the Court.
Section 16A of Chapter 278 of the Massachusetts General Laws,
[
Footnote 1] as construed by
the Massachusetts Supreme Judicial Court, requires trial judges, at
trials for specified sexual offenses involving a victim under the
age of 18, to exclude the press and general public from the
courtroom during the testimony of that victim. The question
presented is whether the statute thus construed violates the First
Amendment as applied to the States through the Fourteenth
Amendment.
I
The case began when appellant, Globe Newspaper Co. (Globe),
unsuccessfully attempted to gain access to a rape trial conducted
in the Superior Court for the County of Norfolk, Commonwealth of
Massachusetts. The criminal defendant in that trial had been
charged with the forcible rape and forced unnatural rape of three
girls who were minors at the time of trial -- two 16 years of age
and one 17. In April, 1979, during hearings on several preliminary
motions, the trial judge ordered the courtroom closed. [
Footnote 2] Before the trial
Page 457 U. S. 599
began, Globe moved that the court revoke this closure order,
hold hearings on any future such orders, and permit appellant to
intervene "for the limited purpose of asserting its rights to
access to the trial and hearings on related preliminary motions."
App. 12a-14a. The trial court denied Globe's motions, [
Footnote 3] relying on Mass.Gen.Laws
Ann., ch. 278, § 16A (West 1981), and ordered the exclusion of the
press and general public from the courtroom during the trial. The
defendant immediately objected to that exclusion order, and the
prosecution stated for purposes of the record that the order was
issued on the court's "own motion, and not at the request of the
Commonwealth." App. 18a.
Within hours after the court had issued its exclusion order,
Globe sought injunctive relief from a justice of the Supreme
Judicial Court of Massachusetts. [
Footnote 4] The next day, the justice conducted a hearing,
at which the Commonwealth, "on behalf of the victims," waived
"whatever rights it [might] have [had] to exclude the press."
Id. at 28a. [
Footnote
5] Nevertheless,
Page 457 U. S. 600
Globe's request for relief was denied. Before Globe appealed to
the full court, the rape trial proceeded and the defendant was
acquitted.
Nine months after the conclusion of the criminal trial, the
Supreme Judicial Court issued its judgment, dismissing Globe's
appeal. Although the court held that the case was rendered moot by
completion of the trial, it nevertheless stated that it would
proceed to the merits, because the issues raised by Globe were
"significant and troublesome, and . . .
capable of repetition
yet evading review.'" Globe Newspaper Co. v. Superior
Court, 379 Mass. 846, 848, 401
N.E.2d 360, 362 (1980), quoting Southern Pacific Terminal
Co. v. ICC, 219 U. S. 498,
219 U. S. 515
(1911). As a statutory matter, the court agreed with Globe that §
16A did not require the exclusion of the press from the entire
criminal trial. The provision was designed, the court
determined,
"to encourage young victims of sexual offenses to come forward;
once they have come forward, the statute is designed to preserve
their ability to testify by protecting them from undue
psychological harm at trial."
379 Mass., at 860, 401 N.E.2d at 369. Relying on these twin
purposes, the court concluded that § 16A required the closure of
sex-offense trials only during the testimony of minor victims;
during other portions of such trials, closure was "a matter within
the judge's sound discretion."
Id. at 864, 401 N.E.2d at
371. The court did not pass on Globe's contentions that it had a
right to attend the entire
Page 457 U. S. 601
criminal trial under the First and Sixth Amendments, noting that
it would await this Court's decision -- then pending -- in
Richmond Newspapers, Inc. v. Virginia, 448 U.
S. 555 (1980). [
Footnote
6]
Globe then appealed to this Court. Following our decision in
Richmond Newspapers, we vacated the judgment of the
Supreme Judicial Court, and remanded the case for further
consideration in light of that decision.
Globe Newspaper Co. v.
Superior Court, 449 U.S. 894 (1980).
On remand, the Supreme Judicial Court, adhering to its earlier
construction of § 16A, considered whether our decision in
Richmond Newspapers required the invalidation of the
mandatory closure rule of § 16 A. 383 Mass. 838, 42 N.E.2d 773
(1981). [
Footnote 7] In
analyzing the First Amendment issue, [
Footnote 8] the court recognized that there is "an
unbroken tradition of openness" in criminal trials.
Id. at
845, 423 N.E.2d at 778. But the court discerned "at least one
notable exception" to this tradition: "In cases involving sexual
assaults, portions of trials have been closed to some segments of
the public, even when the victim was an adult."
Id. at
846, 423
Page 457 U. S. 602
N.E.2d at 778. The court also emphasized that § 16A's mandatory
closure rule furthered "genuine State interests," which the court
had identified in its earlier decision as underlying the statutory
provision. These interests, the court stated, "would be defeated if
a case-by-case determination were used."
Id. at 848, 423
N.E.2d at 779. While acknowledging that the mandatory closure
requirement results in a "temporary diminution" of "the public's
knowledge about these trials," the court did not think
"that
Richmond Newspapers require[d] the invalidation
of the requirement, given the statute's narrow scope in an area of
traditional sensitivity to the needs of victims."
Id. at 851, 423 N.E.2d at 781. The court accordingly
dismissed Globe's appeal. [
Footnote
9]
Globe again sought review in this Court. We noted probable
jurisdiction. 454 U.S. 1051 (1981). For the reasons that follow, we
reverse, and hold that the mandatory closure rule contained in §
16A violates the First Amendment. [
Footnote 10]
II
In this Court, Globe challenges that portion of the trial
court's order, approved by the Supreme Judicial Court of
Massachusetts, that holds that § 16A requires, under all
circumstances, the exclusion of the press and general public during
the testimony of a minor victim in a sex-offense trial. Because the
entire order expired with the completion of the rape trial at which
the defendant was acquitted, we must consider at the outset whether
a live controversy remains. Under Art. III, § 2, of the
Constitution, our jurisdiction extends only to actual cases or
controversies.
Nebraska
Press
Page 457 U. S. 603
Assn. v. Stuart, 427 U. S. 539,
427 U. S. 546
(1976).
"The Court has recognized, however, that jurisdiction is not
necessarily defeated simply because the order attacked has expired,
if the underlying dispute between the parties is one 'capable of
repetition, yet evading review.'"
Ibid., quoting
Southern Pacific Terminal Co. v.
ICC, 219 U.S. at
219 U. S.
515.
The controversy between the parties in this case is indeed
"capable of repetition, yet evading review." It can reasonably be
assumed that Globe, as the publisher of a newspaper serving the
Boston metropolitan area, will someday be subjected to another
order relying on § 16A's mandatory closure rule.
