

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-2170

                          UNITED STATES,
                            Appellee,

                                v.

                         THREE JUVENILES,
                     Defendants - Appellees.

                                           

                     GLOBE NEWSPAPER COMPANY,
                     Intervenor - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Patti B. Saris, U.S. District Judge]                                                               

                                           

                              Before

                     Torruella, Chief Judge,                                                     
                  Bownes, Senior Circuit Judge,                                                        
                    and Selya, Circuit Judge.                                                      

                                           

     Jonathan  M. Albano,  with whom  Mark  W. Batten,  Alicia L.                                                                           
Downey and Bingham, Dana &amp; Gould, were on brief for appellant.                                          
     Eileen Penner,  Attorney, Department of  Justice, with  whom                            
Deval  L.  Patrick,  Assistant   Attorney  General,  and  Jessica                                                                           
Dunsay Silver, Attorney, Department of Justice, were on brief for                       
appellee, United States.

                                           

                          July 31, 1995
                                           

          TORRUELLA,  Chief Judge.   This  appeal requires  us to                    TORRUELLA,  Chief Judge                                           

interpret and apply the confidentiality provisions of the Federal

Juvenile Delinquency Act (the "Act"), 18 U.S.C.    5031-5042.  We

hold  that the Act authorizes,  but does not  mandate, closure of

juvenile  proceedings.   Although we  disagree with  the district

court's interpretation of the  statute, we nevertheless find that

the  court's  decision to  close the  proceedings was  within its

discretion and proper under the Act.

                                I.                                          I.

          On  July  19,   1994,  the  government  charged   three

juveniles with civil rights violations under the Federal Juvenile

Delinquency Act (the "Act"), 18 U.S.C.    5031-5042.  The charges

involved "hate  crimes" allegedly  committed by the  juveniles as

members of a white supremacist  group.  On the same day  that the

juveniles were charged, the  grand jury indicted an adult,  Brian

Clayton,  with  violations  of 18  U.S.C.     241 (conspiracy  to

violate civil  rights) and    371 (conspiracy  to intimidate  and

interfere  with  federally  protected  activities  on account  of

race).    The indictment  charges  that  Clayton committed  these

violations as a  member of  the same white  supremacist group  to

which the three juveniles allegedly belonged.

          Just prior  to the juveniles' arraignments  on July 20,

1994, intervenor-appellant Globe Newspaper Company  (the "Globe")

moved to  intervene in the  juvenile proceedings for  purposes of

gaining access to the arraignments and subsequent proceedings, as

well  as to any judicial documents filed in connection with those

                               -2-

proceedings.   The district court allowed the  Globe to intervene

and granted  it access to  certain redacted court  documents, but

denied  public access to the  arraignments on the  grounds that  

5038  of the  Act mandated  closure of  the proceedings.   United                                                                           

States v. Three Juveniles, Globe Newspaper Co., 862 F. Supp. 651,                                                        

658 (D. Mass. 1994).  The court alternatively held  that, even if

closure  were discretionary,  it would  close the  proceedings in

this case.  See id. at 658.  The Globe argues on appeal  that the                            

First   Amendment  creates   a  right   of  access   to  juvenile

proceedings, that  the district  court erred by  interpreting the

Act  to mandate  closure of  juvenile proceedings,  and that  the

factors set forth and  relied upon by  the district court in  its

opinion are not sufficiently compelling to justify closure of the

proceedings.

                               II.                                         II.

          The  issues  presented  by   this  appeal  involve  the

interpretation and constitutionality of certain provisions of the

Act.   Because these are purely  questions of law,  our review is

plenary.   See United States  v. Gifford,  17 F.3d 462,  472 (1st                                                  

Cir. 1994); see also United States v. M.I.M., 932 F.2d 1016, 1019                                                      

(1st Cir.  1991) (district  court's interpretation of  statute is

reviewed de novo).                          

          The  Act  governs  the  detention  and  disposition  of

juveniles charged with delinquency.  18 U.S.C.    5031-5037.  The

statute  also contains confidentiality  provisions, set  forth in

                               -3-

   5032  and 5038.1   Enacted in 1938,  the Act was  intended "to
                                                  

1  Section 5032 provides in relevant part that:

            . . . any proceedings against [an alleged
            juvenile  delinquent]  shall  be   in  an
            appropriate district court of  the United
            States.  For such purposes, the court may
            be convened at any  time and place within
            the  district,  in chambers  or otherwise                                                               
            . . . .

