Landmark Communications, Inc. v. VirginiaAnnotate this Case
435 U.S. 829 (1978)
U.S. Supreme Court
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)
Landmark Communications, Inc. v. Virginia
Argued January 11, 1978
Decided May 1, 1978
435 U.S. 829
APPEAL FROM THE SUPREME COURT OF VIRGINIA
A Virginia statute makes it a crime to divulge information regarding proceedings before a state judicial review commission that is authorized to hear complaints about judges' disability or misconduct. For printing in its newspaper an article accurately reporting on a pending inquiry by the commission and identifying the judge whose conduct was being investigated, appellant publisher was convicted of violating the statute. Rejecting appellant's contention that the statute violated the First Amendment as made applicable to the States by the Fourteenth, the Virginia Supreme Court affirmed.
Held: The First Amendment does not permit the criminal punishment of third persons who are strangers to proceedings before such a commission for divulging or publishing truthful information regarding confidential proceedings of the commission. Pp. 435 U. S. 837-845.
(a) A major purpose of the First Amendment is to protect the free discussion of governmental affairs, which includes discussion of the operations of the courts and judicial conduct, and the article published by appellant's newspaper served the interests of public scrutiny of such matters. Pp. 435 U. S. 838-839.
(b) The question is not whether the confidentiality of commission proceedings serves legitimate state interests, but whether those interests are sufficient to justify encroaching on First Amendment guarantees that the imposition of criminal sanctions entails. Injury to the reputation of judges or the institutional reputation of courts is not sufficient to justify "repressing speech that would otherwise be free." New York Times Co. v. Sullivan,376 U. S. 254, 376 U. S. 272-273. Pp. 435 U. S. 839-842.
(c) The mere fact that the legislature found a clear and present danger to the orderly administration of justice justifying enactment of the challenged statute did not preclude the necessity of proof that such danger existed. This Court has consistently rejected the argument that out-of-court comments on pending cases or grand jury investigations constituted a clear and present danger to the administration of justice. See Bridges v. California,314 U. S. 252; Pennekamp v. Florida,328 U. S. 331; Craig v. Harney,331 U. S. 367; Wood v. Georgia,370 U. S. 375. If the "clear and present danger" test could not be satisfied in those cases, a fortiori it could not be satisfied here. Pp. 435 U. S. 842-845.
(d) Much of the risk to the orderly administration of justice can be eliminated through careful internal procedures to protect the confidentiality of commission proceedings. P. 435 U. S. 845.
217 Va. 699, 233 S.E.2d 120, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 435 U. S. 848. BRENNAN and POWELL, JJ., took no part in the consideration or decision of the case.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented on this appeal is whether the Commonwealth of Virginia may subject persons, including newspapers, to criminal sanctions for divulging information regarding proceedings before a state judicial review commission which is authorized to hear complaints as to judges' disability or misconduct, when such proceedings are declared confidential by the State Constitution and statutes. [Footnote 1]
On October 4, 1975, the Virginian Pilot, a Landmark newspaper, published an article which accurately reported on a pending inquiry by the Virginia Judicial Inquiry and Review Commission and identified the state judge whose conduct was being investigated. The article reported that
"[n]o formal complaint has been filed by the commission against [the judge], indicating either that the five-man panel found insufficient cause for action or that the case is still under review."
App. 47a. A month later, on November 5, a grand jury indicted Landmark for violating Va.Code § 2.1-37.13 (1973) by "unlawfully divulg[ing] the identification of a Judge of a Court not of record, which said Judge was the subject of an investigation and hearing" by the Commission.
The trial commenced on December 16, 1975, after the court
had denied Landmark's motion to quash or dismiss the indictment on the grounds that the statutory provision did not, in terms, apply to the article in question, and that it could not be so applied consistently with the First and Fourteenth Amendments. The essential facts were stipulated, and revealed that, at the time the article was published, the Commission had not filed a formal complaint with the Supreme Court of Virginia concerning the judge under investigation. [Footnote 2] The only witness at the trial, Joseph W. Dunn, Jr., Managing Editor of the Virginian Pilot, testified that he decided to print the information about the Commission proceedings because he felt that the subject was a matter of public importance which should be brought to the attention of the Pilot's readers. Mr. Dunn acknowledged he was aware that it was a misdemeanor for anyone participating in Commission proceedings to divulge information about those proceedings, but testified that he did not understand the statute to apply to newspaper reports about the proceedings. He further testified that no reporter, employee, or representative of Landmark had been subpoenaed by or had appeared before the Commission in connection with the proceedings described in the October 4 article.
