NBC SUBSIDIARY (KNBC–TV), INC., et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Sondra LOCKE et al., Real Parties in Interest.
One hundred three years ago, the California Supreme Court held in a case involving the right of a journalist to report events occurring in a seamy divorce trial: “In this country it is a first principle that the people have the right to know what is done in their courts. The old theory of government which invested royalty with an assumed perfection, precluding the possibility of wrong and denying the right to discuss its conduct of public affairs, is opposed to the genius of our institutions in which the sovereign will of the people is the paramount idea; and the greatest publicity to the acts of those holding positions of public trust, and the greatest freedom in the discussion of the proceedings of public tribunals that is consistent with truth and decency are regarded as essential to the public welfare.” (In re Shortridge (1893) 99 Cal. 526, 530–531, 34 P. 227.) In the present extraordinary writ proceeding, we determine the extent to which the respondent court's findings support an order excluding the public and press from all hearings not occurring before a jury in a civil trial involving prominent figures in the entertainment profession. Petitioners, NBC Subsidiary (KNBC–TV), Inc., Los Angeles Times, and California Community News, have filed a mandate petition challenging an order of the respondent court excluding the press and the public from all proceedings in a civil trial which do not occur in the presence of the jury. In this case, we address the qualified right of access of the public and press under the First Amendment of the Federal Constitution (First Amendment) as applied in Waller v. Georgia (1984) 467 U.S. 39, 43, 104 S.Ct. 2210, 2213, 81 L.Ed.2d 31. We conclude the findings of the respondent court do not support a blanket exclusion of the public and journalists during all non-jury proceedings and hence issue our peremptory writ of mandate.
II. PROCEDURAL MATTERS
Plaintiff, Sondra Locke, sued defendant, Clint Eastwood, for deceit, intentional interference with prospective economic advantage, and fiduciary duty breach arising out of alleged promises to assist her in the development of certain motion picture projects. Prior to trial, the respondent court made various case management orders concerning media coverage of the trial including limiting access of print and other journalists to the parties and the courtroom. Although no television or audio coverage was permitted, journalists and the public could be present when the jury was hearing testimony.
The orders which have been challenged by petitioners are those excluding them as well as the public from the courtroom at all times when the jury is not present and delaying disclosure of transcripts of every closed hearing until after the trial. At a hearing on September 12, 1996, in connection with the issue of excluding the public and journalists from all nonjury proceedings, the respondent court stated: “[T]he paramount concern of the court is a fair and impartial jury. And the problem is that this is not a sequestered jury, and the only way to make sure that the jury does not hear through the media items that are going to be excluded from the jury is to make sure that that's out of the presence of the jury and outside the presence of the media. [¶] Everything will be made available to the media at the close of the case. So the media is not being deprived of anything, but the media can't ensure that that information will not be disseminated to the jury, and the paramount concern of this court is a fair and impartial jury for the litigants, and not to make sure [sic ] that information comes out that somehow could filter to them.” The respondent court further noted in response to an argument of counsel for petitioners adverting to the First Amendment: “That's where we're going to have to weigh the public policy considerations, the Constitutional considerations in that you're not being deprived of the information. You're being delayed in [the revelation of] the information. [¶] The information will be available to you, but right now the way I see it is that all information that is available to everybody is what is available to the jury. And it's the litigants that whose rights we have to protect in this courtroom.” At another point the respondent court indicated: “I believe it is necessary that these other proceedings are held out of the presence of the jury because it deals with information relating to evidence; to witnesses; to what is going to be excluded [from] the jurors; and in this case, because it's a higher profile case, the fact that the information, unlike other cases, all the information is being disseminated in the news media. [¶] This is the type of information that ends up in tabloids, that faces everybody that walks ․ into a grocery store to buy their groceries. It's on television. It's in the newspapers. It's on radio. And to ensure that the jurors do not hear this even by accident or that their spouse does not hear it and question the jurors since they're not sequestered, this is a very, very small intrusion on the 1st Amendment, and in essence it's not an intrusion on the 1st Amendment. It is a slight delay.” The respondent court also: indicated it would consider sequestration of the jury if journalists would agree to pay those costs; noted that sequestration of jurors might be ineffective; and reiterated its duty to protect the jury and the litigants.
