The opinion of the court was delivered by: BECKER
addresses the question whether a hearing on a defendant's motion to suppress as evidence the tapes of intercepted oral or wire communications and on a corresponding Government motion to authenticate those recordings for use at trial must, at the request of the defendant, be held in camera or, conversely, whether the public and the news media are entitled to access to that hearing and/or to the transcript and record thereof. Principally at issue are the tapes of certain conversations between defendant, Henry J. Cianfrani, and one Vera Domenico. These conversations were recorded by special agents of the Federal Bureau of Investigation, allegedly with the consent of Miss Domenico. One conversation was recorded by virtue of Miss Domenico's premises being "wired"; the balance were telephone conversations conducted over "tapped" telephones. If these recordings were in fact made with Miss Domenico's consent, they would appear to be within the ambit of 18 U.S.C. § 2511(2)(c), which, as one of the exceptions from the statutory proscription against the interception of wire and oral communications, see generally 18 U.S.C. §§ 2510-2520, authorizes interception of a communication when one of the parties to the communication gives prior consent to its interception.
The defendant has contended that Miss Domenico did not give a valid consent to the interception and that the tapes and transcripts thereof must therefore be suppressed as evidence obtained in violation of law. He has thus moved to suppress the evidence under 18 U.S.C. § 2518(10).
The Government, on the other hand, has moved, pursuant to the procedure set forth in United States v. Starks, 515 F.2d 112, 121 n.11 (3d Cir. 1975), for the authentication of the tapes so that they may be introduced into evidence at trial.
The hearing the openness of which is at issue is also therefore intended as a Starks hearing.
The parties to the controversy now before us are the defendant, who has asked that the hearing be held in camera, and an impressive array of members of the Fourth Estate, who have asked that it be open. This array consists of Philadelphia Newspapers, Inc. (The Philadelphia Inquirer and the Philadelphia Daily News), the Philadelphia Bulletin Company, the Associated Press, the Columbia Broadcasting System, and the Westinghouse Broadcasting Company. Recognizing the First Amendment interest of the news media in this issue, we have granted the media leave to intervene on the media access question. The United States Attorney has taken no position in the matter, leaving it "to the discretion of the Court."
Defense counsel argued that the hearing must be held in camera for several reasons: (1) the tapes were grand jury material which are barred from public scrutiny under Federal Rule of Criminal Procedure 6(e); (2) the wide publication of the tapes that could be expected were the hearing open to the public might infringe defendant's Sixth Amendment right to a fair trial; (3) in any event, the press is not entitled to access to a pretrial hearing, as opposed to the actual trial itself; and (4) the suppression procedures established by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, do not countenance public or media presence at suppression or Starks hearings.
The media countered with the argument that a pretrial suppression/authentication hearing is an integral part of the trial and that, in any event, as a judicial proceeding taking place before a United States Judge in the United States Courthouse it must presumptively be open to the public and the press. The media further argued that, on the record made in this case, the defendant had not met the burden for restricting the press' First Amendment rights imposed on him by the United States Supreme Court's landmark decision, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976).
Nebraska Press involved the murder of six persons in a small community in Nebraska. To prevent prejudicial pretrial publicity, the district court of Lincoln County, Nebraska issued an order that, as modified by the Nebraska Supreme Court in original mandamus proceedings instituted by the news media, restrained the media from publishing or broadcasting accounts of confessions or admissions made by the accused or of facts strongly implicating him. This order was to remain in effect only until the jury was impaneled and sequestered. On certiorari, the United States Supreme Court, in an opinion by Chief Justice Burger that expressed the views of five members of the Court, reversed.
The Supreme Court held in Nebraska Press that the challenged order violated the First Amendment's guarantee of free press insofar as the record did not demonstrate that alternatives to a prior restraint on the news media would not sufficiently have mitigated the adverse effects of pretrial publicity so as to make a prior restraint unnecessary. Further, the Court said that it was unable to conclude that the record showed that the restraining order would even have served its intended purpose. The Court also held that the order prohibiting reports or commentary on judicial proceedings held in public was clearly invalid and that, to the extent to which the order prohibited publication based on information gained from other sources, the heavy burden imposed as a condition of validly securing a prior restraint was not met.
We observe that in Nebraska Press the pretrial hearings conducted by the Court were open and that the court's challenged order prohibited reporting what the media had already heard. Nebraska Press thus does not squarely address the precise question now before us, which is that of media access to the proceedings and not that of prior restraint per se. The narrow question whether to exclude the press from a Title III suppression or Starks hearing has perforce arisen before in this and other federal courthouses throughout the land and has been dealt with by federal judges wherever it has arisen on an ad hoc -- though doubtless a principled -- basis. We are, however, unable to find any reported opinion discussing what we find to be the enormously complex and sophisticated issues involved. The parties themselves have cited us to none.
