Patuxent Publishing Corp. v. State

Moylan, J., delivered the opinion of the Court. This expedited appeal does not involve the merits of the proposed "gag order” on the ultimate criminal trial undergirding these proceedings. It deals rather with the threshold issue of a "gag order” on the "gag order” hearing. It is our considered judgment, however, that the two postures are not significantly different in terms of the public’s right to know as effectuated by the press’s right to access.

To the extent to which there is a right to know what goes on at a criminal trial, there is an equally vital right to know what goes on in a court proceeding that contemplates curtailing that right to know. The litigation of a First Amendment issue can be as sensitive a public concern as the litigation of a violation of the criminal law. The predicate case involves a Howard County prosecution of Emerson Baxter and a co-defendant for an unusually heinous murder. Because of the fact that the trials of the two defendants will be severed and that information might well come out in the first trial which would be widely disseminated and would arguably impact upon the ensuing trial of the co-defendant, steps were undertaken to minimize the adverse publicity by minimizing, in various ways and measure not yet fully determined, the access of the public and the press to the first trial or to various stages thereof.

Several closure orders, the merits of which are not before us, were promulgated by the Circuit Court for Howard County on March 20, 1981 and March 23, 1981. The intervenors, appellants here, representing the press, moved to vacate those orders. On April 16, 1981, the Circuit Court for Howard County scheduled a hearing on these motions to vacate the closure orders. Of immediate concern here is the decision of the Circuit Court for Howard County to close the courtroom to the public and the press when that hearing was to take place.

Out of deference to the intervenors, the Circuit Court for Howard County postponed the contemplated hearing until Monday, April 20, 1981, giving this Court the ⁶⁹¹ opportunity to convene a special panel and to hear this expedited appeal on Friday, April 17, 1981. We heard the appeal on that day and issued a per curiam order which read as follows: "This cause coming on for hearing before this Court and counsel having been heard and arguments considered, It is this 17th day of April 1981, by the Court of Special Appeals, ORDERED, that the order of the Circuit Court for Howard County of April 16, 1981, closing the courtroom to the public at the hearing scheduled for Monday, April 20,1981, on the issue of vacating the order of the Circuit Court for Howard County of March 20, 1981 and March 23, 1981, be, and it is hereby, vacated; and, This vacating of the order generally shall not prejudice the right of any party at that hearing to request, at an appropriate time, a limited bench conference or a limited in-chambers discussion to prevent public disclosure of arguably sensitive and prejudicial evidence that might be the subject of immediate consideration of the motions to vacate. Opinion to follow. Mandate to issue forthwith.” This opinion follows that order by way of setting forth its rationale.

At the outset, it is important to identify the provenance of the public’s right, as opposed to a defendant’s right, here implicated. The Sixth Amendment right to a public trial is one that runs to the criminal defendant alone and not to the people. The majority opinion of Justice Stewart for the Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368, 387 , 99 S. Ct. 2898 , 61 L. Ed. 2d 608, 626 (1979), was absolutely clear in this regard: "The Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case.” More recently, however, the Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. ⁶⁹² 555, 100 S. Ct. 2814 , 65 L. Ed. 2d 973 (1980), recognized that there is a constitutional right of access running to the benefit of the public and the press, although that right is bottomed in the First Amendment rather than in the Sixth Amendment. Chief Justice Burger, speaking for the plurality, held, at 65 L. Ed. 2d 991 -992: "We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and 'of the press could be eviscerated.’ ” The best articulation of the new ground