63 Western District Miscellaneous Docket, 1980, Petition for Extraordinary jurisdiction and Summary Reversal.
John H. Bingler, Jr., Thorp, Reed & Armstrong, Clyde H. Slease, III, Pittsburgh, for petitioner.
Robert Vincler, Kemal A. Mericli, Asst. Dist. Attys., Pittsburgh, for plaintiff.
Thomas A. Livingston, Livingston, Miller, O'Malley & Clark, Pittsburgh, for David S. Hayes.
Walter T. McGough, Reed, Smith, Shaw & McClay, John P. McComb, Jr., P. Jerome Richey, Moorhead & Knox, Pittsburgh, for WTAE-TV.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, Flaherty and Kauffman, JJ., filed concurring opinions. Roberts, J., filed a dissenting opinion in which Eagen, C. J., and O'Brien, J., joined.
This lawsuit represents yet another dispute in the continuing controversy between "free press" and "fair trial." The increasing frequency of these disputes and the mounting acrimony engendered graphically demonstrates the need for clear and decisive judicial direction in this area. One of the major reasons for the difficulty in obtaining acceptable solutions has been a lack of objectivity and flexibility in approaching the difficult problems involved. The issue too frequently is framed as one of competing unalterable principles, rending an accommodation unnecessarily difficult. The analysis employed in these controversies has been undermined by the temptation to extol the superiority of one right over the other and a lack of regard for the more pressing need to harmonize the respective interests.
The accused in the instant case is an elected state official who has been charged with sexually assaulting and supplying drugs to a 17 year old male high school student.
A suppression hearing had been reserved for the start of the trial, and upon the conclusion of the hearing, the trial would commence. At the request of the defense counsel, pursuant to Pa.R.Crim.P. 323(f), Judge Strauss of the Allegheny Court of Common Pleas granted the defense motion to close the suppression hearing. The Commonwealth concurred with the defense motion to close the hearing to the public and the press.
A representative of the Pittsburgh Press newspaper objected to the order and sought permission to intervene to protect the public and the Press's interest in an open hearing. Judge Strauss granted the Press's petition to intervene, then denied the Press's motion for an open hearing. Judge Strauss also rejected the Press's suggestion that the jury selection be completed prior to the suppression hearing and that the jury panel then be sequestered.
Following these rulings, Judge Strauss postponed the suppression hearing to provide the Press an opportunity to seek review by this Court. The Press filed a Petition for Stay which was granted by Mr. Justice O'Brien. The Press also filed a Petition for Exercise of Plenary Jurisdiction, asking the full Court to hear and decide the Press's Petition for Summary Reversal of the Lower Court. The Supreme Court granted permission to all media organizations to intervene in this matter, and on March 11, 1980, the full Court heard oral arguments on the Petition for Summary Reversal.
The most recent pronouncement of the U.S. Supreme Court on the subject is illustrative of the fragmentation that results where the approach adopted is to attempt to assign a qualitative value to the various competing interests involved. In Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) the Court was called upon to determine whether a judge may order a closed pretrial
proceeding to safeguard the fair trial guarantee of the Sixth and Fourteenth Amendments of the federal Constitution.*fn1
Mr. Justice Stewart in an opinion joined by Chief Justice Burger and Justices Powell, Rehnquist and Stevens, upheld the trial court's order of closure excluding the press from a pretrial suppression evidentiary hearing, where the prosecutor and the court agreed with the defense's assessment that an unabated buildup of adverse publicity was jeopardizing the accused's right to a fair trial. Mr. Justice Stewart justified his position by rejecting a claim that the Sixth Amendment accorded the public a right of access to public trials. Id. at 378-391, 99 S.Ct. at 2905-2911, 61 L.Ed.2d at 621-28. In support of his position, he offered two separate reasons. First, he drew from the historical development of the Sixth Amendment to conclude that the public has no right under its provisions to attend criminal trials. Id. 443 U.S. 386 at n. 15, 99 S.Ct. 2908-2909 at n. 15, 61 L.Ed.2d 625 at n. 15.*fn2 Second he argued in the alternative, in the event such a right to public access did exist under the Sixth and Fourteenth Amendments, it would not extend to pretrial proceedings. Id. at 387-391, 99 S.Ct. at 2909-2911, 61 L.Ed.2d at 626-28. Although stating that he was reserving the question as to the public's right of access under the First and Fourteenth Amendments, id. at 391-393, 99 S.Ct. at