On September 12, 1996, the respondent court issued the following written order: 1 “The primary purpose of this court is that the litigants appear before a fair and impartial jury untainted by information obtained that was not presented to the jury. This jury is not sequestered, and to prevent the jury from hearing information regarding evidence that may not be presented to the jury or is not relevant to these proceeding[s], it is necessary that only the litigants and their attorneys be present during those discussions with the court. This court is available to everyone to hear all argument and evidence that is presented to the jury. This court has insufficient room in chambers for litigants and counsel, so these proceedings in the absence of the jury are held in the courtroom as an extension of chambers. This court has instructed the bailiff to clear the courtroom of everyone other than the litigants and their attorneys at every break and when the jury is not present.” In response to this order, on Friday, September 13, 1996, petitioners filed the present mandate petition. On the same date, we requested the respondent court to file a preliminary response by Monday, September 16, 1996. We considered the preliminary response, then issued an order to show cause on September 16, 1996, and set the cause for oral argument on September 17, 1996. For the following reasons, we issue our peremptory writ of mandate.
A. Based On the Historical Openness Of Civil Trials And Controlling Decisional Authority, A Qualified First Amendment Right of Access Exists For The Public And Journalists
This case presents a question of first impression in this state: is there a First Amendment right of public and press access to civil trials. We find that there is. We base our conclusion in part on evidence that an open and public civil trial was an essential component of the English common law which was adopted in the American colonies and subsequently engrafted onto the First Amendment.
The United States Supreme Court has not directly considered whether the public and the press have a First Amendment right to attend trials of civil cases. However, the court has held that the public and the press have a qualified right to attend criminal trials which is guaranteed under the First Amendment to the United States Constitution. (Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (lead opn. of Burger, C.J.).) In Richmond Newspapers, Chief Justice Burger in a plurality opinion traced the origins of the modern criminal trial from the days before the Norman Conquest in England, a time “beyond reliable historical records” (id. at p. 564, 100 S.Ct. at p. 2821), through the period of colonial America, to the adoption of the First Amendment. The Chief Justice found that an open criminal trial was at all times an essential attribute of the judicial system. (Id. at pp. 564–569, 100 S.Ct. at pp. 2820–2823.) With respect to the judicial systems of the American colonies, the Chief Justice held: “We have found nothing to suggest that the presumptive openness of the trial, which English courts were later to call ‘one of the essential qualities of a court of justice,’ [citation], was not also an attribute of the judicial systems of colonial America. In Virginia, for example, such records as there are of early criminal trials indicate that they were open, and nothing to the contrary has been cited. [Citations.] Indeed, when in the mid–1600's the Virginia Assembly felt that the respect due the courts was ‘by the clamorous unmannerlynes of the people lost, and order, gravity and decoram which should manifest the authority of a court in the court it selfe neglected,’ the response was not to restrict the openness of the trials to the public, but instead to prescribe rules for the conduct of those attending them. [Citation.]” (Id. at p. 567, 100 S.Ct. at p. 2822.) Chief Justice Burger further noted: “[T]he historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open.” (Id. at p. 569, 100 S.Ct. at p. 2823.)
Turning to the question whether the First Amendment guarantees the public and press the right to attend criminal trials, the Chief Justice noted neither the Constitution nor the Bill of Rights contained an explicit provision to that effect. (Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at p. 575, 100 S.Ct. at p. 2826 (lead opn. of Burger, C.J.).) Construing the First Amendment in light of the common law predating its adoption, the Chief Justice held: “The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials ‘before as many of the people as chuse to attend’ was regarded as one of ‘the inestimable advantages of a free English constitution of government.’ [Citation.] In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees. ‘[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.’ [Citation.] Free speech carries with it some freedom to listen. ‘In a variety of contexts this Court has referred to a First Amendment right to “receive information and ideas.” ’ [Citation.] What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted. ‘For the First Amendment does not speak equivocally․ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society will allow.’ [Citation.]” (Id. at pp. 575–576, 100 S.Ct. at pp. 2826–2827.) Chief Justice Burger noted, however, that the First Amendment right was not absolute. The Chief Justice stated: “Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, [citation], so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial. ‘[T]he question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge ․ the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.’ [Citation.]” (Id. at p. 581, fn. 18, 100 S.Ct. at p. 2830, fn. 18.)
Similarly, in Press–Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629, the United States Supreme Court held the guarantees of open public proceedings in criminal trials included voir dire examination of potential jurors. After reviewing the historical evidence, the court found that since the development of jury trials, voir dire had presumptively been a public process with exceptions only for good cause. (Id. at pp. 505–507, 104 S.Ct. at pp. 821–823.) Further, the open jury selection process in England carried over into colonial American and “was the common practice in America when the Constitution was adopted.” (Id. at p. 508, 104 S.Ct. at p. 823.)
