NCJ Number
52826
Journal
Harvard Law Review Volume: 91 Issue: 8 Dated: (JUNE 1978) Pages: 1899-1924
Date Published
1978
Length
26 pages
Annotation
THE ROLE OF THE COURT IN SOCIETY AND THE COMMON LAW CONDITION OF OPEN TRIALS ARE EXAMINED IN AN EFFORT TO AVOID THE FREE PRESS/FAIR TRIAL IMPASSE BY FOCUSING ON THE PUBLIC INTEREST IN OPEN TRIALS.
Abstract
MOST COMMONLY CITING THE EFFECTS OF PREJUDICAL PUBLICITY, COURTS INCREASINGLY HAVE RESTRICTED PUBLIC ACCESS TO JUDICIAL PROCEEDINGS BY HOLDING PORTIONS OF TRIALS IN SECRET OR BY PLACING RESTRAINTS ON THE DISSEMINATION OF INFORMATION BY THE PRESS OR PARTICIPANTS. THUS FAR THE U.S. SUPREME COURT HAS RECOGNIZED AN ABSOLUTE RIGHT OF THE PRESS TO REPORT MATTERS TRANSPIRING IN OPEN COURT AND, LESS CATEGORICALLY, HAS STRUCK DOWN ORDERS RESTRAINING THE PRESS FROM REPORTING TRIAL-RELATED INFORMATION OBTAINED OUT OF COURT. HOWEVER, THE COURT HAS NOT ADDRESSED THE QUESTIONS OF CLOSURE OR GAG ORDERS ON PARTICIPANTS, EXCEPT TO SUGGEST THAT AN ACCEPTABLE ALTERNATIVE TO RESTRAINING THE PRESS DIRECTLY MIGHT BE TO CLOSE PORTIONS OF THE TRIAL PROCEEDINGS ALTOGETHER. IT IS ARGUED THAT THIS SUGGESTION SHOULD BE REJECTED, AND THAT THE CONFLICTS SHOULD BE SEEN NOT AS ONE BETWEEN DEFENDANTS' RIGHTS AND PRESS FREEDOMS, BUT RATHER AS ONE BETWEEN GOVERNMENT'S INTEREST IN CONVICTING CRIMINALS AND THE PUBLIC'S RIGHT OF ACCESS. HOLDING COURT IN PUBLIC HAS A UNIQUE SIGNIFICANCE FOR A SOCIETY THAT COMMITS ITSELF TO THE RULE OF LAW. NOT ONLY DOES THE OPEN TRIAL PROVIDE THE PUBLIC WITH ITS BEST OPPORTUNITY TO SCRUTINIZE THE WORKINGS OF THE JUDICIAL SYSTEM, IT ALSO ALLOWS THE PUBLIC TO PARTICIPATE, THROUGH THE 'THEATER OF JUSTICE,' IN THE RITUAL PROCESS ESTABLISHED BY SOCIETY TO RESOLVE ITS CONFLICT. TWO SETS OF VALUES EMBRACED BY THE FIRST AMENDMENT--THE INSTRUMENTAL VALUE OF INFORMATION IN A SELF-GOVERNING SOCIETY AND THE INTRINSIC IMPORTANCE OF SELF-EXPRESSION--PARALLEL THE SCRUTINY AND RITUAL ROLES PLAYED BY PUBLIC TRIALS. A FIRST AMENDMENT FOCUS EMPHASIZES THE SIMILARITIES AND DIFFERENCES BETWEEN THE RIGHT OF PUBLIC ACCESS TO TRIALS AND THE PROTECTION OF LISTENERS' RIGHTS OR OF ASSERTED RIGHTS OF ACCESS TO OTHER GOVERNMENT FUNCTIONS. SUCH A FOCUS CIRCUMVENTS THE IMPASSE REACHED IN ATTEMPTS TO RESOLVE THE CONFLICT IN TERMS OF THE CRIMINAL DEFENDANT'S RIGHT TO A FAIR TRIAL VERSUS THE RIGHT OF THE PRESS TO COVER THE TRIAL, AND FIXES THE RIGHT OF PUBLIC ACCESS AS A FUNDAMENTAL FIRST AMENDMENT FREEDOM. APPROACHES TO RECONCILING THE RIGHT OF PUBLIC ACCESS WITH COUNTERVAILING INTERESTS (THOSE BASED ON A NEED TO MAINTAIN ORDER IN THE COURTROOM AND THOSE GROUNDED IN CONCERNS ABOUT THE CONTENT OF INFORMATION MADE PUBLIC) ARE SUGGESTED. REFERENCES ARE FOOTNOTED. (AUTHOR ABSTRACT MODIFIED--LKM)