See Gannett
Co. v. DePasquale, 443 U. S. 368,
443 U. S.
377-378 (1979);
Richmond Newspapers, Inc. v.
Virginia, 448 U.S. at
448 U. S. 563 (plurality opinion). And because criminal
trials are typically of "short duration,"
ibid., such an
order will likely "evade review, or at least considered plenary
review in this Court."
Nebraska Press Assn. v. Stuart,
supra, at
427 U. S. 547.
We therefore conclude that the controversy before us is not moot
within the meaning of Art. III, and turn to the merits.
III
A
The Court's recent decision in
Richmond Newspapers
firmly established for the first time that the press and general
public have a constitutional right of access to criminal trials.
Although there was no opinion of the Court in that case, seven
Justices recognized that this right of access is embodied in the
First Amendment, and applied to the States through the Fourteenth
Amendment. 448 U.S. at
448 U. S.
558-581 (plurality opinion);
id. at
448 U. S.
584-598 (BRENNAN, J., concurring in judgment);
id. at
448 U. S.
598-601 (Stewart, J., concurring in judgment);
id. at
448 U. S.
601-604 (BLACKMUN, J., concurring in judgment).
[
Footnote 11]
Page 457 U. S. 604
Of course, this right of access to criminal trials is not
explicitly mentioned in terms in the First Amendment. [
Footnote 12] But we have long
eschewed any "narrow, literal conception" of the Amendment's terms,
NAACP v. Button, 371 U. S. 415,
371 U. S. 430
(1963), for the Framers were concerned with broad principles, and
wrote against a background of shared values and practices. The
First Amendment is thus broad enough to encompass those rights
that, while not unambiguously enumerated in the very terms of the
Amendment, are nonetheless necessary to the enjoyment of other
First Amendment rights.
Richmond Newspapers, Inc. v.
Virginia, 448 U.S. at
448 U. S. 579-580, and n. 16 (plurality opinion) (citing
cases);
id. at
448 U. S.
587-588, and n. 4 (BRENNAN, J., concurring in judgment).
Underlying the First Amendment right of access to criminal trials
is the common understanding that "a major purpose of that Amendment
was to protect the free discussion of governmental affairs,"
Mills v. Alabama, 384 U. S. 214,
384 U. S. 218
(1966). By offering such protection, the First Amendment serves to
ensure that the individual citizen can effectively participate in
and contribute to our republican system of self-government.
See
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 95
(1940);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. at
448 U. S.
587-588 (BRENNAN, J., concurring in judgment).
See
also id. at
448 U. S. 575
(plurality opinion) (the "expressly guaranteed freedoms" of the
First Amendment "share a common core purpose of assuring freedom of
communication on matters relating to the functioning of
government"). Thus, to the extent that the First Amendment embraces
a right of access to criminal
Page 457 U. S. 605
trials, it is to ensure that this constitutionally protected
"discussion of governmental affairs" is an informed one.
Two features of the criminal justice system, emphasized in the
various opinions in
Richmond Newspapers, together serve to
explain why a right of access to
criminal trials in
particular is properly afforded protection by the First Amendment.
First, the criminal trial historically has been open to the press
and general public. "[A]t the time when our organic laws were
adopted, criminal trials both here and in England had long been
presumptively open."
Richmond Newspapers, Inc. v. Virginia,
supra, at
448 U. S. 569
(plurality opinion). And since that time, the presumption of
openness has remained secure. Indeed, at the time of this Court's
decision in
In re Oliver, 333 U.
S. 257 (1948), the presumption was so solidly grounded
that the Court was "unable to find a single instance of a criminal
trial conducted
in camera in any federal, state, or
municipal court during the history of this country."
Id.
at
333 U. S. 266
(footnote omitted). This uniform rule of openness has been viewed
as significant in constitutional terms not only "because the
Constitution carries the gloss of history," but also because "a
tradition of accessibility implies the favorable judgment of
experience."
Richmond Newspapers, Inc. v. Virginia, supra,
at
448 U. S. 589
(BRENNAN, J., concurring in judgment). [
Footnote 13]
Page 457 U. S. 606
Second, the right of access to criminal trials plays a
particularly significant role in the functioning of the judicial
process and the government as a whole. Public scrutiny of a
criminal trial enhances the quality and safeguards the integrity of
the factfinding process, with benefits to both the defendant and to
society as a whole. [
Footnote
14] Moreover, public access to the criminal trial fosters an
appearance of fairness, thereby heightening public respect for the
judicial process. [
Footnote
15] And, in the broadest terms, public access to criminal
trials permits the public to participate in and serve as a check
upon the judicial process -- an essential component in our
structure of self-government. [
Footnote 16] In sum, the institutional value of the open
criminal trial is recognized in both logic and experience.
B
Although the right of access to criminal trials is of
constitutional stature, it is not absolute.
See Richmond
Newspapers, Inc. v. Virginia, supra, at
448 U. S. 581,
n. 18 (plurality opinion);
Nebraska Press Assn. v. Stuart,
427 U.S. at
427 U. S. 570.
But the circumstances under which the press and public can be
barred from a criminal trial are limited; the State's justification
in denying access must be a weighty one. Where, as in the present
case, the State attempts to deny the right of access in order to
inhibit the disclosure of sensitive information,
Page 457 U. S. 607
it must be shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
interest.
See, e.g., Brown v. Hartlage, 456 U. S.
45,
456 U. S. 554
(1982);
Smith v. Daily Mail Publishing Co., 443 U. S.
97,
443 U. S.
101-103 (1979);
NAACP v. Button, 371 U.S. at
371 U. S. 438.
[
Footnote 17] We now
consider the state interests advanced to support Massachusetts'
mandatory rule barring press and public access to criminal sex
offense trials during the testimony of minor victims.
IV
The state interests asserted to support § 16A, though
articulated in various ways, are reducible to two: the protection
of minor victims of sex crimes from further trauma and
embarrassment; and the encouragement of such victims to come
forward and testify in a truthful and credible manner. [
Footnote 18] We consider these
interests in turn.