Engrafting the common law onto the First Amendment, as was done by the plurality in Richmond Newspapers and the majority in Press–Enterprise Company was consistent with the approach taken by the Supreme Court in earlier cases. Often, the United States Supreme Court has interpreted provisions of the federal Constitution by reference to the common law in existence at the time of the writing of that document. In Ex Parte Grossman (1925) 267 U.S. 87, 108–109, 45 S.Ct. 332, 333, 69 L.Ed. 527, the Supreme Court held: “The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.” (Accord, South Carolina v. United States (1905) 199 U.S. 437, 449, 450, 26 S.Ct. 110, 111, 112, 50 L.Ed. 261.) On numerous occasions, in interpreting the provisions of the United States Constitution, the Supreme Court has relied upon the common law as a basis for construing constitutional language. (Dimick v. Schiedt (1935) 293 U.S. 474, 476–477, 55 S.Ct. 296, 296–297, 79 L.Ed. 603 [scope of Seventh Amendment jury trial right in civil cases]; South Carolina v. United States, supra, 199 U.S. at pp. 457–458, 26 S.Ct. at pp. 114–115 [power to tax under federal Constitution article I, section 8]; Schick v. United States (1904) 195 U.S. 65, 68–70, 24 S.Ct. 826, 826–828, 49 L.Ed. 99 [definition of “all crimes” in article III, section 2 of U.S. Constitution]; United States v. Wong Kim Ark (1898) 169 U.S. 649, 653, 705, 18 S.Ct. 456, 458, 478, 42 L.Ed. 890 [definition of citizen in Fourteenth Amendment, clause 1]; Thompson v. Utah (1898) 170 U.S. 343, 348–349, 18 S.Ct. 620, 621–622, 42 L.Ed. 1061 [scope of jury trial right in Sixth Amendment].)
Whether the public and the press have a First Amendment right to attend civil trials turns initially on whether, at common law, open and public civil trials were as fundamental a component of the judicial system as were open and public criminal trials. The United States Supreme Court has not directly decided that question. The Supreme Court has, however, repeatedly recognized that the common law of England, and as adopted in the America colonies, regarded open and public civil trials as essential to the justice system. The plurality opinion in Richmond Newspapers states: “Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open. ” (Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at p. 580, fn. 17, 100 S.Ct. at p. 2829, fn. 17) (lead opn. of Burger, C.J., italics added.) At another point, the Richmond Newspapers decision noted: “In some instances, the openness of trials was explicitly recognized as part of the fundamental law of the Colony. The 1677 Concessions and Agreements of West New Jersey, for example, provided: [¶] ‘That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner.’ [Citation.] ․ The Pennsylvania Frame of Government of 1682 also provided ‘[t]hat all courts shall be open ․, [citation], and this declaration was reaffirmed in § 26 of the Constitution adopted by Pennsylvania in 1776.’ [Citations.]” (Id. at pp. 567–568, 100 S.Ct. at p. 2822.) In his concurring opinion in Richmond Newspapers, Justice Stewart emphasized that “․ the First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.” (Id. at p. 599, 100 S.Ct. at p. 2839, fn. omitted.) A more expansive discussion of the public right of access to civil trials at common law appears in Gannett Co. v. DePasquale (1979) 443 U.S. 368, 386, footnote 15, 99 S.Ct. 2898, 2908, footnote 15, 61 L.Ed.2d 608. There Justice Stewart explained that historically, civil trials have been open to the public: “For many centuries, both civil and criminal trials have traditionally been open to the public. As early as 1685, Sir John Hawles commented that open proceedings were necessary so ‘that truth may be discovered in civil as well as criminal matters' [original italics]. [Citation.] English commentators also assumed that the common-law rule was that the public could attend civil and criminal trials without distinguishing between the two. [Citations.] [¶] The experience in the American Colonies was analogous. From the beginning, the norm was open trials. Indeed, the 1677 New Jersey Constitution provided that any person could attend a trial whether is was ‘civil or criminal,’ [citation, original italics]. Similarly, the 1682 and 1776 Pennsylvania Constitutions both provided that ‘all courts shall be open,’ [citation, original italics].”