The case was tried without a jury, and Landmark was found guilty and fined $500 plus the costs of prosecution. The Supreme Court of Virginia affirmed the conviction, with one dissent. That court characterized the case as involving
"a confrontation between the First Amendment guaranty of freedom of the press and a Virginia statute which imposes criminal sanctions for breach of the confidentiality of proceedings before the Judicial Inquiry and Review Commission."
At the outset, it rejected Landmark's claim that Va.Code § 2.137.13 (1973) applied only to the participants in a Commission proceeding or to the initial disclosure of confidential information.
"Clearly, Landmark's actions violated [the statute] and rendered it liable to imposition of the sanctions prescribed. . . ." 217 Va. 699, 703, 233 S.E.2d 120, 123.
Turning then to the constitutional question, he court noted that it was one of first impression and of broad significance because of the large number of other States in addition to Virginia which have comparable statutes requiring confidentiality with respect to judicial inquiry commissions. The court emphasized that the issue was not one of prior restraint, but instead involved a sanction subsequent to publication. Accordingly, it concluded that the "clear and present danger test" was the appropriate constitutional benchmark. It identified three functions served by the requirement of confidentiality in Commission proceedings: (a) protection of a judge's reputation from the adverse publicity which might flow from frivolous complaints, (b) maintenance of confidence in the judicial system by preventing the premature disclosure of a complaint before the Commission has determined that the charge is well founded, and (c) protection of complainants and witnesses from possible recrimination by prohibiting disclosure until the validity of the complaint has been ascertained. The court concluded:
"Considering these matters, we believe it can be said safely, without need of hard in-court evidence, that, absent a requirement of confidentiality, the Judicial Inquiry and Review Commission could not function properly or discharge effectively its intended purpose. Thus, sanctions are indispensable to the suppression of a clear and present danger posed by the premature disclosure of the Commission's sensitive proceedings -- the imminent impairment of the effectiveness of the Commission and the accompanying immediate threat to the orderly administration of justice."
Id. at 712, 233 S.E.2d at 129. In dissent, Justice Poff took the position that, as applied to
Landmark, the statute violated the First Amendment. We noted probable jurisdiction, 431 U.S. 964, and we now reverse. [Footnote 3]
At the present time it appears that 47 States, the District of Columbia, and Puerto Rico have established, by constitution, statute, or court rule, some type of judicial inquiry and disciplinary procedures. [Footnote 4] All of these jurisdictions, with the apparent exception of Puerto Rico, provide for the confidentiality of judicial disciplinary proceedings, although, in most, the guarantee of confidentiality extends only to the point when a formal complaint is filed with the State Supreme Court or equivalent body. [Footnote 5] Cf. ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 9.1 (App. Draft 1972).
The substantial uniformity of the existing state plans suggests that confidentiality is perceived as tending to insure the ultimate effectiveness of the judicial review commissions. First, confidentiality is thought to encourage the filing of complaints and the willing participation of relevant witnesses by providing protection against possible retaliation or recrimination. [Footnote 6] Second, at least until the time when the meritorious can be separated from the frivolous complaints, the confidentiality of the proceedings protects judges from the injury which might result from publication of unexamined and unwarranted complaints. And finally, it is argued, confidence in the judiciary as an institution is maintained by avoiding premature announcement of groundless claims of judicial misconduct or disability, since it can be assumed that some frivolous complaints will be made against judicial officers, who rarely can satisfy all contending litigants. See generally W. Braithwaite, Who Judges the Judges? 161-162 (1971); Buckley, The Commission on Judicial Qualifications: An Attempt to Deal with Judicial Misconduct, 3 U.San Fran.L.Rev. 24, 255-256 (1969).