We agree with appellee that the first interest -- safeguarding
the physical and psychological wellbeing of a minor [
Footnote 19] -- is a compelling one. But as
compelling as that interest is, it
Page 457 U. S. 608
does not justify a mandatory closure rule, for it is clear that
the circumstances of the particular case may affect the
significance of the interest. A trial court can determine on a
case-by-case basis whether closure is necessary to protect the
welfare of a minor victim. [
Footnote 20] Among the factors to be weighed are the
minor victim's age, psychological maturity and understanding, the
nature of the crime, the desires of the victim, [
Footnote 21] and the interests of parents
and relatives. Section 16A, in contrast, requires closure even if
the victim does not seek the exclusion of the press and general
public, and would not suffer injury by their presence. [
Footnote 22] In the case before us,
for example, the names of the minor victims were already in the
public record, [
Footnote 23]
and the record indicates that the victims
Page 457 U. S. 609
may have been willing to testify despite the presence of the
press. [
Footnote 24] If the
trial court had been permitted to exercise its discretion, closure
might well have been deemed unnecessary. In short, § 16A cannot be
viewed as a narrowly tailored means of accommodating the State's
asserted interest: that interest could be served just as well by
requiring the trial court to determine on a case-by-case basis
whether the State's legitimate concern for the wellbeing of the
minor victim necessitates closure. Such an approach ensures that
the constitutional right of the press and public to gain access to
criminal trials will not be restricted except where necessary to
protect the State's interest. [
Footnote 25]
Nor can § 16A be justified on the basis of the Commonwealth's
second asserted interest -- the encouragement of minor victims of
sex crimes to come forward and provide accurate testimony. The
Commonwealth has offered no empirical support for the claim that
the rule of automatic closure contained in § 16A will lead to an
increase in the number of minor sex victims coming forward and
cooperating with state authorities. [
Footnote 26] Not only is the claim speculative in
empirical
Page 457 U. S. 610
terms, but it is also open to serious question as a matter of
logic and common sense. Although § 16A bars the press and general
public from the courtroom during the testimony of minor sex
victims, the press is not denied access to the transcript, court
personnel, or any other possible source that could provide an
account of the minor victim's testimony. Thus, § 16A cannot prevent
the press from publicizing the substance of a minor victim's
testimony, as well as his or her identity. If the Commonwealth's
interest in encouraging minor victims to come forward depends on
keeping such matters secret, § 16A hardly advances that interest in
an effective manner. And even if § 16A effectively advanced the
State's interest, it is doubtful that the interest would be
sufficient to overcome the constitutional attack, for that same
interest could be relied on to support an array of mandatory
closure rules designed to encourage victims to come forward: surely
it cannot be suggested that minor victims of sex crimes are the
only crime victims who, because of publicity attendant to
criminal trials, are reluctant to come forward and testify. The
State's argument based on this interest therefore proves too much,
and runs contrary to the very foundation of the right of access
recognized in
Richmond Newspapers: namely, "that a
presumption of openness inheres in the very nature of a criminal
trial under our system of justice." 448 U.S. at
448 U. S. 573
(plurality opinion).
V
For the foregoing reasons, we hold that § 16A, as construed by
the Massachusetts Supreme Judicial Court, violates
Page 457 U. S. 611
the First Amendment to the Constitution. [
Footnote 27] Accordingly, the judgment of the
Massachusetts Supreme Judicial Court is
Reversed.
[
Footnote 1]
Massachusetts Gen. Laws Ann., ch. 278, § 16A (West 1981),
provides in pertinent part:
"At the trial of a complaint or indictment for rape, incest,
carnal abuse or other crime involving sex, where a minor under
eighteen years of age is the person upon, with or against whom the
crime is alleged to have been committed, . . . the presiding
justice shall exclude the general public from the court room,
admitting only such persons as may have a direct interest in the
case."
[
Footnote 2]
"The court caused a sign marked 'closed' to be placed on the
courtroom door, and court personnel turned away people seeking
entry."
Globe Newspaper Co. v. Superior Court, 379 Mass. 846,
848,
401
N.E.2d 360, 362-363 (1980) (footnote omitted).
[
Footnote 3]
The court refused to permit Globe to file its motion to
intervene, and explicitly stated that it would not act on Globe's
other motions. App. 17a-18a.
[
Footnote 4]
Globe's request was contained in a petition for extraordinary
relief filed pursuant to Mass.Gen.Laws Ann., ch. 211, § 3 (West
1958 and Supp.1982-193).
[
Footnote 5]
The Commonwealth's representative stated:
"[O]ur position before the trial judge [was], and it is before
this Court, that in some circumstances a trial judge, where the
defendant is asserting his right to a constitutional, public trial,
. . . may consider that as outweighing the otherwise legitimate
statutory interests, particularly where the Commonwealth [acts] on
behalf of the victims, and this is literally on behalf of the
victims in the sense that they were consulted fully by the
prosecutor in this case. The Commonwealth waives whatever rights it
may have to exclude the press."
App. 28a. Some time after the trial began, the prosecuting
attorney informed the judge at a lobby conference that she had
"spoke[n] with each of the victims regarding . . . excluding the
press."
Id. at 48a. The prosecuting attorney indicated
that the victims had expressed some "privacy concerns" that were
based on "their own privacy interests, as well as the fact that
there are grandparents involved with a couple of these victims."
Ibid. But according to the prosecuting attorney, the
victims "wouldn't object to the press being included" if "it were
at all possible to obtain a guarantee" that the press would not
attempt to interview them or publish their names, photographs, or
any personal information.
Ibid. In fact, their names were
already part of the public record.
See 383 Mass. 838, 849,
423
N.E.2d 773, 780 (1981). It is not clear from the record,
however, whether or not the victims were aware of this fact at the
time of their discussions with the prosecuting attorney.
[
Footnote 6]
Justice Quirico dissented, being of the view that the mandatory
closure rule of § 16A was not limited to the testimony of minor
victims, but was applicable to the entire trial.
[
Footnote 7]
The court again noted that the First Amendment issue arising
from the closure of the then-completed trial was "
capable of
repetition yet evading review.'" Id. at 841, n. 4, 423
N.E.2d at 775, n. 4, quoting Southern Pacific Terminal Co. v.
ICC, 219 U. S. 498,
219 U. S. 515
(1911). But in contrast to the view it had taken in its prior
opinion, supra at
457 U. S. 600, the court held that the case was not
moot, because of this possibility of repetition without opportunity
for review.
[
Footnote 8]
The court found it unnecessary to consider Globe's argument that
the mandatory closure rule violated the Sixth Amendment rights of
the criminal defendant who had been acquitted in the rape trial.