-2912, 61 L.Ed.2d at 629, Mr. Justice Stewart did, however, implicitly limit whatever right might exist thereunder by concluding that in the case then before the Court, the trial court had satisfied those concerns. Id. at 391-394, 99 S.Ct. at 2911-2913, 61 L.Ed.2d at 629-30.*fn3
Mr. Justice Powell joined the opinion for the Court, and also wrote a concurring opinion in which he considered the First Amendment issue. He expressed the view that the public has a right of access to both trials and pretrial hearings under the First Amendment and that right must be balanced against the defendant's right to a fair trial. Id. at 398-402, 99 S.Ct. at 2915-2917, 61 L.Ed.2d at 633-35. He concluded that closure could only be justified where it is demonstrated that the defendant would otherwise be prejudiced. Id. He was satisfied that the record in Gannett sufficiently established prejudiced to warrant closure in that case. Id. at 401-404, 99 S.Ct. at 2916-2918, 61 L.Ed.2d at 635-36. Mr. Justice Rehnquist also joined the opinion of the Court, and extended its holding by asserting that there is no public right of access under the First Amendment. Id. at 404-405, 99 S.Ct. at 2918, 61 L.Ed.2d at 637. Thus, he adopted the position that an accused seeking closure was not required to make a showing of harm and a trial judge was not required to give reasons for ordering closure. Id. at 403-405, 99 S.Ct. at 2917-2918, 61 L.Ed.2d at 636-37. Chief Justice Burger was also a member of the majority who chose
to write a separate concurring opinion.*fn4 He advocated the position that the framers of the Constitution did not intend to include a public right of access to pretrial proceedings within the Sixth Amendment because, unlike trials, they were not open to the public at common law. Id. at 394-397, 99 S.Ct. at 2913-2914, 61 L.Ed.2d at 630-32.
The dissenting view, authored by Mr. Justice Blackmun, maintained that the public has a right under the Sixth Amendment to attend criminal proceedings.*fn5 Nonetheless, the dissent did recognize that closure of a pretrial suppression in a criminal case would be warranted if there was "a sufficient showing to establish the strict and inescapable necessity" for such an order. Id. at 448, 99 S.Ct. at 2940, 61 L.Ed.2d at 665.
If we were to focus our inquiry upon whether the various interests reached constitutional proportions, Gannett would provide little guidance. Although five members of the Court rejected the claim that the Sixth and Fourteenth Amendments conferred upon the public a right of access, at least to pretrial suppression proceedings, a majority of the Court did, however, conclude the public's right of access was constitutionally guaranteed. Although not accepting the four dissenters' Sixth Amendment position, Mr. Justice Powell did find the right constitutionally protected under the First Amendment.
large," each individual member of which cannot obtain for himself "the information needed for the intelligent discharge of his political responsibilities."
Id. at 397, 99 S.Ct. at 2914-2915, 61 L.Ed.2d 632.
Additionally, it must be remembered that the majority with the exceptions of Justices Powell and Rehnquist have yet to express a definitive view on the First Amendment's impact on the area in question.
However, whether or not the right of public access is of constitutional dimension is not critical to the problem usually raised in these disputes. Even if we interpret Gannett as establishing that the public right of access is constitutionally guaranteed, nevertheless, as noted by Mr. Justice Powell, it is not an absolute, unqualified right.
The right of access to courtroom proceedings, of course, is not absolute. It is limited both by the constitutional right of defendants to a fair trial, see, e. g., Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and by the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants. Cf. Procunier v. Martinez, 416 U.S. 396, 412-413, 94 S.Ct. 1800 [1810-1811], 40 L.Ed.2d 224 [71 Ohio Ops.2d 139] (1974); Houchins v. KQED, 438 U.S. 1, 34-35, 98 S.Ct. 2588 [2607-2609], 57 L.Ed. 553 (1978) (Stevens, J., dissenting); Saxbe v. Washington Post Co., supra, [417 U.S.] at 872-873, 94 S.Ct. [2811 at 2825-2826, 41 L.Ed.2d 514]. The task of determining the application of these limitations in each individual trial necessarily falls almost exclusively upon the court asked to exclude members of the press and public from the courtroom.
