LANDMARK COMMUNICATIONS, INC. V. COMMONWEALTH OF VIRGINIA
Record No. 760596
Supreme Court of Virginia
March 4, 1977
217 Va. 699
Present, All the Justices.
James E. Kulp, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
CARRICO, J., delivered the opinion of the court.
Creation of the Judicial Inquiry and Review Commission was mandated by
The Commission was actually created by the General Assembly in 1971, at its session held to implement the new constitution. (1971 Va. Acts Spec. Sess. ch. 154;
On November 5, 1975, Landmark was indicted for unlawfully divulging the identity of a judge who was “the subject of an investigation and hearing by the Judicial Inquiry and Review Commission.” Upon trial of the indictment by the court without a jury, it was stipulated that Landmark had published the article in question; that the Commission had investigated charges and conducted hearings concerning the judge named in the article; and that, at the time of the publication, the Commission had not filed a complaint with this court respecting the judge.3 Landmark was convicted of the charge laid in the indictment, and it was fined the sum of $500.00.
On appeal, Landmark contends that it is unclear from a reading of
While we agree with Landmark that the statute must be construed strictly, we disagree with the remainder of its argument. We hold that
In unmistakable terms, the statute states that all information concerning a proceeding before the Commission, including the identity of the judge who is the subject of the inquiry, shall be confidential and that this confidentiality shall continue until a formal complaint against the judge is filed with this court. So far as is pertinent here, only upon the filing of such a complaint is the record of a proceeding before the Commission placed in the public domain; only then does information concerning a proceeding before the Commission lose its confidential character.
Until a complaint is filed with this court, the proscription of the statute is applicable to punish any person who divulges any information concerning a proceeding before the Commission. Although Landmark is a corporation, by the force of
The proscription of
But, Landmark contends, to impose upon it the sanctions prescribed by
The First Amendment provides that “Congress shall make no law . . . abridging the freedom . . . of the press.” Clearly, “the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Nebraska Press Ass‘n v. Stuart, 427 U.S. 556, 49 L.Ed.2d 683, 696 (1976). Freedom of the press, however, is not an absolute right, and the state may punish its abuse. Near v. Minnesota, 283 U.S. 697, 708 (1931). But when and under what circumstances a state may punish such an abuse is the difficult question, given the uncertainty created by the numerous decisions interpreting First Amendment rights.
From a review of the decisions of the United States Supreme Court involving restrictions upon First Amendment freedom of the press, it appears that the cases fall into three general categories: (1) denial of right of access to information; (2) prior restraint upon publication; and (3) subsequent punishment for publication. The present case involves no denial of access;
While conceding that it is “difficult to determine whether the instant case is a ‘prior restraint’ or ‘subsequent punishment’ case,” Landmark contends that
We are of opinion, however, that
The distinction between “prior restraint” and “subsequent punishment” is based upon “a theory deeply etched in our law,” viz., that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). Accordingly, the “presumption against prior restraints is heavier - and the degree of protection broader - than that against limits on expression imposed by criminal penalties.” Id. at 558-59.
The governmental interest involved here, Landmark says, is the orderly administration of justice; the burden was upon the Commonwealth, therefore, to prove by “actual facts” that publication of the article in question created a clear and present danger to the administration of justice in Virginia. Because the Commonwealth failed to produce “actual facts” showing a clear and present danger, Landmark concludes, the judgment imposing the sanction upon it is invalid under Supreme Court decisions interpreting the First Amendment.
Upon examination of the Supreme Court‘s decisions, we find that the “clear and present danger” standard was enunciated in Schenck v. United States, 249 U.S. 47 (1919). Schenck involved defendants charged with circulating printed matter alleged to constitute a violation of the Espionage Act of June 15, 1917. In defense, the First Amendment freedoms of speech and press were asserted. In the course of its opinion upholding the convictions, the Court stated:
“It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose .... We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the
effect of force . . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” 249 U.S. at 51-52.
Subsequently, in a series of decisions, the Supreme Court applied the “clear and present danger” test to cases involving publications allegedly perilous to the orderly administration of justice. In Bridges v. California, 314 U.S. 252 (1941), Pennekamp v. Florida, 328 U.S. 331 (1946), Craig v. Harney, 331 U.S. 367 (1947), and Wood v. Georgia, 370 U.S. 375 (1962), the Court reversed convictions for contempt based upon out-of-court comment concerning pending cases. In each instance, the Court held that the particular expression involved was insufficient to pose a clear and present danger to the orderly administration of justice and, therefore, was protected by the First Amendment.