Those Sixth Amendment rights, the court stated, were "personal
rights" that, "at least in the context of this case, [could] only
be asserted by the original criminal defendant." 383 Mass. at 842,
423 N.E.2d at 776 (footnote omitted).
[
Footnote 9]
Justice Wilkins filed a concurring opinion in which he expressed
concern whether a statute constitutionally could require closure
"without specific findings by the judge that the closing is
justified by overriding or countervailing interests of the
Commonwealth."
Id. at 852, 423 N.E.2d at 782.
[
Footnote 10]
We therefore have no occasion to consider Globe's additional
argument that the provision violates the Sixth Amendment.
[
Footnote 11]
JUSTICE POWELL took no part in the consideration or decision of
Richmond Newspapers. But he had indicated previously in a
concurring opinion in
Gannett Co. v. DePasquale,
443 U. S. 368
(1979), that he viewed the First Amendment as conferring on the
press a right of access to criminal trials.
Id. at
443 U. S.
397-398.
[
Footnote 12]
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances."
U.S.Const., Amdt. 1.
[
Footnote 13]
Appellee argues that criminal trials have not always been open
to the press and general public during the testimony of minor sex
victims. Brief for Appellee 13-22. Even if appellee is correct in
this regard,
but see Gannett Co. v. DePasquale, supra, at
443 U. S. 423
(BLACKMUN, J., concurring in part and dissenting in part), the
argument is unavailing. In
Richmond Newspapers, the Court
discerned a First Amendment right of access to
criminal
trials based in part on the recognition that, as a general
matter, criminal trials have long been presumptively open. Whether
the First Amendment right of access to criminal trials can be
restricted in the context of any particular criminal trial, such as
a murder trial (the setting for the dispute in
Richmond
Newspapers) or a rape trial, depends not on the historical
openness of that type of criminal trial, but rather on the state
interests assertedly supporting the restriction.
See
457 U. S.
infra.
[
Footnote 14]
See Richmond Newspapers, Inc. v. Virginia, 448 U.S. at
448 U. S. 569
(plurality opinion);
id. at
448 U. S.
596-597 (BRENNAN, J., concurring in judgment);
Gannett Co. v. DePasquale, 443 U.S. at
443 U. S. 383;
id. at
443 U. S.
428-429 (BLACKMUN, J., concurring in part and dissenting
in part).
[
Footnote 15]
See Levine v. United States, 362 U.
S. 610,
362 U. S. 616
(1960);
In re Oliver, 333 U. S. 257,
333 U. S.
268-271 (1948);
Richmond Newspapers, Inc. v.
Virginia, 448 U.S. at
448 U. S. 570-571 (plurality opinion);
id. at
448 U. S. 595
(BRENNAN, J., concurring in judgment);
Gannett Co. v.
DePasquale, supra, at
443 U. S. 428-429 (BLACKMUN, J., concurring in part and
dissenting in part).
[
Footnote 16]
See Richmond Newspapers, Inc. v. Virginia, 448 U.S. at
448 U. S.
570-571 (plurality opinion);
id. at
448 U. S. 596
(BRENNAN, J., concurring in judgment);
Gannett Co. v.
DePasquale, 443 U.S. at
443 U. S. 394
(BURGER, C.J., concurring);
id. at
443 U. S. 428
(BLACKMUN, J., concurring in part and dissenting in part).
[
Footnote 17]
Of course, limitations on the right of access that resemble
"time, place, and manner" restrictions on protected speech,
see
Young v. American Mini Theatres, Inc., 427 U. S.
50,
427 U. S. 63, n.
18 (1976), would not be subjected to such strict scrutiny.
See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. at
448 U. S.
581-582, n. 18 (plurality opinion);
id. at
448 U. S. 598,
n. 23 (BRENNAN, J., concurring in judgment);
id. at
448 U. S. 600
(Stewart, J., concurring in judgment).
[
Footnote 18]
In its opinion following our remand, the Supreme Judicial Court
of Massachusetts described the interests in the following
terms:
"(a) to encourage minor victims to come forward to institute
complaints and give testimony . . . ; (b) to protect minor victims
of certain sex crimes from public degradation, humiliation,
demoralization, and psychological damage . . . ; (c) to enhance the
likelihood of credible testimony from such minors, free of
confusion, fright, or embellishment; (d) to promote the sound and
orderly administration of justice . . . ; (e) to preserve evidence
and obtain just convictions."
383 Mass. at 848, 423 N.E.2d at 779.
[
Footnote 19]
It is important to note that, in the context of § 16A, the
measure of the State's interest lies not in the extent to which
minor victims are injured by testifying, but rather in the
incremental injury suffered by testifying
in the presence of
the press and the general public.
[
Footnote 20]
Indeed, the plurality opinion in
Richmond Newspapers
suggested that individualized determinations are
always
required before the right of access may be denied: "Absent an
overriding interest
articulated in findings, the trial of
a criminal case must be open to the public." 448 U.S. at
448 U. S. 581
(footnote omitted) (emphasis added).
[
Footnote 21]
"[I]f the minor victim wanted the public to know precisely what
a heinous crime the defendant had committed, the imputed
legislative justifications for requiring the closing of the trial
during the victim's testimony would in part, at least, be
inapplicable."
383 Mass. at 853, 423 N.E.2d at 782 (Wilkins, J.,
concurring).
[
Footnote 22]
It appears that, while other States have statutory or
constitutional provisions that would
allow a trial judge
to close a criminal sex-offense trial during the testimony of a
minor victim, no other State has a
mandatory provision
excluding both the press and general public during such testimony.
See, e.g., Ala.Code § 12-21-202 (1975); Ariz.Rule
Crim.Proc. 9.3; Ga.Code § 81-1006 (1978); La.Rev.Stat.Ann. §
15:469.1 (West 1981); Miss. Const., Art. 3, § 26; N.H.Rev.Stat.Ann.
§ 632-A:8 (Supp.1981); N.Y.Jud. Law § 4 (McKinney 1968);
N.C.Gen.Stat. § 15-166 (Supp.1981); N.D.Cent.Code § 271-02 (1974);
Utah Code Ann. § 78-7-4 (1953); Vt.Stat.Ann., Tit. 12, § 1901
(1973); Wis.Stat. § 970.03(4) (1979-1980).
See also
Fla.Stat. § 918.16 (1979) (providing for mandatory exclusion of
general public, but not
press, during testimony
of minor victims). Of course, we intimate no view regarding the
constitutionality of these state statutes.
[
Footnote 23]
The Court has held that the government may not impose sanctions
for the publication of the names of rape victims lawfully obtained
from the public record.
Cox Broadcasting Corp. v. Cohn,
420 U. S. 469
(1975).
