author: Justice Marshall

text:
    KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES
    No. 82-1994.
    Argued February 22, 1984
    Decided May 21, 1984

      Joe G. Roady argued the cause and filed briefs for petitioner.

      Harriet S. Shapiro argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General Habicht, Deputy Assistant Attorney General Liotta, Raymond N. Zagone, and Jacques B. Gelin

        Jerrold A. Fadem and Michael M. Berger filed a brief for Laughlin Recreational Enterprises, Inc., as amicus curiae urging reversal.

   Justice Marshall

delivered the opinion of the Court.

Title 40 U. S. C. § 257, in conjunction with Rule 71A of the Federal Rules of Civil Procedure, prescribes a procedure pursuant to which the United States may appropriate privately owned land by eminent domain. The central issue in this case is whether the manner in which the value of the land is determined and paid to its owner under that procedure comports with the requirement, embodied in the Fifth Amendment, that private property not be taken for public use without just compensation.

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The United States customarily employs one of three methods when it appropriates private land for a public purpose. The most frequently used is the so-called “straight-condemnation” procedure prescribed in 40 U. S. C. §257. Under that statute, an “officer of the Government” who is “authorized to procure real estate for the erection of a public building or for other public uses” makes an application to the Attorney General who, within 30 days, must initiate condemnation proceedings. The form of those proceedings is governed by Federal Rule of Civil Procedure 71A. In brief, Rule 71A requires the filing in federal district court of a “complaint in condemnation,” identifying the property and the interest therein that the United States wishes to take, followed by a trial — before a jury, judge, or specially appointed commission — of the question of how much compensation is due the owner of the land. The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U. S. 271, 284 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. Ibid.; see Fed. Rule Civ. Proc. 71A(i)(3).

A more expeditious procedure is prescribed by 40 U. S. C. §258a. That statute empowers the Government, “at any time before judgment” in a condemnation suit, to file “a declaration of taking signed by the authority empowered by law to acquire the lands [in question], declaring that said lands are thereby taken for the use of the United States.” The Government is obliged, at the time of the filing, to deposit in the court, “to the use of the persons entitled thereto,” an amount of money equal to the estimated value of the land. Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference.

Finally, Congress occasionally exercises the power of eminent domain directly. For example, when Congress thinks that a tract of land that it wishes to preserve inviolate is threatened with imminent alteration, it sometimes enacts a statute appropriating the property immediately by “legislative taking” and setting up a special procedure for ascertaining, after the appropriation, the compensation due to the owners.

In addition to these three statutory methods, the United States is capable of acquiring privately owned land summarily, by physically entering into possession and ousting the owner. E. g., United States v. Dickinson, 331 U. S. 745, 747-749 (1947). In such a case, the owner has a right to bring an “inverse condemnation” suit to recover the value of the land on the date of the intrusion by the Government. United States v. Dow, 357 U. S. 17, 21-22 (1958).

The Government’s selection amongst and implementation of these various methods of acquiring property is governed, to some extent, by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U. S. C. §4601 et seq. That statute enjoins federal agencies, inter alia, to attempt to acquire property by negotiation rather than condemnation, and whenever possible not to take land by physical appropriation. §§4651(1), (4), (8). In addition, the statute requires a court with jurisdiction over a condemnation action that is dismissed or abandoned by the Government to award the landowner an amount that will reimburse him for “his reasonable costs, disbursements, and expenses” incurred in contesting the suit. § 4654(a). The statute does not, however, regulate decisions by the Government whether to employ the “straight-condemnation” procedure prescribed in § 257 or the “declaration of taking” procedure embodied in § 258a.

B

Petitioner, a manufacturer of forest products, owns substantial tracts of timberland in Texas. This case arises out of a protracted effort by the United States to appropriate 2,175.86 acres of that land.

In the mid-1960’s, several studies were made of the desirability of establishing a national park or preserve to protect an area of relatively untrammeled wilderness in eastern Texas. One of those studies, conducted in 1967 by the National Park Service, recommended the creation of a 35,500-acre Big Thicket National Park. The Texas Forestry Association, of which petitioner is a member, endorsed that proposal and declared a voluntary moratorium on logging in the designated area. Since 1967, petitioner has observed that moratorium and has not cut any trees on its property lying within the area demarked by the Park Service.

After seven years of desultory consideration of the matter, Congress rejected the Park Service proposal and enacted legislation creating a much larger Big Thicket National Preserve. Act of Oct. 11, 1974, Pub. L. 93-439, 88 Stat. 1254, 16 U. S. C. §698 et seq. The statute directed the Secretary of the Interior to acquire the land within the boundaries of the Preserve. 16 U. S. C. § 698(c). The Senate Report made clear that, though the Secretary had the authority to acquire individual tracts by declaration of taking, pursuant to 40 U. S. C. § 258a, such a peremptory procedure should be employed only when necessary to protect a parcel from destruction. S. Rep. No. 93-875, p. 5 (1974). It was understood that, in the absence of such an emergency, the Secretary would purchase the land using the straight-condemnation method prescribed in 40 U. S. C. §257.

The Government initially attempted to acquire the acreage owned by petitioner through a negotiated purchase. On August 21, 1978, after those negotiations had broken down, the United States filed a complaint in condemnation in the District Court for the Eastern District of Texas. Shortly thereafter, the Government filed a notice of Us pendens, notifying the public of the institution of the condemnation proceeding. The District Court referred the matter to a special commission to ascertain the compensation due petitioner.

Trial before the commission began on March 6, 1979. On that day, the parties stipulated that “today is the date of taking.” After hearing competing testimony pertaining to the fair market value of petitioner’s land, the commission entered a report recommending compensation in the amount of $2,331,202.

Both parties filed objections to the report in the District Court. On August 13, 1981, after holding a hearing to consider those objections, the District Court entered judgment awarding petitioner compensation in the amount recommended by the commission, plus interest at a rate of six percent for the period from August 21, 1978 (the date the complaint had been filed), to the date the Government deposited the adjudicated value of the land with the court. United States v. 2,175.86 Acres of Land, 520 F. Supp. 75, 81 (1981). The court justified its award of interest on the ground that the institution of condemnation proceedings had “effectively denied [petitioner] economically viable use and enjoyment of its property” and therefore had constituted a taking. Id., at 80. On March 26, 1982, the United States deposited the total amount of the judgment in the registry of the District Court. On the same date, the Government acquired title to the land.

Both parties appealed. A panel of the Court of Appeals for the Fifth Circuit unanimously ruled that the commission’s report failed to meet the standards enunciated in United States v. Merz, 376 U. S. 192 (1964), and remanded the case for further findings regarding the value of petitioner’s land. United States v. 2,175.86 Acres of Land, 696 F. 2d 351, 358 (1983). More importantly for present purposes, the Court of Appeals, by a vote of two to one, reversed the District Court’s award of interest to petitioner. Reasoning that “the mere commencement of straight condemnation proceedings, where the government does not enter into possession . . . , does not constitute a taking,” id., at 355, the court held that, in this case, the date of the taking should be deemed the date on which the compensation award was paid. Consequently, no interest was due on that award.

We granted certiorari to resolve a conflict in the Circuits regarding the date on which the taking, in a “straight-condemnation” proceeding, should be deemed to occur and the constitutional obligation of the United States to pay interest on the adjudicated value of the property. 464 U. S. 913 (1983). We now affirm.

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If the Government pays the owner before or at the time the property is taken, no interest is due on the award. See Danforth v. United States, 308 U. S., at 284. Such a mode of compensation is not constitutionally mandated; the Fifth Amendment does not forbid the Government to take land and pay for it later. Sweet v. Rechel, 159 U. S. 380, 400-403 (1895). But if disbursement of the award is delayed, the owner is entitled to interest thereon sufficient to ensure that he is placed in as good a position pecuniarily as he would have occupied if the payment had coincided with the appropriation. Phelps v. United States, 274 U. S. 341, 344 (1927); Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 306 (1923).

From the foregoing it should be apparent that identification of the time a taking of a tract of land occurs is crucial to determination of the amount of compensation to which the owner is constitutionally entitled. The Government contends that, in straight-condemnation proceedings like that at issue here, the date of taking must be deemed the date the United States tenders payment to the owner of the land. The Government’s position is amply supported by prior decisions by this Court and by indications of congressional intent derivable from the structure of the pertinent statutory scheme and the governing procedural rule.