Bridges defined the scope of the “clear and present danger” standard. There, the Court stated:
“What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment . . . does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.” 314 U.S. at 263.
It is upon Bridges, Pennekamp, Craig, and Wood that Landmark relies to support its assertion 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. Bridges, however, does not mention any requirement of evidence to establish a clear and present danger. But in Craig, the Court analyzed Bridges to have held that:
“[T]he compulsion of the First Amendment, made applicable to the States by the Fourteenth . . . forbade the punishment by contempt for comment on pending cases in absence of a showing that the utterances created a ‘clear and present danger’ to the administration of justice.” 331 U.S. at 372 (emphasis added).
And, in Pennekamp, the Court stated:
“For circumstances to create a clear and present danger to judicial administration, a solidity of the evidence should be required . . . .” 328 U.S. at 347 (emphasis added).
Finally, in Wood, after criticizing the trial court for “simply [adopting] as conclusions of law the allegations made in the contempt citation,” 370 U.S. at 387, the Court stated:
“Hence, in the absence of some other showing of a substantive evil actually designed to impede the course of justice in justification of the exercise of the contempt power to silence the petitioner, his utterances are entitled to be protected.” 370 U.S. at 389 (emphasis added).
We agree with Landmark that there is no evidence in the record favorable to the Commonwealth‘s position beyond the stipulated facts showing Landmark had published the article in question, the Commission had investigated charges and conducted hearings concerning the judge named in the article, and, at the time of the publication, the Commission had not filed a complaint with this court respecting the judge. And we agree that Landmark cannot be punished for publishing the confidential information contained in the article unless the revelation created a clear and present danger to a legitimate state interest - the orderly administration of justice. But we do not agree with Landmark that, because the Commonwealth did not produce other evidence by way of “actual facts” to show a clear and present danger, Bridges, Pennekamp, Craig, and Wood require reversal of the judgment of the trial court.
In our opinion, the present case differs substantially from Bridges, Pennekamp, Craig, and Wood. Those decisions involved the common law power of a court to punish allegedly contemptuous out-of-court statements concerning pending cases. Necessarily, therefore, the imposition of sanctions in such
By contrast, in the present case, the power of a Virginia court to punish out-of-court statements of the type published by Landmark is fixed by statute,
“Initially, however, it should be noted that the Georgia courts have determined that the power to punish for contempt of court is inherent in its state judiciary . . . and the Court of Appeals thus ignored the express limitations imposed by the Georgia Legislature in punishing out-of-court statements . . . . This holding thus deprives the judgment of coming to this Court ‘encased in the armor wrought by prior legislative deliberation’ . . . .” 370 U.S. at 385-86.
And, in Bridges, which involved a California contempt proceeding, the Supreme Court said:
“It is to be noted at once that we have no direction by the legislature of California that publications outside the court room which comment upon a pending case in a specified manner should be punishable. As we said in Cantwell v. Connecticut, 310 U.S. 296, 307-308, such a ‘declaration of the State‘s policy would weigh heavily in any challenge of the law as infringing constitutional limitations ....’ [H]ere the legislature of California has not appraised a particular kind of situation and found a specific danger . . . sufficiently imminent to justify a restriction on a particular kind of utterance. The judgments below, therefore, do not come to us encased in the armor wrought by prior legislative deliberation. Under such circumstances, this Court has said that ‘it must necessarily be found, as an original question,’ that the specified publications involved created ‘such likelihood of bringing about the substantive evil as to deprive [them] of the constitutional protection.’ ” 314 U.S. at 260-61.
As we have noted, the imposition of punishment upon Landmark in this case does not depend upon some undefined concept of judicial authority. Instead, the sanction imposed springs from a clear and well-defined legislative declaration that breach of the confidentiality of Commission proceedings is so contrary to the public interest7 that it constitutes a substantive evil of immediate and serious peril to the orderly administration of justice and, therefore, should be punishable. Accordingly, we believe the judgment imposing the sanction in this case is fortified against Landmark‘s constitutional attack because it is “encased in the armor wrought by prior legislative deliberation,” and it is strengthened further by the requirement of the Virginia Constitution that proceedings before the Commission “shall be confidential.”