18 U.S.C.    5032 (emphasis  added).  The  second confidentiality
provision,   5038, provides that:

            (a) Throughout and upon the completion of
            the juvenile  delinquency proceeding, the
            records   shall   be   safeguarded   from
            disclosure to unauthorized persons.   The
            records  shall be released  to the extent
            necessary    to   meet    the   following
            circumstances:

               (1) inquiries received from another
               court of law; 
               (2)   inquiries   from  an   agency
               preparing a  presentence report for
               another court;
               (3) inquiries  from law enforcement
               agencies  where   the  request  for
               information   is  related   to  the
               investigation  of  a  crime   or  a
               position within that agency;
               (4) inquiries, in writing, from the
               director of a  treatment agency  or
               the director of a facility to which
               the juvenile has been  committed by
               the court;
               (5)   inquiries   from  an   agency
               considering   the   person  for   a
               position  immediately and  directly
               affecting  the  national  security;
               and
               (6)  inquiries  from any  victim of
               such  juvenile  delinquency, or  if
               the  victim  is  deceased from  the
               immediate  family  of such  victim,
               related to the final disposition of
               such  juvenile  by  the   court  in
               accordance with section 5037.

                               -4-

provide  for the  care  and treatment  of juvenile  delinquents."

H.R. Rep.  No. 2617, 75th Cong., 3d Sess. 1 (1938).  "[T]he Act's

underlying purpose is to  rehabilitate, not to punish, so  as 'to

assist  youths  in becoming  productive  members  of our  society

. . .'."   In re Sealed  Case (Juvenile Transfer),  893 F.2d 363,                                                           

367 (D.C.  Cir. 1990) (quoting  S. Rep. No.  1011, 93d  Cong., 2d

Sess.  22 (1974)); accord United  States v. Welch,  15 F.3d 1202,                                                           

1211 n.12 (1st Cir. 1993), cert.  denied, 114 S. Ct. 1863 (1994).                                                  

To  this end,  the Act  attempts to  insulate juveniles  from the

stigma of a criminal record.  In re Sealed Case, 893 F.2d at 367-                                                         

68; see  also S. Rep.  No. 1989,  75th Cong., 3d  Sess. 1  (1938)                       
                                                  

            Unless   otherwise  authorized   by  this
            section,  information about  the juvenile
            record  may  not  be  released  when  the
            request for information is related  to an
            application   for   employment,  license,
            bonding, or any civil right or privilege.
            Responses to such inquiries shall  not be
            different   from  responses   made  about
            persons who have never been involved in a
            delinquency proceeding . . . .

            (c)  During the  course  of any  juvenile
            proceeding,  all information  and records
            relating  to  the  proceeding, which  are
            obtained or prepared  in the discharge of
            an  official duty  by an employee  of the
            court  or  an   employee  of  any   other
            governmental   agency,   shall   not   be
            disclosed   directly  or   indirectly  to
            anyone  other than the judge, counsel for
            the  juvenile  and  the   Government,  or
            others  entitled  under  this section  to
            receive juvenile records . . . .

            (e) Unless a juvenile  who is taken  into
            custody is prosecuted as an adult neither
            the  name  nor  picture of  any  juvenile
            shall be made public in connection with a
            juvenile delinquency proceeding . . . .

                               -5-

("[A]  juvenile  delinquent  for  whom  there  is  some  hope  of

rehabilitation should not receive the stigma of a criminal record

that  would   attach  to  him   throughout  his  life.").     The

confidentiality  provisions  of  the  Act  are   therefore  quite

essential  to   the  Act's  statutory   scheme  and   overarching

rehabilitative purpose.

          Based on its reading of the statute and its legislative

history, the district  court held  that the Act  allowed it  some

discretion to disclose information about juvenile proceedings, so

long as the disclosure does not contravene the "express  mandate"

of   5038(e)  that the juvenile's  name and  picture not be  made

public.   862 F.  Supp. at  658.  This  construction of  the Act,

according  to the  district court,  is also  consistent  with the

Supreme  Court's First  Amendment jurisprudence.   Id.  at 655-56                                                               

(citing, inter  alia, Globe Newspaper  Co. v. Superior  Court for                                                                           

the County of Norfolk, 457 U.S. 596, 608 (1982)).  We turn now to                               

the Globe's contention  that the district court's  interpretation

was in error.

