GANNETT CO., INC. V. DEPASQUALE, 443 U. S. 368 (1979)

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U.S. Supreme Court

Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979)

Gannett Co., Inc. v. DePasquale

No. 77-1301

Argued November 7, 1978

Decided July 2, 1979

443 U.S. 368


At a pretrial hearing on a motion to suppress allegedly involuntary confessions and certain physical evidence, respondents Greathouse and Jones, who were defendants in a state prosecution for second-degree murder, robbery, and grand larceny, requested that the public and the press be excluded from the hearing, arguing that the unabated buildup of adverse publicity had jeopardized their ability to receive a fair trial. The District Attorney did not oppose the motion, and a reporter employed by petitioner, whose newspapers had given extensive coverage of the crime through the defendants' indictment and arraignment, made no objection at the time of the closure motion, though she was present in the courtroom. Respondent trial judge granted the motion, and, in response to the reporter's letter on the next day asserting a right to cover the hearing and requesting access to the transcript, stated that the suppression hearing had concluded and that any decision on immediate release of the transcript had been reserved. Petitioner then moved to have the closure order set aside but the trial judge, after a hearing, refused to vacate the order or grant petitioner immediate access to the transcript, ruling that the interest of the press and the public was outweighed by the defendants' right to a fair trial. Petitioner immediately commenced a proceeding in the nature of prohibition and mandamus in the New York Supreme Court, Appellate Division, challenging the trial court's orders on First, Sixth, and Fourteenth Amendment grounds. The Appellate Division vacated the orders, holding that they transgressed the public's vital interest in open judicial proceedings and further constituted an unlawful prior restraint in violation of the First and Fourteenth Amendments. The New York Court of Appeals, although holding that the case was technically moot because, shortly before entry of the Appellate Division's judgment, the defendants had pleaded guilty to lesser included offenses and a transcript of the suppression hearing was made available to petitioner, nevertheless retained jurisdiction in view of the importance of the issues, and upheld the exclusion of the press and the public from the pretrial proceeding.


1. The controversy is not moot. This Court's jurisdiction is not defeated

Page 443 U. S. 369

"simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.'"

Nebraska Press Assn. v. Stuart, 427 U. S. 539, 427 U. S. 546. Here, the order closing the pretrial hearing is too short in its duration to permit full review, and it is reasonably to be expected that petitioner will be subjected to similar closure orders in the future. Pp. 443 U. S. 377-378.

2. The Constitution does not give petitioner an affirmative right of access to the pretrial proceeding, all the participants in the litigation having agreed that it should be closed to protect the fair trial rights of the defendants. Pp. 443 U. S. 378-394.

(a) To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. Publicity concerning pretrial suppression hearings poses special risks of unfairness because it may influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial. Pp. 443 U. S. 378-379.

(b) The Sixth Amendment's guarantee of a public trial is for the benefit of the defendant alone. The Constitution nowhere mentions any right of access to a criminal trial on the part of the public. Cf. In re Oliver, 333 U. S. 257; Estes v. Texas, 381 U. S. 532. While there is a strong societal interest in public trials, nevertheless members of the public do not have an enforceable right to a public trial that can be asserted independently of the parties in the litigation. The adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation. Pp. 443 U. S. 379-384.

(c) The history of the Sixth Amendment's public trial guarantee demonstrates no more than the existence of a common law rule of open civil and criminal proceedings, not a constitutional right of members of the general public to attend a criminal trial. Even if the Sixth and Fourteenth Amendments could properly be viewed as embodying the common law right of the public to attend criminal trials, there is no persuasive evidence that the public had any right at common law to attend pretrial proceedings. To the contrary, by the time of the adoption of the Constitution, public trials were clearly associated with the protection of the defendant, and pretrial proceedings, precisely because of the same concern for a fair trial, were never characterized by the same degree of openness a were actual trials. Pp 443 U. S. 384-391.

(d) Even assuming, arguendo, that the First and Fourteenth Amendments may guarantee a right to members of the press and the public

Page 443 U. S. 370

to attend criminal trials in some situations, this putative right was given all appropriate deference by the state nisi prius court in the present case. Even though none of the spectators present in the courtroom, including petitioner's reporter, objected when t.he defendants made the closure motion, petitioner's counsel was given an opportunity to be heard, and the trial court thereafter concluded that the defendants' right to a fair trial outweighed the "constitutional rights of the press and the public." Furthermore, any denial of access was only temporary; once the danger of prejudice .had dissipated, a transcript of the suppression hearing was made available. Thus, any First and Fourteenth Amendment right of petitioner to attend criminal trials was not violated. Pp. 443 U. S. 391-393.

43 N.Y.2d 370. 372 N.E.2d 544. affirmed.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J.,and POWELL, REHNQUIST, and STEVENS, JJ., joined. BURGER, C.J.,post, p. 443 U. S. 394, POWELL, J., post, p. 443 U. S. 397, and REHNQUIST, J., post, p. 443 U. S. 403, filed concurring opinions. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 443 U. S. 406.

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