History tells us that the methods of dealing with disabled or unfit judges by legislative impeachment8 or removal,9 existing prior to creation of the Commission, were seldom used and generally unsatisfactory. The inadequacies of those methods prompted inquiry into other means of handling problem judges. Led by California, numerous jurisdictions have created commissions or other bodies to investigate complaints against judges. Along with Virginia, many of the jurisdictions have imposed requirements of confidentiality in commission proceedings. Note 6, supra.
The necessity for confidentiality of commission proceedings is self-evident from this statement:
“Proceedings before the Commission must be confidential. The initial job of the Commission will be to ascertain which complaints have sufficient merit to deserve serious attention. Obviously there is the risk that a disappointed litigant may seek to vent his wrath upon the judge by filing a complaint with the Review Commission, or that complaints will be filed
upon other vexatious and frivolous grounds. Such complaints must be weeded out - hence the requirement of confidentiality of Commission proceedings.” A. Howard, Commentaries on the Constitution of Virginia 764 (1974).
The California experience furnishes support for the confidentiality of commission proceedings:
“A prime feature of the Commission plan for judicial discipline is that, unlike the impeachment, recall, and election processes, the charges, and investigation thereof, are not made public until and unless a recommendation for censure, removal or retirement is made to the Supreme Court. The proceedings are entirely confidential up to that point. This gives the individual judge and thereby the judiciary reputation protection until a full scale investigation has been made and a competent body of peers has made an adverse decision on the merits of the charge. The shield of confidentiality also preserves reputations while the corrective influence of the Commission is being exerted on a judge who would otherwise be reluctant to change his behavior lest the public view this as an admission of prior misconduct . . . . Thus, reputations are preserved while allowing ample opportunity for complete investigation and voluntary corrective action.” Buckley, The Commission on Judicial Qualifications: An Attempt to Deal With Judicial Misconduct, 3 U.S.F.L.Rev. 244, 255-56 (1968-1969).
Florida requires confidentiality of proceedings before its Judicial Qualifications Commission, the counterpart of our Judicial Inquiry and Review Commission. In discussing the Commission, the Florida Supreme Court has stated:
“The purpose is to process complaints concerning the judiciary from any and all sources, while requiring confidentiality as a means to protect both the complainant from possible recriminations and the judicial officer from unsubstantiated charges . . . . Eliminating the confidentiality of these proceedings would also eliminate many sources of information and complaints received by the Commission not only from lay citizens and litigants but also from lawyers and judges within the system.” Forbes v. Earle, 298 So.2d 1, 4 (Fla. 1974).
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.
The ultimate and real concern in this type of case is exemplified by a statement in Pennekamp v. Florida:
“[R]eviewing courts are brought in cases of this type to appraise the [press] comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes.” 328 U.S. at 336.
We recognize the public interest in information pertaining to judicial discipline and in free debate upon the conduct of the judiciary. See Wood v. Georgia, 370 U.S. at 392. We find, however, that the statute in question places the least possible restraint upon this public interest while, at the same time, it assures effective functioning of the Commission. When a complaint is filed with this court, the entire record of the Commission‘s proceedings becomes public. And, as we have noted previously, the statute does not curtail general comment or criticism concerning a judge or the conduct of his judicial affairs.
On balance, therefore, we find that the necessity of maintaining the integrity of the Judicial Inquiry and Review
Affirmed.
POFF, J., dissenting.
I dissent. The judgment should be reversed and final judgment should be entered for the defendant. In my view, the statute should be construed not to apply to this defendant under these circumstances. Construed otherwise, the statute offends the First Amendment.
As the parties agree and the majority recognize, there is utterly no evidence of record showing a “clear and present danger“. The majority simply conclude that the General Assembly concluded that there was a danger so clear and present as to justify a statutory abridgement of the right to publish. The majority reach their conclusion unaided by legislative history and without benefit of a declaration of such danger in the statute or the Constitution which mandates the statute. Just as a court cannot infer the existence of a clear and present danger from allegations made in a contempt citation and adopt that inference as a conclusion of law, Wood v. Georgia, 370 U.S. 375 (1962), a court cannot infer the existence of a clear and present danger from the mere enactment of a penal statute.
If a restriction upon publication of lawfully-acquired information concerning the proceedings of a commission reviewing charges against a judicial officer can be constitutionally justified by a simple conclusion that publication poses a clear and present danger to the administration of justice, a similar conclusion could justify a similar restriction with reference to the proceedings of a Commission reviewing charges against an executive officer or a legislator.
I simply believe that, in order to justify a statutory exception to the constitutional guarantee, there must be an evidentiary showing of a clear and present danger to a legitimate governmental interest, and an evidentiary showing that the