Tuesday, October 19, 2021
Stephen Smith (Santa Clara University - School of Law) has posted What's in a Name? Strict Scrutiny and the Right to a Public Trial (Idaho Law Review, Vol. 57, No. 2, 2021) on SSRN. Here is the abstract:
The Sixth Amendment to the United States Constitution provides that the accused has a right to a public trial. The Supreme Court, in Waller v. Georgia, established that a trial court that seeks to close its courtroom must have a strong interest in closure and the closure must be narrowly tailored to further that interest. This apparent “strict scrutiny” applied to review courtroom closures ordered by trial courts should be conceived as a more lenient form of review. Waller should not be read to require strict scrutiny of courtroom closures. Ultimately, there is nothing especially objectionable about the language of Waller’s test. The reasons that justify a closure order, and possible alternatives to closure, should be considered by a court before it orders a closure. But those considerations should not be viewed through a strict scrutiny lens. Because the formulation of the strict scrutiny test is familiar to lower courts as something akin to a prohibition, that reading of the test may be misleading.