Public rights, private rites: reliving Richmond Newspapers for my father.

• Author: Tribe, Laurence
• Position: First Arguments at the Supreme Court of the United States

When I've been asked about my first Supreme Court argument, my resume reflex has easily generated a routine reply: The case was Richmond Newspapers v. Virginia. (1) A man was on trial for the fourth time for stabbing a hotel manager to death. The first trial had resulted in a conviction, thrown out on appeal because the state had introduced inadmissible evidence. The second and third trials had both ended in mistrials. From the perspective of the accused, the fourth time was a charm. He waived his right to a jury and his right to have the trial conducted in public view; the prosecutor made no objection and the trial judge, giving no special justification, simply expelled all observers from the courtroom--including the press and even the victim's children, who were summarily denied any right to watch what passed for justice being done. After a brief heating behind closed doors, the defendant was acquitted and set free. A transcript was made available a couple of days later to those who were baffled by the sudden reversal of fortune, but we all know what cold comfort and limited information a printed page of dialogue conveys.

Less than a year earlier, in a case where the press and the public had similarly been excluded--there, from a pretrial hearing on a motion to suppress evidence, Gannett Co. v. DePasquale (2)--the Supreme Court had ruled that the Sixth Amendment right to a "public trial" belonged solely to the accused and was thus the accused's to assert or to waive. Because the accused in Richmond Newspapers had waived his right to a public trial, persuading the Court to hear the case--especially so soon after Gannett--was a real challenge. In fact, when counsel for Richmond Newspapers first contacted me about the case, he told me that the client had "[a]t present ... decided not to petition the United States Supreme Court for certiorari," a decision I convinced the client to reverse. But because this essay is about my first argument and not about the distinct business of persuading the Court to grant review, I'll skip to the merits and turn to the no less challenging puzzle of how one might overcome the accused's waiver of his Sixth Amendment right to have the proceedings conducted in public.

It was settled that the accused had no "mirror-image" right to insist that the proceedings be private, and it seemed to me relevant, possibly crucial, that this was therefore a case where a state official--the trial judge--was entrusted with discretionary power to decide what the public would be permitted to observe and what it would be prevented from observing. That wouldn't be so unusual if we were dealing with purely internal government matters like Oval Office consultations. But this discretionary government power was being exercised with respect to a proceeding that someone outside the government--namely, the accused--could have made public had he wished to do so. That took the case outside the realm of government control over information generated internally for government's own use and made it look more like government determination of what sights and sounds in the public domain were fit to be seen and heard. Wasn't that the essence of censorship?

Well, in a way. But there was one problem, at least as I saw the case: To make an argument based on the First Amendment freedoms of speech and press, one classically needed to have a willing speaker: the right to observe and hear is just the flip side of a right to broadcast or speak, and in this case nobody in the courtroom wanted to speak to mere spectators--not to the Richmond Newspapers, and certainly not to the victim's family. So the First Amendment didn't completely suffice--unless one treated it as a very broad structural guarantee of access to information in an open society, a guarantee not enumerated anywhere in the Bill of Rights, but one reinforced by the Ninth Amendment's mandate that the Constitution's "enumeration ... of certain rights, shall not be construed to deny or disparage others retained by the people." (3)

But the Ninth Amendment, I learned as I briefed Richmond Newspapers and as I found myself being lobbied hard by the pillars of the media bar, was barely to be mentioned in polite society, much less was it ready for prime time.

Who was I, an utter novice at Supreme Court advocacy, to buck the conventional wisdom on something so basic? Well, I was a lawyer who'd taken a case because he believed in it, who'd been teaching and would teach generations more of law students about the kinds of questions the case raised, who'd gone on record a couple of years earlier in a treatise, American Constitutional Law, (4) on most of the issues the case touched, and who cared a lot more about keeping faith with what he'd feel bound to write and teach in years to come, and with how he thought the Court should be approached, than with what the Poo-Bahs of the establishment thought of him. That's who I was. And am. So the Ninth Amendment argument stayed in. And, I'm happy to report, in the end it hit its target.

As Justice Stevens was to write in his concurring opinion, "never before ha[d] [the Court] squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever." (5) Where was that protection to be found in the Constitution's text? Nowhere, exactly, but the plurality opinion of Chief Justice Burger made a point of recalling how James Madison--responding to widely voiced concerns at the time of the Founding that adding any finite list of rights to the Constitution to assuage the fears of some about potentially excessive government power might perversely backfire, carrying a negative implication about rights not mentioned--had spearheaded a move that "culminat[ed] in the Ninth Amendment," which was to operate as a "constitutional 'saving clause,' ... to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those...