448 U.S. 555 (1980)
In March 1976, one Stevenson was indicted for the murder of a hotel manager. After a prompt July 1976 trial, Stevenson was convicted of second-degree murder. The Virginia Supreme Court reversed that conviction in October 1977, holding that a bloodstained shirt purportedly belonging to Stevenson had been improperly admitted into evidence. Stevenson was retried, and the second trial ended in a mistrial on May 30, 1978, when a juror asked to be excused after trial had begun and no alternate was available.
The third trial, which began June 6, 1978, also ended in a mistrial, apparently because a prospective juror had read about Stevenson's prior trials and had told other prospective jurors about the case before the retrial began. Stevenson was tried a fourth time beginning September 11, 1978. Present in the courtroom when the case was called were reporters Wheeler and McCarthy of Richmond Newspapers, Inc.1 Before the trial began, counsel for the defendant moved that it be closed to the public, explaining concern that persons in the audience would discuss testimony during recesses and thereby influence jurors.
The trial judge, who had presided over two of the three previous trials, asked whether the prosecution objected to clearing the courtroom. The prosecutor stated he had no objection. The judge referenced Va. Code § 19.2-266 and announced that, under the statute and on the defendant's motion, the courtroom would be kept clear of all parties except the witnesses when they testified. The record does not show that any objections to the closure were made by anyone present at the time, including the reporters.
Later that same day appellants sought a hearing to vacate the closure order. The judge granted the request and scheduled a hearing for after the day's proceedings. When the hearing began, the court treated it as part of the trial and again ordered the reporters to leave; they complied. At the closed hearing, counsel for appellants observed that no evidentiary findings had been made before entry of the closure order and that the court had not considered less drastic measures to ensure a fair trial. Counsel for defendant Stevenson emphasized that this was the fourth time he stood trial, referred to prior difficulties with juror information, and stated that he did not want information to leak out, be inaccurately published, and then be seen by jurors. The court denied the motion to vacate and ordered the trial to continue the following morning with the press and public excluded.
When the closed trial resumed the next day, the court's order of September 12, 1978, reflects that in the absence of the jury the defendant made a motion for a mistrial which was taken under advisement; at the conclusion of the Commonwealth's evidence, defense counsel moved to strike the Commonwealth's evidence, that motion was sustained, and the court found the accused not guilty and allowed him to depart. On September 27, 1978, the trial court granted appellants' motion to intervene nunc pro tunc in the Stevenson case. Appellants then petitioned the Virginia Supreme Court for writs of mandamus and prohibition and filed an appeal from the trial court's closure order. On July 9, 1979, the Virginia Supreme Court dismissed the mandamus and prohibition petitions and, finding no reversible error, denied the petition for appeal. The Supreme Court postponed jurisdictional consideration to the merits and, treating the filed papers as a petition for a writ of certiorari, granted the petition. The criminal trial which appellants sought to attend has long since ended, and there is thus some suggestion that the case is moot.
Whether the case is moot because the criminal trial has ended?2
A case is not moot if the underlying dispute is capable of repetition yet evading review.3
No. Although the criminal trial which appellants sought to attend has long since ended, the dispute is capable of repetition yet evading review.4 It is reasonably foreseeable that other trials may be closed by other judges without any greater showing of need than is presented here.5 More often than not, criminal trials are of sufficiently short duration that a closure order will evade review.6
The case is not moot.7
Whether the right of the public and press to attend criminal trials is guaranteed under the United States Constitution?8
The First and Fourteenth Amendments guarantee the public's and press's right to attend criminal trials as implicit in the guarantees of freedom of speech and of the press.9
Yes. The historical evidence demonstrates conclusively that, at the time our organic laws were adopted, criminal trials both in England and here had long been presumptively open.10
The origins of the modern criminal trial in Anglo-American justice are ancient, and throughout its evolution the trial has been open to all who cared to observe.11 Colonial American records indicate that the presumptive openness of trials was an attribute of the judicial systems here as well.12
The First Amendment, applied to the States through the Fourteenth Amendment, prohibits government abridgment of freedom of speech and of the press and guarantees the right peaceably to assemble.13 These freedoms serve the core purpose of assuring freedom of communication on matters relating to the functioning of government.14 The manner in which criminal trials are conducted is plainly of the highest public concern, and the Bill of Rights was enacted against the background of the long history of presumptively open trials.15
The right of access to places traditionally open to the public, such as criminal trials, may be seen as assured by the amalgam of First Amendment guarantees of speech and press, with the right of assembly being cognate and relevant.16 Having concluded that the First and Fourteenth Amendments guarantee the public's right to attend the trial at issue, the closure order must be examined.17
In this case the trial judge made no findings to support closure, made no inquiry as to whether alternative solutions would have ensured fairness, and did not recognize any public or press right to attend.18 Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.19 The facts show that in March 1976 Stevenson was indicted for murder.20 After multiple mistrials and reversals, the fourth trial began in September 1978 with reporters from Richmond Newspapers present.21 Counsel for the defendant moved to close the trial, citing concerns over juror influence, and the prosecutor did not object.22
The trial judge referenced Va. Code § 19.2-266 and ordered the courtroom cleared without prior evidentiary findings or consideration of less restrictive alternatives.23 Appellants sought to vacate the order, but the motion was denied and the trial proceeded to acquittal in closed session.24 Appellants intervened and pursued mandamus, prohibition, and appeal through the Virginia Supreme Court, which denied relief, leading to review in this Court.25
