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.
Page 435 U. S. 830
(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]
Page 435 U. S. 831
I
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
Page 435 U. S. 832
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.
Page 435 U. S. 833
"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
Page 435 U. S. 834
Landmark, the statute violated the First Amendment. We noted
probable jurisdiction, 431 U.S. 964, and we now reverse. [
Footnote 3]
II
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).
Page 435 U. S. 835
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
Page 435 U. S. 836
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;
Page 435 U. S. 837
indeed, only Virginia and Hawaii appear to provide criminal
sanctions for disclosure. [
Footnote
8]
III
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
Page 435 U. S. 838
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).
A
In
Mills v. Alabama, 384 U. S. 214,
384 U. S. 218
(1966), this Court observed:
"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]"
Although
Page 435 U. S. 839
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.
B
The Commonwealth concedes that, "[w]ithout question, the First
Amendment seeks to protect the freedom of the press
Page 435 U. S. 840
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.
Page 435 U. S. 841
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
Page 435 U. S. 842
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.
IV
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
Page 435 U. S. 843
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."
Mr. Justice Brandeis was even more pointed in his concurrence in
Whitney v. California, 274 U. S. 357,
274 U. S.
378-379 (1927):
"[A legislative declaration] does not preclude enquiry into the
question whether, at the time and under the circumstances,
Page 435 U. S. 844
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
Page 435 U. S. 845
v. Florida, supra; Craig v. Harney, 331 U.
S. 367 (1947);
Wood v. Georgia, 370 U.
S. 375 (1962). What emerges from these cases is the
"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
Page 435 U. S. 846
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,
Page 435 U. S. 847
§ 13, � 3, Rule 18 of Rules of the Judicial Qualifications
Commission;
Hawaii: Rev.Stat. §§ 610-3(a), 610-12(b) (1976), Rule
15 of the Rules of Practice and Procedure of the Commission for
Judicial Qualification;
Idaho: Code § 1-2103 (Supp. 1977), Rule 24 of the
Judicial Council; Illinois: Const., Art. 6, § 15(c), Rule 5 of the
Rules of Procedure of the Judicial Inquiry Board;
Indiana: Const., Art. 7, § 11, Code § 33-2.15-3 (1976),
Rule 5 of the Rules of the Judicial Qualifications Commission;
Iowa: Code § 605.28 (1977);
Kansas: Stat.Ann. § 20-175 (1974), Rule No. 607 of the
Rules of the Supreme Court Relating to Judicial Conduct;
Kentucky: Rule 4.130 of the Rules of Court;
Louisiana: Const., Art. 5, § 25(C), Rule 10 of the
Judiciary Commission;
Maryland: Const., Art. 4, § 4B(a), Rule 1227 §§ e, r,
of the Rules of Procedure;
Massachusetts: Rule 3 of the Committee on Judicial
Responsibility;
Michigan: Const., Art. 6, § 30(2), Rule 932.22 of the
Supreme Court Administrative Rules;
Minnesota: Stat. § 490.16(5) (1976); Rule S of the
Commission on Judicial Standards;
Missouri: Rule 12.23 of the Commission on Retirement,
Removal and Discipline;
Montana: Rev.Codes Ann. § 93-723 (Supp. 1977), Rule 7
of the Judicial Standards Commission;
Nebraska: Const., Art. 5, § 30(3), Rev.Stat. § 24.726
(1975), Rule 2 of the Commission on Judicial Qualifications;
Nevada: Const., Art. 6, § 21(3), Rule 4 of the Revised
Interim Procedural Rules of the Commission on Judicial
Discipline;
New Hampshire: Rev.Stat.Ann. § 490:4 (Supp. 1975), Rule
28 of the Supreme Court Rules;
New Jersey: Rule 2:15-11(e) of the Rules Governing
Appellate Practice in the Supreme Court and the Appellate Division
of the Superior Court;
New Mexico: Const., Art. 6, § 32, Rule 7 of Procedural
Rules and Regulations of the Judicial Standards Commission;
New York: Jud.Law § 44 (McKinney Supp. 1977);
North Carolina: Gen.Stat. § 7A-377(a) (Supp. 1977),
Rule 4 of the Judicial Standards Commission;
North Dakota: Cent. Code § 27-23-03(5) (Supp. 1977),
Rule 4 of the Judicial Qualifications Commission;
Page 435 U. S. 848
Ohio: Rule 5(21) of the Supreme Court Rules of
Practice;
Oklahoma: Stat., Tit. 20, § 1658 (Supp. 1976), Rule
5(C) of the Council on Judicial Complaints;
Oregon: Rev.Stat. § § 1 .420(2), 1.440 (1977), Rule 7
of the Rules of Procedure of the Commission on Judicial
Fitness;
Pennsylvania: Const., Art. 5, § 18(h), Rules 1, 20 of
the Rules of Procedure of the Judicial Inquiry and Review
Board;
Rhode Island: Rule 21 of the Commission on Judicial
Tenure and Discipline;
South Carolina: Rule 34, Items 11 and 33, of the Rules
of the Supreme Court;
South Dakota: Const., Art. 5, § 9, Comp.Laws Ann. §
16-1A (Supp. 1977), Rule 4 of the Judicial Qualifications
Commission;
Tennessee: Code Ann. §§ 17-811(2), 17813(2) (Supp.
