Globe Newspaper Co. v. Superior Court, County of Norfolk

PETITIONER: Globe Newspaper Co.
RESPONDENT: Superior Court, County of Norfolk
LOCATION: Suffolk County Court

DOCKET NO.: 81-611
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Massachusetts Supreme Judicial Court

CITATION: 457 US 596 (1982)
ARGUED: Mar 29, 1982
DECIDED: Jun 23, 1982

James F. McHugh, III - on behalf of the appellant -- rebuttal
Mitchell J. Sikora, Jr. - Argued the cause for the appellee

Facts of the case

A Massachusetts law required trial courts to exclude members of the press and public from certain cases involving sexual offenses and testimony of victims less than eighteen years old. In a trial involving a male who was accused of raping three minors, the court, acting in reference to the Massachusetts statute, conducted a closed trial.


Did the Massachusetts law violate the First Amendment's freedom of press guarantee as applied to the states through the Fourteenth Amendment?

Media for Globe Newspaper Co. v. Superior Court, County of Norfolk

Audio Transcription for Oral Argument - March 29, 1982 in Globe Newspaper Co. v. Superior Court, County of Norfolk

Warren E. Burger:

We will hear arguments next in Globe Newspaper Company against Superior Court.

Mr. McHugh, I think you may proceed whenever you are ready.

James F. McHugh, III:

Mr. Chief Justice, and may it please the Court, the Appellant in this case is the Globe Newspaper Company, publisher of a newspaper called The Boston Globe, which is circulated in the city of Boston and elsewhere throughout New England.

We are here today to seek reversal of a judgment of the Supreme Judicial Court of the Commonwealth of Massachusetts holding that a Massachusetts statute, General Laws, Chapter 268, Section 16(A), on its face and as applied to the facts of this case constitutes a permissible method for regulating the trial of certain criminal cases.

In essence, the statute provides that at the trial of cases involving crimes of sex, the court is required to exclude the press and the public from the courtroom while the minor victim--

Do you mean, Mr. McHugh, by required, the fact it is mandated, that no matter what the witnesses may desire, and what the parties may desire, the court must close the courtroom?

James F. McHugh, III:

--Precisely, Mr. Justice.

That is exactly what the statute says.

That is exactly how the Supreme Judicial Court has construed it to read.

Then, I am a little puzzled when you reach the proposition you advance that you... it is not only bad on its face but as applied.

James F. McHugh, III:

Well, if--

Now, as applied here, you say that even if the statute were discretionary, you would be here.

James F. McHugh, III:

--We would be here on this record.

Yes, Mr. Chief Justice.

I notice in your brief you suggest that there was no question raised by the complaining witness.

Do you think that is quite an accurate characterization of the complaining witness?

James F. McHugh, III:

At the time the closure order was entered, there surely was no question raised by the complaining witness.

At the time--

What was the complaining witness's position about the matter?

James F. McHugh, III:

--It is unclear to me, Mr. Chief Justice, and I think that--

I thought it was pretty clear that if her privacy could be guaranteed, then she would have no objection.

Now, could her privacy be guaranteed in any other way than what was done here?

James F. McHugh, III:

--Well, I don't think her privacy could be guaranteed by what was done here if by privacy we mean disclosure of potentially embarrassing facts, because this statute doesn't reach the problem that is covered by that kind of a situation.

Beyond that, I am not sure from what I described as an uninformative, and I think it is an uninformative colloquy that took place in chambers after these orders were entered, precisely what her concerns about privacy were.

After all, that colloquy dealt with the prosecutor's representation to the court concerning what the victim them had said to her, the prosecutor.

Before that, at the time the hearing took place before a single justice, the representation was that the prosecutor had consulted fully with the victims, and that literally on their behalf the Commonwealth was waiving whatever rights it had under the statute.

At most, I would suggest, Mr. Chief Justice, that that colloquy and its dimensions illustrate the critical need for a hearing in cases like this, so that questions like the one you have just asked can be answered on some kind of a factual record which lets people know precisely what is going on and what the precise concerns of the victim are.

Yes, but I understood, Mr. McHugh, in your answer to me, it would not... what was the need for a hearing?

As I understood it, the trial judge, under the statute, if he is to follow it, has absolutely no choice.

He has to close the courtroom.