The Right to a Public Trial, Conditional Courtroom Entry and Tiers of Constitutional Scrutiny


  • Stephen E. Smith



The constitutional test the SupremeCourt has prescribed to review courtroom closures for compliance with the Sixth Amendment’s right to a public trial is in the nature of strict scrutiny. The Courtrequires an “overriding interest” to justify the closure, and a narrow, minimally restrictive scope to the closure. Many lower courts have imposed a less demanding test for “partial” closures, which admit
to the courtroom some, but not all, of the public. These courts require a less demanding justification before closing the courtroom to certain individuals—the justification need be only “substantial,” rather than “overriding.” This standard is in the nature of intermediate scrutiny, as applied in other constitutional contexts. There is a third type of “closure,” however, beyond the complete closures the Supreme Court has reviewed, and the partial closures encountered by other courts. This third type is the imposition of entry conditions on would-be audience members, such as requiring a form of identification. These generally applicable conditions may not actually exclude anyone but could conceivably dissuade some audience members from attending a trial. For instance, an attendee might prefer not to provide identification to court personnel and might be turned away as a result. In keeping with the doctrinal model already followed by the courts—applying “tiered scrutiny” to courtroom closures—conditional courtroom entry should be reviewed according to the most lenient of the tiers, rational basis scrutiny. A sliding scale should apply to public trial scrutiny, “Waller” scrutiny, the most demanding, when all are excluded. “Substantial reason” scrutiny, less demanding, should apply when some are excluded. And
rational basis scrutiny, much less demanding, should apply when no one need be excluded, but for their non-compliance with a general rule. A lesser standard should apply in the case of entry conditions because they differ from other closures and cause minimal prejudice to the purposes of the right to a public trial.