In Danforth v. United States, supra, we were called upon to determine the date on which the Government, in an exercise of its eminent domain power under the Flood Control Act of 1928, ch. 569, 45 Stat. 534, as amended, 33 U. S. C. § 702a et seq., appropriated the petitioner’s property. We held that, “[u]nless a taking has occurred previously in actuality or by a statutory provision ... , we are of the view that the taking in a condemnation suit under this statute takes place upon the payment of the money award by the condem-nor.” 308 U. S., at 284. In response to the contention that such a procedure was unfair, we observed, “ ‘[t]he owner is protected by the rule that title does not pass until compensation has been ascertained and paid Id., at 284-285 (quoting Albert Hanson Lumber Co. v. United States, 261 U. S. 581, 587 (1923)).

That all straight-condemnation proceedings under §257 should operate in the fashion described in Danforth is strongly suggested by the structure of Rule 71A, which now governs the administration of the statute. Rule 71A(i) permits the United States to dismiss a condemnation suit at any time before “compensation has been determined and paid,” unless the Government previously has “acquired the title or a lesser interest ... or taken possession.” The Government’s capacity to withdraw from the proceeding in this fashion would be difficult to explain if a taking were effectuated prior to tendering of payment.

Finally, Congress’ understanding that a taking does not occur until the termination of condemnation proceedings brought under § 257 is reflected in its adoption of § 258a for the purpose of affording the Government the option of peremptorily appropriating land prior to final judgment, thereby permitting immediate occupancy and improvement of the property. Such an option would have been superfluous if, as petitioner contends, a taking occurred upon the filing of the complaint in a § 257 suit.

Petitioner’s principal objection to the position advocated by the Government is that such a reading of § 257 and Rule 71A is precluded by the Fifth Amendment. Petitioner contends that, at least when the subject of a straight-condemnation proceeding is unimproved land, the owner is effectively deprived of all of the significant interests associated with ownership long before the Government tenders payment. The filing of a complaint in condemnation and a notice of lis pendens, petitioner contends, has the effect of preventing the owner of unimproved land thereafter from making any profitable use of it, or of selling it to another private party. At the same time, the owner remains liable for property taxes. Such a thoroughgoing abrogation of the owner’s rights, petitioner submits, surely constitutes a taking as soon as the abrogation is effective, regardless of when the land is officially appropriated under the terms of the statute.

If petitioner’s depiction of the impairment of its beneficial interests during the pendency of the condemnation suit were accurate, we would find its constitutional argument compelling. We have frequently recognized that a radical curtailment of a landowner’s freedom to make use of or ability to derive income from his land may give rise to a taking within the meaning of the Fifth Amendment, even if the Government has not physically intruded upon the premises or acquired a legal interest in the property. Thus, we have acknowledged that a taking would be effected by a zoning ordinance that deprived “an owner [of] economically viable use of his land.” Agins v. Tiburón, 447 U. S. 255, 260 (1980). And we have suggested that, under some circumstances, a land-use regulation that severely interfered with an owner’s “distinct investment-backed expectations” might precipitate a taking. Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978). The principle that underlies this doctrine is that, while most burdens consequent upon government action undertaken in the public interest must be borne by individual landowners as concomitants of “‘the advantage of living and doing business in a civilized community,’” some are so substantial and unfor-seeable, and can so easily be identified and redistributed, that “justice and fairness” require that they be borne by the public as a whole. These considerations are as applicable to the problem of determining when in a condemnation proceeding the taking occurs as they are to the problem of ascertaining whether a taking has been effected by a putative exercise of the police power.

However, we do not find, prior to the payment of the condemnation award in this case, an interference with petitioner’s property interests severe enough to give rise to a taking under the foregoing theory. Until titlé passed to the United States, petitioner was free to make whatever use it pleased of its property. The Government never forbade petitioner to cut the trees on the land or to develop the tract in some other way. Indeed, petitioner is unable to point to any statutory provision that would have authorized the Government to restrict petitioner’s usage of the property prior to payment of the award.

Nor did the Government abridge petitioner’s right to sell the land if it wished. It is certainly possible, as petitioner contends, that the initiation of condemnation proceedings, publicized by the filing of a notice of lis pendens, reduced the price that the land would have fetched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. See, e. g., Agins v. Tiburon, supra, at 263, n. 9; Danforth v. United States, 308 U. S., at 285; Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). At least in the absence of an interference with an owner’s legal right to dispose of his land, even a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation under the Fifth Amendment.

It is true that any effort by petitioner to develop the land probably would have prompted the Government to exercise its authority, under 40 U. S. C. § 258a, to file a declaration of taking and thereby peremptorily to appropriate the tract in order to protect it from alteration. But the likelihood that the United States would have responded in that fashion to an attempt by petitioner to make productive use of the land weakens rather than strengthens petitioner’s position, because it suggests that petitioner had the option, at any time, to precipitate an immediate taking of the land and to obtain compensation therefor as of that date, merely by informing the Government of its intention to cut down the trees.

We conclude, in sum, that petitioner has failed to demonstrate that its interests were impaired in any constitutionally significant way before the Government tendered payment and acquired title in the usual course. Accordingly, we approve the finding of the Court of Appeals that the taking of petitioner’s land occurred on March 26, 1982. Because the award was paid on that date, no interest was due thereon.

h — 1 I HH

The foregoing conclusion does not dispose of this case. We still must determine whether the award itself satisfied the strictures of the Fifth Amendment. As indicated above, petitioner is constitutionally entitled to the fair market value of its property on the date of the taking. See supra, at 10. Petitioner points out that $2,331,202 represents the commission’s best estimate of the value of the land on March 6, 1979. To the extent that that figure is less than the value of the land on March 26, 1982, the date of the taking, petitioner contends, it has been denied just compensation.

The Government attempts to meet this objection by emphasizing the pragmatic constraints on determination of the value of real property. The Government contends that it is imperative that the trier of fact in a condemnation action be given a fixed date as of which the value of the land is to be assessed. At the time of trial, no one knows when the United States will exercise its option to purchase the property, so adoption of the date of payment as the date of valuation is infeasible. Moreover, prediction of the value of land at a future time is notoriously difficult. Under these circumstances, courts and commissions understandably have adopted the convention of using the date of the commencement of the trial as the date of the valuation.

The Government’s argument provides a plausible explanation for the valuation procedure used in this case and other cases, but it does not meet petitioner’s constitutional claim. However reasonable it may be to designate the date of trial as the date of valuation, if the result of that approach is to provide the owner substantially less than the fair market value of his property on the date the United States tenders payment, it violates the Fifth Amendment.

We are left with the problem of prescribing a solution to this difficulty. Petitioner suggests that we mandate an award of interest, at least for the period from the date of valuation to the date of the taking, as a rough proxy for the increase in the value of the land during that period. We decline the invitation. Change in the market value of particular tracts of land over time bears only a tenuous relationship to the market rate of interest. Some parcels appreciate at rates far in excess of the interest rate; others decline in value. Thus, to require the Government to pay interest on the basis proposed by petitioner would only sometimes improve the fit between the value of condemned land on the date of its appropriation and the amount paid to the owner of such land.

Solution of the problem highlighted by petitioner requires, not a rule compelling payment of interest by the Government, but rather a procedure for modifying a condemnation award when there is a substantial delay between the date of valuation and the date the judgment is paid, during which time the value of the land changes materially. In the case before us, such a procedure is readily available. In view of the inadequacy of the commission’s explanation for its valuation of petitioner’s land, the Court of Appeals remanded for reconsideration of the value of the property. Oh remand, the District Court can easily adduce evidence pertaining to alteration in the value of petitioner’s tract between March 6, 1979, and March 26, 1982. In our view, such a reassessment is both necessary and sufficient to provide petitioner just compensation.

In other cases, such an option may not be available. However, the Federal Rules of Civil Procedure contain a procedural device that could do tolerable service in this cause. Rule 60(b) empowers a federal court, upon motion of a party, to withdraw or amend a final order for “any . . . reason justifying relief from the operation of the judgment.” This provision seems to us expansive enough to encompass a motion, by the owner of condemned land, to amend a condemnation award. The evidence adduced in consideration of such a motion would be very limited. The parties would not be permitted to question the adjudicated value of the tract as of the date of its original valuation; they would be limited to the presentation of evidence and arguments on the issue of how the market value of the property altered between that date and the date on which the judgment was paid by the Government. So focused, the consideration of such a motion would be expeditious and relatively inexpensive for the parties involved. Further refinement of this procedural option we leave to the courts called upon to administer it.

