Press-Enterprise Company v. Superior Court of California for the County of Riverside/Dissent Stevens

[p15] JUSTICE STEVENS, with whom JUSTICE REHNQUIST joins as to Part II, dissenting.

The constitutional question presented by this case is whether members of the public have a First Amendment right to insist upon access to the transcript of a preliminary hearing during the period before the public trial, even though the accused, the prosecutor, and the trial judge have all agreed to the sealing of the transcript in order to assure a fair trial.

The preliminary hearing transcript to which petitioner sought access to consists of 4,239 pages of testimony by prosecution witnesses heard over eight weeks. The testimony, contained in 47 volumes, accuses Mr. Robert Diaz, a nurse, of murdering 12 patients in the hospital in which he worked by injecting them with lethal doses of a heart drug. The transcript reveals that the defense put on no witnesses of its own.

Immediately after the Magistrate ordered the defendant bound over for trial, defense counsel moved that the transcript of the preliminary hearing be sealed to protect his [p16] client's right to a fair trial. The transcript, in the words of the Magistrate, revealed "only one side of the story. App. 28a. The transcript also contained the Magistrate's characterization of Mr. Diaz as "the most dangerous type of individual there is." Id., at 27a. The prosecutor did not oppose this motion, and the Magistrate, after hearing petitioner's objection, ordered the transcript sealed.

The Superior Court trial judge denied a motion to unseal the transcript. He found—and the finding is amply supported by the record—that "there is a reasonable likelihood that making all or any part of the transcripts public might prejudice the defendant's right to a fair and impartial trial." Id., at 61a. Accord, id., at 62a. The Magistrate had earlier rejected less restrictive alternatives to sealing the transcript, concluding that "the only way to protect" the defendant's "[fair trial] right would be to seal the transcript." Id., at 37a.

The Court of Appeal agreed with the trial judge and denied the peremptory writ of mandate sought by petitioner. It rejected petitioner's assertion that "the superior court failed to state any reasons or make a specific finding to support the sealing order." App. to Pet. for Cert. E-11. Instead, it confirmed the trial judge's determinations that "the transcript is indicative of only the prosecutorial side of the case," id., at E-14; that the public's right of access was overborne by "the reasonable likelihood of substantial prejudice" to "the defendant's right to a fair trial," id., at E-9; and that "[a]lternatives to sealing the transcript would not suffice in this [p17] case," id., at E-14. The California Supreme Court similarly denied petitioner's request for a peremptory writ of mandate, affirming that a preliminary hearing transcript can be sealed upon a showing of a "reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial." 37 Cal. 3d 772, 781, 691 P.2d 1026, 1032 (1984).

In view of the above, the trial judge had an obvious and legitimate reason for refusing to make the transcript public any sooner than he did. His decision plainly did not violate the defendant's right to a public trial under the Sixth Amendment, for it was the defendant who objected to release of the transcript. See Gannett Co. v. DePasquale, 443 U.S. 368, 383-384 (1979). In my opinion, the judge's decision did not violate the First Amendment either.

I
Although it is perhaps obvious, it bears emphasis that the First Amendment right asserted by petitioner is not a right to publish or otherwise communicate information lawfully or unlawfully acquired. That right, which lies at the core of the First Amendment and which erased the legacy of restraints on publication against which the drafters of that Amendment rebelled, see Grosjean v. American Press Co., 297 U.S. 233, 245-250 (1936), may be overcome only by a governmental objective of the highest order attainable in a no less intrusive way. See e.g., Smith v. Daily Mail Publishing Co., 443 U.S. 97, 101-106 (1979); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837-845 (1978); Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 310-312 (1977) (per curiam); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 556-570 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487-497 (1975). The First Amendment right [p18] asserted by petitioner in this case, in contrast, is not the right to publicize information in its possession, but the right to acquire access thereto.

I have long believed that a proper construction of the First Amendment embraces a right of access to information about the conduct of public affairs.

"As Madison wrote:

"'A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' 9 Writings of James Madison 103 (G. Hunt ed. 1910).

"It is not sufficient, therefore, that the channels of communication be free of governmental restraints. Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance.

"For that reason information gathering is entitled to some measure of constitutional protection." Houchins v. KQED, Inc., 438 U.S. 1, 31-32 (1978) (STEVENS, J., dissenting).

