Warren E. Burger: We will here arguments next in Landmark Communications against Virginia. Mr. Abrams I think you may proceed.
Floyd Abrams: Mr. Chief Justice and may it please the Court. This is an appeal from the criminal convection of the publisher of a newspaper. The crime for which it has been convicted and fined is the publication by the newspaper of a name of a judge, a judge against whom charges had been filed before the Virginia Inquiry and Review Commission. The article on question was printed on October 1975 by the Virginian-Pilot and Norfolk newspaper which was printed by Landmark. The report in the article was in all relevant respects inaccurate. That is not disputed indeed that is the essence of the crime. The article referred to then identify a judge who had been investigated by Commission, a Virginia Commission established to investigate charges, which could be the bases of retirement at censure or removal from the Bench. The article stated that no formal charges had --
Warren E. Burger: You characterized in this charges is not the process one of inquiry.
Floyd Abrams: Yes, I did. There were acquisitions pending before the Commissions and the Commission was inquiring into the acquisitions which had been charged.
Warren E. Burger: So charges are complaints from --
Floyd Abrams: Yes.
Warren E. Burger: -- various miscellaneous sources but not from any official source in this regard.
Floyd Abrams: That is correct Mr. Chief Justice.
Warren E. Burger: Or a criminal charge.
Floyd Abrams: That is correct. The news article stated that no formal compliant had been made by the Commission in the Supreme Court of Virginia, and it stated that that indicated that the Commission either had filed insufficient cause for action or that the case was still under review by the Commission itself. A month after the article was printed Landmark was indicted and charged under Section 2. 1-37. 13 of the Virginia Code with the crime of having unlawfully divulged the name of a judge at a time when the judge was the subject of an investigation and hearing by the Commission. Under the section of law under which Landmark was accused of violating, all papers filed with the Commission and testimony before it are required to be confidential. Any person who divulges, and that is the statutory language, information in violation of the Section is guilty of a misdemeanor, a crime punishable in Virginia by a prison sentence of up to a year and up to $1,000 fine. At trial the only evidence introduce by the Commonwealth other than the article itself was a stipulation of evidence entered into by the Commonwealth and Landmark, which stated the Landmark had printed the issue in question that the Virginian-Pilot had published the October 4 article, that the article had identified a judge who had in fact been investigated by the Commission, and that at the time the article was published the Commission had not filed a formal complaint concerning the judge with the Supreme Court of Virginia. The latter part of the stipulation, I think it maybe set it verdict to the fact that under Virginia law once a formal charge is filed with the Supreme Court of Virginia everything about the proceeding which is filed does becomes then public. No other evidence was offered by the Commonwealth at trial. At the trial Landmark urged that properly and constitutionally construed, the Statute should be held to apply to the first disclosure of information by a participant involved in the proceeding itself, but not to the later publications by a newspaper of information learned by it. Landmark urged as I urged today that to apply the statute to it for publication of a news article identifying a judge would violated the First and Fourteenth Amendments.
William H. Rehnquist: Mr. Abrams is there anything in the record of which we may properly take cognizance of how Landmark learned of the facts that have published?
Floyd Abrams: No, there is nothing in the record whatsoever. A January 15 --
Warren E. Burger: I suppose only the editor of the paper knows that, would that be a reasonable assumption?
Floyd Abrams: I think it is a reasonable that the editor and the journalist involved and know that.
Warren E. Burger: And perhaps some others, but those two, of course, must know about it.
Floyd Abrams: Yes Your Honor. Landmark was convicted in January, 1976 and fined $500. On appeal to the Supreme Court Virginia their convection was affirmed by a 6:1 vote. I will, of course, be considering the opinion throughout the course of my argument, but I think it may fairly be said, in summary that the opinion held that the statute applied to Landmark and that the statute, as so applied, was constitutional. Probable jurisdiction was noted by this Court in June of this year.
John Paul Stevens: Mr. Abrams, under your reading of the Virginia Supreme Court opinion, do you think the statute would apply you if you told us the name of the judge? I know the brief is very careful in not to tell us who it is.
Floyd Abrams: Mr. Justice Stevens I think it would unless there were some other privilege which protected me, because I was in this courtroom I have a little doubt that --
John Paul Stevens: The statute --
Floyd Abrams: That it would apply to me if I were to walk outside and provide the name of the judge with one carrier that this Court has decided, of course, that once papers are public we filed in a court the press may print with impunity what is contained in them. And so I suppose in this particular case since there was a criminal prosecution and since there is the stipulation which I adhered it too earlier that I could with impunity speak. If there had been no constitution, if the newspaper article had been printed and prosecution has followed, it seems to me that the Virginia statute must apply by the terms of the opinion out of Virginia Supreme Court If I would repeat to someone else the information contained in the statute, I am sorry the information contained in the article. In the interim between the ruling of the Virginia Supreme Court and this argument of three-separated Federal District Judges in Virginia have enjoined enforcement of the challenged portion of the statute for various periods of time as against one or another newspaper or television station in Virginia. I think the issue at the outset had returned to the scope of the statute as I understand it as interpreted by the Virginia Supreme Court. And it is this: Unless and until formal charges are filed by the Commission with the Supreme Court of Virginia. Virginia law now makes it a crime ever to publish any “information concerning a proceeding before the Commission, including the identity of a judge.”
Warren E. Burger: How would the statute apply differently, would it apply to the person who released the information?
Floyd Abrams: It would apply to the person who released the information.
Warren E. Burger: (Inaudible) he or she would be guilty of the same crime.
Floyd Abrams: Yes Your Honor.