Several United States Courts of Appeals have recognized that the common law right to an open and public trial extends to civil as well as criminal trials, and is guaranteed by the First Amendment. In Publicker Industries, Inc. v. Cohen (1984) 733 F.2d 1059, 1061, the United States Court of Appeals for the Third Circuit held, as a matter of first impression, that the First Amendment secures to the public and the press a right of access to civil trials. The case involved a hearing on a petition for a temporary injunction in a civil action. The Third Circuit judges noted that in Gannett Co. v. DePasquale, supra, 443 U.S. at page 386, footnote 15, 99 S.Ct. at page 2908, footnote 15, the Supreme Court “acknowledged that the historical evidence [was] ‘equally applicable to civil and criminal cases․' ” The court examined the authority on which the Supreme Court relied in Richmond Newspapers and concluded “that the public's right of access to civil trials ․ is as well established as that of criminal proceedings․” (Id. at p. 1066.) Upon further examination of the English and American legal authorities, the court found, as with criminal matters, they revealed a presumption of openness inherent in civil trials. “Sir Edward Coke declared in the early Seventeenth century that the Statute of Marlborough of 1267 required court proceedings to be held in public: ‘These words [In curia Domini Regis ] are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the King's Court openly in the King's Courts, whither all persons may resort ․’ [Citation, original italics.] [¶] Writing almost 150 years later, Sir Matthew Hale not only observed that evidence is given in both civil and criminal trials ‘in the open Court and in the Presence of the Parties, their Attorneys, Council, and all By-standers, and before the Judge and Jury ․’ [citation], he also offered an explanation for the public nature of civil and criminal trials: [¶] Ninthly, The Excellency of this open Course of Evidence to the Jury in Presence of the Judge, Jury, Parties and Council, and even of the adverse Witnesses, appears in these Particulars: 1st, That it is openly; and not private before a Commissioner or Two, and a couple of Clerks, where oftentimes Witnesses will deliver that which they will be ashamed to testify publickly. [Citation.] Hale served as authority for Williams Blackstone when he explained why trials generally were conducted in public: [¶] This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law, where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. [Citation.] Thus more recent commentators agree that ‘one of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, ․ appears to have been the rule in England from time immemorial.’ [Citations.]” (Id. at pp. 1068–1069, original italics.) The Court of Appeals for the Third Circuit observed in Publicker Industries, Inc. that the English common law right of access was transferred to the American colonies. The court concluded that as with criminal matters, the First Amendment embraced a right of access to civil trials. (Id. at p. 1070.) (See also Westmoreland v. Columbia Broadcasting System, Inc. (2d Cir.1984) 752 F.2d 16, 23 [“[W]e agree with the Third Circuit ․ that the First Amendment does secure to the public and to the press a right of access to civil proceedings․”]; In re the Iowa Freedom of Information Council (8th Cir.1983) 724 F.2d 658, 661 [recognizing a qualified First Amendment right of public and press access to contempt proceedings]; Brown & Williamson Tobacco Corporation v. F.T.C. (6th Cir.1983) 710 F.2d 1165, 1178, cert. den. 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 [“The Supreme Court's analysis of the justifications for access to the criminal courtroom apply as well to the civil trial”].)
One legal commentator summarized the history of open civil trials in the course of concluding that the constitutional right of access to criminal trials recognized by the Supreme Court also extends to civil trials, “Both historical and contemporary practice support the recognition of a constitutional right to attend civil trials. The early judicial system of England was not rigidly divided into civil and criminal matters as is the judicial system of today. There is no evidence of any real difference of authorities or procedure in the treatment of civil and criminal matters until the tenth century, at which time a number of serious public offenses were reserved for separate royal jurisdiction. The county and hundred courts, in which most litigants pressed their claims, were courts of general jurisdiction. Attendance at these courts was compulsory for all freemen. This tradition of public adjudication continued after the centralization of judicial power by the Norman kings and the growth of distinct procedures in civil and criminal suits. The itinerant royal justices, who administered the king's law throughout the land, would assemble large public gatherings for the hearing of both civil and criminal matters affecting the king's peace. Whatever the differences between civil and criminal procedure, public attendance at trial does not appear [to be one, and] it is not surprising that early commentators either expressly or implicitly regarded civil trials as necessarily open to the public. Lord Coke speaks of openness as a characteristic feature of the king's courts generally, and Blackstone explicitly notes that the ‘presence of all mankind’ is an integral aid to the factfinding process in private suits. More recent cases and commentators note that public trials of both civil and criminal matters are a longstanding and conspicuous feature of English justice. In the words of one British case, ‘the inveterate rule is that justice shall be administered in open Court.’ [¶] The English principle of openness was carried over into American colonial law. The 1677 Concessions and Agreements of West New Jersey, for example, provided that all citizens could freely attend ‘all publick courts of justice for tryals of causes, civil or criminal.’ A number of prominent state charters provided generally for ‘open’ courts.” (Nowaczewski, The First Amendment Right of Access to Civil Trials After Globe Newspaper Co. v. Superior Court (1984) 51 U.Chi.L.Rev. 286, 294–296.)