The principal and most elusive focus of our concern has been upon the nature and scope of the media's newsgathering or access rights in various important judicial proceedings. Needless to say, whether or not the media's exclusion would fit the rubric "prior restraint," if the media has a presumptive right of access to this suppression hearing, the First Amendment issue cuts very differently than if the media does not have such a threshold right. The question yields to no easy and unitary solution given the variegated nature of judicial proceedings, both civil and criminal, which, when parsed, subsume not just pretrial suppression hearings but also such matters as pretrial discovery, settlement conferences, pretrial conferences, in camera conferences to determine various claims of privilege, bench conferences during trial, et alia.
This opinion will address all of the major contentions raised by the parties and some, although not expressly raised, that emanate from our own analysis of the issues. We shall not, however, discuss the defendant's Federal Criminal Rule 6(e) argument except to note that we consider it to be lacking in merit: the fact that tapes that were the product of a continuing Justice Department investigation of Senator Cianfrani were played to the Grand Jury does not, in our view, make them "Grand Jury material" subject to the strictures of Federal Criminal Rule 6(e).
II. The Media's Newsgathering or Access Right to Court Proceedings: A Statement of the Problem and of a General Rule
Judicial trials, and particularly criminal trials, have long been grist for the American newsman's mill. From the trial of Aaron Burr in the nascent days of the Republic to the trials of Sacco and Vanzetti, Bruno Hauptmann, Dr. Sam Sheppard, Billy Sol Estes, and the Watergate defendants, the news media have reported the events of causes celebres in replete detail, and the public has voraciously read those accounts. With respect to press coverage of actual trials, a considerable body of case law has understandably developed focusing on how the courts should handle cases in which excessive or unfair publicity threatens a defendant's Sixth Amendment right to a fair trial and impartial jury. There has been, however, relatively little distinction in the cases between, on the one hand, the media's right to print or broadcast what it knows and, on the other, the media's right to initial access; i.e., its right to newsgathering.
The validity of this distinction was underscored recently in Herbert v. Lando, 568 F.2d 974 (2d Cir. 1977), cert. granted 98 S. Ct. 1483, 55 L. Ed. 2d 515 (1978). Chief Judge Kaufmann there noted that there is a tripartite aspect of the press' work and function, hence of its First Amendment protection: first, acquiring information; second, processing that information; and, third, disseminating information. It is, of course, the first of these -- acquiring information -- with which we are here concerned.
In the noted case of Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972), the United States Supreme Court recognized some level of First Amendment protection for newsgathering, but noted that such protection was not absolute in that it did not include protection from enforced disclosure of news sources before a grand jury. Branzburg thus made it clear that the newsgathering right was a limited, or at least not unrestrained, one. The Court further noted that there were numerous proceedings from which the press could be excluded. 408 U.S. at 685. Moreover, it defined the press' right of access to information as coextensive with the access right of the public generally. Id. at 686. Indeed, the Branzburg Court was constrained to find the press' access right to be limited in some of its aspects, for in Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966), the Court had approved limitations imposed by trial courts upon extrajudicial statements made by counsel in criminal proceedings. Obviously, such limitations on statements of counsel restrict access by the news media to sources of information; they therefore represent one type of permissible abridgment of the news media's access or newsgathering rights. See also Saxbe v. Washington Post Co., 417 U.S. 843, 41 L. Ed. 2d 514, 94 S. Ct. 2811 (1974); Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974); see generally The Rights of the Press to Gather Information, 71 Col.L.Rev. 838 (1971); The Rights of the Public and the Press to Gather Information, 87 Harv.L.Rev. 1505 (1974); News Gathering: Second-Class Right Among First Amendment Freedoms, 53 Tex.L.Rev. 1440 (1975); The Right of the Press to Gather Information after Branzburg and Pell, 124 U.Pa.L.Rev. 166 (1975).
The media have argued in this proceeding that this case is controlled by Nebraska Press Ass'n v. Stuart, supra. We note at the outset, however, that the principal issues in this case are not, in our judgment, controlled by Nebraska Press. We note particularly footnote 8 of the opinion of the Court and footnote 11 of the concurring opinion of Mr. Justice Brennan, which was joined in by Mr. Justice Stewart and Mr. Justice Marshall. In footnote 8, the Chief Justice stated for the Court:
Closing of pretrial proceedings with the consent of the defendant when required is also recommended in guidelines that have emerged from various studies. At oral argument petitioners' counsel asserted that judicially imposed restraint on lawyers and others would be subject to challenge as interfering with press rights to news sources. We are not now confronted with such issues.