The precise issue presented here has not previously been decided by this Court.26 In Gannett Co. v. DePasquale the Court held that the Sixth Amendment's guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access to a pretrial suppression hearing.27 The question now presented is whether a criminal trial itself may be closed to the public upon the unopposed request of a defendant without any demonstration that closure is required to protect the defendant's superior right to a fair trial or that some other overriding consideration requires closure.28
The State argues that because the Constitution nowhere explicitly guarantees a public right to attend trials, no such right exists.29 While caution is appropriate before reading rights into the Constitution that are not explicit, the Court has recognized important unarticulated rights implicit in enumerated guarantees when those rights are indispensable to the enjoyment of express protections.30 The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, important aspects of freedom of speech and of the press could be eviscerated.31
The right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments.32
Related opinions on this issue
This case would have been unnecessary had Gannett Co. v. DePasquale construed the Sixth Amendment to forbid excluding the public from criminal proceedings except in narrowly defined circumstances.33 But the Court there rejected the submission of four of us to this effect, thus requiring that the First Amendment issue involved here be addressed.34 On this issue, I concur in the opinion of the Chief Justice.35
This is a watershed case.36 Until today the Court has accorded virtually absolute protection to the dissemination of information or ideas, but never before has it squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever.37 Today, however, for the first time, the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment.38
It is somewhat ironic that the Court should find more reason to recognize a right of access today than it did in Houchins.39 In any event, for the reasons stated in Part II of my Houchins opinion as well as those stated by the Chief Justice today, I agree that the First Amendment protects the public and the press from abridgment of their rights of access to information about the operation of their government, including the Judicial Branch.40 Given the total absence of any record justification for the closure order entered in this case, that order violated the First Amendment.41
Gannett Co. v. DePasquale held that the Sixth Amendment right to a public trial was personal to the accused, conferring no right of access to pretrial proceedings that is separately enforceable by the public or the press.42 The instant case raises the question whether the First Amendment, of its own force and as applied to the States through the Fourteenth Amendment, secures the public an independent right of access to trial proceedings.43 Because I believe that the First Amendment of itself and as applied to the States through the Fourteenth Amendment secures such a public right of access, I agree with those of my Brethren who hold that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public.44
Tradition, contemporaneous state practice, and this Court's own decisions manifest a common understanding that a trial is a public event.45 Public access is essential, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice.46 Trial access, therefore, assumes structural importance in our government of laws.47
In Gannett Co. v. DePasquale, the Court held that the Sixth Amendment, which guarantees the accused the right to a public trial, does not confer upon representatives of the press or members of the general public any right of access to a trial.48 But the Court explicitly left open whether such a right of access may be guaranteed by other provisions of the Constitution.49 Whatever the ultimate answer to that question may be with respect to pretrial suppression hearings in criminal cases, the First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.50
As has been demonstrated in Part II of the opinion of the Chief Justice, in Mr. Justice Brennan's opinion concurring in the judgment, and in Mr. Justice Blackmun's opinion dissenting in part last Term in the Gannett case, it has for centuries been a basic presupposition of the Anglo-American legal system that trials shall be public trials.51 Since in the present case the trial judge appears to have given no recognition to the right of representatives of the press and members of the public to be present at the Virginia murder trial over which he was presiding, the judgment under review must be reversed.52
My opinion and vote in partial dissent last Term in Gannett Co. v. DePasquale compels my vote to reverse the judgment of the Supreme Court of Virginia.53 The decision in this case is gratifying for me for two reasons.54 It is gratifying, first, to see the Court now looking to and relying upon legal history in determining the fundamental public character of the criminal trial.55
The Court's return to history is a welcome change in direction.56 It is gratifying, second, to see the Court wash away at least some of the graffiti that marred the prevailing opinions in Gannett.57 Having said all this, and with the Sixth Amendment set to one side in this case, I am driven to conclude, as a secondary position, that the First Amendment must provide some measure of protection for public access to the trial.58
It is clear and obvious to me, on the approach the Court has chosen to take, that by closing this criminal trial the trial judge abridged these First Amendment interests of the public.59 I also would reverse, and I join the judgment of the Court.60
For the reasons stated in my separate concurrence in Gannett Co. v. DePasquale, I do not believe that either the First or Sixth Amendment, as made applicable to the States by the Fourteenth, requires that a State's reasons for denying public access to a trial, where both the prosecuting attorney and the defendant have consented to an order of closure approved by the judge, are subject to any additional constitutional review at our hands.61 And I most certainly do not believe that the Ninth Amendment confers upon us any such power to review orders of state trial judges closing trials in such situations.62 Being unable to find any such prohibition in the First, Sixth, Ninth, or any other Amendment to the United States Constitution, or in the Constitution itself, I dissent.63