457 U.S. 596 (1982), 81-611, Globe Newspaper Co. v. Superior Court

Docket Nº:No. 81-611
Citation:457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248
Party Name:Globe Newspaper Co. v. Superior Court
Case Date:June 23, 1982
Court:United States Supreme Court

Page 596

457 U.S. 596 (1982)

102 S.Ct. 2613, 73 L.Ed.2d 248

Globe Newspaper Co.


Superior Court

No. 81-611

United States Supreme Court

June 23, 1982

Argued March 29, 1982



Appellee Massachusetts trial court, relying on a Massachusetts statute providing for exclusion of the general public from trials of specified sexual offenses involving a victim under the age of 18, ordered the exclusion of the press and public from the courtroom during the trial of a defendant charged with rape of three minor girls. Appellant newspaper publisher challenged the exclusion order, and ultimately, after the trial had resulted in the defendant's acquittal, the Massachusetts Supreme Judicial Court construed the Massachusetts statute as requiring, under all circumstances, the exclusion of the press and public during the testimony of a minor victim in a sex-offense trial.


1. The fact that the exclusion order expired with completion of the trial at which the defendant was acquitted does not render the controversy moot within the meaning of Art. III. The controversy is "capable of repetition, yet evading review," [102 S.Ct. 2615] since it can reasonably be assumed that appellant will someday be subjected to another order relying on the Massachusetts statute, and since criminal trials are typically of short duration. Pp. 602-603.

2. The Massachusetts statute, as construed by the Massachusetts Supreme Judicial Court, violates the First Amendment as applied to the States through the Fourteenth Amendment. Pp. 603-607.

(a) To the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that the constitutionally protected "discussion of governmental affairs" is an informed one. The right of access to criminal trials in particular is properly afforded protection by the First Amendment both because such trials have historically been open to the press and public and because such right of access plays a particularly significant role in the functioning of the judicial process and the government as a whole. Pp. 603-606.

(b) The right of access to criminal trials is not absolute, but the circumstances under which the press and public can be barred are limited. The State must show that denial of such right is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. Pp. 606-607.

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3. The Massachusetts statute cannot be justified on the basis of either the State's interest in protecting minor victims of sex crimes from further trauma and embarrassment or its interest in encouraging such victims to come forward and testify in a truthful and credible manner. Pp. 607-610.

(a) Compelling as the first interest is, it does not justify a mandatory closure rule. Such interest could be just as well served by requiring the trial court to determine on a case-by-case basis whether the State's legitimate concern for the minor victim's wellbeing necessitates closure. Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State's interest. Pp. 607-609.

(b) The second asserted interest is not only speculative in empirical terms, but is also open to serious question as a matter of logic and common sense. Although the statute was construed to bar the press and public from the courtroom during a minor sex victim's testimony, the press is not denied access to the transcript, court personnel, or any other source that could provide an account of such testimony, and thus the statute cannot prevent the press from publicizing the substance of that testimony, as well as the victim's identity. Pp. 609-610.

383 Mass. 838, 423 N.E.2d 773, reversed.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 611. BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 612. STEVENS, J., filed a dissenting opinion, post, p. 620.

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BRENNAN, J., lead opinion

JUSTICE BRENNAN delivered the opinion of the Court.

Section 16A of Chapter 278 of the Massachusetts General Laws,1 as construed by the Massachusetts Supreme Judicial Court, requires trial judges, at trials for specified sexual offenses involving a victim under the age of 18, to exclude the press and general public from the courtroom during the testimony of that victim. The question presented is whether the statute thus construed violates the First Amendment as applied to the States through the Fourteenth Amendment.