                               III.                                         III.

          As  the district  court recognized, the  Act implicates

First  Amendment concerns, and thus must  be interpreted with the

Supreme Court's  First Amendment  jurisprudence in  mind.  It  is

well-settled that the First Amendment provides a  right of public

access to most proceedings  growing out of adult criminal  cases.                                                          

See  Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 3 (1986)                                                     

("Press-Enterprise II") (First Amendment provides right of access                               

                               -6-

to transcript of preliminary  hearing of a criminal prosecution);

Press-Enterprise Co.  v. Superior  Court of California,  464 U.S.                                                                

501,  508-510  (1984)  ("Press-Enterprise  I")  (First  Amendment                                                      

creates  "presumption of  openness" of  voir dire  proceedings in                                                           

criminal case);  Richmond Newspapers, Inc. v.  Virginia, 448 U.S.                                                                 

555, 580 (1980) (plurality opinion) (the public's right to attend

criminal trials  is implicit  in First Amendment's  guarantees).2

This  First Amendment right  of access is  not absolute, however.

Competing  values and interests may warrant a denial of access to

proceedings and records in some situations.  Press-Enterprise II,                                                                          

478 U.S. at 9;  see also Rivera-Puig v. Garc a-Rosario,  983 F.2d                                                                

311, 314 (1st Cir. 1992).   In such a case, reviewing courts must

determine whether  the closure  is "essential to  preserve higher

values" and "narrowly tailored to  serve that interest."   Press-                                                                           

Enterprise I, 464 U.S. at 510.                      

          Since  the  "Juvenile  Court" movement  began  in  this

country at the end of the last century, all  states, the District

of Columbia, and Puerto Rico have adopted juvenile court systems.

See In re Gault, 387  U.S. 1, 14 (1967).  The development  of the                         

juvenile justice system throughout the country has been marked by

a "special sensitivity" about information regarding juveniles and

"the  impact that  public dissemination  of such  information may
                                                  

2    Although some  circuits have  recognized  a public  right of
access  to  civil  trials   as  well,  see,  e.g.,  Republic   of                                                                           
Philippines v.  Westinghouse Elec. Corp.,  949 F.2d 653,  659 (3d                                                  
Cir.  1991),  this Circuit  has never  decided whether  the First
Amendment mandates such a  general right of access.   Anderson v.                                                                        
Cryovac,  Inc., 805 F.2d  1, 10-11 (1st  Cir. 1986).   We find it                        
unnecessary to do so here.

                               -7-

have  on the  youths  involved."    United  States  v.  A.D.,  PG                                                                           

Publishing  Co.,  28   F.3d  1353,  1357  (3d   Cir.  1994)  ("PG                                                                           

Publishing").   Accordingly, many, if not  most, states currently                    

authorize  or  mandate closure  of  juvenile  proceedings.3   The

Supreme   Court  has   also   acknowledged  this   tradition   of

confidentiality of juvenile proceedings.  See, e.g., In re Gault,                                                                          

387 U.S.  at 25 ("[T]here is no reason why, consistently with due

process, a  State cannot  continue, if it  deems appropriate,  to

provide  and  to improve  provision  for  the confidentiality  of

records  of   police  contacts  and  court   action  relating  to

juveniles.").

          The  Supreme Court  has  never determined  whether  the

First  Amendment  right of  public  access  attaches to  juvenile

proceedings, and  thus has  not decided whether  across-the-board

closure of such proceedings violates the First Amendment.  See PG                                                                           

                                                  

3  See,  e.g., Ala. Code 12-15-65(a); Alaska  Stat. 47.10.070(a);                       
Conn. Gen. Stat. Ann. 54-76h; D.C. Code Ann. 16-2316(e); Ga. Code
Ann. 15-11-28(c); Hawaii  Rev. Stat. Tit. 31  s. 571-41(b); Idaho
Juv.  R. 22(b); Ill. Rev. Stats. Ch.  705 s. 405/l-5(6); Ky. Rev.
Stat.  Ann. 610.070(3);  Miss. Code  Ann. 43-21-203(6);  Mo. Ann.
Stat. 211.171(5); Nev. Rev. Stat. 62.193(1); N.H. Rev. Stat. Ann.
169-B:34;  N.D.  Cent. Code  27-20-24(5);  Pa.  Cons. Stat.  Ann.
6336(d);  R.I.  Gen. L.  14-1-30; S.C.  Code Ann.  20-7-755; S.D.
Codified Laws Ann. 26-7A-36;  Vt. Stat. Ann. Tit. 33  s. 5523(c);
Va.  Code 16.1-302; Wash. Rev.  Code Ann. 13-34.110;  W. Va. Code
49-5-1(d); Wis.  Stat. Ann. 48-299(1)(a); Wyo.  Stat. 14-6-224(b)
(all authorizing or requiring that the general public be excluded
from juvenile proceedings).   See also Calif. Welf. &amp;  Inst. Code                                                
676(a); Me. Rev.  Stat. Ann.  Tit. 15 s.  3307(2)(B); Mass.  Gen.
Laws Ann. ch. 119 s. 65; Minn. Stat. Ann. 260.155(c); Okla. Stat.
Ann. Tit. 10 s. 1111(A)(1); Tex.  Fam. Code Ann. 54-08; Utah Code
Ann.  78-3a-33(2)   (all   barring  the   public  from   juvenile
proceedings  except  for  those   involving  certain  classes  of
offenses,  such as  murder, or  when the  juvenile is  older than
fifteen years). 

