As I briefly mentioned above, the Supreme Court has gradually recognized that the First Amendment of the U.S. Constitution underpins – inter alia – a right of access to court proceedings since the holding rendered in Richmond Newspapers, Inc. v. Virginia548. In that case, the right of access to a criminal trial was denied both to the press and to the public. According to the Supreme Court majority opinion, delivered by Chief Justice Burger, the trial court did not provide proper justification for depriving the press and the public of their First Amendment right to gain access to criminal trial proceedings549, a right that – Burger underlines – was historically guaranteed in the United States550. Richmond turns out to be a watershed case, as Justice Stevens pointed out in a concurring opinion551. He puts emphasis on the fact that for the first time, the Supreme Court substantially acknowledges the constitutional foundation of a right of the press to gather news, and of a right of the public
544 Ibid. (italics in original). 545 Id., at 239.
546 Id.
547 Id., at 246 (italics in original). 548 Richmond, 448 U.S., supra note 449. 549 Id., at 580.
550 Id., at 564-574. 551 Id., at 582.
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to gain access to government-held information552. In his concurring opinion, Justice Brennan, instead, stresses the need for a balance that the court is always supposed to strike between the people’s right to gather information from the government and other involved interests553. Therefore, the right to know and to gain access to the court proceedings may outweigh other interests only if the judge holds so on a case-by-case analysis. Justice Brennan concludes that, whether the right at issue is meant as the right to gain access to the courtroom and to relevant records or the right to gather government information in general, “what is crucial in individual cases is whether access to a particular government process is important in terms of that very process.”554 The Supreme Court addressed again accessibility to criminal court proceedings in a 1982 case, which would become another milestone in the field – Globe Newspaper Co. v. Superior Court555. The case was concerned with alleged sexual offenses committed against three minors, and the presiding judge issued an order prescribing the exclusion of the public from the courtroom in conformity with Massachusetts statute law. The core of the holding goes in the same direction as Richmond: the closure of the courtroom to anyone not directly involved in the process results in violating the press’ and the public’s First Amendment right to access to criminal trials556. The majority opinion emphasizes the cardinal role that the principle of openness plays in criminal trials as a guarantee that the fact-finding be carried out correctly and the rights of the accused be respected, because the court proceedings are subject to the supervision of the public557. Despite meeting limits in its application558, the principle of openness in criminal trials is deemed to “foste[r] an appearance of fairness, thereby heightening public respect for the judicial process.”559 The majority opinion also argues that “public access to criminal trials permits the public to participate in and serve as a check upon the judicial process – an
552 Id., at 582-584.
553 Id., at 588 (Brennan, J., concurring) (“An assertion of the prerogative to gather information must
[…] be assayed by considering the information sought and the opposing interests invaded.”)
554 Id., at 589.
555 457 U.S. 596 (1982). 556 Id., at 602.
557 Id., at 606 (contending that “[p]ublic scrutiny of a criminal trial enhances the quality and
safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole.”)
558 Id., at 606-607. The press and the public may be denied access to the courtroom and to relevant
records if “a compelling governmental interest” requires keeping the court proceedings confidential, provided that the closure of the court “is narrowly tailored to serve that interest.” Id., at 607.
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essential component in our structure of self-government.”560 Since access to the courtroom and to court proceedings records ends up being the means by which public scrutiny is exercised over the conduct of trials, courts are allowed to deny the right of access to the press and the public only if there exists no reasonable alternative to closure to safeguard a compelling interest that also enjoys constitutional coverage561.
Considering that access to trials and relative records enables public scrutiny, courts may exclude such access if a few procedural requirements, identified especially by the Supreme Court and by the Second and Forth court of appeals circuits with respect to criminal trials, are met. A court that intends to close – totally or partially – a trial or to seal the relevant records has to comply with a series of procedures, which are “prerequisites” for legitimate denial of the press’ and the public’s right of access to courtroom and to trial records562. The first procedural requirement prescribes that the court decision to opt for a closed-door trial be subject to “[s]ome form of public notice,” to potentially afford anyone an opportunity to challenge such a decision563. The second requirement consists in devoting a public hearing to discussion over the propriety and lawfulness of closing the trial. Those who claim that their right of access to court proceedings has been unduly violated are supposed to be given a chance to argue the closure issue “in open court.”564 Finally, under the third requirement, a court deciding to close a trial and keep the relevant records confidential has to set forth the reasons for the closure of its proceedings on the record in a rather detailed fashion565.
The courts are to follow those procedural requirements “even, and perhaps especially,” in cases involving espionage, where the closure of trial proceedings is justified with the need to preserve either the security of the country or the identity of foreign
560 Ibid. 561 A
DAM LIPTAK, Symposium – Comment, 9 J.L. & Pol’y 21, 21-22 (2000) (referring to Press-
Enterprise v. Superior Court, 478 U.S. 1, 14 (1986); Press-Enterprise v. Superior Court [hereinafter
– Press-Enterprise I], 464 U.S. 501, 510 (1984); Richmond, supra note, at 581).
562 In re Knight Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984). 563 In re Herald Co., 734 F.2d 93, 102 (2th Cir. 1984).
564 United States v. Cojab, 996 F.2d 1404, 1408 (2nd Cir. 1993). The Court of Appeals for the Second
Circuit, indeed, prescribed that the district court order to exclude the public from accessing the Cojab hearing records be vacated, for such an order was issued not in open court but separately.
565 See In re Knight Publishing, 743 F.2d, at 234 (ruling that “[i]f the district court believes it
necessary to close the courtroom after hearing the objections, it must state its reasons on the record, supported by specific findings.”) Those findings must be “specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S., at 510.
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informants566. In 1986, the Fourth Circuit found itself judging one of such cases – In re Washington Post Company567. The case involves a Ghanaian national that is accused of espionage for having received from a low-level CIA employee classified information concerning essentially the identity of covert personnel working for the U.S. Government in Ghana. The Washington Post Company asks the Court of Appeals to vacate orders by which a district court has prescribed the closure of portions of a criminal trial, and the sealing of related documents. The district court, in particular, has denied to the public the right of access to plea and sentencing hearings. Those interested in attending the trial have not been provided any chance to challenge the court secrecy. The idea underlying the closure is that granting the general public access to the trial and to relevant documents could thwart the confidentiality of the content of certain intelligence information. The Fourth Circuit, however, observes that under no circumstances would a public hearing on closure have resulted in disseminating the sensitive information involved in the trial568. To put it differently, an open discussion on the propriety and legitimacy of sealing court proceedings and relevant documents has nothing to do with the contents of the trial, as the substance of the proceedings is kept out of the discussion. Therefore, even if national security concerns are involved in the trial, as is indeed the case with In re Washington Post Company, granting the public an actual chance to challenge the decision of closing the court proceedings does not affect the assessment of such concerns, nor the way of coping with them. Since considering the issue of forbidding public access to the courtroom does not ensue dissemination of the classified information the trial may be concerned with, the Fourth Circuit observes, the procedural requirements previously mentioned “are fully applicable in the context of closure motions based on threats to national security.”569 The Fourth Circuit also argues that if courts were to fail to enforce the procedural requirements for the closure of proceedings whenever classified or otherwise sensitive information are involved in a case,
566 L
IPTAK, Comment, supra note 561, at 26.
567 In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986).
568 Id., at 391 (contending that “[t]here is no reason to fear that these procedures [instrumental to the
lawful closure of court proceedings] would in themselves alert the public to the substance of the information sought to be kept secret.”)
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the independent position of the judicial branch would be undermined by complete deference to the Executive570.