GANNETT CO., INC. v. DEPASQUALE 443 U.S. 368 (1978)

In Gannett the trial judge excluded the public, including the press, from a pretrial hearing involving evidence of an involuntary confession in a highly publicized murder case. The Supreme Court rejected arguments that the Sixth Amendment provided a constitutional public right to attend criminal trials. Reasoning that the constitutional guarantee of a public trial is designed to benefit the defendant, not the public, the Court concluded that where the litigants agree to close a pretrial proceeding to protect the defendant's right to a fair trial, the Constitution does not require that it remain open to the public. The Court declined to address the corollary issue whether the first amendment created a right of access to the press to attend criminal trials—a question later answered affirmatively in richmond newspapers, inc. v. virginia (1980).

Justice lewis f. powell, concurring, conceded that the press had an interest, protected by the First Amendment, in being present at the pretrial hearing, but said that this interest should be balanced against the defendant's right to a fair trial. The order excluding the press from attending the pretrial hearing in Gannett was distinguished from the gag order in nebraska press association v. stuart (1976) because the press was merely excluded from one source of information; it was not told what it might or might not publish.

Justice harry a. blackmun, joined by Justices william j. brennan, byron r. white, and thurgood marshall, also framed the issue as one of access to the judicial proceeding, not one of prior restraint on the press. Blackmun, upon a lengthy historical examination, concluded that the criminally accused did not have a right to compel a private pretrial proceeding or trial. Only in certain circumstances, with appropriate procedural safeguards, might a court give effect to the accused's attempts to waive the right to a public trial.

Kim m c Lane Wardlaw
(1986)

(see also: Free Press/Fair Trial.)