1977);
Texas: Const., Art. 5, § 1 a(10), Rule 19 of Rules for
the Removal or Retirement of Judges;
Utah: Code Ann. § 787-30(3) (1977);
Vermont: Rule 3 of the Rules of the Supreme Court for
Disciplinary Control;
Virginia: Const., Art. 6, § 10, Code § 2.1-37.13
(1973), Rule 10 of the Judicial Inquiry and Review Commission;
West Virginia: Rules 3 and 5 of the Rules of Procedure
for the Handling of Complaints Against Justices, Judges, and
Magistrates;
Wisconsin: Item 21 of the Code of Judicial Ethics,
Rules 2 and 3(4) of the Rules of Procedure of the Judicial
Commission;
Wyoming: Rule 7 of the Judicial Supervisory
Commission.
[
Footnote 1]
Article 6, § 10, of the Constitution of Virginia provides in
relevant part:
"The General Assembly shall create a Judicial Inquiry and Review
Commission consisting of members of the judiciary, the bar, and the
public and vested with the power to investigate charges which would
be the basis for retirement, censure, or removal of a judge. The
Commission shall be authorized to conduct hearings and to subpoena
witnesses and documents. Proceedings before the Commission shall be
confidential."
Virginia Code § 2.1-37.13 (1973) implements the constitutional
mandate of confidentiality. It provides in relevant part:
"All papers filed with and proceedings before the Commission,
and under the two preceding sections (§§ 2.1-37.11, 2.1-37.12),
including the identification of the subject judge as well as all
testimony and other evidence and any transcript thereof made by a
reporter, shall be confidential and shall not be divulged by any
person to anyone except the Commission, except that the record of
any proceeding filed with the Supreme Court shall lose its
confidential character."
"
* * * *"
"Any person who shall divulge information in violation of the
provisions of this section shall be guilty of a misdemeanor."
Rule 10 of the Rules of the Commission is to the same
effect:
"All papers filed with and all proceedings before the Commission
are confidential pursuant to § 2.1-37.13, Code of Virginia (1950),
that the same shall not be divulged, and a violation thereof is a
misdemeanor and punishable as provided by law."
[
Footnote 2]
Upon the filing of a complaint with the Supreme Court of
Virginia, the records of the proceedings before the Commission lose
their confidential character. Va.Code § 2.1-37.13 (1973).
[
Footnote 3]
Eight days after the decision of the Supreme Court of Virginia,
the United States District Court for the Eastern District of
Virginia issued a temporary injunction restraining prosecution of
Richmond television station WXEX for violation of the same Virginia
law under which Landmark was prosecuted.
Nationwide
Communications, Inc. v. Backus, No. 77-0139-R (Mar. 15, 1977).
Thereafter, Richmond Newspapers, Inc., the publisher of two
Richmond, Va., newspapers, was also charged under § 2.1-37.13. On
April 5, 1977, the District Court denied the publisher's motion to
enjoin the pending prosecution and a conviction for two violations
of the statute resulted. Upon conclusion of the case, the District
Court enjoined further prosecution of the publisher under the
statute. Appellant then secured a temporary restraining order
against further prosecution under the statute for the limited
purpose of allowing it to publish an Associated Press story about a
current Commission investigation which the Richmond newspapers were
free to publish because of the court order shielding them from
prosecution.
Landmark Communication, Inc. v. Campbell, No.
77 404-N (ED Va., June 17, 1977). The temporary restraining order
expired on June 20, 1977.
[
Footnote 4]
Several bills are also pending in Congress providing for
somewhat similar inquiry into the conduct of federal judges.
See, e.g., H.R. 1850, 95th Cong., 1st Sess. (1977); H.R.
9042, 95th Cong., 1st Sess. (1977); S. 1423, 95th Cong., 1st Sess.
(1977)
[
Footnote 5]
The relevant state constitutional provisions, statutes, and
court rules are listed as an
435
U.S. 829app|>appendix to this opinion. Confidentiality of
proceedings is also an integral aspect of the proposals currently
pending in Congress.
See H.R. 1850,
supra, § 382;
H.R. 9042,
supra, § 382; S. 1423,
supra, § 381.
None of these bills impose criminal sanctions for a breach of the
confidentiality requirement.
[
Footnote 6]
According to appellee, under the Virginia plan, the name of the
complainant, as such, is never revealed to the judge under
investigation even when a complaint is filed with the Supreme
Court. All complaints other than the original are filed in the name
of the Commission; the original complaint is not made a part of any
public record. The identity of the witnesses heard by the
Commission, however, would presumably be a part of the Commission's
records which are made public if a complaint is filed with the
Supreme Court.
