Appellant
Globe Newspaper Company
Appellee
Superior Court for the County of Norfolk, Massachusetts
Appellant's Claim
That it had the right to attend the rape trial in which the three witnesses claiming to be raped were 16 and 17 years old, despite a Massachusetts state law mandating that all sex-crime trials involving victims under 18 be closed to the public.
Chief Lawyer for Appellant
James F. McHugh
Chief Lawyer for Appellee
Mitchell J. Sikora, Jr., Assistant Attorney General of Massachusetts
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr. (writing for the Court), ThurgoodMarshall, Sandra Day O'Connor, Lewis F. Powell, Jr., Byron R. White
Justices Dissenting
Warren E. Burger, William H. Rehnquist, John Paul Stevens
Place
Washington, D.C.
Date of Decision
23 June 1982
Decision
The Massachusetts state law was too broadly written and was therefore unconstitutional; although states did have the right to occasionally close trials tothe press and the public, the laws permitting such closure had to allow fora case-by-case review rather than summarily closing all trials of a certain type.
Significance
The Globe case established broad rights of the press to cover trials of all types. However, in 1991, three states passed legislation restricting public disclosure of the identity of rape victims, opening the possibility thatthe rights of public access to criminal proceedings may again be narrowed.
In 1979, three young women in Massachusetts accused a man of "forcible rape and forced unnatural rape." At the time, two of the girls were 16 and one was17. The girls had agreed to testify, but, as the prosecutor explained in a lobby conference before the trial, they were concerned about privacy. They werewilling to have the press attend the trial, but they wanted guarantees aboutwhat would actually appear in the newspapers.
Massachusetts state law required that all sex-crime trials involving victimsunder age 18 to be closed to the public, including the press. But the Globe Newspaper Company did not agree with this law. It moved to have the closure revoked. After a long court battle, the case finally made it to the Supreme Court. Although by then, the trial in question was long over (with the defendantfound not guilty), the Court decided that this was an issue that would certainly come up again. Accordingly, the Court decided to review the case in order to set future precedents.
The Right to Privacy vs. the Public's Right to Know
The Court decided to strike down the Massachusetts law in the name of the First Amendment. Justice Brennan, who wrote the majority decision, agreed that some trials could be closed to the public and/or the press. However, as Brennan wrote, the Massachusetts law was simply too broad.
Brennan found two major arguments behind the reasoning for the Massachusettslaw: that minors should be spared the humiliation of having to testify publicly about a traumatic sexual crime, and that more minors would be likely to come forward to report sexual crimes if they knew their privacy would be protected.
Brennan disagreed with the second argument. He pointed out that no one had offered any empirical evidence that protecting privacy did in fact encourage more crime victims to come forward. Moreover, he said, many people are unwilling to face the publicity of a criminal trial, not just victims of sex crimes who are minors. The Massachusetts law had no reason for singling out one typeof trial to close on that basis.
Brennan added that the Massachusetts law did not guarantee absolute secrecy about a rape trial. In the Globe case, for example, the names of the victims were already in the public record. The press could have published theirnames even if no reporters had been allowed at the trial. Likewise, the press would have had access to the trial transcripts and could have published what it wished of their testimony. If victims were worried about publicity, theMassachusetts law would not allay their concerns; therefore, the law was restrictive for no good reason.
Protecting Minors from Trauma
Brennan was sympathetic with the wish to protect young victims of sex crimesfrom further trauma. But he said that a law more "narrowly tailored" was needed. "Although the right of access to criminal trials is of constitutional stature, it is not absolute," he wrote. "But the circumstances under which the press and public can be barred from a criminal trial are limited; the State'sjustification in denying access must be a weighty one."
Although Brennan did not spell out how to decide which trials should be closed, he did offer the following factors to consider:
For example, Brennan wrote, some minors might not mind testifying with reporters in the courtroom, therefore there would be no reason why the public should be denied access to their trials. Some minors might even want the public toknow "what a heinous crime the defendant had committed." Yet the broadly written Massachusetts law would close these trials as well as those in which minors had a genuine wish for privacy.
An Informed Discussion of Governmental Affairs
At first glance, it might be hard to understand why Brennan was so concernedwith keeping trials open to the public, especially in cases where it might make people who had already suffered feel even more uncomfortable. But Brennan's arguments were based on the belief that the public must know what goes on at trials if it is to understand how the government works and what the government is doing. He wrote:
Of course, the First Amendment does not explicitly say that the press has theright to attend criminal trials. But, Justice Brennan wrote, the First Amendment guarantees not just the rights it actually lists, but also those rightsthat are necessary to exercise the rights that it lists. For people to meaningfully exercise their First Amendment right to political speech, they have toknow what their government is doing. To know what their government is doing,they have to read about it in a free press. Therefore, press coverage of governmental activities--including trials--is guaranteed by the First Amendment,and the state needs a "compelling reason" to limit that guarantee.