Id. at 398, 99 S.Ct. at 2915, 61 L.Ed.2d at 633.
Moreover, the members of the Court who would not assign constitutional stature to the public right of access, nonetheless, recognized the great societal interest in the right.
There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce
unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously and generally give the public an opportunity to observe the judicial system.
Id. at 383, 99 S.Ct. at 2907, 61 L.Ed.2d at 623. (Opinion of the Court).
It is thus readily apparent that where a less restrictive alternative is available for assuring the fair trial guarantee and the use of that alternative does not unduly burden the expeditious disposition of the cause, all of the views expressed by the members of the Gannett Court would have no serious disagreement with a requirement that the alternative procedure should be opted for in preference to closure.
Turning next to the Constitution of this Commonwealth, it is to be noted that in addition to providing a right to the accused for "a speedy public trial," Art. 1, § 9, it also has the additional requirement that "all courts shall be open." Art. 1, § 11. It is suggested that Art. 1, § 11, which does not have a counterpart in the federal Constitution, places an added responsibility on the courts of this Commonwealth to protect the public's right of access. Unquestionably, the "all courts shall be open" provision has a firm foundation in our constitutional history, having been provided for in the 1682 Frame of Government and 1776 Constitution. Nevertheless, most of the decisions construing this phrase have been in the context of a citizen's right to a legal remedy for a wrong or injury. See, e. g., Parker v. Children's Hospital of Phila., 483 Pa. 106, 394 A.2d 932 (1978); Mayle v Pa. Dept. of Hwys., 479 Pa. 384, 388 A.2d 709 (1975); Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975); Dolan v. Linton's Lunch, 397 Pa. 114, 152 A.2d 887 (1959).
The few cases that have considered this portion of Art. 1, § 11 with reference to the public's right of access have frequently intertwined the Art. 1, § 9 guarantee of a speedy public trial. This would suggest the implicit view that Art. 1, § 11 did not provide any greater right in this context than
that provided in Art. 1, § 9 and that the primary concern was to assure the accused of protection against star-chamber proceedings. See, e. g., Commonwealth v. Trinkle, 279 Pa. 564, 124 A. 191 (1924).
It was thought the presence of the public generally would constrain a court, otherwise predisposed, to accord the witness a fair trial. Convictions by secret trials were therefore abolished. Public trials, with public records, were introduced and our Constitution perpetuates this practice. Id., 279 Pa. at 568, 124 A. at 192.
In Commonwealth ex rel. Paylor v. Cavell, 185 Pa. Super. 176, 138 A.2d 246 (1958) cert. denied, 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88, the Superior Court discussed at length the Pennsylvania constitutional ramifications of a public trial and the right to exclude spectators from criminal proceedings, mentioning Art. 1, § 11 only in a footnote reference.*fn6 Thus, our research of the appellate decisional law fails to uncover any support for the claim that Art. 1, § 11, open court provision, provides a greater right of access to the public in criminal trials than the public trial provisions of the federal and state Constitutions.
Our decisions do, however, make it clear that the courts of this Commonwealth may exclude members of the public from criminal proceedings where the interests of justice require. Commonwealth v. Principatti, 260 Pa. 587, 104 A. 53 (1918) (the court has the power to exclude persons from a courtroom during the testimony of a witness where that witness was in fear of retaliation by those present if they heard his testimony). Commonwealth v. Trinkle, supra; Commonwealth ex rel. Paylor v. Cavell, supra. Most recently, this Court held that a pretrial suppression hearing closure in order to protect the fair trial rights of the accused did not
offend the Pennsylvania Constitution. Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978).