IV

For the reasons set forth above, we agree with the Court of Appeals that no interest was due on the condemnation award paid to petitioner. Petitioner’s meritorious contention that it is constitutionally entitled to the value of its land on the date of the taking, not on the date of the valuation, can be accommodated by allowing petitioner, on remand, to present evidence pertaining to change in the market value of the tract during the period between those two dates. On the understanding that petitioner will be afforded that opportunity, the judgment is

Affirmed.

       Such authorization generally is derived from some independent statute that vests the officer with the power of eminent domain but does not prescribe the manner in which that power should be exercised. See, e. g., 16 U. S. C. § 404c-ll.

       Suits under § 257 originally were required to “conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State” in which the suits were instituted. Act of Aug. 1, 1888, ch. 728, § 2, 25 Stat. 357. The adoption in 1951 of Rule 71A capped an effort to establish a uniform set of procedures governing all federal condemnation actions. See Advisory Committee’s Notes on Rule 71A, Original Report, 28 U. S. C. App., p. 644.

       Section 258a was enacted in 1931, for the principal purpose of enabling the United States, when it wished, peremptorily to appropriate property on which public buildings were to be constructed, making it possible for the Government to begin improving the land, thereby stimulating employment during the Great Depression. See H. R. Rep. No. 2086, 71st Cong., 3d Sess. (1930).

       The owner is entitled to prompt distribution of the deposited funds. 40 U. S. C. § 258a; Fed. Rule Civ. Proe. 71A(j).

       See, e. g., 16 U. S. C. § 79c(b) (vesting in the United States “all right, title, and interest” in the land encompassed by the Redwood National Park as of the date of the enactment of the statute).

       Such a suit is “inverse” because it is brought by the affected owner, not by the condemnor. United States v. Clarke, 445 U. S. 253, 257 (1980). The owner’s right to bring such a suit derives from “ ‘the self-executing character of the constitutional provision with respect to condemnation. . . Ibid, (quoting 6 P. Nichols, Eminent Domain §25.41 (3d rev. ed. 1972)).

       We have held that the last-mentioned provision for the reimbursement of costs is a matter of legislative grace, not constitutional entitlement. United States v. Bodcaw Co., 440 U. S. 202, 204 (1979) (per curiam).

       Testimony at trial by one of petitioner’s officers suggested that, regardless of the existence of the moratorium, petitioner would not have cut any trees on that land, which it had held as a “reserve logging area” since the 1950’s. Brief for United States 8, citing 1 Tr. 52. For the purpose of our decision, we place no weight on that testimony; we assume that petitioner voluntarily forwent an opportunity to make profitable use of its land.

       The House bill had contained a provision appropriating the land by a legislative taking. H. R. 11546, 93d Cong., 1st Sess., §2 (1978). The Senate rejected this method on the ground that it was unnecessary to protect the land and would be unduly expensive. S. Rep. No. 93-875, pp. 5-6 (1974). The House acceded to the Senate’s position.

       The District Court did not expressly rule upon petitioner’s contention that the stipulation entered into by the parties on the opening day of trial established the date of the taking. But, by awarding interest as of the date of the filing of the complaint, the court implicitly rejected petitioner’s submission on that issue.

       The Court of Appeals agreed with the District Court that the parties’ stipulation regarding the “date of taking” was not controlling, see n. 10, supra. After reviewing the record, the Court of Appeals determined that the stipulation pertained only to the date as of which the land was to be valued, not the date on which the Government was deemed to have appropriated the land. 696 F. 2d, at 356. We see no reason to question that determination.

       Judge Jolly dissented on this issue, arguing that the owner of unimproved land subject to condemnation proceedings under 40 U. S. C. §257 is entitled to interest on the award at least for the period beginning with entry of judgment by the district court, because during that period the owner is “shackled from making economically viable use of his property.” 696 F. 2d, at 358-359.

       In two cases, panels of the Court of Appeals for the Ninth Circuit have rejected the position taken by the Fifth Circuit in this ease, holding that, when the United States condemns unimproved property using the method prescribed in 40 U. S. C. § 257, it must award interest to the owner for some period prior to the date the award is paid and title passes. United States v. 15.65 Acres of Land, 689 F. 2d 1329 (1982), cert. denied sub nom. Marin Ridgeland Co. v. United States, 460 U. S. 1041 (1983); United States v. 156.81 Acres of Land, 671 F. 2d 336, cert. denied, 459 U. S. 1086 (1982). Similar confusion exists in the District Courts. See, e. g., United States v. 59.29 Acres of Land, 495 F. Supp. 212 (ED Tex. 1980) (date of taking is date of announcement of the award by the commission).

       Other measures of “just compensation” are employed only “when market value [is] too difficult to find, or when its application would result in manifest injustice to owner or public. . . .” United States v. Commodities Trading Corp., 339 U. S. 121, 123 (1950).

       We have acknowledged that, in some cases, this standard fails fully to indemnify the owner for his loss. Particularly when property has some special value to its owner because of its adaptability to his particular use, the fair-market-value measure does not make the owner whole. United States v. 564.54 Acres of Land, 441 U. S. 506, 511-512 (1979). We are willing to tolerate such occasional inequity because of the difficulty of assessing the value an individual places upon a particular piece of property and because of the need for a clear, easily administrable rule governing the measure of “just compensation.” Ibid.

      None of the discussion in this opinion is intended to modify either the manner in which the fair-market-value standard is interpreted and applied or the test for determining when the fair-market-value standard must be supplanted by other formulae, see n. 14, supra. In particular, we express no view on the question of how the value of land condemned under 40 U. S. C. § 257 should be assessed when activities of the Government during the pendency of the condemnation proceedings have so altered the condition of the property as to reduce the price it could fetch on the open market on the date of the taking.

       The last-mentioned principle underlies the provision in 40 U. S. C. . § 258a for the payment of interest on any difference between the estimated value of land appropriated through a declaration of taking and its subsequently adjudicated actual value as of that date. See supra, at 5. The principle also underlies several decisions by Courts of Appeals, holding that the six percent rate of interest prescribed by § 258a is not a ceiling on the amount that can and must be paid by the Government. See, e. g., United States v. 329.78 Acres of Land, 704 F. 2d 800, 812, and n. 18 (CA5 1983) (en banc). The United States has acquiesced in those decisions. Brief for United States 14, n. 13.

       Petitioner’s contention that our decision in Danforth pertained only to takings effected pursuant to the Flood Control Act is unpersuasive. Though the Flood Control Act contained a provision (analogous to 40 U. S. C. § 258a) empowering the United States to appropriate land expeditiously by filing a special petition and depositing an estimated award, ch. 569, § 4, 45 Stat. 536 (incorporating by reference § 5 of the River and Harbor Act of 1918, ch. 155, 40 Stat. 911), when the Government appropriated the land at issue in Danforth, it apparently did not invoke its special statutory authority but instead took the property in the usual fashion as authorized by 40 U. S. C. § 257. The holding of the case is thus on point.

       After commencement of the valuation hearing, the Government may dismiss the suit only pursuant to a stipulation with the owner, Fed. Rule Civ. Proc. 71A(i)(2), or with the approval of the district court, Fed. Rule Civ. Proc. 71A(i)(3). The Rule does not suggest that a court order dismissing a suit has the effect of nullifying a taking that has already occurred. Indeed, to the contrary, the Rule forbids the district court to dismiss an action (without awarding just compensation) if the Government has acquired any “interest” in the property. Ibid.

       See n. 3, supra.

       It must be admitted that the adoption of § 258a does not compel the conclusion that Congress in 1981 understood that the taking in a § 257 suit did not occur until the date payment was tendered by the condemnor, because § 258a by its terms only empowers the Government to file a declaration of taking prior to “judgment.” The language of §258a is thus consistent with a congressional understanding that the taking occurred upon entry of final judgment in a straight-condemnation action. However, the fact that Congress did not empower the Government to file a declaration of taking anytime prior to the tender of payment does not undercut our construction of §257, because the Government has no need of special authority to appropriate land after judgment and before payment in a straight-condemnation suit; after entry of judgment, the Government can acquire the land merely by paying the owner the adjudicated value of the property.

       Cf. United States v. 15.65 Acres of Land, 689 F. 2d, at 1334 (arguing that the initiation of a condemnation action leaves “[t]he owner of unimproved land . . . with the liabilities which follow title but none of the benefits, save the right ultimately to be paid for the taking”).

        Andrus v. Allard, 444 U. S. 51, 67 (1979) (quoting Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 422 (1922) (Brandéis, J., dissenting)).