The Consequences of the Globe Decision
As a result of the Globe decision, federal courts have found many instances in which the public has the right to know about various aspects of thecriminal justice system. Courts have affirmed public access to the examination of jurors, preliminary hearings, hearings to suppress, plea hearings, change of venue hearings, and documents submitted at hearings. The public has somewhat less access to proceedings that involve minors and to information aboutongoing criminal investigations.
However, in the wake of the 1991 rape trial of William Kennedy Smith, in which the media publicized the name of Smith's alleged rape victim, Alaska, Louisiana, and New York all passed laws making it a crime to publicly disclose theidentities of sex-crime victims. The focus of these laws has not been to restrict the press, but rather to cut off public access to identifying information in police and trial records.
Related Cases
Was the Change of Venue Justified?
Judge Richard Matsch, presiding over the federal trial of Timothy McVeigh andTerry Nichols in the Oklahoma City bombing, decided on a change of venue--that is, to move the site of the trial from Oklahoma City to Denver. He believed that the defendants could not receive a fair trial from an impartial jury in Oklahoma City, site of the 19 April 1995 bombing, which killed 168.
From the standpoint of the defense, Matsch's decision was laudable. It was important to create an opportunity for a fair trial, and their defense believedit would have been difficult to find 12 people in Oklahoma City without an opinion about the bombing.
A number of observers, including Jo Thomas of the Minneapolis Star Tribune, criticized Matsch's decision. He cited the cost to the federal government of transporting and housing families of victims. Attorney Robert Precht, who represented Mohammed Salameh in the World Trade Center bombing trial, called the change of venue a "mistake." In his view, the people of Oklahoma City"wanted to show that they could be fair in a case like this."
Sources
Thomas, Jo. "Change of Venue: Is Impartial Jury Possible?," Minneapolis Star Tribune, 23 February 1996, p. 8A.
Globe Newspaper Company
Appellee
Superior Court for the County of Norfolk, Massachusetts
Appellant's Claim
That it had the right to attend the rape trial in which the three witnesses claiming to be raped were 16 and 17 years old, despite a Massachusetts state law mandating that all sex-crime trials involving victims under 18 be closed to the public.
Chief Lawyer for Appellant
James F. McHugh
Chief Lawyer for Appellee
Mitchell J. Sikora, Jr., Assistant Attorney General of Massachusetts
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr. (writing for the Court), ThurgoodMarshall, Sandra Day O'Connor, Lewis F. Powell, Jr., Byron R. White
Justices Dissenting
Warren E. Burger, William H. Rehnquist, John Paul Stevens
Place
Washington, D.C.
Date of Decision
23 June 1982
Decision
The Massachusetts state law was too broadly written and was therefore unconstitutional; although states did have the right to occasionally close trials tothe press and the public, the laws permitting such closure had to allow fora case-by-case review rather than summarily closing all trials of a certain type.
Significance
The Globe case established broad rights of the press to cover trials of all types. However, in 1991, three states passed legislation restricting public disclosure of the identity of rape victims, opening the possibility thatthe rights of public access to criminal proceedings may again be narrowed.
In 1979, three young women in Massachusetts accused a man of "forcible rape and forced unnatural rape." At the time, two of the girls were 16 and one was17. The girls had agreed to testify, but, as the prosecutor explained in a lobby conference before the trial, they were concerned about privacy. They werewilling to have the press attend the trial, but they wanted guarantees aboutwhat would actually appear in the newspapers.
Each . . . 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 tofind out by reading the paper, everyone was concerned about what would happen then.
Massachusetts state law required that all sex-crime trials involving victimsunder age 18 to be closed to the public, including the press. But the Globe Newspaper Company did not agree with this law. It moved to have the closure revoked. After a long court battle, the case finally made it to the Supreme Court. Although by then, the trial in question was long over (with the defendantfound not guilty), the Court decided that this was an issue that would certainly come up again. Accordingly, the Court decided to review the case in order to set future precedents.
The Right to Privacy vs. the Public's Right to Know
The Court decided to strike down the Massachusetts law in the name of the First Amendment. Justice Brennan, who wrote the majority decision, agreed that some trials could be closed to the public and/or the press. However, as Brennan wrote, the Massachusetts law was simply too broad.
Brennan found two major arguments behind the reasoning for the Massachusettslaw: that minors should be spared the humiliation of having to testify publicly about a traumatic sexual crime, and that more minors would be likely to come forward to report sexual crimes if they knew their privacy would be protected.
Brennan disagreed with the second argument. He pointed out that no one had offered any empirical evidence that protecting privacy did in fact encourage more crime victims to come forward. Moreover, he said, many people are unwilling to face the publicity of a criminal trial, not just victims of sex crimes who are minors. The Massachusetts law had no reason for singling out one typeof trial to close on that basis.