[p19] Neither our elected nor our appointed representatives may abridge the free flow of information simply to protect their own activities from public scrutiny. An official policy of secrecy must be supported by some legitimate justification that serves the interest of the public office. Thus, in Pell v. Procunier, 417 U.S. 817 (1974) and Saxbe v. Washington Post Co., 417 U.S. 843 (1974), we confirmed that the warden's regulation of prearranged inmate press interviews had a legitimate disciplinary and penological basis and was "not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions." Pell v. Procunier, 417 U.S., at 830. Accord, Saxbe v. Washington Post Co., 417 U.S., at 848. Likewise, in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), we held that any First Amendment access right "was given all appropriate deference by the state nisi prius court," id., at 392, which had entered a "finding on the record that an open suppression hearing would pose a 'reasonable probability of prejudice to these defendants,'" id., at 376. Conversely, in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), a violation of the First Amendment was established by the "total absence of any record justification for the closure order," id., at 584 (STEVENS, J., concurring). Accord, id., at 580-581 (opinion of BURGER, C.J.). The same constitutional infirmity afflicted the order excluding the public from attending the testimony of minor victims in a sex-offense trial in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-609 (1982) ("the record indicates that the victims may have been willing to testify despite the presence of the press" (footnote omitted)), and the order closing the voir dire proceedings and sealing the transcript in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510-511 (1984) ("prolonged closure was unsupported by findings"); id., at 513 ("trial judge provided no explanation" for his [p20] "broad order"; id., at 515 (BLACKMUN, J. concurring). Cf. Waller v. Georgia, 467 U.S. 39, 48, n. 7, n. 8, (1984).

But it has always been apparent that the freedom to obtain information that the government has a legitimate interest in not disclosing, see Globe Newspaper Co. v. Superior Court, 457 U.S., at 621 (STEVENS, J., dissenting), is far narrower than the freedom to disseminate information, which is "virtually absolute" in most contexts, Richmond Newspapers, Inc. v. Virginia, 448 U.S., at 582 (STEVENS, J. concurring). In this case, the risk of prejudice to the defendant's right to a fair trial is perfectly obvious. For me, that risk is far more significant than the countervailing interest in publishing the transcript of the preliminary hearing sooner rather than later. Cf. Gannett Co. v. DePasquale, 443 U.S., at 393 (upholding closure of suppression hearing in part because "any denial of access in this case was not absolute but only temporary"). The interest in prompt publication—in my view—is no greater than the interest in prompt publication of grand jury transcripts. As explained more fully below, we have always recognized the legitimacy of the governmental interest in the secrecy of grand jury proceedings, and I am unpersuaded that the difference between such proceedings and the rather elaborate procedure for determining probable cause that California has adopted strengthens the First Amendment claim to access asserted in this case.

II
[p21] The Court nevertheless reaches the opposite conclusion by applying the "two complementary considerations," ante, at 8, of "experience and logic," ante, at 9. In my view, neither the Court's reasoning nor the result it reaches is supported by our precedents.

The historical evidence proffered in this case is far less probative than the evidence adduced in prior cases granting public access to criminal proceedings. In those cases, a common-law tradition of openness at the time the First Amendment was ratified suggested an intention and expectation on the part of the Framers and ratifiers that those proceedings would remain presumptively open. Thus, in Richmond Newspapers, Inc v. Virginia, 448 U.S., at 564, THE CHIEF JUSTICE explained that "[w]hat is significant for present purposes is that throughout its evolution, the trial has been open to all who cared to observe." "[T]he historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open." Id., at 569 (emphasis added). History was relevant because it demonstrated that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself." Id., at 575. The opinion for the Court in Globe Newspaper Co. v. Superior Court, 457 U.S., at 605, which also concerned the presumptive openness of a criminal trial, relied expressly on the opinion of THE CHIEF JUSTICE in Richmond Newspapers for the point that criminal trials were open "at the time when our organic laws were adopted." 448 U.S., at 569. Later, in Press-Enterprise Co. v. Superior Court, the Court quoted the identical passage from Richmond Newspapers, see 464 U.S., at 505, and concluded that "[p]ublic jury selection thus was the common practice in America when the Constitution was [p22] adopted," id., at 508. To dispel any doubt regarding the significance of this evidence, we explained that "the question we address—whether the voir dire process must be open—focuses on First ... Amendment values ''and the historical backdrop against which the First Amendment was enacted." Id.'', at 509, n. 8 (emphasis added). Thus, in our prior cases history mattered primarily for what it revealed about the intentions of the Framers and ratifiers of the First Amendment.