       See Agins v. Tiburon, 447 U. S. 255, 260-262 (1980); Penn Central Transportation Co. v. New York City, 438 U. S. 104, 123-128 (1978); Armstrong v. United States, 364 U. S. 40, 49 (1960); Pennsylvania Coal Co. v. Mahon, supra, at 413, 415-416; Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1214-1224 (1967).

       The question of the Government's authority to dictate to petitioner the manner in which it could use the land is preeminently a question of law, not of fact. Thus, we find no merit in petitioner’s contention that the Court of Appeals erred in not adhering to the strictures of Federal Rule of Civil Procedure 52(a) when examining the District Court’s finding that the Government denied petitioner economically viable use of the land during the pendency of the suit.

       We have no occasion here to determine whether abrogation of an owner’s right to sell real property, combined with a sufficiently substantial diminution of its utility to the owner, would give rise a taking. Cf. Andrus v. Allard, supra, at 66-68.

       Had petitioner made such a showing, complex questions would have arisen regarding the measure of “just compensation. ” We defer resolution of those questions to a case in which they are fairly presented.

       For example, it appears that the market value of timberland of the sort owned by petitioner was much higher in March 1979 than in March 1982. See Vardaman’s Green Sheet, Index of Pine Sawtimber Stumpage and Timberland Prices (Jan. 15, 1983), reprinted in App. to Brief for United States la.

       Though the value of timberland of the kind contained in petitioner’s tract seems to have declined during this period, see n. 27, supra, petitioner contends that the value of its parcel nevertheless increased because of the expansion of the residential areas surrounding nearby Beaumont, Tex., and the susceptibility of the parcel to rural subdivision or recreational usage. The District Court can and should assess these contentions on remand.

       The procedure would not be free, of course, but that fact may well have a healthy effect in deterring frivolous pleas for relief from final judgments. That he would be obliged to bear some litigation costs in contesting a Rule 60(b) motion should dissuade a landowner from filing such a motion unless he had good reason to believe that the value of his property changed materially between valuation and payment.

       We do not mean to suggest that the constitutional difficulty discussed in this section can be solved only by affording a condemnee in petitioner’s position an opportunity to file a motion to amend the judgment under Rule 60(b). Either Congress or a lower court might perceive a more easily ad-ministrable way of ensuring that the compensation paid to the owner of condemned land does not fall substantially below the fair market value of the property on the date of the taking.


source: Caselaw Access Project

author: Justice Powell Justice Brennan,

license: Public Domain

text:
    SEATTLE TIMES CO., dba THE SEATTLE TIMES, et al. v. RHINEHART et al.
    No. 82-1721.
    Argued February 21, 1984
    Decided May 21, 1984

      Evan L. Schwab argued the cause for petitioners. With him on the briefs were P. Cameron DeVore and Bruce E. H. Johnson.

      Malcolm L. Edwards argued the cause for respondents. With him on the brief was Charles K. Wiggins

         James C. Goodale, John G. Koeltl, Burt Neuborne, Charles S. Sims, W. Terry Maguire, Anthony Epstein, Erwin G. Krasnow, Bruce W. Sanford, J. Laurent Scharff, Richard M. Schmidt, Jr., and Donald F. Luke filed a brief for the American Civil Liberties Union et al. as amici curiae.

   Justice Powell

delivered the opinion of the Court.

This case presents the issue whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process.

I

Respondent Rhinehart is the spiritual leader of a religious group, the Aquarian Foundation. The Foundation has fewer than 1,000 members, most of whom live in the State of Washington. Aquarian beliefs include life after death and the ability to communicate with the dead through a medium. Rhinehart is the primary Aquarian medium.

In recent years, the Seattle Times and the Walla Walla Union-Bulletin have published stories about Rhinehart and the Foundation. Altogether 11 articles appeared in the newspapers during the years 1973, 1978, and 1979. The five articles that appeared in 1973 focused on Rhinehart and the manner in which he operated the Foundation. They described seances conducted by Rhinehart in which people paid him to put them in touch with deceased relatives and friends. The articles also stated that Rhinehart had sold magical “stones” that had been “expelled” from his body. One article referred to Rhinehart’s conviction, later vacated, for sodomy. The four articles that appeared in 1978 concentrated on an “extravaganza” sponsored by Rhinehart at the Walla Walla State Penitentiary. The articles stated that he had treated 1,100 inmates to a 6-hour-long show, during which he gave away between $35,000 and $50,000 in cash and prizes. One article described a “chorus line of girls [who] shed their gowns and bikinis and sang . . . .” App. 25a. The two articles that appeared in 1979 referred to a purported connection between Rhinehart and Lou Ferrigno, star of the popular television program, “The Incredible Hulk.”

Rhinehart brought this action in the Washington Superior Court on behalf of himself and the Foundation against the Seattle Times, the Walla Walla Union-Bulletin, the authors of the articles, and the spouses of the authors. Five female members of the Foundation who had participated in the presentation at the penitentiary joined the suit as plaintiffs. The complaint alleges that the articles contained statements that were “fictional and untrue,” and that the defendants— petitioners here — knew, or should have known, they were false. According to the complaint, the articles “did and were calculated to hold [Rhinehart] up to public scorn, hatred and ridicule, and to impeach his honesty, integrity, virtue, religious philosophy, reputation as a person and in his profession as a spiritual leader.” Id., at 8a. With respect to the Foundation, the complaint also states: “[T]he articles have, or may have had, the effect of discouraging contributions by the membership and public and thereby diminished the financial ability of the Foundation to pursue its corporate purposes.” Id., at 9a. The complaint alleges that the articles misrepresented the role of the Foundation’s “choir” and falsely implied that female members of the Foundation had “stripped off all their clothes and wantonly danced naked . . . .” Id., at 6a. The complaint requests $14,100,000 in damages for the alleged defamation and invasions of privacy.

Petitioners filed an answer, denying many of the allegations of the complaint and asserting affirmative defenses. Petitioners promptly initiated extensive discovery. They deposed Rhinehart, requested production of documents pertaining to the financial affairs of Rhinehart and the Foundation, and served extensive interrogatories on Rhinehart and the other respondents. Respondents turned over a number of financial documents, including several of Rhinehart’s income tax returns. Respondents refused, however, to disclose certain financial information, the identity of the Foundation’s donors during the preceding 10 years, and a list of its members during that period.

Petitioners filed a motion under the State’s Civil Rule 37 requesting an order compelling discovery. In their supporting memorandum, petitioners recognized that the principal issue as to discovery was respondents’ “refusa[l] to permit any effective inquiry into their financial affairs, such as the source of their donations, their financial transactions, uses of their wealth and assets, and their financial condition in general.” Record 350. Respondents opposed the motion, arguing in particular that compelled production of the identities of the Foundation’s donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association. Respondents also moved for a protective order preventing petitioners from disseminating any information gained through discovery. Respondents noted that petitioners had stated their intention to continue publishing articles about respondents and this litigation, and their intent to use information gained through discovery in future articles.

In a lengthy ruling, the trial court initially granted the motion to compel and ordered respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated. The court also required respondents to divulge enough membership information to substantiate any claims of diminished membership. Relying on In re Halkin, 194 U. S. App. D. C. 257, 598 F. 2d 176 (1979), the court refused to issue a protective order. It stated that the facts alleged by respondents in support of their motion for such an order were too conclusory to warrant a finding of “good cause” as required by Washington Superior Court Civil Rule 26(c). The court stated, however, that the denial of respondents’ motion was “without prejudice to [respondents’] right to move for a protective order in respect to specifically described discovery materials and a factual showing of good cause for restraining defendants in their use of those materials.” Record 16.

Respondents filed a motion for reconsideration in which they renewed their motion for a protective order. They submitted affidavits of several Foundation members to support their request. The affidavits detailed a series of letters and telephone calls defaming the Foundation, its members, and Rhinehart — including several that threatened physical harm to those associated with the Foundation. The affiants also described incidents at the Foundation’s headquarters involving attacks, threats, and assaults directed at Foundation members by anonymous individuals and groups. In general, the affidavits averred that public release of the donor lists would adversely affect Foundation membership and income and would subject its members to additional harassment and reprisals.

Persuaded by these affidavits, the trial court issued a protective order covering all information obtained through the discovery process that pertained to “the financial affairs of the various plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various plaintiffs.” App. 65a. The order prohibited petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. By its terms, the order did not apply to information gained by means other than the discovery process. In an accompanying opinion, the trial court recognized that the protective order would restrict petitioners’ right to publish information obtained by discovery, but the court reasoned that the restriction was necessary to avoid the “chilling effect” that dissemination would have on “a party’s willingness to bring his case to court.” Record 63.

