435 U.S. 589 (1978), 76-944, Nixon v. Warner Communications, Inc.

Docket Nº:No. 76-944
Citation:435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570
Party Name:Nixon v. Warner Communications, Inc.
Case Date:April 18, 1978
Court:United States Supreme Court

Page 589

435 U.S. 589 (1978)

98 S.Ct. 1306, 55 L.Ed.2d 570



Warner Communications, Inc.

No. 76-944

United States Supreme Court

April 18, 1978

Argued November 8, 1977




During the criminal trial of several of petitioner ex-President's former advisers on charges, inter alia, of conspiring to obstruct justice in connection with the so-called Watergate investigation, some 22 hours of tape recordings made of conversations in petitioner's offices in the White House and Executive Office Building were played to the jury and the public in the courtroom, and the reels of the tapes were admitted into evidence. The District Court furnished the jurors, reporters, and members of the public in attendance with transcripts, which were not admitted as evidence but were widely reprinted in the press. At the close of the trial, in which four of the defendants were convicted, and after an earlier unsuccessful [98 S.Ct. 1308] attempt over petitioner's objections to obtain court permission to copy, broadcast, and sell to the public portions of the tapes, respondent broadcasters petitioned for immediate access to the tapes. The District Court denied the petitions on the grounds that, since the convicted defendants had filed notices of appeal, their rights would be prejudiced if respondents' petitions were granted, and that, since the transcripts had apprised the public of the tapes' contents, the public's "right to know" did not overcome the need to safeguard the defendants' rights on appeal. The Court of Appeals reversed, holding that the mere possibility of prejudice to defendants' rights did not outweigh the public's right of access, that the common law right of access to judicial records required the District Court to release the tapes in its custody, and that therefore the District Court abused its discretion in refusing immediate access.


1. Considering all the circumstances, the common law right of access to judicial records does not authorize release of the tapes in question from the District Court's custody. Pp. 597-608.

(a) The common law right to inspect and copy judicial records is not absolute, but the decision whether to permit access is best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Pp. 597-599.

(b) Because of the congressionally prescribed avenue of public access to the tapes provided by the Presidential Recordings and Materials

Page 590

Preservation Act, whose existence is a decisive element in the proper exercise of discretion with respect to release of the tapes, it is not necessary to weigh the parties' competing arguments for and against release as though the District Court were the only potential source of information regarding these historical materials, and the presence of an alternative means of public access tips the scales in favor of denying release. Pp. 599-608.

2. The release of the tapes is not required by the First Amendment guarantee of freedom of the press. The question here is not whether the press must be permitted access to public information to which the public generally has access, but whether the tapes, to which the public has never had physical access, must be made available for copying. There is in this case no question of a truncated flow of information to the public, as the contents of the tapes were given wide publicity by all elements of the media, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, distinguished, and under the First Amendment, the press has no right to information about a trial superior to that of the general public. Pp. 608-610.

3. Nor is release of the tapes required by the Sixth Amendment guarantee of a public trial. While public understanding of the highly publicized trial may remain incomplete in the absence of the ability to listen to the tapes and form judgments as to their meaning, the same could be said of a live witness' testimony, yet there is no constitutional right to have such testimony recorded and broadcast. The guarantee of a public trial confers no special benefit on the press, nor does it require that the trial, or any part of it, be broadcast live or on tape to the public, but such guarantee is satisfied by the opportunity of the public and the press to attend the trial and to report what they have observed. P. 610.

179 U.S.App.D.C. 293, 551 F.2d 1252, reversed and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion dissenting in part, in which BRENNAN, J., joined, post, p. 611. MARSHALL, J., post, p. 612, and STEVENS, J., post, p. 613, filed dissenting opinions.

