383 Mass. 838 (1981), Globe Newspaper Co. v. Superior Court

Citation:383 Mass. 838, 423 N.E.2d 773
Case Date:June 30, 1981
Court:Supreme Judicial Court of Massachusetts

Page 838

383 Mass. 838 (1981)

423 N.E.2d 773




Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1981

Argued March 2, 1981.

[423 N.E.2d 774] James F. McHugh, Boston (Jane E. Serene with him), for Globe Newspaper co.

Mitchell J. Sikora, Jr., Asst. Atty. Gen. (Alan B. Sherr, Asst. Atty. Gen., with him), for defendant.

James C. Heigham, Boston, for Massachusetts Newspaper Publishers Ass'n, amicus curiae, submitted a brief.


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LIACOS, Justice.

This case is before us on remand from the United States Supreme Court, Globe Newspaper Co. v. Superior Court, --- U.S. ----, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980). The order of the Supreme Court vacated the judgment in GLOBE NEWSPAPER CO. V. SUPERIOR COURT, --- MASS. ---, 401 N.E.2D 360. (GLOBE I) A. The Court remanded the cause for further consideration by this court in light of Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). In Richmond Newspapers, the Supreme Court recognized for the first time that the First Amendment to the United States Constitution guarantees a right of public access to criminal trials. We hold that G.L. c. 278, § 16A, as construed in Globe I, is constitutional under the First Amendment to the Federal Constitution.

The underlying facts of this case are set forth in detail in our original opinion, 1 but for the sake of clarity we provide a brief summary. In mid-April of 1979, preliminary motions were argued in the case of Commonwealth vs. Albert Aladjem, Norfolk Superior Court, No. 73102-9. Aladjem was accused of forcible rape and forced unnatural rape. Three complaining witnesses were involved, all minors, two sixteen and one seventeen years of age at the time of trial. The presiding judge ordered the hearings on preliminary motions closed to the public and press, and the prohibition continued throughout the entire trial. A jury verdict of not guilty was delivered on May 10, 1979. The closure order, issued without hearing, 2 was based on the conclusion of the trial judge that G.L. c. 278, § 16A, required such action. The statute in relevant part reads as follows: "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

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public from the court room, admitting only such persons as may have a direct interest in the case."

Following the action of the Superior Court judge, the plaintiff, Globe Newspaper Company (Globe), sought from a single justice [423 N.E.2d 775] of this court, an order permitting members of the press to attend the trial and related proceedings. G.L. c. 211, § 3. After hearing the parties, the single justice denied the relief sought. The Globe appealed to the full court. In that appeal, the Globe raised statutory and constitutional claims. We held that the case was moot, since the criminal trial already had ended in acquittal. We declined, for a number of reasons, to reach the constitutional issues raised by the Globe. 3 Still, recognizing that the issue before us was one capable of repetition yet evading review, the opinion did delineate our view as to the proper interpretation of G.L. c. 278, § 16A. We held that the statute mandated closure only during the testimony of minor complainants. We also indicated that requests to exclude the public from additional segments of a trial were matters to be considered within the sound discretion of the trial judge. We suggested that a judge should consider whether closure was necessary to protect the State's interest in preserving evidence and obtaining just convictions; such a request should be granted only after a hearing where any person to be excluded, including representatives of the press, could be heard.

The Globe now claims that Richmond Newspapers dictates a different result. No party contests that there are instances where a minor victim may be psychologically unable to testify if confronted with a large group of spectators or if the minor is aware that what is being said will become a

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matter of wide public knowledge. But in the plaintiff's view such a determination can be constitutional only if made in a case-by-case manner after a hearing has been held at which interested parties (the Commonwealth, the defendant, members of the public, including the press) have presented evidence. The automatic closing of a minor victim's testimony would thus be prohibited. Additionally, the plaintiff challenges the standards set forth in Globe I for the closing of other portions of such trials, arguing that adequate weight was not given in this court to the interests of the press and public.

The plaintiff predicates its argument on its own rights under the First Amendment, as applied to the States by the Fourteenth Amendment. See, e. g., Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927) (freedom of speech); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (freedom of the press); DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937) (freedom of assembly). 4 The Globe also suggests that it should be allowed to assert the Sixth Amendment rights of Aladjem, who was the defendant in the underlying criminal prosecution, and who opposed the closing of the trial to the press and public. [423 N.E.2d 776] Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (right to public trial). In Globe I, we rejected this proposition since the accused, having objected to the closure order, chose not to pursue the

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claim after acquittal. We continue to believe that these personal rights, at least in the context of this case, can only be asserted by the original criminal defendant. 5

A resolution of the issues raised by the plaintiff requires a close reading of Richmond Newspapers. The question facing the Supreme Court was whether the public and press possess a constitutional right to attend criminal trials. Id., 448 U.S. at 558, 100 S.Ct. at 2818 (1980) (plurality opinion). 6 A trial judge in a small Virginia

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community had excluded both press and public from the third retrial of a murder case. The closing, on motion by the defense attorney and without objection from the prosecution, was ordered without a hearing on the basis of a statute that placed discretionary authority in the hands of the judge. 7

The Chief Justice and six Justices agreed that the decision to close was improper. Although there was no majority opinion, 8 two themes were stressed by all. The unbroken common law history of open trials was central in the plurality opinion of Chief Justice Burger, joined by Justices White and Stevens. Id. at 563-575, 100 S.Ct. at 2821-2826 (1980). While such a tradition alone does not create a constitutional right [423 N.E.2d 777] in the public and press to attend trials, it was viewed by these Justices in conjunction with the First Amendment's "core purpose of assuring freedom of communication on matters relating to the functioning of government." Id. at 575, 100 S.Ct. at 2827 (1980). The Chief Justice found it "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." Id. The plurality opinion describes an open court room as akin to a public forum protected by freedom of assembly, id. at 577, 100 S.Ct. at 2828 (1980), and as a critical source of information about the functioning of government, id. at 575, 100 S.Ct. at 2827 (1980). This concern with the history of unimpeded access was shared by Justice Blackmun, although he would have found the locus of the public right in the open trial provisions of the Sixth Amendment. Id. at

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601-603, 100 S.Ct. at 2841-2842 (1980). Justice Stewart also adopted the historical analysis, emphasizing in particular the concept of the public forum. Id. at 599, 100 S.Ct. at 2840 (1980).

Justice Brennan, joined by Justice Marshall, accepted the importance of tradition, id. at 588-591, 100 S.Ct. at 2834-2835 (1980), but placed more emphasis on the structural role of the First Amendment in ensuring public access to information necessary for self-government. Id. at 593-597, 100 S.Ct. at 2837-2839 (1980). Justice Stevens shared this position in a separate concurrence, expressing the belief that the major significance of the decision was that the First Amendment was not recognized as creating some affirmative right of access to information in the hands of the government. Id. at 583, 100 S.Ct. at 2831 (1980).

All the members of the Court voting for reversal 9 indicated that there were circumstances where the closing of portions of a trial would be justified. Less clear are the particular instances. There is also little direction about the level of opposing interests necessary to exclude the press and public. The Globe points to a passage in the plurality opinion, "(a)bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public," id. at 581, 100 S.Ct. at 2830 (1980). However, attached to that statement is a footnote in which the plurality disavows any attempt to define the exact circumstances in which trials may be closed. 10

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Justice Brennan's concurrence cautions that a right to governmental information is not absolute but rather subject to "a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality," id. at 586, 100 S.Ct. at 2833 (1980). Justice Stewart specifically pointed to the "sensibilities of a...

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