In addition to advancing these general interests, the confidentiality requirement can be said to facilitate the work of the commissions in several practical respects. When removal or retirement is justified by the charges, judges are more likely
to resign voluntarily or retire without the necessity of a formal proceeding if the publicity that would accompany such a proceeding can thereby be avoided. [Footnote 7] Of course, if the charges become public at an early stage of the investigation, little would be lost -- at least from the judge's perspective -- by the commencement of formal proceedings. In the more common situation, where the alleged misconduct is not of the magnitude to warrant removal or even censure, the confidentiality of the proceedings allows the judge to be made aware of minor complaints which may appropriately be called to his attention without public notice. See Braithwaite, supra at 162-163.
Acceptance of the collective judgment that confidentiality promotes the effectiveness of this mode of scrutinizing judicial conduct and integrity, however, marks only the beginning of the inquiry. Indeed, Landmark does not challenge the requirement of confidentiality, but instead focuses its attack on the determination of the Virginia Legislature, as construed by the Supreme Court, that the "divulging" or "publishing" of information concerning the work of the Commission by third parties, not themselves involved in the proceedings, should be criminally punishable. Unlike the generalized mandate of confidentiality, the imposition of criminal sanctions for its breach is not a common characteristic of the state plans;
indeed, only Virginia and Hawaii appear to provide criminal sanctions for disclosure. [Footnote 8]
The narrow and limited question presented, then, is whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings of the Judicial Inquiry and Review Commission. [Footnote 9] We are not here concerned with the possible applicability of the statute to one who secures the information by illegal means and thereafter divulges it. We do not have before us any constitutional challenge to a State's power to keep the Commission's proceedings confidential or to punish participants for breach of this mandate. [Footnote 10] Cf. Nebraska Press Assn. v. Stuart,427 U. S. 539, 427 U. S. 564 (1976); id. at 427 U. S. 601 n. 27 (BRENNAN, J., concurring in judgment); Wood v. Georgia,370 U. S. 375, 370 U. S. 393-394 (1962). Nor does Landmark argue for any constitutionally compelled right of access for the press to those proceedings. Cf. 417 U. S. Washington Post Co., 417
U.S. 843 (1974); Pell v. Procunier,417 U. S. 817 (1974). Finally as the Supreme Court of Virginia held, and appellant does not dispute, the challenged statute does not constitute a prior restraint or attempt by the State to censor the news media.
Landmark urges as the dispositive answer to the question presented that truthful reporting about public officials in connection with their public duties is always insulated from the imposition of criminal sanctions by the First Amendment. It points to the solicitude accorded even untruthful speech when public officials are its subjects, see, e.g., New York Times Co. v. Sullivan,376 U. S. 254 (1964), and the extension of First Amendment protection to the dissemination of truthful commercial information, see, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,425 U. S. 748 (1976); Linmark Associates, Inc. v. Willingboro,431 U. S. 85 (1977), to support its contention. We find it unnecessary to adopt this categorical approach to resolve the issue before us. We conclude that the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom. See, e.g., Buckley v. Valeo,424 U. S. 1, 424 U. S. 64-65 (1976).
"Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. [Footnote 11]"
it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions, and, by tradition, will not respond to public commentary, the law gives "[j]udges as persons, or courts as institutions . . . no greater immunity from criticism than other persons or institutions." Bridges v. California,314 U. S. 252, 314 U. S. 289 (1941) (Frankfurter, J., dissenting). The operations of the courts and the judicial conduct of judges are matters of utmost public concern.
"A responsible press has always been regarded as the handmaiden of effective judicial administration. . . . Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."
Sheppard v. Maxwell,384 U. S. 333, 384 U. S. 350 (1966). Cf. Cox Broadcasting Corp. v. Cohn,420 U. S. 469, 420 U. S. 492 (1975). The operation of the Virginia Commission, no less than the operation of the judicial system itself, is a matter of public interest, necessarily engaging the attention of the news media. The article published by Landmark provided accurate factual information about a legislatively authorized inquiry pending before the Judicial Inquiry and Review Commission, and, in so doing, clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect. See New York Times Co. v. Sullivan, supra at 376 U. S. 269-270.
