Cable News Network, Inc. v. U.S.

Decision Date15 July 1987
Docket NumberNo. 87-5245,87-5245
Citation824 F.2d 1046
Parties, 56 USLW 2116, 14 Media L. Rep. 1334 CABLE NEWS NETWORK, INC., Capitol Cities/ABC, Inc., CBS, Inc., and National Broadcasting Company, Inc., Appellants, v. UNITED STATES of America and Michael K. Deaver. and consolidated case.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-096).

Timothy B. Dyk, Kevin T. Baine and David E. Kendall, Washington, D.C., were on appellants' motions for summary reversal.

Whitney North Seymour, Jr., New York City, Herbert Miller, Jr., Randall J. Turk and Stephen L. Braga, Washington, D.C., were on appellees' oppositions to appellants' motions for summary reversal.

Before STARR and SILBERMAN, Circuit Judges, and McGOWAN, Senior Circuit Judge.

On Motions for Summary Reversal


We have for resolution a motion by several representatives of the news media which are seeking to cover and report on an ongoing criminal trial. They seek summary reversal of an order entered by the District Court on July 14, 1987, denying their request that voir dire of prospective jurors be conducted in open court.

The events that gave rise to this motion began with the distribution by the District Court of a questionnaire containing approximately forty questions to prospective jurors. The responses to these questionnaires raised concerns on the part of the trial judge that many questions involved matters of personal privacy. On the basis of this concern, the District Judge refused appellants' request for open voir dire, determining instead that voir dire examinations would be conducted in camera save for any prospective jurors who elected to be questioned in open court. At the same time, the court ruled that transcripts of the examinations and completed copies of the questionnaires would be made public as soon as possible, with redactions limited to those matters that the judge specifically found entitled to protection from public disclosure and dissemination.

The District Court accordingly advised the venire members that, although it would hold as much of the proceedings in public as possible, it would leave to the discretion of each juror whether he or she would be questioned in open court or in camera on matters in the questionnaire. Those individuals willing to be questioned publicly were directed to leave their names with the marshal and to return at that time to the jury lounge. Those who preferred questioning in private were asked to remain seated. Five of the approximately thirty prospective jurors volunteered to be questioned in open court.


Appellants contend that the District Court's actions in closing the voir dire proceedings violate the standards for limiting public and press access to criminal voir dire enunciated by the Supreme Court in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). We agree and therefore reverse.

The Press-Enterprise Court made it abundantly clear that the process of juror selection in a criminal trial is of vital importance not only to the accused but more broadly to the criminal justice system and the public. After reviewing the rich history and tradition of open criminal proceedings in English and American courts, the Court concluded that "[t]he open trial ... plays as important a role in the administration of justice today as it did for centuries before our separation from England." Id. at 508, 104 S.Ct. at 823. In articulating the safeguards necessary to protect the "value of openness" in criminal proceedings, id., the Court borrowed from its holding two years previously in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982):

[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where ... the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.

Id. at 606-07, 102 S.Ct. at 2620, quoted in Press-Enterprise, 464 U.S. at 509-10, 104 S.Ct. at 824. Echoing this passage from Globe Newspaper, the Press-Enterprise Court held squarely that in the voir dire setting "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 510, 104 S.Ct. at 824.

In reaching this conclusion, the Press-Enterprise Court set out three conditions necessary to establish that closure of the voir dire is justified. First, trial courts must make findings that an open voir dire proceeding threatens either the defendant's Sixth Amendment right to a fair trial or a prospective juror's privacy interests. Id. at 511, 104 S.Ct. at 825. Second, in order to "minimize the risk of unnecessary closure" trial courts should require prospective jurors to make "affirmative request[s]" for private voir dire examination. Id. at 512, 104 S.Ct. at 825. Finally, trial courts must consider whether alternatives to closure are available that will adequately protect the interests of prospective jurors. Id. at 511, 104 S.Ct. at 825.

We are obliged to conclude that the holding of Press-Enterprise requires reversal of the District Court's ruling in this case. In addition, we are persuaded that the merits of appellants' motion are so clear that summary reversal is appropriate. See, e.g., Sills v. Bureau of Prisons, 761 F.2d 792, 793 (D.C.Cir.1985); United States v. Glover, 731 F.2d 41, 42 (D.C.Cir.1984) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980).


The District Court's order fails to meet any of the three conditions articulated in Press-Enterprise for closure of voir dire.

First, the District Court had no evidence in the record and made no findings that public interrogation of any individual member of the voir dire would "touch[ ] on deeply personal matters that [the juror] has legitimate reasons for keeping out of the public domain." Press-Enterprise, 464 U.S. at 511, 104 S.Ct. at 825. Indeed, the District Court expressly declined to make such findings:

It is not possible for me to exercise discretion in any objective fashion as to what is or is not to be private. Things are private simply because they are private to people. Not on any...

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