Brennan added that the Massachusetts law did not guarantee absolute secrecy about a rape trial. In the Globe case, for example, the names of the victims were already in the public record. The press could have published theirnames even if no reporters had been allowed at the trial. Likewise, the press would have had access to the trial transcripts and could have published what it wished of their testimony. If victims were worried about publicity, theMassachusetts law would not allay their concerns; therefore, the law was restrictive for no good reason.
Protecting Minors from Trauma
Brennan was sympathetic with the wish to protect young victims of sex crimesfrom further trauma. But he said that a law more "narrowly tailored" was needed. "Although the right of access to criminal trials is of constitutional stature, it is not absolute," he wrote. "But the circumstances under which the press and public can be barred from a criminal trial are limited; the State'sjustification in denying access must be a weighty one."
Although Brennan did not spell out how to decide which trials should be closed, he did offer the following factors to consider:
. . . the minor victim's age, psychological maturity and understanding, the nature of thecrime, the desires of the victim, and the interests of parents and relatives.
For example, Brennan wrote, some minors might not mind testifying with reporters in the courtroom, therefore there would be no reason why the public should be denied access to their trials. Some minors might even want the public toknow "what a heinous crime the defendant had committed." Yet the broadly written Massachusetts law would close these trials as well as those in which minors had a genuine wish for privacy.
An Informed Discussion of Governmental Affairs
At first glance, it might be hard to understand why Brennan was so concernedwith keeping trials open to the public, especially in cases where it might make people who had already suffered feel even more uncomfortable. But Brennan's arguments were based on the belief that the public must know what goes on at trials if it is to understand how the government works and what the government is doing. He wrote:
Underlying the First Amendment right of access to criminal trials is the common understanding that "a major purpose" ofthat Amendment was to protect the free discussion of governmental affairs. 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. Thus to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected "discussion of governmental affairs" is an informed one.
Of course, the First Amendment does not explicitly say that the press has theright to attend criminal trials. But, Justice Brennan wrote, the First Amendment guarantees not just the rights it actually lists, but also those rightsthat are necessary to exercise the rights that it lists. For people to meaningfully exercise their First Amendment right to political speech, they have toknow what their government is doing. To know what their government is doing,they have to read about it in a free press. Therefore, press coverage of governmental activities--including trials--is guaranteed by the First Amendment,and the state needs a "compelling reason" to limit that guarantee.
The Consequences of the Globe Decision
As a result of the Globe decision, federal courts have found many instances in which the public has the right to know about various aspects of thecriminal justice system. Courts have affirmed public access to the examination of jurors, preliminary hearings, hearings to suppress, plea hearings, change of venue hearings, and documents submitted at hearings. The public has somewhat less access to proceedings that involve minors and to information aboutongoing criminal investigations.
However, in the wake of the 1991 rape trial of William Kennedy Smith, in which the media publicized the name of Smith's alleged rape victim, Alaska, Louisiana, and New York all passed laws making it a crime to publicly disclose theidentities of sex-crime victims. The focus of these laws has not been to restrict the press, but rather to cut off public access to identifying information in police and trial records.
Related Cases
- Branzburg v. Hayes, 408 U.S. 665 (1972).
- Cox Broadcasting Corp. v. Cohn 420 U.S. 469 (1975).
- Federal Communications Commission v. Pacific Foundation, 438 U.S.726 (1978).
- Gannett Co. v. Depasquale, 443 U.S. 368 (1979).
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
- Bose Corp. v. Consumer's Union of the United States, Inc., 466 U.S. 485 (1984).
- Federal Communications Commission v. League of Women Voters of California, 468 U.S. 364 (1984).
Was the Change of Venue Justified?
Judge Richard Matsch, presiding over the federal trial of Timothy McVeigh andTerry Nichols in the Oklahoma City bombing, decided on a change of venue--that is, to move the site of the trial from Oklahoma City to Denver. He believed that the defendants could not receive a fair trial from an impartial jury in Oklahoma City, site of the 19 April 1995 bombing, which killed 168.
From the standpoint of the defense, Matsch's decision was laudable. It was important to create an opportunity for a fair trial, and their defense believedit would have been difficult to find 12 people in Oklahoma City without an opinion about the bombing.
A number of observers, including Jo Thomas of the Minneapolis Star Tribune, criticized Matsch's decision. He cited the cost to the federal government of transporting and housing families of victims. Attorney Robert Precht, who represented Mohammed Salameh in the World Trade Center bombing trial, called the change of venue a "mistake." In his view, the people of Oklahoma City"wanted to show that they could be fair in a case like this."
Sources
Thomas, Jo. "Change of Venue: Is Impartial Jury Possible?," Minneapolis Star Tribune, 23 February 1996, p. 8A.
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