Editor's Note: On occasion, law school homework meshes with current events. This reaction paper provides a rare example where what we read in class would not put non-law students to sleep. More often than not, theoretical readings and ancient precedent lack the thrill of a Grisham novel. While this isn't "The Firm," I found the topic worth sharing. For those curious about what a law school assignment reads like, enjoy. I should also note that this was a graded assignment, and before publishing this, I received permission from my professor to do so. The casebook referred to is Mass Media Law Cases and Materials, 7th Edition by Franklin, Anderson and Lidsky.

 

Richmond Newspapers, Inc. v Virginia, 448 U.S. 555 (1980) claims that "the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility and emotion." As a prong of the holding guaranteeing newsgatherers the right to attend trials, the Supreme Court opined that distribution of information about criminal and civil trials helps prevent vigilante justice. "Without awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful 'self-help'." Id. (casebook, 674)

 

This theory sounds remarkably similar to the safety-valve theory of free speech. Justice Brandeis elucidated how free expression creates political stability in his concurrence in Whitney v. California, 274 U.S. 357, 375 (1927). "Those who won our independence [knew] that fear breeds repression, that repression breeds hate, that hate menaces stable governments; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies."

 

Free speech philosopher Thomas I. Emerson in The System of Freedom of Expression (1970) further argued that free expression "provides a framework in which the conflict necessary to the progress of a society can take place without destroying the society." The safety valve, in essence, allows politically marginalized people to channel their fervor to speech, not violence.

 

While the readings on "Access to Judicial Proceedings" offer no evidence of any cross-pollination between the prophylactic purpose of open trials to stem vigilante justice and the safety valve value of free speech as a means for preventing political violence, the cases referenced throughout the reading invite comparison, and indeed, it seems that the two ideas go hand in hand.

 

For example, Press Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986), explores the "'community therapeutic value' of openness" (CB 687) in criminal trials. Press Enterprise II explains that heinous violent crimes can "provoke public concern, outrage and hostility." The public awareness of justice being done resulting from news coverage of trials increases confidence in the judicial system, and "an outlet is provided for these understandable reactions and emotions." Thus, a free press reporting on the wheels of justice can avert the angry mob certain to arise in the absence of a prosecution. Press Enterprise II then quotes Press Enterprise I for the proposition that openness creates an appearance of fairness.

 

When openness reveals unfairness in the machinations of justice, the cathartic value of observing the judicial process drops, and an obvious injustice can create enough pressure to blow through the safety valve of free speech. The riots following the verdict for the police officers who beat Rodney King attest to this potential exception.

 

Where there is limited openness in judicial proceedings, as seen in the post 9/11-terrorism cases, has the prophylactic function of the court been served? While this may be too broad a question to ask, it's worth sketching an argument that more sunlight in trials for terrorism suspects could reduce violent hate crimes against Muslims and Arabs living in the United States.

 

The 9/11 attacks were more gruesome and public than the facts of Richmond, the Press Enterprise cases or even Utah v Archuleta, 857 P.2d 235 (Utah 1993). Some Americans found vigilante justice appropriate, as more than 700 hate crimes against Arab and Muslims were reported in the weeks following 9/11. A December 2008 report by the American-Arab Anti-Discrimination Committee suggests that the number of hate crimes against Arab-Americans has dropped to a steady annual flow of about 120-130. Prior to 9/11, the ADC recorded about 90 hate crimes against Muslims annually.

 

Understanding that many factors lead to hate crimes, it is plausible that the wars in Iraq and Afghanistan created a perception of collective retribution that satisfied the need for extra-judicial punishment. So would greater judicial transparency in terrorism trials reduce the number of hate-crimes further? Suppose that instead of keeping Zacarias Moussaoui's trial "almost entirely secret for 20 months," (casebook 693), Americans were able to participate on a daily basis through news reports of Mousaaoui's prosecution?

 

Would Americans have had an outlet for their hostility and community concern if the could talk about Moussaoui? Based on the historical rational for openness as a prophylactic, I gather the Sikhs who suffered post-9/11 hate attacks would have given reporters a chance to cover Moussaoui's trial.

 

Or suppose that instead of hiding suspects like Mohamed Kamel Bellahouel (casebook, page 692) in Star Chamber-like incommunicado states – without juries, witnesses, indictments, rights to counsel or seemingly rights of appeal – the U.S. government told citizens the exact nature and scope of cases prosecuted to stop terrorism? The argument that detailing the judicial docket would give terrorist organizations an advantage fails, as it assumes the terrorist organizations wouldn’t know that their operatives had disappeared.

 

This essentially repressive tactic recalls the climate of fear Justice Brandeis warned about, and seemingly demands openness as a prophylactic remedy to prevent hate crimes. This interest in openness, which weighed so heavily in the Supreme Court's rationale in Richmond and its progeny, unfortunately has done little to grant reporters access to the courtrooms employed in the war on terror.

 

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