Page 591

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

This case presents the question whether the District Court for the District of Columbia should release to respondents certain tapes admitted into evidence at the trial of petitioner's former advisers. Respondents wish to copy the tapes for [98 S.Ct. 1309] broadcasting and sale to the public. The Court of Appeals for the District of Columbia Circuit held that the District Court's refusal to permit immediate copying of the tapes was an abuse of discretion. United States v. Mitchell, 179 U.S.App.D.C. 293, 551 F.2d 1252 (1976). We granted certiorari, 430 U.S. 944 (1977), and for the reasons that follow, we reverse.


On July 16, 1973, testimony before the Senate Select Committee on Presidential Campaign Activities revealed that petitioner, then President of the United States, had maintained a system for tape recording conversations in the White House Oval Office and in his private office in the Executive Office Building. Hearings on Watergate and Related Activities Before the Senate Select Committee on Presidential Campaign Activities, 93d Cong., 1st Sess., 2074-2076 (1973). A week later, the Watergate Special Prosecutor issued a subpoena duces tecum directing petitioner to produce before a federal grand jury tape recordings of eight meetings and one telephone conversation recorded in petitioner's offices. When petitioner refused to comply with the subpoena, the District Court for the District of Columbia ordered production of the recordings. In re Subpoena to Nixon, 360 F.Supp. 1, aff'd sub nom. Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700

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(1973). In November, 1973, petitioner submitted seven of the nine subpoenaed recordings and informed the Office of the Special Prosecutor that the other two were missing.

On March 1, 1974, the grand jury indicted seven individuals1 for, among other things, conspiring to obstruct justice in connection with the investigation of the 1972 burglary of the Democratic National Committee headquarters. In preparation for this trial, styled United States v. Mitchell,2 the Special Prosecutor, on April 18, 1974, issued a second subpoena duces tecum, directing petitioner to produce tape recordings and documents relating to some 64 additional Presidential meetings and conversations. The District Court denied petitioner's motions to quash. United States v. Mitchell, 377 F.Supp. 1326 (1974). This Court granted certiorari before judgment in the Court of Appeals, and affirmed. United States v. Nixon, 418 U.S. 683 (1974). In accordance with our decision, the subpoenaed tapes were turned over to the

Page 593

District Court for in camera inspection. The court arranged to have copies made of the relevant and admissible portions. It retained one copy and gave the other to the Special Prosecutor.3

Page 594

The [98 S.Ct. 1310] trial began on October 1, 1974, before Judge Sirica. During its course, some 22 hours of taped conversations were played for the jury and the public in the courtroom. The reels of tape containing conversations played for the jury were entered into evidence. The District Court furnished the jurors, reporters, and members of the public in attendance with earphones and with transcripts prepared by the Special Prosecutor. The transcripts were not admitted as evidence, but were widely reprinted in the press.

Six weeks after the trial had begun, respondent broadcasters4 filed a motion before Judge Sirica, seeking permission to copy, broadcast, and sell to the public the portions of the tapes played at trial. Petitioner opposed the application. Because United States v. Mitchell was consuming all of Judge Sirica's time, this matter was transferred to Judge Gesell.

Page 595

On December 5, 1974, Judge Gesell held that a common law privilege of public access to judicial records permitted respondents to obtain copies of exhibits in the custody of the clerk, including the tapes in question. United States v. Mitchell, 386 F.Supp. 639, 641. Judge Gesell minimized petitioner's opposition to respondents' motion, declaring that neither his alleged property interest in the tapes nor his asserted executive privilege sufficed to prevent release of recordings already publicly aired and available, in transcription, to the world at large. Id. at 642. Judge Gesell cautioned, [98 S.Ct. 1311] however, against "overcommercialization of the evidence." Id. at 643. And because of potential administrative and mechanical difficulties, he prohibited copying until the trial was over. Ibid. He requested that the parties submit proposals for access and copying procedures that would minimize overcommercialization and administrative inconvenience at that time. Ibid. In an order of January 8, 1975, Judge Gesell rejected respondents' joint proposals as insufficient. Id. at 643-644. Noting the close of the Mitchell trial, he transferred the matter back to Judge Sirica.

On April 4, 1975, Judge Sirica denied without prejudice respondents' petitions for immediate access to the tapes. United States v....

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