The present case is distinguishable from Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 37, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17. In Rhinehart, the Supreme Court held “that where ․ a protective order is entered on a showing of good cause ․, is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.” (Ibid.) In reaching its conclusion in Seattle Times Co., the court emphasized that civil pretrial discovery procedures “are not public components of a civil trial” and “were not open to the public at common law․” (Id. at p. 33, 104 S.Ct. at pp. 2207–2208.) Further, the Supreme Court noted, “[J]udicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context.” (Id. at p. 34, 104 S.Ct. at p. 2208.) In contrast to pretrial discovery procedures, civil trials have historically been open to the public. Further, as discussed below, that openness serves important practical and philosophical purposes. It follows that the Supreme Court's decision in Seattle Times Co. has no application to the issue before us in this case.
We conclude open and public civil trials were an essential attribute of the English common law and the justice systems of colonial America. Further, when the First Amendment was adopted, civil trials had long been presumptively open. Construing the First Amendment by reference to the common law in existence when it was adopted, we conclude it embodies a right of public access to civil trials.2
B. Established First Amendment Policies And Values Support A Right Of Access To Civil Trials
The Supreme Court has identified a number of policy reasons that support open trials under the First Amendment. First, in discussing the right of access for the press and the general public, in the context of criminal trials the Supreme Court stated that the “ ‘major purpose of that Amendment was to protect the free discussion of governmental affairs․' ” (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 604, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 quoting Mills v. Alabama (1966) 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484.) This protection in the First Amendment in turn “serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.” (Globe Newspaper Co. v. Superior Court, supra, 457 U.S. at p. 604, 102 S.Ct. at p. 2619.) In sum, the United States Supreme Court has determined, “[T]o the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected ‘discussion of governmental affairs' is an informed one.’ ” (Ibid.)
Second, the right of access enhances the quality and safeguards the integrity of the fact-finding process. (Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at p. 596, 100 S.Ct. at p. 2838 (lead opn. of Burger, C.J.).) Third, the United States Supreme Court has held in a criminal case that public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. (Globe Newspaper Co. v. Superior Court, supra, 457 U.S. at p. 604, 102 S.Ct. at p. 2618.) Fourth, the Supreme Court has concluded, “[P]ublic access to criminal trials permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.” (Id. at p. 606, 102 S.Ct. at p. 2620, fn. omitted; see also (In re Oliver (1948) 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682 [public access to trials acts as “an effective restraint on possible abuse of judicial power”].)) As the Supreme Court stated in Press–Enterprise Co. v. Superior Court, supra, 464 U.S. at page 508, 104 S.Ct. at page 823: “The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” (Original italics.)
The policies identified by the Supreme Court for the qualified right of access in criminal trials apply as well in the civil context. First, the major purpose of the First Amendment, which is to ensure the free discussion of governmental affairs by an informed public, would be served in cases which involve issues and matters that are of interest to the general public. The public has the right to know how civil trials are conducted in their courts, institutions of government for which they pay. Second, openness in a civil court contributes to the fact-finding process by discouraging perjury. Third, conducting civil matters in secrecy fosters an appearance that the proceedings are not being conducted fairly or may be insulating the parties from improprieties or corruption. Fourth, by requiring openness, the public can determine whether the judiciary is observing the standards of fairness and following established procedures, thereby preserving “the appearance of fairness so essential to public confidence in the system.” (Press–Enterprise Co. v. Superior Court, supra, 464 U.S. at p. 508, 104 S.Ct. at p. 823.) Accordingly, the constitutional policy considerations which support openness in criminal trials also apply to civil proceedings.