The Commonwealth concedes that, "[w]ithout question, the First Amendment seeks to protect the freedom of the press
to report and to criticize judicial conduct," Brief for Appellee 17, but it argues that such protection does not extend to the publication of information "which by Constitutional mandate is to be confidential." Ibid. Our recent decision in Cox Broadcasting Corp. v. Cohn, supra, is relied upon to support this interpretation of the scope of the freedom of speech and press guarantees. As we read Cox, it does not provide the answer to the question now confronting us. Our holding there was that a civil action against a television station for breach of privacy could not be maintained consistently with the First Amendment when the station had broadcast only information which was already in the public domain.
"At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records."
420 U.S. at 420 U. S. 496. The broader question -- whether the publication of truthful information withheld by law from the public domain is similarly privileged -- was not reached, and indeed was explicitly reserved in Cox.Id. at 420 U. S. 497 n. 27. We need not address all the implications of that question here, but only whether, in the circumstances of this case, Landmark's publication is protected by the First Amendment.
The Commonwealth also focuses on what it perceives to be the pernicious effects of public discussion of Commission proceedings to support its argument. It contends that the public interest is not served by discussion of unfounded allegations of misconduct which defames honest judges and serves only to demean the administration of justice. The functioning of the Commission itself is also claimed to be impeded by premature disclosure of the complainant, witnesses, and the judge under investigation. Criminal sanctions minimize these harmful consequences, according to the Commonwealth, by ensuring that the guarantee of confidentiality is more than an empty promise.
It can be assumed for purposes of decision that confidentiality of Commission proceedings serves legitimate state interests. The question, however, is whether these interests are sufficient to justify the encroachment on First Amendment guarantees which the imposition of criminal sanctions entails with respect to nonparticipants such as Landmark. The Commonwealth has offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined. While not dispositive, we note that more than 40 States having similar commissions have not found it necessary to enforce confidentiality by us of criminal sanctions against nonparticipants. [Footnote 12]
Moreover, neither the Commonwealth's interest in protecting the reputation of its judges nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do, in fact, enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient
reason "for repressing speech that would otherwise be free." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 272-273. See also Garrison v. Louisiana,379 U. S. 64, 379 U. S. 67 (1964). The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales. See New York Times Co. v. Sullivan, supra. As Mr. Justice Black observed in Bridges v. California, 314 U.S. at 314 U. S. 270-271:
"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. . . . [A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect."
Mr. Justice Frankfurter, in his dissent in Bridges, agreed that speech cannot be punished when the purpose is simply
"to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which, in a democracy, other public servants are exposed."
Id. at 314 U. S. 291-292.
The Commonwealth has provided no sufficient reason for disregarding these well established principles. We find them controlling and, on this record, dispositive.
The Supreme Court of Virginia relied on the "clear and present danger" test in rejecting Landmark's claim. We question the relevance of that standard here; moreover we cannot accept the mechanical application of the test which led that court to its conclusion. Mr. Justice Holmes' test was never intended "to express a technical legal doctrine or to convey a formula for adjudicating cases." Pennekamp v. Florida,328 U. S. 331, 328 U. S. 353 (1946) (Frankfurter, J., concurring). Properly
applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance, and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State's interests should also be weighed.
Landmark argued in the Supreme Court of Virginia that,
"before a state may punish expression, it must prove by 'actual facts' the existence of a clear and present danger to the orderly administration of justice."
217 Va. at 706, 233 S.E.2d at 125. The court acknowledged that the record before it was devoid of such "actual facts," but went on to hold that such proof was not required when the legislature itself had made the requisite finding
"that a clear and present danger to the orderly administration of justice would be created by divulgence of the confidential proceedings of the Commission."
Id. at 708, 233 S.E.2d at 126. This legislative declaration, coupled with the stipulated fact that Landmark published the disputed article, was regarded by the court as sufficient to justify imposition of criminal sanctions.
Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake. In Pennekamp v. Florida, supra at 328 U. S. 335, Mr. Justice Reed observed that this Court is
"compelled to examine for [itself] the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts, or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect."
"[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances,
the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech ad assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature."