See also Smith v. Daily Mail Publishing Co.,
443 U. S. 97
(1979).
[
Footnote 24]
See n 5,
supra.
[
Footnote 25]
Of course, for a case-by-case approach to be meaningful,
representatives of the press and general public "must be given an
opportunity to be heard on the question of their exclusion."
Gannett Co. v. DePasquale, 443 U.S. at
443 U. S. 401
(POWELL, J., concurring). This does not mean, however, that, for
purposes of this inquiry, the court cannot protect the minor victim
by denying these representatives the opportunity to confront or
cross-examine the victim, or by denying them access to sensitive
details concerning the victim and the victim's future testimony.
Such discretion is consistent with the traditional authority of
trial judges to conduct
in camera conferences.
See
Richmond Newspaper, Inc. v. Virginia, supra, at
448 U. S. 598,
n. 23 (BRENNAN, J., concurring in judgment). Without such trial
court discretion, a State's interest in safeguarding the welfare of
the minor victim, determined in an individual case to merit some
form of closure, would be defeated before it could ever be brought
to bear.
[
Footnote 26]
To the extent that it is suggested that, quite apart from
encouraging minor victims to testify, § 16A improves the quality
and credibility of testimony, the suggestion also is speculative.
And while closure may have such an effect in particular cases, the
Court has recognized that,
as a general matter,
"[o]penness in court proceedings may
improve the
quality of testimony."
Gannett Co. v. DePasquale, supra,
at
443 U. S. 383
(emphasis added). In the absence of any showing that closure would
improve the quality of testimony of all minor sex victims, the
State's interest certainly cannot justify a
mandatory
closure rule.
[
Footnote 27]
We emphasize that our holding is a narrow one: that a rule of
mandatory closure respecting the testimony of minor sex victims is
constitutionally infirm. In individual cases, and under appropriate
circumstances, the First Amendment does not necessarily stand as a
bar to the exclusion from the courtroom of the press and general
public during the testimony of minor sex offense victims. But a
mandatory rule, requiring no particularized determinations in
individual cases, is unconstitutional.
JUSTICE O'CONNOR, concurring in the judgment.
In
Richmond Newspapers, Inc. v. Virginia, 448 U.
S. 555 (1980), the Court held that the First Amendment
protects the right of press and public to attend criminal trials. I
do not interpret that decision to shelter every right that is
"necessary to the enjoyment of other First Amendment rights."
Ante at
457 U. S. 604.
Instead,
Richmond Newspapers rests upon our long history
of open criminal trials and the special value, for both public and
accused, of that openness. As the plurality opinion in
Richmond
Newspapers stresses,
"it would be difficult to single out any aspect of government of
higher concern and importance to the people than the manner in
which criminal trials are conducted."
448 U.S. at
448 U. S. 575.
Thus, I interpret neither
Richmond Newspapers nor the
Court's decision today to carry any implications outside the
context of criminal trials.
This case, however, does involve a criminal trial. Moreover, it
involves a statute mandating automatic exclusion of the public from
certain testimony. As the Court explains, Massachusetts has
demonstrated no interest weighty enough to justify application of
its automatic bar to all cases, even those in which the victim,
defendant, and prosecutor have no objection to an open trial.
Accordingly, I concur in the judgment.
Page 457 U. S. 612
CHIEF JUSTICE BURGER, with whom JUSTICE REHNQUIST joins,
dissenting.
Historically our society has gone to great lengths to protect
minors charged with crime, particularly by prohibiting the release
of the names of offenders, barring the press and public from
juvenile proceedings, and sealing the records of those proceedings.
Yet today the Court holds unconstitutional a state statute designed
to protect not the accused, but the minor victims of sex crimes. In
doing so, it advances a disturbing paradox. Although states are
permitted, for example, to mandate the closure of all proceedings
in order to protect a 17-year-old charged with rape, they are not
permitted to require the closing of part of criminal proceedings in
order to protect an innocent child who has been raped or otherwise
sexually abused.
The Court has tried to make its holding a narrow one by not
disturbing the authority of state legislatures to enact more
narrowly drawn statutes giving trial judges the discretion to
exclude the public and the press from the courtroom during the
minor victim's testimony.
Ante at
457 U. S. 611,
n. 27. I also do not read the Court's opinion as foreclosing a
state statute which mandates closure except in cases where the
victim agrees to testify in open court. [
Footnote 2/1] But the Court's decision
Page 457 U. S. 613
is nevertheless a gross invasion of state authority and a
state's duty to protect its citizens -- in this case, minor victims
of crime. I cannot agree with the Court's expansive interpretation
of our decision in
Richmond Newspapers, Inc. v. Virginia,
448 U. S. 555
(1980), or its cavalier rejection of the serious interests
supporting Massachusetts' mandatory closure rule. Accordingly, I
dissent.
I
The Court seems to read our decision in
Richmond Newspapers,
supra, as spelling out a First Amendment right of access to
all aspects of all criminal trials under all circumstances.
Ante at
457 U. S. 605,
n. 13. That is plainly incorrect. In
Richmond Newspapers,
we examined "the right of access to places traditionally open to
the public" and concluded that criminal trials were generally open
to the public throughout this country's history and, even before
that, in England. The opinions of a majority of the Justices
emphasized the historical tradition of open criminal trials. 448
U.S. at
448 U. S.
564-573;
id. at
448 U. S.
589-591 (BRENNAN, J., concurring in judgment);
id. at
448 U. S. 599
(Stewart, J., concurring in judgment);
id. at
448 U. S. 601
(BLACKMUN, J., concurring in judgment). The proper mode of analysis
to be followed in determining whether there is a right of access
was emphasized by JUSTICE BRENNAN:
Page 457 U. S. 614
"As previously noted, resolution of First Amendment public
access claims in individual cases must be strongly influenced by
the weight of historical practice and by an assessment of the
specific structural value of public access in the
circumstances."
Id. at
448 U. S.
597-598.
Today JUSTICE BRENNAN ignores the weight of historical practice.
There is clearly a long history of exclusion of the public from
trials involving sexual assaults, particularly those against
minors.
See, e.g., Harris v. Stephens, 361 F.2d 888 (CA8
1966),
cert. denied, 386 U.S. 964 (1967);
Reagan v.
United States, 202 F. 488 (CA9 1913);
United States v.
Geise, 158 F.
Supp. 821 (Alaska),
aff'd, 262 F.2d 151 (CA9 1958),
cert. denied, 361 U.S. 842 (1959);
Hogan v.