C. The Respondent Court's Findings Do Not Permit Complete Exclusion Of Journalists And The Public From All Proceedings Occurring Outside The Presence Of The Jury
Given the foregoing, we are satisfied that the First Amendment applies to the present limited closure order. Not only does the First Amendment apply to public and press access to a civil trial, but the policies served by such constitutionally mandated openness have application in non-criminal matters. A unanimous United States Supreme Court succinctly described its First Amendment jurisprudence in terms of the qualified right of access to trials as follows in Waller v. Georgia, supra, 467 U.S. at pages 44–45, 104 S.Ct. at pages 2214–2215. It held, in the context of a motion to suppress evidence as follows: “In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial. [Citations.] We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected. [Citation.] Moreover, in an earlier case in this line, Gannett Co. v. DePasquale [ (1979) ] 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 [ ], we considered whether this right extends to a pretrial suppression hearing. While the Court's opinion did not reach the question, [citation], a majority of the Justices concluded that the public had a qualified constitutional right to attend such hearings, [citations]. [¶] In each of these cases the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care. We stated the applicable rules in Press–Enterprise [Co. v. Superior Court (1984) 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629] [¶]: ‘The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’ [Citation.]” We conclude the analysis in Waller, a case involving a motion to suppress evidence in a criminal trial, is also applicable to the present case.
In Waller, the Supreme Court held that the stated justifications for closing an entire suppression of evidence hearing were constitutionally insufficient. In Waller, the Supreme Court discussed the inadequacy of the findings as follows: “Applying these tests to the cases at bar, we find the closure of the entire suppression hearing plainly was unjustified. Under Press–Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. In this case, the only evidence about which the prosecutor expressed concern was the information derived from the wiretaps; he argued that unnecessary ‘publication’ would render the taps inadmissible under the Georgia wiretap statute. [ ] The Georgia Supreme Court advanced the more general, but essentially identical, interest in protecting the privacy of persons not before the court. [Citation.] Under certain circumstances, these interests may well justify closing portions of a suppression hearing to the public. [Citation.] [¶] Here, however, the State's proffer was not specific as to whose privacy interests might be infringed, how they would be infringed, what portions of the tapes might infringe them, and what portion of the evidence consisted of the tapes. As a result, the trial court's findings were broad and general, and did not purport to justify closure of the entire hearing. The court did not consider alternatives to immediate closure of the entire hearing: directing the government to provide more detail about its need for closure, in camera if necessary, and closing only those parts of the hearing that jeopardized the interests advanced.” (Waller v. Georgia, supra, 467 U.S. at pp. 48–49, 104 S.Ct. at pp. 2216–2217; fn. omitted, original italics.) 3 In the present case a less specific showing and findings have been made to justify complete closure of all nonjury proceedings than occurred in Waller. For example, the present order excludes the public from observing: discussions concerning the scheduling of witnesses; discussions concerning the time when court will convene or recess; arguments concerning jury instructions; or discussions of other sometimes arcane legal issues. If issues arise concerning the admissibility of prejudicial evidence, Waller requires that specific findings be made before closure can occur. Given the present non-specific findings, closure of all non-jury proceedings is impermissible under the First Amendment.
We recognize the respondent court's legitimate concerns relating to juror exposure to inadmissible evidence. However, that possibility standing alone is insufficient to support the present closure order. The present closure order does not identify what inadmissible evidence may be the subject of disclosure to the jury via news reports. The present record does not contain sealed transcripts of in camera hearings where the admissibility of such evidence was litigated. Moreover, the mere exposure of jurors to inadmissible evidence does not warrant closure of all in limine hearings in every case. In construing the First Amendment, the United States Supreme Court has repeatedly held that exposure to inadmissible prejudicial matters does not necessarily result in an unfair trial. (Press–Enterprise Co. v. Superior Court, supra, 464 U.S. at pp. 511–512, 104 S.Ct. at pp. 824–825; Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683; Murphy v. Florida (1975) 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589.) There are other means, short of closure, by which the fair trial right can be protected, including voir dire of potential jurors and admonitions to disregard news reports. (See Gannett Co. v. DePasquale, supra, 443 U.S. at p. 400, 99 S.Ct. at p. 2916 [“where a defendant requests the trial court to exclude the public, it should consider whether there are alternative means reasonably available by which the fairness of the trial might be preserved without interfering substantially with the public's interest in prompt access to information concerning the administration of justice”].)4
Further, the delayed nature of the public disclosure in the present case does not comply with the First Amendment. In Nebraska Press Assn. v. Stuart, supra, 427 U.S. at page 559, 96 S.Ct. at p. 2808, the Supreme Court noted “The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative. [¶] A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills' speech, prior restraint ‘freezes' it at least for the time.” (Fn. omitted.) Later the Supreme Court held: “Of course, the order at issue—like the order requested in New York Times [v. United States (1971) 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822]—does not prohibit but only postpones publication. Some news can be delayed and most commentary can even more readily be delayed without serious injury, and there often is a self-imposed delay when responsible editors call for verification of information. But such delays are normally slight and they are self-imposed. Delays imposed by governmental authority are a different matter. [¶] ‘We have learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be, we ․ remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation's press.’ [Citation.] [¶] As a practical matter, moreover, the element of time is not unimportant if press coverage is to fulfill its traditional function of bringing news to the public promptly.” (Id. at p. 560, 96 S.Ct. at p. 2803.) Absent appropriate findings, delayed disclosure does not meet the mandate of the First Amendment.