Nevertheless, we terminate this review of the state constitutional provisions, as we did with the federal Constitution, with the conclusion that the use of closure of a pretrial suppression proceeding may properly be limited where there is an effective and efficient alternative means to assure the accused's fair trial rights. This position is virtually compelled by the language of Mr. Justice Roberts speaking for the Court in Philadelphia Newspapers, Inc. v. Jerome, supra, 478 Pa. at 503-04, 387 A.2d at 434-435:
We believe that any limitation on access should be carefully drawn. First, the right of access to court proceedings should not be limited for any reason less than the compelling state obligation to protect constitutional rights of criminal defendants and the public interest in the fair, orderly, prompt, and final disposition of criminal proceedings. Second, access should not be limited unless the threat posed to the protected interest is serious. Third, rules or orders limiting access should effectively prevent the harms at which they are aimed. Finally, the rules or orders should limit no more than is necessary to accomplish the end sought. Because the challenged Rules and orders are closely tailored to protecting both the constitutional right of defendants to a fair trial and the public's interest in the fair and efficient administration of criminal justice, we denied relief.*fn7
The view that any limitation on the public's access to criminal judicial proceedings should be carefully drawn was reflected in all of the views expressed by the members of the Supreme Court in Gannett. As just mentioned, it was also the view of this Court in Jerome. The only point of difference was as to how stringent the requirements should be fashioned in determining the appropriate use of closure. For illustration, the dissenters in Gannett did
443 U.S. at 439, 99 S.Ct. at 2936, 61 L.Ed.2d at 659.
While this recognition occasioned them to accept that closure in some instances would be acceptable, their determination as to when it could be used represented the most circumscribed view. Mr. Justice Powell, whose position probably represents the middle ground, also recognized the need to limit the use of closure.
Thus, 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. Similarly, because exclusion is justified only as a protection of the defendant's right to a fair trial and the State's interest in confidentiality, members of the press and public objecting to the exclusion have the right to demand that it extend no farther than is likely to achieve these goals.
Id., at 400, 99 S.Ct. at 2916, 61 L.Ed.2d at 634 (Powell, J., concurring).
Even the view of Mr. Justice Stewart, which refused to recognize public access as a constitutionally protected guarantee under the Sixth and Fourteenth Amendments, nevertheless, conceded:
We certainly do not disparage the general desirability of open judicial proceedings.
At 393, 99 S.Ct. at 2912, 61 L.Ed.2d at 630.
The instant closure order was entered pursuant to Pa.R.Crim.P. 323(f)*fn8 at the express request of the defense and concurred in by the Commonwealth. Petitioner questions the sufficiency of the showing before the trial court of the need to involve the provisions of section (f) and also urges that there is a viable alternative in this case which eliminates the need of the closure order. We need not consider the former complaint since we agree with petitioner's latter position.*fn9 Even if we were to relegate the public's right to access to a common law tradition, there is no justification to deny the right on Sixth and Fourteenth Amendment grounds where an alternative measure could accomplish the desired result.
It is conceded in the case at bar that sequestration in this case can fully protect the defendant's fair trial rights. The court had previously scheduled this suppression hearing to be held immediately before the commencement of trial. Further, in view of the limited anticipated time to be consumed in this hearing, the use of sequestration will not be unduly burdensome, costly or inconvenient. In view of the availability of sequestration which, in this case, fully protects the accused's fair trial rights and does not impede
the orderly resolution of the case or unduly increase the administrative costs, the trial court was without justification to invoke the provisions of 323(f) and thereby deny public access to these proceedings.
The final question that must be considered is the defendant's contention that, although sequestration will protect his Sixth Amendment rights, his right of privacy would be jeopardized by its use in this case. Of course, if the defendant prevailed in this contention, we could not find that sequestration was an adequate and viable alternative. This novel argument was raised in oral argument by the defense and not briefed. Carried to its logical conclusion, it would require closure in all suppression proceedings where the admissibility of evidence belonging to or taken from the possession of the defendant is challenged. Our research of the development of the law of privacy offers no support for the protection the defendant presently seeks.
In the American jurisprudential system, both tort and constitutional law recognize that an individual has the right to be free from unwarranted invasions of privacy. The origin of the tort cause of action for invasion of privacy was an 1890 Harvard Law Review*fn10 article by Samuel P. Warren and Louis D. Brandeis. This article analyzed a number of cases in which relief had been granted on the basis of defamation, invasion of property rights, or breach of implied contract, and concluded that these cases were based on a broader principle entitled to separate recognition -- the right to privacy. See Prosser, Law of Torts, 802 (1971) (hereinafter Prosser). Initially, American courts were divided in their acceptance of the new tort,*fn11 but after its recognition
in the Restatement of Torts, § 867 (1939),*fn12 the tide turned in favor of its acceptance.