State, 191 Ark. 437, 86 S.W.2d 931 (1935);
State v.
Purvis, 157 Conn.198, 251 A.2d 178 (1968),
cert.
denied, 395 U.S. 928 (1969);
Moore v. State, 151 Ga.
648, 108 S.E. 47 (1921),
appeal dism'd, 260 U.S. 702
(1922). [
Footnote 2/2] Several
States have longstanding provisions allowing closure of cases
involving sexual assaults against minors. [
Footnote 2/3]
It would misrepresent the historical record to state that there
is an "unbroken, uncontradicted history" of open proceedings in
cases involving the sexual abuse of minors.
Richmond
Newspapers, supra, at
448 U. S. 573. Absent such a history of openness, the
positions of the Justices joining reversal in
Richmond
Newspapers give no support to the proposition that closure of
the proceedings during the testimony of the minor victim violates
the First Amendment. [
Footnote
2/4]
Page 457 U. S. 615
II
The Court does not assert that the First Amendment right it
discerns from
Richmond Newspapers is absolute; instead, it
holds that, when a
"State attempts to deny the right of access in order to inhibit
the disclosure of sensitive information, it must be shown that the
denial is necessitated by a compelling governmental interest, and
is narrowly tailored to serve that interest."
Ante at
457 U. S.
606-607. The Court's wooden application of the rigid
standard it asserts for this case is inappropriate. The
Commonwealth has not denied the public or the media access to
information as to what takes place at trial. As the Court
acknowledges, Massachusetts does not deny the press and the public
access to the trial transcript or to other sources of information
about the victim's testimony. Even the victim's identity is part of
the public record, although the name of a 16-year-old accused
rapist generally would not be a matter of public record.
Mass.Gen.Laws Ann., ch. 119, § 60A (West Supp.1982-1983). The
Commonwealth does not deny access to information, and does nothing
whatever to inhibit its disclosure. This case is quite unlike
others in which we have held unconstitutional state laws which
prevent the dissemination of information or the public discussion
of ideas.
See, e.g., Brown v. Hartlage, 456 U. S.
45 (1982);
Smith v. Daily Mail Publishing Co.,
443 U. S. 97
(1979);
Landmark Communications, Inc. v. Virginia,
435 U. S. 829
(1978);
Nebraska Press Assn. v. Stuart, 427 U.
S. 539 (1976);
Cox Broadcasting Corp. v. Cohen,
420 U. S. 469
(1975);
NAACP v. Button, 371 U. S. 415
(1963).
The purpose of the Commonwealth in enacting § 16A was to give
assurance to parents and minors that they would have this moderate
and limited protection from the trauma, embarrassment, and
humiliation of having to reveal the intimate details of a sexual
assault in front of a large group of unfamiliar spectators -- and
perhaps a television audience -- and to lower the barriers to the
reporting of such crimes which might come from the victim's dread
of public testimony.
Globe Newspaper Co. v. Superior
Court, 379 Mass.
Page 457 U. S. 616
846, 865,
401
N.E.2d 360, 372 (1980); 383 Mass. 838, 847-848,
423
N.E.2d 773, 779 (1981).
Neither the purpose of the law nor its effect is primarily to
deny the press or public access to information; the verbatim
transcript is made available to the public and the media, and may
be used without limit. We therefore need only examine whether the
restrictions imposed are reasonable, and whether the interests of
the Commonwealth override the very limited incidental effects of
the law on First Amendment rights.
See Richmond
Newspapers, 448 U.S. at
448 U. S.
580-581 (plurality opinion);
id. at
448 U. S. 600
(Stewart, J., concurring in judgment);
Pell v. Procunier,
417 U. S. 817
(1974);
Saxbe v. Washington Post Co., 417 U.
S. 843 (1974);
Cox v. New Hampshire,
312 U. S. 569
(1941). Our obligation in this case is to balance the competing
interests: the interests of the media for instant access, against
the interest of the State in protecting child rape victims from the
trauma of public testimony. In more than half the states, public
testimony will include television coverage.
III
For me, it seems beyond doubt, considering the minimal impact of
the law on First Amendment rights and the overriding weight of the
Commonwealth's interest in protecting child rape victims, that the
Massachusetts law is not unconstitutional. The Court acknowledges
that the press and the public have prompt and full access to all of
the victim's testimony. Their additional interest in actually being
present during the testimony is minimal. While denying it the power
to protect children, the Court admits that the Commonwealth's
interest in protecting the victimized child is a compelling
interest.
Ante at
457 U. S. 607. This meets the test of
Richmond
Newspapers, supra.
The law need not be precisely tailored so long as the state's
interest overrides the law's impact on First Amendment rights and
the restrictions imposed further that interest. Certainly this law,
which excludes the press and public only
Page 457 U. S. 617
during the actual testimony of the child victim of a sex crime,
rationally serves the Commonwealth's overriding interest in
protecting the child from the severe -- possibly permanent --
psychological damage. It is not disputed that such injury is a
reality. [
Footnote 2/5]
The law also seems a rational response to the undisputed problem
of the underreporting of rapes and other sexual offenses. The Court
rejects the Commonwealth's argument that § 16A is justified by its
interest in encouraging minors to report sex crimes, finding the
claim "speculative in empirical terms [and] open to serious
question as a matter of logic and common sense."
Ante at
457 U. S.
609-610. There is no basis whatever for this cavalier
disregard of the reality of human experience. It makes no sense to
criticize the Commonwealth for its failure to offer empirical data
in support of its rule; only by allowing state experimentation may
such empirical evidence be produced.
"It is one of the happy incidents of the federal system that a
single courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without
risk to the rest of the country."
New State Ice Co. v. Liebmann, 285 U.
S. 262,
285 U. S. 311
(1932) (Brandeis, J., dissenting).
See also Chandler v.
Florida, 449 U. S. 560,
449 U. S.
579-580 (1981);
Reeves, Inc. v. Stake,
447 U. S. 429,
447 U. S. 441
(1980);
Whalen v. Roe, 429 U. S. 589,
429 U. S. 597,
and n. 20 (1977).
The Court also concludes that the Commonwealth's assertion that
the law might reduce underreporting of sexual offenses fails "as a
matter of logic and common sense." This conclusion is based on a
misperception of the Commonwealth's argument and an overly narrow
view of the protection the statute seeks to afford young victims.
The Court apparently believes that the statute does not prevent any
significant
Page 457 U. S. 618
trauma, embarrassment, or humiliation on the part of the victim
simply because the press is not prevented from discovering and
publicizing both the identity of the victim and the substance of
the victim's testimony.