                               -8-

Publishing,  28  F.3d  at 1357.    In  a  very instructive  case,                    

however, the Court addressed whether the First Amendment allows a

statutory bar  to public access  to adult criminal  trials during

the  testimony of sex-offense victims who are minors.  See Globe,                                                                          

457 U.S. at  607.   Although the Supreme  Court acknowledged  the

compelling state interests of protecting the victims from further

trauma and  embarrassment and  encouraging other victims  to come

forward, it  held that neither interest  sufficiently justified a

blanket closure  in every  case involving a  youthful sex-offense

victim.  Id. at 607.  The Court explained:                     

            [A]s  compelling  as  that  interest  [in
            protecting the minor victims] is, it does
            not justify a mandatory closure rule, for                                             
            it is clear that the circumstances of the
            particular    case    may   affect    the
            significance  of the  interest.   A trial
            court  can  determine  on a  case-by-case
            basis  whether  closure  is necessary  to
            protect   the   welfare   of    a   minor
            victim. . . .  Section 16A,  in contrast,
            requires  closure even if the victim does
            not seek the  exclusion of the  press and
            general  public,  and  would  not  suffer
            injury  by  their presence.  .  .  .   In
            short,     16A  cannot  be  viewed  as  a
            narrowly tailored  means of accommodating
            the  State's  asserted  interest:    That
            interest could be served  just as well by
            requiring the trial court to determine on
            a case-by-case basis whether  the State's
            legitimate concern for the  well-being of
            the  minor  victim necessitates  closure.
            Such   an   approach  ensures   that  the
            constitutional right of the press and the
            public to gain access to  criminal trials
            will  not  be  restricted   except  where
            necessary   to    protect   the   State's
            interest.

Id.  Significantly, the Court added:            

                               -9-

            We emphasize that our holding is a narrow
            one:   that a rule  of mandatory  closure
            respecting  the  testimony  of minor  sex
            victims is constitutionally  infirm.   In                                                               
            individual  cases, and  under appropriate                                                               
            circumstances,  the First  Amendment does                                                               
            not necessarily  stand  as a  bar to  the                                                               
            exclusion from the courtroom of the press                                                               
            and general public  during the  testimony                                                               
            of  minor sex-offense  victims.    But  a                                                               
            mandatory     rule,      requiring     no                                                               
            particularized      determinations     in                                                               
            individual cases, is unconstitutional.                                                           

Id. at 611 n.27 (emphasis added).            

          In the instant  case, the Globe argues  that the public

does  have  a  First  Amendment  right  of  access  to   juvenile

proceedings.   Relying on the Court's language in Globe, 457 U.S.                                                                 

at  607-08, 611,  the  Globe contends  that the  district court's

construction  of  the  Act   as  imposing  "a  mandatory  closure

requirement  on  all  juvenile   proceedings"  renders  the   Act

unconstitutional.   Assuming  arguendo that  the First  Amendment                                                

right  of public  access does  apply to  some degree  to juvenile

proceedings,4  we agree that while the Globe case is not directly                                                      

applicable  here, the  Court's  reasoning in  that case  strongly

suggests that  the district court's preferred reading  of the Act

raises some serious First Amendment concerns.

          There  may,  however,  be   no  need  to  resolve  this

potential conflict between the  Act and the First Amendment.   It

                                                  

4  This is, however, a highly dubious assumption, particularly in
light  of the  long,  entrenched, and  well-founded tradition  of
confidentiality   regarding   juvenile   proceedings,   and   the
compelling rehabilitative  purposes behind  this tradition.   See                                                                           
supra note 2; see also In re Sealed Case (Juvenile Transfer), 893                                                                      
F.2d 363, 367 (D.C. Cir. 1990); discussion infra section IV.                                                            

                               -10-

is a well-established rule  of statutory construction that "where

an  otherwise acceptable  construction of  a statute  would raise

serious  constitutional  problems,   [reviewing  courts   should]

construe  the   statute  to  avoid  such   problems  unless  such

construction  is plainly  contrary  to the  intent of  Congress."

DeBartolo Corp.  v. Florida Gulf  Coast Trades Council,  485 U.S.                                                                

568, 575 (1988).  We therefore must examine the Act's purpose and

language to determine whether  it is necessary to call  the Act's

constitutionality into  question by  construing it to  mandate an

across-the-board bar to public access.