Respondents appealed from the trial court’s production order, and petitioners appealed from the protective order.

The Supreme Court of Washington affirmed both. 98 Wash. 2d 226, 654 P. 2d 673 (1982). With respect to the protective order, the court reasoned:

“Assuming then that a protective order may fall, ostensibly, at least, within the definition of a ‘prior restraint of . free expression’, we are convinced that the interest of the judiciary in the integrity of its discovery processes is sufficient to meet the ‘heavy burden’ of justification. The need to preserve that integrity is adequate to sustain a rule like CR 26(c) which authorizes a trial court to protect the confidentiality of information given for purposes of litigation.” Id., at 256, 654 P. 2d, at 690.

The court noted that “[t]he information to be discovered concerned the financial affairs of the plaintiff Rhinehart and his organization, in which he and his associates had a recognizable privacy interest; and the giving of publicity to these matters would allegedly and understandably result in annoyance, embarrassment and even oppression.” Id., at 256-257, 654 P. 2d, at 690. Therefore, the court concluded, the trial court had not abused its discretion in issuing the protective order.

The Supreme Court of Washington recognized that its holding conflicts with the holdings of the United States Court of Appeals for the District of Columbia Circuit in In re Halkin, 194 U. S. App. D. C. 257, 598 F. 2d 176 (1979), and applies a different standard from that of the Court of Appeals for the First Circuit in In re San Juan Star Co., 662 F. 2d 108 (1981). We granted certiorari to resolve the conflict. 464 U. S. 812 (1983). We affirm.

HH I — I H-l

Most States, including Washington, have adopted discovery provisions modeled on Rules 26 through 37 of the Federal Rules of Civil Procedure. F. James & G. Hazard, Civil Procedure 179 (1977). Rule 26(b)(1) provides that a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” It further provides that discovery is not limited to matters that will be admissible at trial so long as the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Wash. Super. Ct. Civ. Rule 26(b)(1); Trust Fund Services v. Aro Glass Co., 89 Wash. 2d 758, 763, 575 P. 2d 716, 719 (1978); cf. 8 C. Wright & A. Miller, Federal Practice and Procedure §2008 (1970).

The Rules do not differentiate between information that is private or intimate and that to which no privacy interests attach. Under the Rules, the only express limitations are that the information sought is not privileged, and is relevant to the subject matter of the pending action. Thus, the Rules often allow extensive intrusion into the affairs of both litigants and third parties. If a litigant fails to comply with a request for discovery, the court may issue an order directing compliance that is enforceable by the court’s contempt powers. Wash. Super. Ct. Civ. Rule 37(b).

Petitioners argue that the First Amendment imposes strict limits on the availability of any judicial order that has the effect of restricting expression. They contend that civil discovery is not different from other sources of information, and that therefore the information is “protected speech” for First Amendment purposes. Petitioners assert the right in this-' case to disseminate any information gained through discovery. They do recognize that in limited circumstances, not thought to be present here, some information may be restrained. They submit, however:

“When a protective order seeks to limit expression, it may do so only if the proponent shows a compelling governmental interest. Mere speculation and conjecture are insufficient. Any restraining order, moreover, must be narrowly drawn and precise. Finally, before issuing such an order a court must determine that there are no alternatives which intrude less directly on expression.” Brief for Petitioners 10.

We think the rule urged by petitioners would impose an unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process.

<1

It is, of course, clear that information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most — and possibly all — of what has been discovered as a result of the court’s order under Rule 26(b)(1). It does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery. For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that “[f]reedom of speech . . . does not comprehend the right to speak on any subject at any time.” American Communications Assn. v. Douds, 339 U. S. 382, 394-395 (1950).

The critical question that this case presents is whether a litigant’s freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In addressing that question it is necessary to consider whether the “practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression” and whether “the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.” Procunier v. Martinez, 416 U. S. 396, 413 (1974); see Brown v. Glines, 444 U. S. 348, 354-355 (1980); Buckley v. Valeo, 424 U. S. 1, 25 (1976).

A

At the outset, it is important to recognize the extent of the impairment of First Amendment rights that a protective order, such as the one at issue here, may cause. As in all civil litigation, petitioners gained the information they wish to disseminate only by virtue of the trial court’s discovery processes. As the Rules authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Zemel v. Rusk, 381 U. S. 1, 16-17 (1965) (“The right to speak and publish does not carry with it the unrestrained right to gather information”). Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations. See In re Halkin, 194 U. S. App. D. C., at 287, 598 F. 2d, at 206-207 (Wilkey, J., dissenting).

Moreover, pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, Gannett Co. v. DePasquale, 443 U. S. 368, 389 (1979), and, in general, they are conducted in private as a matter of modern practice. See id., at 396 (Burger, C. J., concurring); Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L. Rev. 1 (1983). Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.

Finally, it is significant to note that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny. See Gannett Co. v. DePasquale, supra, at 399 (Powell, J., concurring). As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes. In sum, judicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context. Therefore, our consideration of the provision for protective orders contained in the Washington Civil Rules takes into account the unique position that such orders occupy in relation to the First Amendment.

B

Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Procunier, supra, at 413. The Washington Civil Rules enable parties to litigation to obtain information “relevant to the subject matter involved” that they believe will be helpful in the preparation and trial of the case. Rule 26, however, must be viewed in its entirety. Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties. The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery.

There is an opportunity, therefore, for litigants to obtain— incidentally or purposefully — information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes. Cf. Herbert v. Lando, 441 U. S. 153, 176-177 (1979); Gumbel v. Pitkin, 124 U. S. 131, 145-146 (1888). As stated by Judge Friendly in International Products Corp. v. Koons, 325 F. 2d 403, 407-408 (CA2 1963), “[w]hether or not the Rule itself authorizes [a particular protective order] ... we have no question as to the court’s jurisdiction to do this under the inherent ‘equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices’ ” (citing Gumbel v. Pitkin, supra). The prevention of the abuse that can attend the coerced production of information under a State’s discovery rule is sufficient justification for the authorization of protective orders.

C

We also find that the provision for protective orders in the Washington Rules requires, in itself, no heightened First Amendment scrutiny. To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. The Legislature of the State of Washington, following the example of the Congress in its approval of the Federal Rules of Civil Procedure, has determined that such discretion is necessary, and we find no reason to disagree. The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.

V

The facts in this case illustrate the concerns that justifiably may prompt a court to issue a protective order. As we have noted, the trial court’s order allowing discovery was extremely broad. It compelled respondents — among other things — to identify all persons who had made donations over a 5-year period to Rhinehart and the Aquarian Foundation, together with the amounts donated. In effect the order would compel disclosure of membership as well as sources of financial support. The Supreme Court of Washington found that dissemination of this information would “result in annoyance, embarrassment and even oppression.” 98 Wash. 2d, at 257, 654 P. 2d, at 690. It is sufficient for purposes of our decision that the highest court in the State found no abuse of discretion in the trial court’s decision to issue a protective order pursuant to a constitutional state law. We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.

The judgment accordingly is

Affirmed.

Justice Brennan,

with whom Justice Marshall joins,

concurring.

The Court today recognizes that pretrial protective orders, designed to limit the dissemination of information gained through the civil discovery process, are subject to scrutiny under the First Amendment. As the Court acknowledges, before approving such protective orders, “it is necessary to consider whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.’ ” Ante, at 32 (quoting Procunier v. Martinez, 416 U. S. 396, 413 (1974)).

In this case, the respondents opposed discovery, and in the alternative sought a protective order for discovered materials, because the “compelled production of the identities of the Foundation’s donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association.” Ante, at 25. The Supreme Court of Washington found that these interests constituted the requisite “good cause” under the State’s Rule 26(c) (upon “good cause shown,” the court may make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”). 98 Wash. 2d 226, 256, 654 P. 2d 673, 690 (1982). Given this finding, the court approved a protective order limited to “information . . . regarding the financial affairs of the various [respondents], the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various [respondents].” Ante, at 27, n. 8. I agree that the respondents’ interests in privacy and religious freedom are sufficient to justify this protective order and to overcome the protections afforded free expression by the First Amendment. I therefore join the Court’s opinion.

       The record is unclear as to whether all five of the female plaintiffs participated in the “chorus line” described in the 1978 articles. The record also does not disclose whether any of the female plaintiffs were mentioned by name in the articles.