427 U.S. at 564 n.8 (citations omitted). And, at footnote 11 of his concurrence Justice Brennan stated: "The constitutionality of closing pretrial proceedings under specific conditions is not before us, and is a question on which I would intimate no views." Id. at 584 n.11. So, it is clear to us that this case is not directly and necessarily controlled, at least in its right of access aspects, by Nebraska Press.
The principal case that most nearly addresses the problem before us is United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977). In Gurney, newspapers sought review of the orders of the United States District Court for the Middle District of Florida denying their request to examine certain trial documents in a criminal proceeding. The Court of Appeals for the Fifth Circuit held that the members of the media are free to report what occurs in open court, but do not have any First Amendment right of access to those matters not available to the public generally. The Court held that refusal to direct that names and addresses of jurors be publicly released was not an abuse of discretion; that refusal to grant the press access to bench conferences with counsel was not an abuse of discretion; that refusal to grant the press access to exhibits identified but not yet received into evidence was not an abuse of discretion; and that the press had no constitutional right of access to written communications between the judge and the jury. In its discussion, the Gurney court noted that the question of the media's First Amendment newsgathering rights in the face of judicial or Government restrictions has been the subject of much discussion but nevertheless remains largely unsettled. 558 F.2d at 1207. In the wake of Nebraska Press, it also noted that, as a general rule, orders proscribing publication of matters transpiring in open court are constitutionally infirm absent some compelling justification. But, continued the court, the trial judge in Gurney did not resort to the use of prior restraints; the district judge merely refused to allow the appellants to inspect documents not yet a matter of public record. Appellants remained free to obtain whatever information they desired from any source except the district court and its supporting personnel. Id. at 1211.
Notwithstanding the rather trenchant language of Gurney and its obvious applicability to certain aspects of the access question in this case, we do not find Gurney to control here. There are two temporal aspects of the access question in this case. The first relates to the hearing itself; i.e., whether the press may be present while the court makes initial authentication/suppression determination. The second aspect relates to the circumstances that will obtain after we have ruled on the suppression and Starks motions. More particularly, this second aspect focuses on the question whether, if we grant the Starks motion and deny the suppression motion, thus ruling that the tapes were properly obtained and admissible at trial, the public and the media will then have access to the transcripts of the hearing and the evidence introduced therein, including the tapes or transcripts of them. Such a state of affairs would be both similar and dissimilar to Gurney. It would be similar in that there would be evidence which, barring sustainable objections on grounds of irrelevancy or prejudice, presumably would be admissible at trial, but which nonetheless would not yet have been introduced into evidence. Gurney held that where documents had not yet been introduced into evidence, they were not yet subject to public scrutiny.
However, after the Starks /suppression hearing, this case would be dissimilar to Gurney in that there would have been a formal adjudicative proceeding before a federal trial judge in a federal courthouse. A most forceful argument can be made that such a situation is distinguishable from Gurney on the grounds that what has been the subject of such a formal adjudicative proceeding, as well as the proceeding itself, should be subject to public scrutiny and therefore accessible to the media. Although we can find no binding judicial pronouncement on the point, it seems to us that there should be a strong general presumption in favor of the openness of proceedings conducted by a judge in his courtroom, much like that announced by Mr. Justice Blackmun in his opinion sur re-application for a stay of the Lincoln County District Court order in Nebraska Press, 423 U.S. 1327, 46 L. Ed. 2d 237, 96 S. Ct. 251 (1975) (in chambers). There Justice Blackmun noted the governing principles that the press is, in general, to be free and unrestrained and that facts are presumed to be in the public domain. 423 U.S. at 1333.
We concur with this presumption and with the observations to this effect made by counsel at argument. This is especially so, it has been argued, where the subject matter of the litigation is a State Senator and the charges involved implicate his stewardship and the public trust. See Gannett Co. v. DePasquale, No. 549, 43 N.Y.2d 370, 372 N.E.2d 544, 401 N.Y.S.2d 756 (N.Y. Ct. App. 1977) 435 U. S. 1006, 98 S. Ct. 1875, 56 L. Ed. 2d 387 (1978). Moreover, although the press did not so argue, Justice Brennan noted in his concurring opinion in Nebraska Press that the press has a particular First Amendment interest in suppression proceedings in view of the fact that at issue in such proceedings are the practices of law enforcement officers in conducting investigations. 427 U.S. at 606-07. We consider such concerns to be especially compelling when the focus is on law-enforcement use of electronic surveillance. See generally Part V, infra.