                               IV.                                         IV.

          As we have explained, the primary purpose of the Act is

to facilitate the  rehabilitation of juvenile delinquents.  In re                                                                           

Sealed  Case, 893 F.2d  at 367.  Protection  of the juvenile from                      

the stigma of a criminal record by preserving the confidentiality

of proceedings is  an essential  element of  the Act's  statutory

scheme.  See discussion supra at 5.                                       

          The  government argues  that  the Act's  rehabilitative

purpose can only be  effectuated by prohibiting public disclosure

of information about juvenile  proceedings, and contends that the

Act's  language  explicitly  so  directs.   The  Globe  contends,

conversely, that the Act's language does not mandate closure, but

leaves  the decision to  the district  court's discretion,  to be

determined  on a case-by-case basis.  In so contending, the Globe

relies  heavily on   PG Publishing,  28 F.3d  at 1359-60,  and we                                            

                               -11-

agree  that the Third Circuit's  reasoning in that  case is quite

persuasive.

          As the  district court  acknowledged, the Act  does not

expressly  require a  closed hearing  for a  juvenile proceeding.

862  F. Supp.  at 655.   Section  5032 of  the Act  provides that

juvenile  proceedings may  be  convened "at  any  time and  place

within  the  district, in  chambers or  otherwise."   This phrase

certainly seems  to contemplate  that district court  judges will

exercise their discretion  to determine when, where,  and in what

manner  juvenile proceedings  will  be conducted.   Moreover,  we

agree  with the Third Circuit  that the language  "in chambers or

otherwise" strongly implies that the district court's  discretion

includes  "a decision  regarding the  availability and  degree of

public access."  PG Publishing, 28 F.3d at 1359.  This section of                                        

the Act  therefore provides  "strong evidence" that  Congress did

not  intend mandatory  closure of  all juvenile  proceedings, but

rather left the question of public access to the district court's

discretion.  Id.                         

          The first paragraph of   5038(a) of the Act states that

"the records  [of any  juvenile proceeding] shall  be safeguarded

from  disclosure  to unauthorized  persons."    Pointing to  this

provision,  the  government  contends  that  the  Act  explicitly

prohibits disclosure  of juvenile records except  to the entities

enumerated  in  subsequent paragraphs,  and  that  this evidences

Congressional  intent  to  create  an  across-the-board   ban  on

disclosure  to any  and  all other  parties.   We  do  not think,

                               -12-

however, that  this language is quite so  conclusive; the section

does not explicitly  mandate denial of public  access to juvenile                                      

records,  but   provides  only  that   the  records  are   to  be

"safeguarded  from disclosure to  unauthorized persons."   Giving                                                        

this  phrase a less strained, more common sense reading, we think

that the section prohibits  disclosure only to those persons  not

authorized  by the  district court  to receive  such information.                                            

See   PG  Publishing,  28   F.3d  at  1359   (reaching  the  same                              

conclusion).   The only express prohibitive  mandate contained in

all  of   5038(a) rests  in the final  paragraph, which prohibits

the district  court  from authorizing  disclosure  in  situations

"when the  request for information  is related to  an application

for  employment,   license,  bonding   or  any  civil   right  or

privilege."

          Nor  do  we  think   that  the  parties  enumerated  in

paragraphs  (a)(1)  through  (a)(6)  of     5038  constitute  the

exclusive  list of persons  intended by Congress  to ever receive

information  about juvenile proceedings.   Rather, the paragraphs

merely list those  persons who  have a right  to obtain  juvenile

records  upon  request.   Indeed,  if this  were  meant to  be an

exclusive  list,   then  the  final  paragraph   of  the  section

(prohibiting  disclosure  when  the   information  is  sought  in

relation  to a job application,  etc.) would be  superfluous.  PG                                                                           

Publishing, 28  F.3d at 1360.   Read as  a whole, then,  we think                    

that    5038(a) further  evidences Congressional intent  to leave

                               -13-

disclosure  of  juvenile  records  within  the  district  court's

discretion.5

          The only section of the Act that suggests that Congress

intended  an across-the-board bar to  public access is   5038(e),

which provides that "neither the name nor picture of any juvenile

shall be  made public in  connection with a  juvenile delinquency

proceeding."   The  district court  reasoned that  if it  were to

permit  public access  to the  proceedings, the  juveniles' names

would  certainly,   unavoidably,  be   made  public,   in  direct

contravention of   5038(e).  862 F. Supp. at 655.  Because it saw

no  way to  obey the  letter of    5038(e)  short of  closing the

proceedings, the  district court  interpreted the Act  to mandate

closure.   Id. at 655-56.  The  government now urges us to affirm                       

this interpretation, arguing that  any other reading would render

the confidentiality provisions a nullity.

