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The First Amendment’s Free Press Clause, which Thomas Jefferson declared indispensable to republicanism, has long been regarded as the “people’s right to know.” Without knowledge of governmental programs, policies and practices, the people would have little ability to hold government accountable. The press, as Jefferson and the founders recognized, could provide the crucial informing function that would make self-government possible.
Historically speaking, protection of the informing function is precisely why the Supreme Court has protected the right of the press to publish what it knows, without restraint or penalty. What had always been missing in American constitutional law, however, was the declaration of the constitutional right of the press to gather newsworthy information. The Court had never squarely addressed the question of whether the First Amendment grants the press a right of access to the news.
That changed abruptly when the Court, in 1980, in a landmark case, Richmond Newspapers v. Virginia, recognized for the first time, in circumstances that seemed to pit the Sixth Amendment against the First Amendment, that the press enjoys a constitutional right to access important information.
The Court’s decision in Richmond Newspapers, which Justice John Paul Stevens characterized as a “watershed case,” followed a bizarre path, amidst dramatic circumstances, that marked a quick and confusing change in the Court’s jurisprudence.
Our story begins with the Court’s ruling in the 1979 case of Gannett Co. v. DePasquale. There, the trial court, over press objections, closed the courtroom to the press and the public during a pretrial hearing on a defense motion to suppress evidence in a sensational murder case. The judge acted, he explained, to prevent prejudice to a future jury, and emphasized that both the defense and prosecution agreed to the closing.
Justice Potter Stewart wrote the Court’s 5-4 opinion, which focused on the Sixth Amendment’s guarantee to an accused of a “public trial.” Justice Stewart held that the Sixth Amendment right applied only to the accused. “Members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials.” Justice Harry Blackmun wrote a dissenting opinion, joined by three others, in which he argued that a pretrial suppression hearing may provide the public with its only opportunity to assess police behavior. In Seneca County, N.Y, where the hearing was held, no criminal cases proceeded to trial that year. Among the Justices, only Lewis Powell, who concurred, mentioned the First Amendment. He said that if it applied at all, the interests of the press would have to be balanced against the interest in protecting the jury.
The Court’s ruling in Gannett was met with an outcry against secret judicial proceedings. Judges around the country chose to close criminal trials. Chief Justice Burger, in a rare moment of public comment, told reporters that those judges had misunderstood the ruling, that it applied to “pretrial proceedings only.”
The Supreme Court was likely embarrassed. A year and a day after the Gannett decision, the Court, in Richmond Newspapers, had before it a propitious opportunity to correct itself. In Richmond, another sensational murder trial, defense counsel moved to close the courtroom. The prosecutor agreed and the judge granted the motion. The newspapers objected and appealed to the Supreme Court.
The Supreme Court, having just recently decided Gannett, was loath to reopen the Sixth Amendment issue. If it wished to overturn the judge’s ruling to close the courtroom, its only ground appeared to be the First Amendment. The problem in relying on that Amendment, however, lay in the fact that while the Court had rendered rulings to protect the right of the press to publish what it knows, it had never held that that the Amendment granted the press access to news. History was about to be made.
In Richmond Newspapers, the Court, in a 7-1 opinion, held that the closing of the courtroom had violated the First Amendment. Chief Justice Burger wrote a plurality opinion which sought to avoid the conclusion that the press might access everything including, perhaps, the Supreme Court’s conferences. Burger emphasized the Anglo-American tradition of open trials and joined that with the First Amendment principle of “freedom of communication on matters relating to the functioning of government.” Free speech, he said, “carries with it some freedom to listen.” At bottom, the First Amendment prohibited the closing of “courtroom doors which had long been open to the public at the time that amendment was adopted.”
In a concurring opinion, Justice Stevens drew the broader jurisprudential lesson of the ruling. For the first time, he emphasized, “the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment.”
In a case that was portrayed at the outset as pitting Sixth Amendment values against First Amendment values, there was joy in realizing that the guarantee of a “public trial” is, in fact, facilitated by press access to courtroom proceedings. As Justice Hugo Black wrote in the seminal case of Bridges v. California (1941), “free speech and fair trial are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.” Fortunately, we don’t very often have to try.