The number of tort cases asserting a cause of action for invasion of privacy blossomed.*fn13 In 1960, three quarters of a century after the Warren and Brandeis article, Professor Prosser made a mammoth effort to bring order to the case law which was "tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone."*fn14 In a significant scholarly article,*fn15 Professor Prosser categorized the first 400 privacy decisions dating back to the 1890's and organized the decisions under four headings: intrusion upon the plaintiff's seclusion or private affairs,*fn16 public disclosure of embarrassing private facts about the plaintiff,*fn17 publicity which places the plaintiff in a
false light,*fn18 and appropriation of the plaintiff's name or likeness for the defendant's advantage.*fn19 Professor Prosser's scholarship has had a great influence on the developing case law*fn20 and the Restatement of Torts, Second, has adopted his categories for invasions of privacy.*fn21 Clearly, the tort theory is not helpful to the defendant in the instant case. Whether or not the anticipated disclosures would constitute the tort, his remedy would be damages for any loss sustained thereby not the closure of a proceeding where an improper disclosure might occur.
Constitutional law is the second area of American jurisprudence which provides relief to invasions of an individual's privacy. Although the United States Constitution does not explicitly mention an individual's right to privacy, for almost a century the Supreme Court has recognized that the right of personal privacy does exist under the Constitution.
In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 [, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542] (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 [88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889] (1968), Katz v. United States, 389 U.S. 347, 350 [, 88 S.Ct. 507, 510, 19 L.Ed.2d 576] (1967), Boyd v. United States, 116 U.S. 616 [, 6 S.Ct. 524, 29 L.Ed. 746] (1886), see Olmstead v. United States, 277 U.S. 438, 478 [48 S.Ct. 564, 572, 72 L.Ed. 944] (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. [479,] at 484-485
[85 S.Ct. 1678, 14 L.Ed.2d 510]; in the Ninth Amendment, id., at 486 [85 S.Ct. 1678 at 1682] (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 [, 58 S.Ct. 149, 152, 82 L.Ed. 288] (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 [, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 [62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S.,  at 453-454 [92 S.Ct. 1029, at 1038-1039, 31 L.Ed.2d 349]; id., at 460, 463-465 [92 S.Ct. 1029, at 1042, 1043-1044] (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925), Meyer v. Nebraska, supra.
Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (1973).
In response to the frequent criticism that the constitutional concept of a right to privacy is largely undefined,*fn22 the Supreme Court attempted to categorize its privacy right decisions. In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the Court was presented with a challenge to the constitutionality of a New York statute which established a central computer file containing the names and addresses of all persons who had obtained, pursuant to a doctor's prescription, drugs for which there is a lawful and unlawful market. The appellees argued that the statute invaded their constitutionally protected "zone of privacy."
U.S. at 598, 97 S.Ct. at 876. Justice Stevens, writing for a unanimous Court explained "[t]he cases sometimes characterized as protecting 'privacy' have in fact involved two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters,*fn23 and another is the interest in independence in making certain kinds of important decisions."*fn24 Id. at 599, 97 S.Ct. 876. The appellees contended that the statute threatened to impair both their interest in non-disclosure of public information (their concern that their use of the drug would become known), plus their interest in making important decisions independently (their decision to take a prescribed drug would be inhibited by the disclosure requirement). After examining the state's safeguards to prevent unauthorized access to the data, and concluding that this risk of unauthorized access was too insubstantial to pose a real threat to patient privacy, the court held "that neither the immediate nor threatened impact of the patient identification requirement . . . on
either the reputation or independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment. 429 U.S. at 603-604, 97 S.Ct. at 878.
In the oral argument of the present case the defendant asserted a constitutional right to privacy, and in order to preserve his privacy rights, he wishes to prevent public disclosure of the private matters sought to be suppressed. The seeds of this right stem from the Fourth Amendment of the United States Constitution. The Fourth Amendment provides in part that:
[t]he right of the people to be secure in their person, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .
In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Supreme Court initially noted the relationship between the Fourth Amendment and an individual's privacy interest. In Boyd, the Court pointed out that "a compulsory production of a man's private papers to establish a criminal charge against him . . . is within the scope of the Fourth Amendment to the Constitution in all cases in which a search and seizure would be, because it is a material ingredient and effects the sole object and purpose of the search and seizure." Id. at 622, 6 S.Ct. at 528. The Court elaborated on the Fourth Amendment's protection of an individual's privacy rights and stated that it applies
Id. at 630, 6 S.Ct. at 532.