          On this point, however, we are  persuaded once again by

the reasoning of the PG Publishing court, which explained:                                            

            A prohibition against making a juvenile's
            name or picture available to  the public,
            however,  strikes us  as an  indirect and
            unlikely  way  for Congress  to stipulate
            that all hearings  under the Act  will be
            closed  to  the public.    State statutes
            that   restrict    access   to   juvenile
            proceedings generally do so  directly and
                                                  

5    The  language  of     5038(c)  does  not  conflict  with our
interpretation.   This section provides that  all information and
records  relating  to  the  proceeding "shall  not  be  disclosed
directly or  indirectly to anyone  other than the  judge, counsel
for the juvenile  and the  Government, or  others entitled  under                                                                           
this section to receive juvenile records."  (Emphasis added).  We                                                  
read the underlined  phrase to mean any other  persons authorized
by the court to receive information under   5038(a).

                               -14-

            clearly. . . .   We  think  it  far  more
            likely that   5038(e) was intended not to
            limit  the discretion of  trial judges to
            regulate  access to  juvenile delinquency
            proceedings,   but   to   foreclose   law
            enforcement officials  from holding press
            conferences at which the name and picture
            of the juvenile would  be "made public in
            connection  with  a juvenile  delinquency
            proceeding."

28 F.3d at 1360-61 (quoting 18 U.S.C.   5038(e)).  Certainly,  if

Congress intended to mandate closure of all juvenile proceedings,

it  could have done  so expressly  and directly.   Cf.,  e.g., 18                                                                       

U.S.C.    3509(e) (authorizing "the exclusion  from the courtroom

of all persons, including members of the press, who do not have a

direct  interest  in  the case"  during  the  testimony of  child

witnesses).

          We  also  agree  with  the   Globe  that  even  if  the

prohibition  on  disclosure  of  a juvenile's  name  and  picture

prevents  unfettered public  access to  proceedings, it  does not

necessarily follow  that   5038(e)  commands total closure.   The

statutory directive can  in many instances be satisfied by other,

less restrictive means.  For example, public access to records or

proceedings  poses  no  risk  of  disclosure  of  the  juvenile's

picture,  as cameras can be banned from the proceedings and names

redacted from documents.   Similarly, there are methods  short of

complete closure, such as the use of initials or pseudonyms, that

would  protect against  inadvertent disclosure of  the juveniles'

names.

          Finally, we  think that interpreting the  entire Act in

light  of    5038(e), rather  than vice  versa,  attributes undue

                               -15-

significance to that section.  To hold that the Act must  mandate

closure  because of    5038(e)  is effectively  to ignore  strong

indicia  elsewhere in the statute that Congress did not intend to

create a blanket prohibition on public access, but rather to vest

discretion with the district courts  to fashion proceedings in  a

manner most appropriate for each individual case.

          For  these  reasons,  we hold  that  the  Act does  not

mandate  across-the-board closure  for all  juvenile proceedings,

but merely authorizes closure, or  any other measures designed to

ensure confidentiality, to be  determined on a case-by-case basis

at the discretion  of the district  court.6   We think that  this

interpretation fully  comports with  the purpose and  language of

the  statute as  a whole,  and is  far preferable  to  a strained

construction of the Act that  mandates complete closure and  thus

triggers First Amendment concerns.

                                V.                                          V.

          We turn now to the Globe's final contentions on appeal,

namely, that the district court's articulated reasons for closing

the  proceedings are  not  "sufficiently compelling"  to  justify

closure in this case, that the court's order does not effectively

serve its intended interests, and that the order is not "narrowly

tailored."  The Globe offers several theories in support of these

contentions, none of which we find persuasive.

                                                  

6  We  emphasize that we are not holding  or even suggesting that
juvenile proceedings ought  to be  open.  We  are merely  holding
that the Act does not invariably require them to be closed.

                               -16-

          As  an  initial  matter,   we  note  that  the  Globe's

arguments  on  this point  seem to  rest  on the  assumption that

juvenile  proceedings  should  be  open  as  a  rule,   and  only

compelling interests  justify  closure.   Certainly,  a  district

court must  exercise its discretion soundly,  and must articulate

reasons which are supported by the record and in keeping with the

policies of the Act.  Contrary to the Globe's implied assumption,

however,  the language  and policy  of the  Act, as  well as  the

history of juvenile justice proceedings  in this country over the

past century, indicate that a court's exercise of its  discretion

to close juvenile proceedings is not an exception to some general

rule of openness, but the norm.