A legislature appropriately inquires into, and may declare the reasons impelling, legislative action, but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute, and, if so, whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition, and the function of the First Amendment as a check on legislative power would be nullified.
It was thus incumbent upon the Supreme Court of Virginia to go behind the legislative determination and examine for itself
"the particular utteranc[e] here in question and the circumstances of [its] publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify [subsequent] punishment."
Bridges v. California, 314 U.S. at 314 U. S. 271. Our precedents leave little doubt as to the proper outcome of such an inquiry.
In a series of cases raising the question of whether the contempt power could be used to punish out-of-court comments concerning pending cases or grand jury investigations, this Court has consistently rejected the argument that such commentary constituted a clear and present danger to the administration of justice. See Bridges v. California, supra; Pennekamp
"working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished,"
Bridges v. California, supra at 314 U. S. 263, and that a "solidity of evidence," Pennekamp v. Florida, supra at 328 U. S. 347, is necessary to make the requisite showing of imminence. "The danger must not be remote or even probable; it must immediately imperil." Craig v. Harney, supra at 331 U. S. 376.
The efforts of the Supreme Court of Virginia to distinguish those cases from this case are unpersuasive. The threat to the administration of justice posed by the speech and publications in Bridges, Pennekamp, Craig, and Wood was, if anything, more direct and substantial than the threat posed by Landmark's article. If the "clear and present-danger" test could not be satisfied in the more extreme circumstances of those cases, it would seem to follow that the test cannot be met here. It is true that some risk of injury to the judge under inquiry, to the system of justice, or to the operation of the Judicial Inquiry and Review Commission may be posed by premature disclosure, but the test requires that the danger be "clear and present," and, in our view, the risk here falls far short of that requirement. Moreover, much of the risk can be eliminated through careful internal procedures to protect the confidentiality of Commission proceedings. [Footnote 13] Cf. Nebraska Press Assn. v. Stuart, 427 U.S. at 427 U. S. 564; id. at 427 U. S. 601 n. 27 (BRENNAN, J., concurring in judgment). In any event, we must conclude, as we did in Wood v. Georgia, that
"[t]he type of 'danger' evidenced by the record is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification."
370 U.S. at 370 U. S. 388.
Accordingly, the judgment of the Supreme Court of Virginia
is reversed, and the case remanded for further proceedings not inconsistent with this opinion. [Footnote 14]
Reversed and remanded.
MR. JUSTICE BRENNAN and MR. JUSTICE POWELL took no part in the consideration or decision of this case.
|435 U.S. 829app|
APPENDIX TO OPINION OF THE COURT
A total of 49 jurisdictions now have some mechanism for inquiring into judicial disability and conduct. With the one exception of Puerto Rico, all of the remaining jurisdictions impose some requirement of confidentiality through constitutional, statutory, or administrative provisions. The relevant provisions are listed below:
Alabama: Const.Amdt. No. 328, § 6.17 (1977), Rule 5 of Rules of Procedure of the Judicial Inquiry Commission;
Alaska: Stat.Ann. § 22.30.060 (1977), Rule 2 of the Commission on Judicial Qualifications;
Arizona: Const., Art. 6.1, § 5, Rule 10 of the Rules of Procedure for the Commission on Judicial Qualifications;
Arkansas: Stat.Ann. §§ 22-145(f) and 22-1004(b) (Supp. 1977);
California: Const., Art. 6, § 18(f), Rule 902 of Title III (Miscellaneous Rules) Div. I (Rules for Censure, Removal, Retirement or Private Admonishment of Judges);
Colorado: Const., Art. 6, § 23(3)(d), Rule 3 of Rules of Procedure of the Commission on Judicial Qualifications;
Connecticut: Gen.Stat. §§ 51c, 51d (1977), and § 6 of 1977 Pub. Act 77-494;
Delaware: Const., Art. 4, § 37, Rule 10(d) of Rules of Procedure of the Court on the Judiciary;
District of Columbia: Code § 11-152 (1973), Rule 1.4(b) of the Rules and Regulations of the Commission on Judicial Disabilities and Tenure;
Florida: Const., Art. 5, § 12(d), Rule 25 of the Judicial Qualifications Commission;
Georgia: Const., Art. 6,