As with most things, however, we cannot decide hard cases by simplistic rules. Indeed, a strict application of the general rule which we have suggested would unleash a Pandora's Box of problems. We consider, for example, pretrial and settlement conferences. The presence of the public or the media at such conferences would be destructive of orderly procedure and, more importantly, would tend to chill the kind of confidential communication and discussion that is essential to the court's important role in the mediation of disputes.
Secondly, we consider the question of pretrial discovery, on which there is already authority in Times Newspapers Ltd. v. McDonnell Douglas Corp., 387 F. Supp. 189 (C.D.Cal. 1974). The court there held that the First Amendment does not grant newspaper reporters access to depositions. The court noted that depositions are not a judicial trial nor a part of a trial but a proceeding preliminary to trial; neither the public nor representatives of the press have the right to be present at such proceedings.
Until a deposition has been presented to the court [not the Clerk] and ordered opened, it does not become evidence in the case, nor has either party until then an opportunity to be heard on the question of competency, materiality, or relevancy of the statements made by the witness, and the public can have no right to know what the testimony is until the court knows what it is.
Bench conferences comprise another aspect of the judicial process that has been addressed by the courts. In Gurney, the Court noted that the press does not have access to such conferences. 558 F.2d at 1210.
Trade secret cases, in which the records of both trial and pretrial proceedings contain evidence of trade secrets, are another important consideration. Consider a case that might occur in the United States District Court for the Northern District of Georgia in Atlanta when a federal judge for some reason ordered the Coca-Cola Company to produce from its safe in the bank vault the formula for Coca-Cola. Might it be contended that because it was produced before a federal trial judge, who held an in camera hearing to determine its admissibility and then ruled adversely to admissibility, that the public and the media was entitled to the Coca-Cola recipe? The question is rhetorical and answers itself. It demonstrates that there are privileges and confidentiality or privacy rights to which First Amendment considerations must yield.
Closely related is the question of procedures for determination of various kinds of privileges, including those recognized either at common law or by statute. Frequently, courts are called upon to rule whether the attorney-client privilege, the husband-wife privilege, the physician-patient privilege, or the like is validly asserted. Traditionally, lest the baby be thrown out with the bath water, courts have held such conferences in camera. Were courts to proceed otherwise, public airing of the documents that the court had to scrutinize in order to evaluate a claim of privilege would emasculate the purpose of the privilege claim altogether.
There are thus sound logical bases for some limitations on First Amendment access. Indeed, conceding many of these, media counsel suggested that the appropriate test for media access is whether the court is conducting a formal adjudicative proceeding. The specific question before us, however, is whether a Title III suppression hearing is within the category of those proceedings to which the press has a First Amendment right of access.
The defendant has argued that because the purpose of the suppression and Starks hearings is to determine whether the tapes are presumptively admissible, the principle based on privilege determination is applicable here. He argues that to permit public access would, in the event the tapes are held at the hearing to be inadmissible, defeat the entire purposes of the suppression motion because the press and the public, including potential jurors, would have pre-trial access to inadmissible evidence.
The question of media access to pretrial proceedings has been addressed by the American Bar Association Project on Minimum Standards for Criminal Justice in its Standards Relating to Fair Trial and Free Press. In the presently extant Rule 3.1, entitled "Pretrial Hearings," the standard reads in pertinent part:
In any pretrial hearing in a criminal case, including a motion to suppress evidence, the defendant may move that all or part of the hearing be held in chambers or otherwise closed to the public on the ground that dissemination of evidence or argument adduced at the hearing may disclose matters that will be inadmissible in evidence at the trial and is therefore likely to interfere with his right to a fair trial by an impartial jury. The motion shall be granted unless the presiding officer determines that there is no substantial likelihood of such interference.
This standard was applied by our colleague Judge Bechtle in United States v. Frumento, Crim. No. 75-322 (E.D.Pa. Oct. 20, 1977). In circumstances similar to those before us, Judge Bechtle closed a wiretap suppression hearing to the press after finding that under the ABA standards he was obliged to do so because he could not determine that there was "no substantial likelihood" of interference with the defendant's right to a fair trial. Subsequently, Chief Judge Seitz, of the United States Court of Appeals for the Third Circuit, in a memorandum and order filed as a single judge under No. 75-2182, October 21, 1975, approved the district judge's action and concluded that in view of the prominence of the defendant involved in certain taped conversations and the imminence of trial, ...