          The  district court's  findings here  were meticulously

specific.  The court first correctly noted  the Act's overarching

objective  of  protecting  juveniles  from  stigma  in  order  to

facilitate rehabilitation.  862 F. Supp. at 657.  The court found

that    these   juveniles    were   particularly    amenable   to

rehabilitation, based  on the  prosecutor's decision not  to seek

transfer to  adult status and the  clean prior records of  two of

the juveniles.  Id.   The district court also gave weight  to the                            

juveniles' opposition to open  proceedings, noting that the media

had already  subjected the youths to  overwhelming publicity, and

concluding that adequate protection  of the juveniles from stigma

and public  scrutiny would  be impossible unless  the proceedings

were closed.  Id.                          

                               -17-

          The  Globe  contends that  the  court  should not  have

relied upon  the opposition of  the juveniles themselves  to open

proceedings,  as such  a  wish is  "unremarkable"  and "does  not

suggest that  this case  involves any individualized  concern for

closure different from those  present in virtually every juvenile

proceeding."   As the government points  out, however, protection

of  the  accused  is  one  of the  strongest  justifications  for

allowing public  access  to the  proceeding.   When  the  accused

juvenile,  on  advice of  counsel,  opposes  public access,  this

justification  is  vitiated.     Further,   the  juveniles'   own

assessment of their  interests is a highly  reliable indicator of

whether they will be irreparably stigmatized by open proceedings.

Given the Act's  strong policy in  favor of protecting  juveniles

from such  stigma,  we think  the juveniles'  opposition to  open

proceedings  was a  relevant  factor for  the  district court  to

consider.

          The Globe also attempts to downplay the significance of

the  fact that the juveniles  had not been  transferred for adult

prosecution.  The prosecutors'  determination not to transfer the

juveniles is based on an evaluation of criteria set forth  by the

Act, including the age and social background of the juvenile, the

nature of the alleged offense, the extent of the juvenile's prior

record, and  the juvenile's present intellectual  development and

psychological maturity.  18  U.S.C.   5032.  Because all of these

criteria are highly significant  indicators of the amenability of

the  juvenile to rehabilitation,  they are also  very relevant to

                               -18-

the court's decision whether to close the proceedings.  By taking

the prosecutors' decision into consideration, then, the court was

also giving weight  to these  factors.  That  these factors  will

often  militate in favor of  closure in juvenile proceedings does

not  in  any  way diminish  their  relevance  or  weight; to  the

contrary, it  merely underscores the Act's  strong preference for

preserving the confidentiality of juvenile records.7

          The Globe also contends that the district court's order

does not effectively serve its  intended interests, as nothing in

the  court's  opinion  indicates  that  the  closure  order  will

"effectively  preserve the juveniles'  confidentiality."   In its

opinion, the district court recognized that media coverage of the

proceedings had already been extensive, that one of the juveniles

had already been interviewed, that the juveniles had already been

identified  several  times in  the press,  and  that many  of the

details  of  their alleged  conduct  had  already been  disclosed

through the related  adult criminal prosecution of Clayton.   862

F. Supp. at 659.   The Globe now points to these facts and argues

that because all this  information had already been aired  in the

press,  "whatever stigma  the juveniles  may acquire  will attach

even  if the press is excluded from the proceedings."  Therefore,

                                                  

7    The  Globe also  suggests  that the  heinous  nature  of the
juveniles'  alleged  conduct  augments  the  public  interest  in
"seeing  justice  done,"  and  therefore   supports  opening  the
proceedings.    Given  the  Act's policy  of  preventing  stigma,
however, this argument is completely misguided.   It is precisely
because  the alleged crimes have provoked  so much public outrage                 
and  antipathy that closure becomes more appropriate, in order to
best effectuate the Act's purpose.

                               -19-

according  to the  Globe,  because the  district court's  closure

order cannot  possibly preserve  the juveniles' anonymity,  it is

ineffective, and cannot stand.

          This is  a  flawed, circular  argument with  disturbing

ramifications.   Essentially, the  Globe is arguing  that because

the press  has already  obtained and published  some information,                                                              

any  further   attempts  by   the  district  court   to  preserve

confidentiality are either futile or irrelevant.  Contrary to the

Globe's  contention, the  fact  that the  juveniles have  already

suffered  stigma does  not justify removing  or denying  them all

further  protections created by the Act.  Moreover, we agree with

the  government that  to  allow the  media to  "leverage" partial

information  into  an unfettered  right  of  access to  otherwise

nonpublic proceedings  would grant the media  a dangerous control

over important  state interests.  We therefore reject the Globe's

contentions on this  point, and  hold that  the district  court's

closure  order  sufficiently   serves  its   stated  purpose   of

preserving what confidentiality remains of the proceedings.