Accordingly, we conclude that the closure order in the present case is inconsistent with the First Amendment. The findings do not meet the standard of specificity articulated in Waller. Hence, the closure order of September 12, 1996, is to be set aside. As to any proceedings that have been the subject of closed proceedings to date, transcripts of those hearings are to be made available to the public or journalists unless the respondent court makes findings that comply with Waller. The respondent court retains jurisdiction to enter closure orders as to any proceedings so long as they comply with Waller and the First Amendment. However, we emphasize the following pertinent analysis of the United States Supreme Court in Waller, where all nine justices identified with clarity the limited circumstances under which closure was appropriate: “In each of these cases the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.” (Waller v. Georgia, supra, 467 U.S. at p. 45, 104 S.Ct. at p. 2215.)
Let a peremptory writ of mandate issue directing the respondent court to vacate its September 12, 1996, closure order. The respondent court may issue closure and sealing orders as to past and future proceedings if they comply with the views expressed in this opinion. All parties are to bear their own costs in connection with these extraordinary writ proceedings.
1. After the present petition was filed, another closure order was issued which made substantial changes.
2. We do not address the issue as to whether the openness requirement in civil cases is co-extensive with, greater than, or more restricted than in criminal matters. No decisional authority has suggested that there is a difference of any constitutional consequence in terms of the openness of trials.
3. The reference in Waller to Press–Enterprise Co. v. Superior Court, supra, 464 U.S. at pages 511–512, 104 S.Ct. at page 825, was to the following discussion: “The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain. The trial involved testimony concerning an alleged rape of a teenage girl. Some questions may have been appropriate to prospective jurors that would give rise to legitimate privacy interests of those persons. For example a prospective juror might privately inform the judge that she, or a member of her family, had been raped but had declined to seek prosecution because of the embarrassment and emotional trauma from the very disclosure of the episode. The privacy interests of such a prospective juror must be balanced against the historic values we have discussed and the need for openness of the process. [¶] To preserve fairness and at the same time protect legitimate privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record. [¶] By requiring the prospective juror to make an affirmative request, the trial judge can ensure that there is in fact a valid basis for a belief that disclosure infringes a significant interest in privacy. This process will minimize the risk of unnecessary closure. The exercise of sound discretion by the court may lead to excusing such a person from jury service. When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror's valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.” (Ibid, original italics.) The foregoing analysis exemplifies the compelling and specific showing that must be made before even partial closure of proceedings may occur.
4. The respondent court cites United States v. Smith (3rd Cir.1986) 787 F.2d 111, 114, for the proposition “[i]t is appropriate in a civil jury trial to delay disclosure of in chambers and sidebar evidentiary rulings that may adversely or prejudicially affect the trial.” The reliance on Smith is misplaced. Smith involved an appeal by a defense witness in a criminal trial from an order releasing the transcript of a sidebar conference. During the sidebar conference it was disclosed that the defense witness was a target of the same criminal investigation which had resulted in the pending charges. (Id. at p. 112.) The court held release of the transcript was proper because the defense witness failed to demonstrate “that the factors opposing access outweigh[ed] those favoring it.” (Id. at p. 116.) The present closure order is a blanket one. It was not issued in connection with an identified or identifiable evidentiary ruling. There has been no showing the closure order was properly issued because contemporaneous disclosure of certain evidentiary rulings could prejudice the trial.
TURNER, Presiding Justice.
GRIGNON and ARMSTRONG, JJ., concur.