The case began when appellant, Globe Newspaper Co. (Globe), unsuccessfully attempted to gain access to a rape trial conducted in the Superior Court for the County of Norfolk, Commonwealth of Massachusetts. The criminal defendant in that trial had been charged with the forcible rape and forced unnatural rape of three girls who were minors at the time of trial -- two 16 years of age and one 17. In April, 1979, during hearings on several preliminary motions, the trial judge ordered the courtroom closed.2 Before the trial

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began, Globe moved that the court revoke this closure order, hold hearings on any future such orders, and permit appellant to intervene "for the limited purpose of asserting its rights to access to the trial and hearings on related preliminary motions." App. 12a-14a. The trial court denied Globe's motions,3 relying on Mass.Gen.Laws Ann., ch. 278, § 16A (West 1981), and ordered the exclusion of the press and general public from the courtroom during the trial. The defendant immediately objected to that exclusion order, and the prosecution stated for purposes of the record that the order was issued on the court's "own motion, and not at the request of the Commonwealth." App. 18a.

Within hours after the court had issued its exclusion order, Globe sought injunctive relief from a justice of the Supreme Judicial Court of Massachusetts.4 The next day, the justice conducted a hearing, at which the Commonwealth, "on behalf of the victims," waived "whatever rights it [might] have [had] to exclude the press." Id. at 28a.5 Nevertheless,

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Globe's request for relief was denied. Before Globe appealed to the full court, the rape trial proceeded and the defendant was acquitted.

Nine months after the conclusion of the criminal trial, the Supreme Judicial Court issued its judgment, dismissing Globe's appeal. Although the court held that the case was rendered moot by completion of the trial, it nevertheless stated that it would proceed to the merits, because the issues raised by Globe were "significant and troublesome, and . . . `capable of repetition yet evading review.'" Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 848, 401 N.E.2d 360, 362 (1980), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). As a statutory matter, the court agreed with Globe that § 16A did [102 S.Ct. 2617] not require the exclusion of the press from the entire criminal trial. The provision was designed, the court determined,

to encourage young victims of sexual offenses to come forward; once they have come forward, the statute is designed to preserve their ability to testify by protecting them from undue psychological harm at trial.

379 Mass., at 860, 401 N.E.2d at 369. Relying on these twin purposes, the court concluded that § 16A required the closure of sex-offense trials only during the testimony of minor victims; during other portions of such trials, closure was "a matter within the judge's sound discretion." Id. at 864, 401 N.E.2d at 371. The court did not pass on Globe's contentions that it had a right to attend the entire

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criminal trial under the First and Sixth Amendments, noting that it would await this Court's decision -- then pending -- in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).6

Globe then appealed to this Court. Following our decision in Richmond Newspapers, we vacated the judgment of the Supreme Judicial Court, and remanded the case for further consideration in light of that decision. Globe Newspaper Co. v. Superior Court, 449 U.S. 894 (1980).

On remand, the Supreme Judicial Court, adhering to its earlier construction of § 16A, considered whether our decision in Richmond Newspapers required the invalidation of the mandatory closure rule of § 16A. 383 Mass. 838, 42 N.E.2d 773 (1981).7 In analyzing the First Amendment issue,8 the court recognized that there is "an unbroken tradition of openness" in criminal trials. Id. at 845, 423 N.E.2d at 778. But the court discerned "at least one notable exception" to this tradition: "In cases involving sexual assaults, portions of trials have been closed to some segments of the public, even when the victim was an adult." Id. at 846, 423

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N.E.2d at 778. The court also emphasized that § 16A's mandatory closure rule furthered "genuine State interests," which the court had identified in its earlier decision as underlying the statutory provision. These interests, the court stated, "would be defeated if a case-by-case determination were used." Id. at 848, 423 N.E.2d at 779. While acknowledging that the mandatory closure requirement results in a "temporary diminution" of "the public's knowledge about these trials," the court did not think

that Richmond Newspapers require[d] the invalidation of the requirement, given the statute's narrow scope in an area of traditional sensitivity to the needs of victims.

Id. at 851, 423 N.E.2d at 781. The court accordingly dismissed Globe's appeal.9

Globe again sought review in this Court. We noted...

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