Public Trial

AuthorAnthony Lewis
Pages2076-2077

Page 2076

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.?" The language of the Sixth Amendment appears to assure that criminal courtrooms in the United States will be open?that there will be no secret trials. But the issue of openness in the process of criminal justice has only recently reached a point of consensus in the Supreme Court after nearly forty years of experimentation with successive constitutional tests.

Conflicting values underlay the debate. One was that of the open society, with the public free to observe and criticize the activities of government, including the courts. The other was fairness to someone accused of a crime: his or her right to a trial uninfluenced by public passion or prejudice. The two values do not usually conflict, but it hardly needs to be said that they may clash in a country that has known mob-dominated courtrooms and lynchings.

The constitutional conflict first surfaced in a series of cases starting with BRIDGES V. CALIFORNIA (1941). The issue was whether American, like British, judges could punish as a contempt of court any comment on a pending criminal case that had a tendency to interfere with the administration of justice. In Bridges two persons had been held in contempt: a labor leader for a telegram criticizing a judicial decision against his union, and a newspaper editor for an editorial admonishing a judge not to grant probation to two convicted union members. By a 5?4 vote the Supreme Court reversed both contempt convictions. The Court's opinion, by Justice HUGO L. BLACK, said the FIRST AMENDMENT barred punishment for such comments unless they presented a CLEAR AND PRESENT DANGER?the test framed by Justice OLIVER WENDELL HOLMES in the early sedition

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cases such as ABRAMS V. UNITED STATES (1919)?of causing "disorderly and unfair administration of justice." Later decisions made plain that it would be extremely difficult for authorities to meet that test. Justice WILLIAM O. DOUGLAS said in Craig v. Harney (1947): "A trial is a public event. What transpires in the courtroom is public property.? There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."

Nevertheless, concern remained about the possible effect of outside comment on the criminal justice process, especially...

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