In this case, however, it is uncontroverted that a common-law right of access did not inhere in preliminary proceedings at the time the First Amendment was adopted, and that the Framers and ratifiers of that provision could not have intended such proceedings to remain open. As Justice Stewart wrote for the Court in Gannett Co. v. DePasquale: "[T]here exists no persuasive evidence that at common law members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary. By the time of the adoption of the Constitution,... pretrial proceedings, precisely because of the... concern for a fair trial, were never characterized by the same degree of openness as were actual trials.

"Under English common law, the public had no right to attend pretrial proceedings. E.g., E. Jenks, The Book of English law 75 (6th ed. 1967) ('It must, of course, be remembered, that the principle of publicity only applies to the actual trial of a case, not necessarily to the preliminary or prefatory stages of the proceedings...'); F. Maitland, Justice and Police 129 (1885) (The 'preliminary examination of accused persons had gradually assumed a very judicial form... The place in which it is held is indeed no "open court," the public can be excluded if the magistrate thinks that the ends of justice will thus be best answered...'). See also Indictable Offenses Act, 11 & 12 Vict., ch. 42, § 19 (1848) [p23] (providing that pretrial proceedings should not be deemed an open court and that the public could therefore be excluded); Magistrates' Courts Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55, § 4(2) (1952) (same)." 443 U.S., at 387-389 (footnotes omitted).

Justice Stewart included in his discussion the following quotation from Lord Ellenborough; the Law Lord explains, in reasons as relevant today as they were when the Bill of Rights was adopted, the historical basis for the closure of preliminary proceedings: "'If any thing is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are decide, with minds pure and unprejudiced. ... Trials at law fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. ... But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice.' King v. Fisher, 2 Camp. 563, 570-571, 170 Eng. Rep. 1253, 1255 (N.P. 1811)."

In the final analysis, the Court's lengthy historical disquisition demonstrates only that in many States preliminary proceedings are generally open to the public. See ante, at 10-11, n. 3. In other states, numbering California and Michigan among them, see In re Midland Publishing Co., [p24] 420 Mich. 148, 162, 172-174, 362 N.W.2d 580, 588, 593-594 (1984), such proceedings have been closed. To paraphrase the Court's analysis in McMillan v. Pennsylvania, 477 U.S. 79, 90 (1986) (footnote omitted), "the fact that the States" have adopted different rules regarding the openness of preliminary proceedings "is merely a reflection of our federal system, which demands '[t]olerance for a spectrum of state procedures dealing with a common problem of law enforcement,' Spencer v. Texas, 385 U.S. 554, 566 (1967). That [California's] particular approach has been adopted in few other States does not render [its] choice unconstitutional." [p25] As Justice Stewart admonished: we must not "confus[e] the existence of a constitutional right with the common-law tradition of open... proceedings." Gannett Co. v. DePasquale, 443 U.S., at 389, n. 19. The recent common-law developments reported by the Court are relevant, if at all, only insofar as they suggest that preliminary proceedings merit the "beneficial effects of public scrutiny." Cox Broadcasting Corp. v. Cohn, 420 U.S., at 492. The Court's historical crutch cannot carry the weight of opening a preliminary proceeding that the State has ordered closed; that determination must stand or fall on whether it satisfied the second component of the Court's test.

If the Court's historical evidence proves too little, the "'value of openness'", ante, at 13 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S., at 508), on which it relies proves too much, for this measure would open to public scrutiny far more than preliminary hearings "as they are conducted in California" (a comforting phrase invoked by the Court in one form or another more than eight times in its opinion). In brief, the Court's rationale for opening the "California preliminary hearing" is that it "is often the final and most important step in the criminal proceeding"; that it provides "'the sole occasion for public observation of the criminal justice system'"; that it lacks the protective [p26] presence of a jury; and that closure denies an outlet for community catharsis. Ante, at 12, 13 (quotation omitted). The obvious defect in the Court's approach is that its reasoning applies to the traditionally secret grand jury with as much force as it applies to California preliminary hearings. A grand jury indictment is just as likely to be the "final step" in a criminal proceeding and the "sole occasion" for public scrutiny as is a preliminary hearing. Moreover, many critics of the grand jury maintain that the grand jury protects the accused less well than does a legally knowledgeable judge who personally presides over a preliminary hearing. See Hawkins v. Superior Court, 22 Cal. 2d 584, 590, 586 P. 2d 916, 919-920 (1978) (holding deprivation of preliminary hearing to constitute a denial of equal protection under State Constitution in part because "'the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury'" (quoting Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & C. 1974 (1973))). Finally, closure of grand juries denies an outlet for community rage. When the Court's explanatory veneer is stripped away, what emerges is the reality that the California preliminary hearing is functionally identical to the traditional grand jury. As THE CHIEF JUSTICE emphasized by his quotation of Cox v. Coleridge, 1 B. & C. 37, 49-50, 107 Eng. Rep. 15, 19-20 (1822), in his concurring opinion in Gannett Co. v. DePasquale 443 U.S., at 395, n. (emphasis added): "It [the proceeding] is only a preliminary inquiry, whether there be sufficient ground to commit the prisoner for trial. The proceeding before the grand jury is precisely of the same nature, and it would be difficult, if the right exists in the present case, to deny it in that. This being only a preliminary inquiry, and not a trial, makes, in my mind, all the difference."

