When Anders Breivik was arraigned in an Oslo court last week for his brazen acts of terrorism, it was in a hearing closed to the public and closed to the news media. The decision to do that was based on concern over whether Breivik would use the proceeding to send covert signals to accomplices ready to commit additional acts of violence. But it may also have been a way ensure that Breivik did not seize this as yet another opportunity to promote his now familiar right-wing manifesto warning of Europe’s decline into “Islamification” and the coming of a new Caliphate.Breivik is the flip side of Osama bin Laden, who described the same kind of future for Europe approvingly, and indeed, there were equally strong concerns that had bin Laden been captured and not killed he might have used the stage provided by a trial proceeding to spew venom on America and recruit more soldiers for the jihad.
To each of these men, imprisonment and perhaps even death was a small price to pay for promoting their revolutionary ideas, all of which raises an interesting series of questions: how do we protect the need for a public and transparent judicial process without rewarding acts of violence with the very mission of their violence: publicity for a set of radical ideas? Can we? Should we?
Had Breivik been subjected to the American criminal justice process, it is doubtful that the judge would have closed the hearing. The Sixth Amendment to the Constitution protects the right to a public trial, in part to ensure that corruption is not at work in the courtroom, in part so that the “people” get to simply see their criminal justice system at work. Indeed, the public nature of trial proceedings is a hallmark of the American criminal justice system. Still, the Sixth Amendment does not address the kind of issue being raised here, that the public may find a “public trial” not in its interest.
The closest the Court has come to reviewing this idea would be the potential for inflammatory ideas like those espoused by Breivik leading to a mob reaction that would prevent a public trial from being a fair trial. In Moore v. Dempsey (1923) the Court ruled, 6-2, that when a trial proceeding is too public, it can turn into a circus that prevents a fair judgement. Justice Oliver Wendell Holmes, writing for the majority in that case, declared that “if the whole proceeding is a mask – that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion…neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing the petitioners their constitutional rights.” It is easy to imagine that a trial of bin Laden or of Breivik would turn into just such a mob scene, justifying the closing of the door, and yet it is just as easy to argue that a proceeding of this magnitude demands public eyes. Few could dispute that it is of commanding interest to the public at large that those responsible for crimes like these are properly brought to justice.
There are few applicable precedents to consult. In the 1990s, the self-proclaimed “Unambomber,” Ted Kaczynski, terrorized the academic community by sending deadly mail bombs that killed three and injured 23. Kaczynski was looking for attention on his own manifesto, a 35,000 word rant against technology. He finally sent a letter to the New York Times saying that he would stop his terror campaign if the paper published his treatise and, urged on by law enforcement, the Times, in a move still criticized as rewarding violence, ultimately did. Police suspected that if the treatise was published it would result in someone recognizing Kaczynski and lead to his capture and that is precisely what happened when Kaczynski’s brother read the statement in the Times and identified him. There never was a “Unabomber” trial; Kaczynski pleaded guilty to the murders as a way of avoiding the death penalty. But thanks to the Times, his ideas had a wide public airing.
Ultimately, in America, the decision about whether to conduct a trial of this importance in public or behind closed doors would become a balancing act between the Sixth Amendment and the First Amendment. The trial would need to be conducted in a way that ensures the best chance of getting at the truth and expression, particularly political expression, would also need to be protected, no matter how odious its content. What will the Norwegians do? Breivik has asked for a public trial and his preference to attend "in uniform." Norway's notoriously lenient criminal law caps prison sentences at 21 years, meaning that Anders Behring Breivik, if convicted of the killings, will received just 82 days per victim. It also means that he will emerge to freedom in 2032 at age 53, still in the prime of his life.
TB
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