Ante at
457 U. S.
609-610. Section 16A is intended not to preserve
confidentiality, but to prevent the risk of severe psychological
damage caused by having to relate the details of the crime in front
of a crowd which inevitably will include voyeuristic strangers.
[
Footnote 2/6] In most states, that
crowd may be expanded to include a live television audience, with
reruns on the evening news. That ordeal could be difficult for an
adult; to a child, the experience can be devastating and leave
permanent scars. [
Footnote 2/7]
The Commonwealth's interests are clearly furthered by the
mandatory nature of the closure statute. Certainly if the law were
discretionary, most judges would exercise that discretion soundly
and would avoid unnecessary harm to the child, but victims and
their families are entitled to assurance of such protection. The
legislature did not act irrationally in deciding not to leave the
closure determination to the idiosyncracies of individual judges
subject to the pressures available
Page 457 U. S. 619
to the media. The victim might very well experience considerable
distress prior to the court appearance, wondering, in the absence
of such statutory protection, whether public testimony will be
required. The mere possibility of public testimony may cause
parents and children to decide not to report these heinous crimes.
If, as psychologists report, the courtroom experience in such cases
is almost as traumatic as the crime itself, [
Footnote 2/8] a state certainly should be able to take
whatever reasonable steps it believes are necessary to reduce that
trauma. Furthermore, we cannot expect victims and their parents to
be aware of all of the nuances of state law; a person who sees
newspaper, or perhaps even television, reports of a minor victim's
testimony may very well be deterred from reporting a crime on the
belief that public testimony will be required. It is within the
power of the state to provide for mandatory closure to alleviate
such understandable fears and encourage the reporting of such
crimes.
IV
There is, of course, "a presumption of openness [that] inheres
in the very nature of a criminal trial under our system of
justice." But we have consistently emphasized that this presumption
is not absolute or irrebuttable. A majority of the Justices in
Richmond Newspapers acknowledged that closure might be
permitted under certain circumstances. Justice Stewart's separate
opinion pointedly recognized that exclusion of the public might be
justified to protect "the sensibilities of a youthful prosecution
witness . . . in a criminal trial for rape." 448 U.S. at
448 U. S. 600,
n. 5. [
Footnote 2/9] The
Massachusetts statute has a relatively minor incidental impact on
First
Page 457 U. S. 620
Amendment rights and gives effect to the overriding state
interest in protecting child rape victims. Paradoxically, the Court
today denies the victims the kind of protection routinely given to
juveniles who commit crimes. Many will find it difficult to
reconcile the concern so often expressed for the rights of the
accused with the callous indifference exhibited today for children
who, having suffered the trauma of rape or other sexual abuse, are
denied the modest protection the Massachusetts Legislature
provided.
[
Footnote 2/1]
It certainly cannot be said that the victims in this case
consented to testifying in open court. During a lobby conference
prior to trial, the prosecutor informed the trial judge that she
had interviewed the victims, that they were concerned about
publicity, and would agree to press attendance only if certain
guarantees could be given:
"Each of [the three victims] indicated that they had the same
concerns, and basically they are privacy concerns."
"The difficulty of obtaining any kind of guarantee that the
press would not print their names or where they go to school or any
personal data or take pictures of them or attempt to interview
them, those concerns come from their own privacy interests, as well
as the fact that there are grandparents involved with a couple of
these victims who do not know what happened and if they were to
find out by reading the paper, everyone was concerned about what
would happen then. And they stated that, if it were at all possible
to obtain a guarantee that this information would not be used, then
they wouldn't object to the press being included. I explained that
that is [a] very difficult guarantee to obtain, because the Court
cannot issue a conditional order, or anything like that, but I just
wanted to put on the record what their concerns were and what they
are afraid of."
App. 48a.
It is clear that the victims would "waive" the exclusion of the
press only if the trial court gave them guarantees of strict
privacy, guarantees that were probably beyond the authority of the
court and which themselves would raise grave constitutional
problems.
See Oklahoma Publishing Co. v. District Court of
Oklahoma County, 430 U. S. 308
(1977);
Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469 (1975).
[
Footnote 2/2]
Cf. Stamicarbon, N.V. v. American Cyanamid Co., 506
F.2d 532, 539-540 (CA2 1974), and cases cited therein.
[
Footnote 2/3]
See, e.g., Ala. Const., Art. VI, § 169 (1901) (repealed
1973); Fla.Stat. § 918.16 (1979); Ga.Code § 81-1006 (1978);
Miss.Const., Art. 3, § 26; N.H.Rev.Stat.Ann. § 632-A:8 (Supp.1981);
N.Y.Jud.Law § 4 (McKinney 1968); N.C.Gen.Stat. § 15-166
(Supp.1981); Utah Code Ann. § 78-7-4 (1953).
[
Footnote 2/4]
It is hard to find a limiting principle in the Court's analysis.
The same reasoning might require a hearing before a trial judge
could hold a bench conference or any
in camera
proceedings.
[
Footnote 2/5]
For a discussion of the traumatic effect of court proceedings on
minor rape victims,
see E. Hilberman, The Rape Victim
53-54 (1976); S. Katz & M. Mazur, Understanding the Rape
Victim: A Synthesis of Research Findings 198-200 (1979), and
studies cited therein.
[
Footnote 2/6]
As one commentator put it:
"Especially in cases involving minors, the courts stress the
serious embarrassment and shame of the victim who is forced to
testify to sexual acts or whose intimate life is revealed in detail
before a crowd of the idly curious."
Berger, Man's Trial, Woman's Tribulation: Rape Cases in the
Courtroom, 77 Colum.L.Rev. l, 88 (1977). The victim's interest in
avoiding the humiliation of testifying in open court is thus quite
separate from any interest in preventing the public from learning
of the crime. It is ironic that the Court emphasizes the failure of
the Commonwealth to seal the trial transcript and bar disclosure of
the victim's identity. The Court implies that a state law more
severely encroaching upon the interests of the press and public
would be upheld.
[
Footnote 2/7]
See Hilberman,
supra; L. Holmstrom & A.
Burgess, The Victim of Rape: Institutional Reactions 222, 227
(1978); Berger,
supra, at 88, 92-93; Libai, The Protection
of the Child Victim of a Sexual Offense in the Criminal Justice
System, 15 Wayne L.Rev. 977, 1021 (1969). Holmstrom and Burgess
report that nearly half of all
adult rape victims were
disturbed by the public setting of their trials. Certainly the
impact on children must be greater.