       Although the complaint does not allege specifically that the articles caused a decline in membership of the Foundation, respondents’ answers to petitioners’ interrogatories raised this issue. In response to petitioners’ request that respondents explain the damages they are seeking, respondents claimed that the Foundation had experienced a drop in membership in Hawaii and Washington “from about 300 people to about 150 people, and [a] concurrent drop in contributions.” Record 503.

       Affirmative defenses included contentions that the articles were substantially true and accurate, that they were privileged under the First and Fourteenth Amendments, that the statute of limitations had run as to the 1973 articles, that the individual respondents had consented to any invasions of privacy, and that respondents had no reasonable expectation of privacy when performing before 1,100 prisoners.

       Rhinehart also refused to reveal the current address of his residence. He submitted an affidavit stating that he had relocated out of fear for his safety and that disclosure of his current address would subject him to risks of bodily harm. Petitioners promptly moved for an order compelling Rhinehart to give his address and the trial court granted the motion.

       Washington Superior Court Civil Rule 37 provides in relevant part: “A party, upon reasonable notice to other parties and all persons affected thereby, may apply to the court in the county where the deposition was taken, or in the county where the action is pending, for an order compelling discovery . . .

       The Halkin decision was debated by the courts below. Prior to Halkin, the only Federal Court of Appeals to consider the question directly had understood that the First Amendment did not affect a trial court’s authority to restrict dissemination of information produced during pretrial discovery. See International Products Corp. v. Koons, 325 F. 2d 403, 407-408 (CA2 1963). Halkin considered the issue at length. Characterizing a protective order as a “paradigmatic prior restraint,” Halkin held that such orders require close scrutiny. The court also held that before a court should issue a protective order that restricts expression, it must be satisfied that “the harm posed by dissemination must be substantial and serious; the restraining order must be narrowly drawn and precise; and there must be no alternative means of protecting the public interest which intrudes less directly on expression.” 194 U. S. App. D. C., at 272, 598 F. 2d, at 191 (footnotes omitted).

       Rule 26(e) provides:
      “Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. ...”
      Rule 26(c) is typical of the provisions adopted in many States.

       The relevant portions of the protective order state:
      “2. Plaintiffs’ motion for a protective order is granted with respect to information gained by the defendants through the use of all of the discovery processes regarding the financial affairs of the various plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various plaintiffs.
      “3. The defendants and each of them shall make no use of and shall not disseminate the information defined in paragraph 2 which is gained through discovery, other than such use as is necessary in order for the discovering party to prepare and try the case. As a result, information gained by a defendant through the discovery process may not be published by any of the defendants or made available to any news media for publication or dissemination. This protective order has no application except to information gained by the defendants through the use of the discovery processes.” App. 65a.

       Although the Washington Supreme Court assumed, arguendo, that a protective order could be viewed as an infringement on First Amendment rights, the court also stated:
      “A persuasive argument can be made that when persons are required to give information which they would otherwise be entitled to keep to themselves, in order to secure a government benefit or perform an obligation to that government, those receiving that information waive the right to use it for any purpose except those which are authorized by the agency of government which exacted the information.” 98 Wash. 2d, at 239, 654 P. 2d, at 681.

       The Washington Supreme Court also held that, because the protective order shields respondents from “abuse of the discovery privilege,” respondents could not object to the order compelling production. We do not consider here that aspect of the Washington Supreme Court’s decision.

       See n. 6, supra.

       In San Juan Star, the Court of Appeals for the First Circuit considered and rejected Halkin’s approach to the constitutionality of protective orders. Although the San Juan court held that protective orders may implicate First Amendment interests, the court reasoned that such interests are somewhat lessened in the civil discovery context. The court stated: “In general, then, we find the appropriate measure of such limitations in a standard of ‘good cause’ that incorporates a ‘heightened sensitivity’ to the First Amendment concerns at stake . . . .” 662 F. 2d, at 116.

       The holding of the Supreme Court of Washington is consistent with the decision of the Court of Appeals for the Second Circuit in International Products Corp. v. Koons 326 F. 2d, at 407-408.

       See Bushman v. New Holland Division, 83 Wash. 2d 429, 433, 618 P. 2d 1078, 1080 (1974). The Washington Supreme Court has stated that when the language of a Washington Rule and its federal counterpart are the same, courts should look to decisions interpreting the Federal Rule for guidance. American Discount Corp. v. Saratoga West, Inc., 81 Wash. 2d 34, 37-38, 499 P. 2d 869, 871 (1972). The Washington Rule that provides for the scope of civil discovery and the issuance of protective orders is virtually identical to its counterpart in the Federal Rules of Civil Procedure. Compare Wash. Super. Ct. Civ. Rules 26(b) and (c) with Fed. Rules Civ. Proc. 26(b) and (c).

       Washington Superior Court Civil Rule 26(b)(1), identical to Federal Rule of Civil Procedure 26(b)(1) in effect at the time, provides in full:

        “In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

       Under Rules 30 and 31, a litigant may depose a third party by oral or written examination. The litigant can compel the third party to be deposed and to produce tangible evidence at the deposition by serving the third party with a subpoena pursuant to Rule 45. Rule 45(b)(1) authorizes a trial court to quash or modify a subpoena of tangible evidence “if it is unreasonable and oppressive.” Rule 45(f) provides: “Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.”

       In addition to its contempt power, Rule 37(b)(2) authorizes a trial court to enforce an order compelling discovery by other means including, for example, regarding designated facts as established for purposes of the action. Cf. Fed. Rule Civ. Proc. 37(b)(2)(A).

       Although litigants do not “surrender their First Amendment rights at the courthouse door,” In re Halkin, 194 U. S. App. D. C., at 268, 598 F. 2d, at 186, those rights may be subordinated to other interests that arise in this setting. For instance, on several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant. See Nebraska Press Assn. v. Stuart, 427 U. S. 539, 563 (1976); id., at 601, and n. 27 (BRENNAN, J., concurring in judgment); Oklahoma Publishing Co. v. District Court, 430 U. S. 308, 310-311 (1977); Sheppard v. Maxwell, 384 U. S. 333, 361 (1966). “In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, including counsel, witnesses, and jurors.” Gulf Oil Co. v. Bernard, 452 U. S. 89, 104, n. 21 (1981).

       Discovery rarely takes place in public. Depositions are scheduled at times and places most convenient to those involved. Interrogatories are answered in private. Rules of Civil Procedure may require parties to file with the clerk of the court interrogatory answers, responses to requests for admissions, and deposition transcripts. See Fed. Rule Civ. Proc. 5(d). Jurisdictions that require filing of discovery materials customarily provide that trial courts may order that the materials not be filed or that they be filed under seal. See ibid.; Wash. Super. Ct. Civ. Rule 26(c). Federal district courts may adopt local rules providing that the fruits of discovery are not to be filed except on order of the court. See, e. g., C. D. Cal. Rule 8.3; S. D. N. Y. Civ. Rule 19. Thus, to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court.

       See Comments of the Advisory Committee on the 1983 Amendments to Fed. Rule Civ. Proc. 26, 28 U. S. C. App., pp. 729-730 (1982 ed., Supp. I). In Herbert v. Lando, 441 U. S. 153 (1979), the Court observed: “There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus. But until and unless there are major changes in the present Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse.” Id., at 176-177 (footnote omitted); see also id., at 179 (Powell, J., concurring). But abuses of the Rules by litigants, and sometimes the inadequate oversight of discovery by trial courts, do not in any respect lessen the importance of discovery in civil litigation and the government’s substantial interest in protecting the integrity of the discovery process.

       Cf. Whalen v. Roe, 429 U. S. 589, 599 (1977); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 488-491 (1975). Rule 26(c) includes among its express purposes the protection of a “party or person from annoyance, embarrassment, oppression or undue burden or expense.” Although the Rule contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule.

       The Supreme Court of Washington properly emphasized the importance of ensuring that potential litigants have unimpeded access to the courts: “[A]s the trial court rightly observed, rather than expose themselves to unwanted publicity, individuals may well forgo the pursuit of their just claims. The judicial system will thus have made the utilization of its remedies so onerous that the people will be reluctant or unwilling to use it, resulting in frustration of a right as valuable as that of speech itself.” 98 Wash. 2d 226, 254, 654 P. 2d 673, 689 (1982). Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972); NAACP v. Button, 371 U. S. 415, 429-431 (1963).

