This post originally appeared on Constitution Daily
When Anders Breivik was arraigned in an Oslo court last week for his brazen acts of terrorism, it was in a hearing closed to the public and closed to the news media.
The decision to do that was based on concern over whether Breivik would use the proceeding to send covert signals to accomplices ready to commit additional acts of violence. But it may also have been a way to ensure that Breivik did not seize this as yet another opportunity to promote his now familiar right-wing manifesto warning of Europe's decline into "Islamification" and the coming of a new Caliphate.
Breivik is the flip side of Osama bin Laden, who described the same kind of future for Europe approvingly, and indeed, there were equally strong concerns that had bin Laden been captured and not killed he might have used the stage provided by a trial proceeding to spew venom on America and recruit more soldiers for the jihad.
To each of these men, imprisonment and perhaps even death was a small price to pay for promoting their revolutionary ideas, all of which raises an interesting series of questions: how do we protect the need for a public and transparent judicial process without rewarding acts of violence with the very mission of their violence: publicity for a set of radical ideas? Can we? Should we?
A competition of rights
Had Breivik been subjected to the American criminal justice process, it is doubtful that the judge would have closed the hearing. The Sixth Amendment to the Constitution protects the right to a public trial, in part to ensure that corruption is not at work in the courtroom, in part so that the "people" get to simply see their criminal justice system at work. Indeed, the public nature of trial proceedings is a hallmark of the American criminal justice system. Still, the Sixth Amendment does not address the kind of issue being raised here, that the public may find a "public trial" not in its interest.
The closest the Court has come to reviewing this idea would be the potential for inflammatory ideas like those espoused by Breivik leading to a mob reaction that would prevent a public trial from being a fair trial. In Moore v. Dempsey (1923) the Court ruled, 6-2, that when a trial proceeding is too public, it can turn into a circus that prevents a fair judgment.
It is easy to imagine that a trial of bin Laden or of Breivik would turn into just such a mob scene, justifying the closing of the door, and yet it is just as easy to argue that a proceeding of this magnitude demands public eyes. Few could dispute that it is of commanding interest to the public at large that those responsible for crimes like these are properly brought to justice.
Ultimately, in America, the decision about whether to conduct a trial of this importance in public or behind closed doors would become a balancing act between the Sixth Amendment and the First Amendment. The trial would need to be conducted in a way that ensures the best chance of getting at the truth and expression, particularly political expression, would also need to be protected, no matter how odious its content.