          The Globe also argues that the district court's closure

order is  not "narrowly  tailored."   Because the  district court

could have effected its intended purpose through less restrictive

means,  such  as  using   pseudonyms  and  redacting  identifying

information from  proceedings and records, the  Globe argues, its

total ban on public  access was unwarranted.  Again, we note that

the  Globe  is relying  on the  dubious assumption  that district

courts  must   meet  the  extremely   stringent  First  Amendment

                               -20-

standards  applied to  adult criminal cases  in order  to justify

closure of juvenile proceedings.

          Even  assuming,   however,  that  such   standards  are

applicable  here, we find that  they are sufficiently  met by the

court's  order.  As the  district court recognized,  it could not

bar the  media from publishing information legally obtained.  862

F. Supp. at 657 (citing  Smith v. Daily Mail Publishing  Co., 443                                                                      

U.S. 97  (1979)).  Because it had no way of ensuring that certain

identifying   information  would   remain  confidential   if  the

proceedings were open to  the press, the court concluded  that it

had no  less restrictive alternative to  closing the proceedings.

Id.  We  think this reasoning is quite sound.   The identities of            

the  juveniles had already been  widely publicized.  Redaction of

the juveniles' names from the  proceedings as the Globe  suggests

would   therefore   have   been    an   exercise   in   futility.

Realistically, the  press would merely publish  detailed accounts

of  the  "redacted"  proceedings,  substituting  the  identifying

information  previously obtained.   In  short, redaction,  or any

other  compromise   measure,  would  have   been  ineffective  in

preserving the confidentiality of the proceedings.8
                                                  

8  We  likewise reject  the Globe's arguments  that the  district
court's order impermissibly infringes  the public right of access
to  court records by shifting the burden of obtaining access onto
the  public.   Rather than  sealing the  case file  and requiring
interested  parties to  move for  further disclosures,  the Globe
suggests,  the  court  should have  done  just  the  opposite and
required  trial counsel  to  move for  impoundment of  particular
documents.  This contention is yet another example of the Globe's
attempt to  force juvenile  proceedings into the  First Amendment
framework  developed for  adult  criminal proceedings.    Section
5038(a)  of  the  Act  specifically provides  that  throughout  a

                               -21-

          Finally, the  Globe contends that the  district court's

order  violates  the  public's  common law  right  of  access  to

proceedings and records.  It is true that "courts of this country

recognize a general right  to inspect . . .  judicial records and

documents."  Nixon v. Warner Communications, Inc.,  435 U.S. 589,                                                           

597  (1978).  The Supreme Court has explained, however, that this

right is  not absolute; rather, the decision as to such access is

"best  left to  the  sound  discretion  of  the  trial  court,  a

discretion to be  exercised in  light of the  relevant facts  and

circumstances  of the particular case."  Id. at 598-99.  Assuming                                                     

that  this common law right  of access applies  to juvenile court

records,9  we do not think  that the district  court's order here

improperly  infringes  on this  right.    In  this  context,  the

qualified common  law  right of  access to  proceedings has  been

supplanted by the statutory  scheme of the Act.   As we interpret

them,  however,  the  Act's  confidentiality  provisions  do  not

significantly alter or restrict that common law right in any way,

but  leave public access to the sound discretion of trial courts.

Because  the  district  court's  order fully  comports  with  the

                                                  

juvenile   delinquency   proceeding,   "the  records   shall   be
safeguarded from disclosure to unauthorized persons."  As we have
explained, this section grants  the district court the discretion
to  release  juvenile  records  as it  deems  appropriate.    The
district court's order here  meticulously tracks this language of
the Act, and  we therefore  find that its  method of  determining
public access to court records is entirely proper.

9   It  is not  altogether clear  that this  common law  right of
access applies to juvenile  court records, in light of  the long,
sound  tradition of  preserving  the confidentiality  of juvenile
proceedings.  See supra note 4.                                 

                               -22-

provisions of  the  Act and  is  thus a  proper  exercise of  its

discretion,  the order  cannot be  said to  infringe on  any pre-

existing common law  right of  access.  We  therefore reject  the

Globe's arguments on this point.

                               VI.                                         VI.

          In sum, we hold  that the Act authorizes, but  does not

mandate,  the  closure of  juvenile  proceedings.   The  district

court's closure order was  fully justified on the record  and was

therefore an entirely proper exercise of its discretion under the

Act.

          Affirmed.                            

                               -23-