The Court's reasoning—if carried to its logical outcome—thus contravenes the "long-established policy that maintains [p27] the secrecy of the grand jury proceedings in the federal courts" and in the courts of 19 States. United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958). "Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings." Branzburg v. Hayes, 408 U.S. 665, 684-685 (1972). This Court has previously described grand jury secrecy as "indispensable," United States v. Johnson, 319 U.S. 503, 513 (1943), and has remarked that "'the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings,'" United States v. Sells Engineering, Inc., 463 U.S. 418, 424 (1983) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979)).

In fact, the logic of the Court's access right extends even beyond the confines of the criminal justice system to encompass proceedings held on the civil side of the docket as well. As Justice Stewart explained: "If the existence of a common-law rule were the test for whether there is a Sixth Amendment public right to a public trial, therefore, there would be such a right in civil as well as criminal cases. ... In short, there is no principled basis upon which a public right of access to [p28] judicial proceedings can be limited to criminal cases if the scope of the right is defined by the common law rather than the text and structure of the Constitution.

"Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. ... Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases." Gannett Co. v. DePasquale, 443 U.S., at 386-387, n. 15. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 29-37 (1984) (newspaper not allowed to publish information to which it was privy as a litigant in a civil action). Despite the Court's valiant attempt to limit the logic of its holding, the radio decidendi of today's decision knows no bounds.

By abjuring strict reliance on history and emphasizing the broad value of openness, the Court tacitly recognizes the importance of public access to government proceedings generally. Regrettably, the Court has taken seriously the stated requirement that the sealing of a transcript be justified by a "compelling" or "overriding" governmental interest and that the closure order be "'narrowly tailored to serve that interest'" Ante, at 9 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S., at 501); Press-Enterprise Co. v. Superior Court, 464 U.S., at 510 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S., at 607). See ante, at 13-14. This standard—as well as the two-part test of history and logic that formed the basis for the decision today—originated as two "helpful principles" in JUSTICE BRENNAN's eloquent concurrence in Richmond Newspapers, Inc. v. Virginia, 448 U.S., at 589. That concurrence recognized that "'[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow,'" id., at 588 (quoting Zemel v. Rusk, 381 U.S. 1, 16-17 (1965)), and—in contrast with the decision today—stressed that "[a]n assertion of the prerogative to gather information must accordingly be assayed by considering the information sought [p29] and the opposing interests invaded," 448 U.S., at 588 (footnote omitted)—a determination "as much as a matter of sensitivity to practical necessities as ... of abstract reasoning," ibid. The cases denying access have done so on a far lesser showing than that required by a compelling governmental interest/least restrictive means analysis, see supra, at 19-20, and cases granting access have recognized as legitimate grounds for closure interests that fall far short of those traditionally thought to be "compelling," see Press-Enterprise Co. v. Superior Court, 464 U.S., at 511-512 (privacy interest of venirepersons sufficient reason to close presumptively open voir dire proceeding); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S., at 600 (Stewart, J., concurring in judgment).

The presence of a legitimate reason for closure in this case requires an affirmance. The constitutionally grounded fair trial interests of the accused if he is bound over for trial, and the reputational interests of the accused if he is not, provide a substantial reason for delaying access to the transcript for at least the short time before trial. By taking its own verbal formulation seriously, the Court reverses—without comment or explanation or any attempt at reconciliation—the holding in Gannett that a "reasonable probability of prejudice" is enough to overcome the First Amendment right of access to a preliminary proceeding. It is unfortunate that the Court neglects this opportunity to fit the result in this case into the body of precedent dealing with access rights generally. I fear that today's decision will simply further unsettle the law in this area.

I respectfully dissent.