435 U.S. 829 (1978), 76-1450, Landmark Communications, Inc. v. Virginia

Docket Nº:No. 76-1450
Citation:435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1
Party Name:Landmark Communications, Inc. v. Virginia
Case Date:May 01, 1978
Court:United States Supreme Court

Page 829

435 U.S. 829 (1978)

98 S.Ct. 1535, 56 L.Ed.2d 1

Landmark Communications, Inc.



No. 76-1450

United States Supreme Court

May 1, 1978

Argued January 11, 1978



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. 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. 838-839.

(b) [98 S.Ct. 1537] 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, 272-273. Pp. 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. 842-845.

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(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. 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. 848. BRENNAN and POWELL, JJ., took no part in the consideration or decision of the case.

BURGER, J., lead opinion

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.1

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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 [98 S.Ct. 1538] 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

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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.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.

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"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 [98 S.Ct. 1539] 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

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Landmark, the statute violated the First Amendment. We noted probable jurisdiction, 431 U.S. 964, and we now reverse.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.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.5 Cf. ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 9.1 (App. Draft 1972).

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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.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...

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