       In addition, heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals, as this case illustrates. See, e. g., Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866 (ED Pa. 1981).

       It is apparent that substantial government interests were implicated. Respondents, in requesting the protective order, relied upon the rights of privacy and religious association. Both the trial court and the Supreme Court of Washington also emphasized that the right of persons to resort to the courts for redress of grievances would have been “chilled.” See n. 22, supra.


author: Justice Powell

text:
    WALLER v. GEORGIA
    No. 83-321.
    Argued March 27, 1984
    Decided May 21, 1984

      Herbert Shafer argued the cause for petitioners in both cases. With him on the briefs were Charles Lister, Charles R. Smith, Burt Neuborne, and Charles S. Sims.

      Mary Beth Westmoreland, Assistant Attorney General of Georgia, argued the cause for respondent in both cases. With her on the brief were Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, Marion 0. Gordon, First Assistant Attorney General, William B. Hill, Jr., Senior Assistant Attorney General, Lewis R. Slaton, and H. Allen Moye.

      Together with No. 83-322, Cole et al. v. Georgia, also on certiorari to the same court.

        Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance.
      Briefs of amici curiae were filed for the United States by Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Alan I. Horowitz; and for the State of Arizona by Robert K. Corbin, Attorney General.

   Justice Powell

delivered the opinion of the Court.

These cases require us to decide the extent to which a hearing on a motion to suppress evidence may be closed to the public over the objection of the défendant consistently with the Sixth and Fourteenth Amendment right to a public trial.

I

Acting under court authorization, Georgia police placed wiretaps on a number of phones during the last six months of 1981. The taps revealed a large lottery operation involved in gambling on the volume of stocks and bonds traded on the New York Stock Exchange. In early January 1982, law enforcement officers simultaneously executed search warrants at numerous locations, including the homes of petitioners. Petitioners and 35 others were indicted and charged with violating the Georgia Racketeer Influenced and Corrupt Organizations (Georgia RICO) Act, Ga. Code Ann. §§ 16-14-1 to 16-14-15 (1982 and Supp. 1983), and with commercial gambling and communicating gambling information in violation of Ga. Code Ann. §§ 16-12-22 and 16-12-28 (1982).

Prior to the separate trial of petitioners and 13 other defendants, petitioners moved to suppress the wiretaps and the evidence seized during the searches. They asserted, inter alia, that the warrants authorizing the wiretaps were unsupported by probable cause and based on overly general information, that the taps were conducted without adequate supervision, and that the resulting searches were indiscriminate, “exploratory and general.” App. 11a. The State moved to close to the public any hearing on the motion to suppress. The closure motion stated that in order to validate the seizure of evidence derived from the wiretaps the State would have to introduce evidence “which [might] involve a reasonable expectation of privacy of persons other than” the defendants. Id., at 6a.

On June 21, 1982, a jury was empaneled and then excused while the court heard the closure and suppression motions. The prosecutor argued that the suppression hearing should be closed because under the Georgia wiretap statute “[a]ny publication” of information obtained under a wiretap warrant that was not “necessary and essential” would cause the information to be inadmissible as evidence. See Ga. Code Ann. § 16 — 11—64(b)(8) (1982). The prosecutor stated that the evidence derived in the wiretaps would “involve” some persons who were indicted but were not then on trial, and some persons who were not then indicted. He said that if published in open court, the evidence “[might] very well be tainted.” App. 13a. The trial court agreed. It found that insofar as the wiretap evidence related to alleged offenders not then on trial, the evidence would be tainted and could not be used in future prosecutions. Id., at 14a. Over objection, the court ordered the suppression hearing closed to all persons other than witnesses, court personnel, the parties, and the lawyers.

The suppression hearing lasted seven days. The parties do not dispute that less than 21k hours were devoted to playing tapes of intercepted telephone conversations. The intercepted conversations that were played included some persons who were not then on trial, but no one who had not been named in the indictment; one person who had not been indicted was mentioned in the recorded calls. The remainder of the hearing concerned such matters as the procedures used in obtaining and executing the search warrants and wiretap authorizations, the procedures followed in preserving the tape recordings, and certain allegations of police and prosecutorial misconduct.

Agreeing with the State’s concession that 10 boxes of documents seized during the searches were “personal, no[n]crime related,” Tr. of Suppression Hearing 635, the trial court ordered them suppressed, id., at 642; App. 19a. It refused to suppress a comparable amount of other material. The case was then tried to the jury in open court. Petitioners were acquitted of the charges under the Georgia RICO statute, but were convicted of commercial gambling and communicating gambling information. Prior to the trial of the remaining persons named in the indictment, the transcript of the suppression hearing was released to the public.

The Georgia Supreme Court affirmed the convictions. 251 Ga. 124, 303 S. E. 2d 437 (1983). On the open-trial issue, the court ruled that the trial court had properly balanced petitioners’ rights to a public hearing against the privacy rights of others under Georgia law and the Sixth Amendment. Id., at 126-127, 303 S. E. 2d, at 441. We granted certiorari to decide whether the defendant’s Sixth Amendment right to a public trial applies to a suppression hearing. 464 U. S. 959 (1983). We hold that it does, and that the trial court failed to give proper weight to Sixth Amendment concerns. Accordingly, we reverse.

II

These cases present three questions: First, does the accused’s Sixth Amendment right to a public trial extend to a suppression hearing conducted prior to the presentation of evidence to the jury? Second, if so, was that right violated here? Third, if so, what is the appropriate remedy?

A

This Court has not recently considered the extent of the accused’s right under the Sixth Amendment to insist upon a public trial, and has never considered the extent to which that right extends beyond the actual proof at trial. We are not, however, without relevant precedents. In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial. Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U. S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980). We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected. Press-Enterprise Co. v. Superior Court of California, 464 U. S. 501 (1984). Moreover, in an earlier case in this line, Gannett Co. v. DePasquale, 443 U. S. 368 (1979), we considered whether this right extends to a pretrial suppression hearing. While the Court’s opinion did not reach the question, id., at 392, a majority of the Justices concluded that the public had a qualified constitutional right to attend such hearings, id., at 397 (Powell, J., concurring) (basing right on First Amendment); id., at 406 (Blackmun, J., joined by Brennan, White, and Marshall, JJ., dissenting in part) (basing right on Sixth Amendment).

In each of these cases the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care. We stated the applicable rules in Press-Enterprise:

“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” 464 U. S., at 510.

Accord, Globe Newspaper Co., supra, at 606-607; Richmond Newspapers, supra, at 580-581 (opinion of Burger, C. J.); Gannett, 443 U. S., at 392-393 (semble); id., at 400-401 (Powell, J., concurring); id., at 440-446 (Blackmun, J., dissenting in part).

As noted, the analysis in these cases has proceeded largely under the First Amendment. Nevertheless, there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public. The central aim of a criminal proceeding must be to try the accused fairly, and “[o]ur cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.” Gannett, 443 U. S., at 380.

“ ‘ “The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . . Ibid, (quotingin re Oliver, 333 U. S. 257, 270, n. 25 (1948), in turn quoting 1 T. Cooley, Constitutional Limitations 647 (8th ed. 1927)).

In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury. See In re Oliver, supra, at 270, n. 24; Douglas v. Wainwright, 714 F. 2d 1532, 1541 (CA11 1983), cert. pending, Nos. 83-817, 83-995; United States ex rel. Bennett v. Rundle, 419 F. 2d 599, 606 (CA3 1969).

These aims and interests are no less pressing in a hearing to suppress wrongfully seized evidence. As several of the individual opinions in Gannett recognized, suppression hearings often are as important as the trial itself. 443 U. S., at 397, n. 1 (Powell, J., concurring); id., at 434-436 (Black-MUN, J., dissenting in part); see also id., at 397 (BURGER, C. J., concurring). In Gannett, as in many cases, the suppression hearing was the only trial, because the defendants thereafter pleaded guilty pursuant to a plea bargain.

In addition, a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions. The outcome frequently depends on a resolution of factual matters. See id., at 434 (Blackmun, J., dissenting in part). The need for an open proceeding may be particularly strong with respect to suppression hearings. A challenge to the seizure of evidence frequently attacks the conduct of police and prosecutor. As the Court of Appeals for the Third Circuit has noted, “[sjtrong pressures are naturally at work on the prosecution’s witnesses to justify the propriety of their conduct in obtaining” the evidence. Run-dís, supra, at 605. The public in general also has a strong interest in exposing substantial allegations of police misconduct to the salutary effects of public scrutiny. In sum, we hold that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.