[
Footnote 7]
"The experience in California has been that not less than two or
three judges a year have either retired or resigned voluntarily,
rather than to confront the particular charges that are made. . . .
The important thing is that [these cases] are closed without any
public furor, or without any harm done to the judiciary, because
the existence and the procedures of the commission has caused the
judge himself to recognize the situation that exists, and to avail
himself of retirement."
Hearings on S. 1110 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th
Cong., 2d Sess., 120 (1976) (testimony of Jack E. Frankel,
Executive Officer of the California Commission on Judicial
Qualifications).
[
Footnote 8]
Hawaii Rev.Stat. § 610-3(b) (1976) provides in relevant
part:
"Any commission member or individual . . . who divulges
information concerning the charge prior to the certification of the
charge by the commission . . . shall be guilty of a felony which
shall be punishable by a fine of not more than $5000 or
imprisonment of not more than five years, or both."
[
Footnote 9]
Landmark argued below that the statute was unclear with regard
to whether the proscription against divulging information
concerning a Commission proceeding applied to third parties as well
as those who actually participated in the proceedings. The Supreme
Court of Virginia, over the dissent of Justice Poff, construed the
statutory language so as to encompass appellant. Although a
contrary construction might well save the statute from
constitutional invalidity, "it is not our function to construe a
state statute contrary to the construction given it by the highest
court of a State."
O'Brien v. Skinner, 414 U.
S. 524,
414 U. S. 531
(1974).
[
Footnote 10]
At least two categories of "participants" come to mind:
Commission members and staff employees, and witnesses or putative
witnesses not officers or employees of the Commonwealth. No issue
as to either of these categories is presented by this case.
[
Footnote 11]
The interdependence of the press and the judiciary has
frequently been acknowledged.
"The freedom of the press in itself presupposes an independent
judiciary through which that freedom may, if necessary, be
vindicated. And one of the potent means for assuring judges their
independence i a free press."
Pennekamp v. Florida, 328 U. S. 331,
328 U. S. 355
(1946) (Frankfurter, J., concurring).
[
Footnote 12]
A number of States provide that a breach of the confidentiality
requirement by commission members or staff is punishable as
contempt.
E.g., Rule 4.130(2) of the Kentucky Supreme
Court; Rule 3(g) of the Massachusetts Committee on Judicial
Responsibility. Other States require witnesses, as well as staff
and commission members, to take an oath of secrecy, violation of
which is treated as contempt.
E.g., Rule 25(c) of the
Florida Judicial Qualifications Commission; Rule S(2) of the
Minnesota Board on Judicial Standards (witnesses only); Rule 7(c)
of the Procedural Rules and Regulations of the New Mexico Judicial
Standards Commission; Rule 1(c) of the Rules of Procedure Governing
the Pennsylvania Judicial Inquiry and Review Board (witnesses
only). No similar provision relating to the conduct of participants
in Commission proceedings is contained in the Rules of the Virginia
Judicial Inquiry and Review Commission.
[
Footnote 13]
See n 12,
supra.
[
Footnote 14]
Appellant also attacks the Virginia statute generally on
vagueness and overbreadth grounds. Our resolution of the question
presented makes it unnecessary to address these issues.
MR. JUSTICE STEWART, concurring in the judgment.
Virginia has enacted a law making it a criminal offense for "any
person" to divulge confidential information about proceedings
before its Judicial Inquiry and Review Commission. I cannot agree
with the Court that this Virginia law violates the
Constitution.
There could hardly be a higher governmental interest than a
State's interest in the quality of its judiciary. Virginia's
derivative interest in maintaining the confidentiality of the
proceedings of its Judicial Inquiry and Review Commission seems
equally clear. Only such confidentiality, the State has
Page 435 U. S. 849
determined, will protect upright judges from unjustified harm
and at the same time insure the full and fearless airing in
Commission proceedings of every complaint of judicial misconduct. I
find nothing in the Constitution to prevent Virginia from punishing
those who violate this confidentiality.
Cf. In re Sawyer,
360 U. S. 622,
360 U. S. 646
(opinion concurring in result).
But, in this case, Virginia has extended its law to punish a
newspaper, and that it cannot constitutionally do. If the
constitutional protection of a free press means anything, it means
that government cannot take it upon itself to decide what a
newspaper may and may not publish. Though government may deny
access to information and punish its theft, government may not
prohibit or punish the publication of that information once it
falls into the hands of the press, unless the need for secrecy is
manifestly overwhelming.
*
It is on this ground that I concur in the judgment of the
Court.
* National defense is the most obvious justification for
government restrictions on publication. Even then, distinctions
must be drawn between prior restraints and subsequent penalties.
See, e.g., New York Times Co. v. United States,
403 U. S. 713,
403 U. S.
733-737 (WHITE, J., concurring);
Near v. Minnesota
ex rel. Olson, 283 U. S. 697,
283 U. S.
716.