| Globe Newspaper Co. v. Superior Court
(No. 81-611)
383 Mass. 838, 423 N.E.2d 773, reversed. |
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| Syllabus
| Opinion
[ Brennan ] | Concurrence
[ O'Connor ] | Dissent
[ Burger ] | Dissent
[ Stevens ] |
| HTML version
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Globe Newspaper Co. v. Superior Court
JUSTICE STEVENS, dissenting.
The duration of a criminal trial generally is shorter than the time it takes for this Court's jurisdiction to be invoked and our judgment on the merits to be announced. As a result, our power to review pretrial or midtrial orders implicating the freedom of the press has rested on the exception to the mootness doctrine for orders "capable of repetition, yet evading review." See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563; 448 U.S. 555, 563; Gannett Co. v. DePasquale, 443 U.S. 368, 377-378; 443 U.S. 368, 377-378; Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-547.
Today the Court expands that exception in order to pass on the constitutionality of a statute that, as presently construed, has never been applied in a live controversy. In this case, unlike the three cases cited above, the governing state law was materially changed after the trial court's order had expired by its own terms. There consequently is no possibility "‘that the same complaining party will be subject to the same action again.'" Gannett Co. v. DePasquale, supra, at 377 (quoting Weinstein v. Bradford, 423 U.S. 147, 149).
The fact that the Massachusetts Supreme Judicial Court narrowly construed -- and then upheld in the abstract -- the state statute that the trial court had read to mandate the closure of the entire trial bears on our review function in other respects. We have only recently recognized the First [p621] Amendment right of access to newsworthy matter. See ante at 603; Richmond Newspapers, Inc. v. Virginia, supra, at 582 (STEVENS, J., concurring). In developing constitutional jurisprudence, there is a special importance in deciding cases on concrete facts. Cf. Minnick v. California Dept. of Corrections, 452 U.S. 105, 120-127; United States v. Raines, 362 U.S. 17, 21. Only in specific controversies can the Court decide how this right of access to criminal trials can be accommodated with other societal interests, such as the protection of victims or defendants. The advisory opinion the Court announces today sheds virtually no light on how such rights should be accommodated.
The question whether the Court should entertain a facial attack on a statute that bears on the right of access cannot be answered simply by noting that the right has its source in the First Amendment. See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350, 380-381; 433 U.S. 350, 380-381; Young v. American Mini Theatres, Inc., 427 U.S. 50, 61. For the right of access is plainly not coextensive with the right of expression that was vindicated in Nebraska Press Assn., supra. [n1] Because statutes that bear on this right of access do not deter protected activity in the way that other laws sometimes interfere with the right of expression, we should follow the norm of reviewing these statutes as applied, rather than on their face.
It is not clear when, if ever, the Court will need to confront the question whether a mandatory partial closure statute is unconstitutional. If the order hypothesized by the Supreme Judicial Court, instead of the trial court's order, had actually been entered in this case, and if the press had been given prompt access to a transcript of the testimony of the minor victims, appellant might not even have appealed. At the [p622] very least, the press, the prosecutor, and defense counsel would have argued the constitutionality of the partial closure order in the context of the facts relevant to such an order, and a different controversy would have been framed for appellate review. In future cases, the trial courts may voluntarily follow the direction of Justice Wilkins and make specific findings demonstrating a compelling state interest supporting the mandated partial closure order. See 383 Mass. 838, 852-853, 423 N.E.2d 773, 782 (concurring opinion). Or the record in future cases may plainly disclose a justification for a partial closure that the Court would consider acceptable. Thus, aside from the illumination provided by live controversies, a decision to review only orders actually entered pursuant to the Massachusetts statute would advance the policy of avoiding the premature and unnecessary adjudication of constitutional questions; [n2] it is at least conceivable that no such order may ever have to be justified by the conclusion of the legislature that the mandatory closure of the trial during the testimony of a minor victim of a sex crime is necessary to serve important state interests.
The Court does not hold that, on this record, a closure order limited to the testimony of the minor victims would have been unconstitutional. Rather, the Court holds only that, if ever such an order is entered, it must be supported by adequate findings. Normally, if the constitutional deficiency is the absence of findings to support a trial order, the Court would either remand for factfinding, or examine the record itself, before deciding whether the order measured up to constitutional standards. The infeasibility of this course of action -- since no such order was entered in this case and since the order that was entered has expired -- further demonstrates [p623] that the Court's comment on the First Amendment issues implicated by the Massachusetts statute is advisory, hypothetical, and, at best, premature. [n3]
I would dismiss the appeal.
1. For example, even though a reporter may have no right of access to a judge's side-bar conference, it surely does not follow that the judge could enjoin publication of what a reporter might have learned about such a conference.
But the most fundamental principle of constitutional adjudication is not to face constitutional questions, but to avoid them, if at all possible.
United States v. Lovett, 328 U.S. 303, 320 (Frankfurter, J., concurring).
3. The "capable of repetition, yet evading review" exception to the mootness doctrine generally is compatible with our settled policy of avoiding the premature adjudication of constitutional questions, see Frank v. Bowman Transportation Co., 424 U.S. 747, 756, n. 8, for an order that is capable of repetition yet evading review generally is no less ripe for review the first time it is presented than it would be on subsequent occasions. But when the "order" that is presented for review the first time is formulated in the abstract, as was the ruling of the Supreme Judicial Court in this case, the policy requires the Court to defer review of such an order until it is entered in a live controversy.