B

Applying these tests to the cases at bar, we find the closure of the entire suppression hearing plainly was unjustified. Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. In this case, the only evidence about which the prosecutor expressed concern was the information derived from the wiretaps; he argued that unnecessary “publication” would render the taps inadmissible under the Georgia wiretap statute. App. 13a. The Georgia Supreme Court advanced the more general, but essentially identical, interest in protecting the privacy of persons not before the court. 251 Ga., at 126-127, 303 S. E. 2d, at 441. Under certain circumstances, these interests may well justify closing portions of a suppression hearing to the public. See Press-Enterprise, 464 U. S., at 511-512.

Here, however, the State’s proffer was not specific as to whose privacy interests might be infringed, how they would be infringed, what portions of the tapes might infringe them, and what portion of the evidence consisted of the tapes. As a result, the trial court’s findings were broad and general, and did not purport to justify closure of the entire hearing. The court did not consider alternatives to immediate closure of the entire hearing: directing the government to provide more detail about its need for closure, in camera if necessary, and closing only those parts of the hearing that jeopardized the interests advanced. As it turned out, of course, the closure was far more extensive than necessary. The tapes lasted only 2Vz hours of the 7-day hearing, and few of them mentioned or involved parties not then before the court.

C

The question that remains is what relief should be ordered to remedy this constitutional violation. Petitioners argue that a new trial on the merits should be ordered. The Solicitor General, appearing on behalf of the United States as ami-cus curiae, suggests that at most only a new suppression hearing be directed. The parties do not question the consistent view of the lower federal courts that the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee. We agree with that view, but we do not think it requires a new trial in this case. Rather, the remedy should be appropriate to the violation. If, after a new suppression hearing, essentially the same evidence is suppressed, a new trial presumably would be a windfall for the defendant, and not in the public interest. Cf. Goldberg v. United States, 425 U. S. 94, 111 (1976); Jackson v. Denno, 378 U. S. 368, 394-396 (1964).

In these cases, it seems clear that unless the State substantially alters the evidence it presents to support the searches and wiretaps here, significant portions of a new suppression hearing must be open to the public. We remand to the state courts to decide what portions, if any, may be closed. This decision should be made in light of conditions at the time of the new hearing, and only interests that still justify closure should be considered. A new trial need be held only if a new, public suppression hearing results in the suppression of material evidence not suppressed at the first trial, or in some other material change in the positions of the parties.

The judgments below are reversed, and the cases are remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       The statute barring publication is part of a section authorizing wiretaps pursuant to warrant. At the time of trial, the statute read:
      “Any publication of the information or evidence obtained under a warrant issued hereunder other than that necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant shall be an unlawful invasion of privacy under this Chapter, and shall cause such evidence and information to be inadmissible in any criminal prosecution.” Ga. Code Ann. § 26-3004(k) (1977 and Supp. 1981) (subsequently recodified as § 16-ll-64(b)(8)).

       Counsel for petitioners Waller, Thompson, Eula Burke, and W. B. Burke lodged an objection to closing the hearing. Counsel for petitioner Cole concurred in the prosecution’s motion to close the suppression hearing. App. 14a, 15a. Respondent argues that Cole is precluded from challenging the closure. The Georgia Supreme Court appears to have considered the objections of all the petitioners on their merits. 251 Ga. 124, 126-127, 303 S. E. 2d 437, 441 (1983). Cole’s claims in this Court are identical to those of the others. Since the cases must be remanded, we remand Cole’s case as well. The state courts may determine on remand whether Cole is procedurally barred from seeking relief as a matter of state law.

       Petitioners advance two Fourth Amendment arguments, both of which may be disposed of summarily. First, they assert that a forfeiture section of the Georgia RICO statute that authorizes certain warrantless seizures of all property used in or derived from a pattern of racketeering activity is facially invalid under the Fourth Amendment. See Ga. Code Ann. § 16-14-7(f) (1982 and Supp. 1983). We find that petitioners have not established that they have standing to challenge the statute in the present proceeding. It appears that all the evidence that was admitted at trial was seized under the authority of the search warrants, not pursuant to the statute. The opinion below is not to the contrary. The fact that the Georgia Supreme Court found standing does not permit us to avoid the responsibility of ensuring that our order will be other than advisory.
      Petitioners’ second Fourth Amendment challenge is that police so “flagrant[ly] disregardfed]” the scope of the warrants in conducting the seizures at issue here that they turned the warrants into impermissible general warrants. Petitioners rely on lower court eases such as United States v. Heldt, 215 U. S. App. D. C. 206, 227, 668 F. 2d 1238, 1259 (1981) (per curiam), cert. denied sub nom. Hubbard v. United States, 456 U. S. 926 (1982), and United States v. Rettig, 589 F. 2d 418, 423 (CA9 1978), for the proposition that in such circumstances the entire fruits of the search, and not just those items as to which there was no probable cause to support seizure, must be suppressed. Petitioners do not assert that the officers exceeded the scope of the warrant in the places searched. Rather, they say only that the police unlawfully seized and took away items unconnected to the prosecution. The Georgia Supreme Court found that all items that were unlawfully seized were suppressed. In these circumstances, there is certainly no requirement that lawfully seized evidence be suppressed as well. See, e. g., Andresen v. Maryland, 427 U. S. 463, 482, n. 11 (1976); United States v. Offices Known As 50 State Distributing Co., 708 F. 2d 1371, 1376 (CA9 1983), cert. denied, 465 U. S. 1021 (1984); United States v. Tamura, 694 F. 2d 591, 597 (CA9 1982); United States v. Holmes, 452 F. 2d 249, 259 (CA7 1971).

       Accord, Estes v. Texas, 381 U. S. 532, 588 (1965) (Harlan, J., concurring) (“Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings”); In re Oliver, 333 U. S., at 270 (“The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power”).

       To the extent there is an independent public interest in the Sixth Amendment public-trial guarantee, see Gannett, 443 U. S., at 383; cf. Globe Newspaper, 457 U. S., at 604, it applies with full force to suppression hearings. This case is an example. The defendants alleged that police conducted general searches and wholesale seizures in over 150 homes, and eavesdropped on more than 800 hours of telephone conversations by means of effectively unsupervised wiretaps. Cf. id., at 605 (First Amendment right of access to criminal trials “ensure[s] that [the] constitutionally protected ‘discussion of governmental affairs’ is an informed one”).

       One of the reasons often advanced for closing a trial — avoiding tainting of the jury by pretrial publicity, e. g., Press-Enterprise, 464 U. S., at 510 — is largely absent when a defendant makes an informed decision to object to the closing of the proceeding. In addition, that rationale is further attenuated where, as here, the jurors have been empaneled and instructed not to discuss the case or read or view press accounts of the matter. Tr. 238-239, 240-241, 293-294.
      Petitioners also make a claim to an open trial under the First Amendment. In view of our holding, there is no need to discuss that claim.

       The court’s only relevant finding was as follows: “If you plan to offer evidence, or if you are going to offer evidence that relates not only to those defendants not on trial but to other offenders,... in nay judgment insofar as they are concerned, it would amount to a publication and it would be tainted because of the publication.” App. 14a.

       The post hoc assertion by the Georgia Supreme Court that the trial court balanced petitioners’ right to a public hearing against the privacy rights of others cannot satisfy the deficiencies in the trial court’s record. The assertion finds little or no support in the record, and is itself too broad to meet the Press-Enterprise standard.

       See, e. g., Douglas v. Wainwright, 714 F. 2d 1532, 1542 (CA11 1983) (citing cases), cert. pending, Nos. 83-817, 83-995. See also Levine v. United States, 362 U. S. 610, 627, n. (1960) (BRENNAN, J., dissenting) (“[T]he settled rule of the federal courts [is] that a showing of prejudice is not necessary for reversal of a conviction not had in public proceedings”). The general view appears to be that of the Court of Appeals for the Third Circuit. It noted in an en banc opinion that a requirement that prejudice be shown “would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.” United States ex rel. Bennett v. Rundle, 419 F. 2d 599, 608 (1969). While the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real. See also State v. Sheppard, 182 Conn. 412, 418, 438 A. 2d 125, 128 (1980) (“Because demonstration of prejudice in this kind of case is a practical impossibility, prejudice must necessarily be implied”); People v. Jones, 47 N. Y. 2d 409, 416, 391N. E. 2d 1335, 1340 (1979) (“The harmless error rule is no way to gauge the great, though intangible, societal loss that flows” from closing courthouse doors).