[
Footnote 2/8]
See Bohmer & Blumberg, Twice Traumatized: The Rape
Victim and the Court, 58 Judicature 390 (1975); Katz & Mazur,
supra; Holmstrom & Burgess,
supra; Hilberman,
supra; Berger,
supra.
[
Footnote 2/9]
See also 448 U.S. at
448 U. S.
580-581;
id. at
448 U. S. 582
(WHITE, J., concurring);
id. at
448 U. S. 584
(STEVENS, J., concurring);
id. at
448 U. S. 598
(BRENNAN, J., concurring in judgment).
JUSTICE STEVENS, dissenting.
The duration of a criminal trial generally is shorter than the
time it takes for this Court's jurisdiction to be invoked and our
judgment on the merits to be announced. As a result, our power to
review pretrial or midtrial orders implicating the freedom of the
press has rested on the exception to the mootness doctrine for
orders "capable of repetition, yet evading review."
See
Richmond Newspapers, Inc. v. Virginia, 448 U.
S. 555,
448 U. S. 563;
Gannett Co. v. DePasquale, 443 U.
S. 368,
443 U. S.
377-378;
Nebraska Press Assn. v. Stuart,
427 U. S. 539,
427 U. S.
546-547.
Today the Court expands that exception in order to pass on the
constitutionality of a statute that, as presently construed, has
never been applied in a live controversy. In this case, unlike the
three cases cited above, the governing state law was materially
changed after the trial court's order had expired by its own terms.
There consequently is no possibility "
that the same complaining
party will be subject to the same action again.'" Gannett Co.
v. DePasquale, supra, at 443 U. S. 377
(quoting Weinstein v. Bradford, 423 U.
S. 147, 423 U. S.
149).
The fact that the Massachusetts Supreme Judicial Court narrowly
construed -- and then upheld in the abstract -- the state statute
that the trial court had read to mandate the closure of the entire
trial bears on our review function in other respects. We have only
recently recognized the First
Page 457 U. S. 621
Amendment right of access to newsworthy matter.
See
ante at
457 U.S. 603;
Richmond Newspapers, Inc. v. Virginia, supra, at
448 U. S. 582
(STEVENS, J., concurring). In developing constitutional
jurisprudence, there is a special importance in deciding cases on
concrete facts.
Cf. Minnick v. California Dept. of
Corrections, 452 U. S. 105,
452 U. S.
120-127;
United States v. Raines, 362 U. S.
17,
362 U. S. 21.
Only in specific controversies can the Court decide how this right
of access to criminal trials can be accommodated with other
societal interests, such as the protection of victims or
defendants. The advisory opinion the Court announces today sheds
virtually no light on how such rights should be accommodated.
The question whether the Court should entertain a facial attack
on a statute that bears on the right of access cannot be answered
simply by noting that the right has its source in the First
Amendment.
See, e.g., Bates v. State Bar of Arizona,
433 U. S. 350,
433 U. S.
380-381;
Young v. American Mini Theatres, Inc.,
427 U. S. 50,
427 U. S. 61.
For the right of access is plainly not coextensive with the right
of expression that was vindicated in
Nebraska Press Assn.,
supra. [
Footnote 3/1] Because
statutes that bear on this right of access do not deter protected
activity in the way that other laws sometimes interfere with the
right of expression, we should follow the norm of reviewing these
statutes as applied, rather than on their face.
It is not clear when, if ever, the Court will need to confront
the question whether a mandatory partial closure statute is
unconstitutional. If the order hypothesized by the Supreme Judicial
Court, instead of the trial court's order, had actually been
entered in this case, and if the press had been given prompt access
to a transcript of the testimony of the minor victims, appellant
might not even have appealed. At the
Page 457 U. S. 622
very least, the press, the prosecutor, and defense counsel would
have argued the constitutionality of the partial closure order in
the context of the facts relevant to such an order, and a different
controversy would have been framed for appellate review. In future
cases, the trial courts may voluntarily follow the direction of
Justice Wilkins and make specific findings demonstrating a
compelling state interest supporting the mandated partial closure
order.
See 383 Mass. 838, 852-853,
423
N.E.2d 773, 782 (concurring opinion). Or the record in future
cases may plainly disclose a justification for a partial closure
that the Court would consider acceptable. Thus, aside from the
illumination provided by live controversies, a decision to review
only orders actually entered pursuant to the Massachusetts statute
would advance the policy of avoiding the premature and unnecessary
adjudication of constitutional questions; [
Footnote 3/2] it is at least conceivable that no such
order may ever have to be justified by the conclusion of the
legislature that the mandatory closure of the trial during the
testimony of a minor victim of a sex crime is necessary to serve
important state interests.
The Court does not hold that, on this record, a closure order
limited to the testimony of the minor victims would have been
unconstitutional. Rather, the Court holds only that, if ever such
an order is entered, it must be supported by adequate findings.
Normally, if the constitutional deficiency is the absence of
findings to support a trial order, the Court would either remand
for factfinding, or examine the record itself, before deciding
whether the order measured up to constitutional standards. The
infeasibility of this course of action -- since no such order was
entered in this case and since the order that was entered has
expired -- further demonstrates
Page 457 U. S. 623
that the Court's comment on the First Amendment issues
implicated by the Massachusetts statute is advisory, hypothetical,
and, at best, premature. [
Footnote
3/3]
I would dismiss the appeal.
[
Footnote 3/1]
For example, even though a reporter may have no right of access
to a judge's side-bar conference, it surely does not follow that
the judge could enjoin publication of what a reporter might have
learned about such a conference.
[
Footnote 3/2]
"But the most fundamental principle of constitutional
adjudication is not to face constitutional questions, but to avoid
them, if at all possible."
United States v. Lovett, 328 U.
S. 303,
328 U. S. 320
(Frankfurter, J., concurring).
[
Footnote 3/3]
The "capable of repetition, yet evading review" exception to the
mootness doctrine generally is compatible with our settled policy
of avoiding the premature adjudication of constitutional questions,
see Frank v. Bowman Transportation Co., 424 U.
S. 747,
424 U. S. 756,
n. 8, for an order that is capable of repetition yet evading review
generally is no less ripe for review the first time it is presented
than it would be on subsequent occasions. But when the "order" that
is presented for review the first time is formulated in the
abstract, as was the ruling of the Supreme Judicial Court in this
case, the policy requires the Court to defer review of such an
order until it is entered in a live controversy.