Warren E. Burger: Giving the purpose of the Chairman of the Commission.
Floyd Abrams: Indeed, if there is no --
Warren E. Burger: Or a member of the Supreme Court of the State of Virginia or the Commonwealth of Virginia.
Floyd Abrams: Yes Your Honor, there is no exception -- and I should point out in other respect that the Virginia Supreme Court had argued to it in various narrowing ways of reading the statute and did not adopt any narrowing ways of read it. It seems to me that the statute must be read, so as to apply to a statement by the Chairman of the Commission, and indeed to make criminal the publication by the newspaper of that statement even if it were a press conference. That I think is the de minimis holding of the Virginia Supreme Court.
Byron R. White: Well, is your submission that the statute is unconstitutional as applied to anybody or just the press?
Floyd Abrams: It is my submission today that it is unconstitutional, as applied to anyone who is not the party before the Commission. Now we have a press case today, I think that had bearing on Your Honor’s decision, but I do not argue to you today that the statute is unconstitutional as it applies to a participant before the Commission itself. It does seem to me that there maybe some problems with that but that is not the part of my argument.
Byron R. White: Well, let us assume -- so your argument is that even if it is holding constitutional to forbid the participants --
Floyd Abrams: Yes sir.
Byron R. White: -- from disclosing anything that nevertheless is unconstitutional as apply to the press?
Floyd Abrams: Yes Your Honor.
Potter Stewart: Or all you need to argue is that it is unconstitutional as applied to your client in this case.
Floyd Abrams: Yes, I would say that most of the arguments that I will make to you today would apply as well to someone that reads the newspaper and then repeats it to someone else, because the statute does go that far. But my argument to you today applies to my crime and it would apply any other newspaper which fits --
Byron R. White: But non in your argument would not question the underlying validity of the statute as applied to participants, is that it?
Floyd Abrams: I have not gone that far Your Honor, that is correct.
Warren E. Burger: And of course you need not as Justice Stewart suggested, but if the judge who is the subject of the inquiry, called a press conference and welcome this inquiry, and of course I will be vindicated swiftly as --
Floyd Abrams: Your Honor, it seems to me that the only way to read the statute is that the judge would have violated the provisions of the statute of the newspaper if it prints what the judge said would have violated, and any reader of the newspaper who repeats what the newspaper said would have violated. Let me take the case, if I may, that this Court heard yesterday, it is the Stump case, which this Court heard yesterday had arisen in Virginia. If the plaintiff in that case had filed charges referring the Virginia Commission against Judge Stump and if that individual that had that information had become known to the press, it would be a crime for the press who had printed it. If the individual who was the plaintiff in the case had made a public statement to that effect, it would been a crime for her to have made that statement. The scope of the statute is that broad, and it seems to me necessarily that broad, given the language of the statute and surely the language of the Supreme Court of Virginia.
William H. Rehnquist: Do you think your client’s protection is in anyway diminished by the fact that it is a corporation?
Floyd Abrams: I do not think so Your Honor. Certainly to the extent that what we urge on you is a premise under Press Clause of the Constitution and it is. I know of no case which suggests that a corporation which owns a newspaper is not entitled to fall First Amendment rights as interpreted by this Court.
William H. Rehnquist: Corporations and individuals stand on an equal footing.
Floyd Abrams: I would so argue Your Honor.
Potter Stewart: That is at least so far is the protection of the Press Clause.
Floyd Abrams: At least to cover the press. Certainly, it is never been suggested otherwise in any of your press decisions, New York Times against Sullivan, there was no less protection because it was a corporation.
William H. Rehnquist: Is there any reason to think that if it is so as to the press it is different be as to freedom of expression?
Floyd Abrams: As a general matter Your Honor, it is seem to me that this case could be decided as a freedom of expression case without necessarily relying on the Press Clause itself. As I suggested earlier to Mr. Justice White, I do think that the statute is unconstitutional for many of the same reasons that we urge under the Press Clause, under the Speech Clause as well, if I would be charged with a violation of the statute for repeating what I would read in a newspaper. We do have a Press Clause case today. I think we are busted even more by the fact that it is that kind of case and that is kind of statute strikes so directly, as we view it, at press freedom, but even if that were not so, I think the most of the arguments that I am making here today would also apply.
Warren E. Burger: You are not suggesting the First Amendment protection reaches only corporations which publish newspapers in any sense, I think.
Floyd Abrams: No your honor, no your honor. But they certainly do reach corporations which publish newspapers. We have already discussed some examples of the scope of the statute. I would just cite one more, which also arose in Virginia in which it is adverted to in briefs of parties. When a Virginia Judge allegedly dismissed his law clerk or a law clerk who was testified against him before the Commission and that allegation was contained AP Wire Service Dispatch which went throughout the country and into Virginia. That story could be only printed by Landmark because one federal judge in Richmond had previously entered and award enjoining enforcement of the statute against Richmond newspaper on First Amendment grounds, and because another federal judge in Arthur (ph) entered a temporary restraining order enjoining prosecution of Landmark for printing what the Richmond paper has printed with respect to the subject. But again without question that story would have been forbidden within the scope of the Virginia Statute. It seems to me important to make clear also at the outset what this case does not involve. This is not an access case, the question is not raised before you today and we have made no claim in this case of a First Amendment right of access to the Commission proceedings before our claim. This case does not relate to matters to personal privacy or of anything about private figures, it relates only to public officials. The case does not here with sanctions imposed upon the press for the imposition of intentionally or recklessly false statements about public officials. The case, of course, does not deal that this Court’s recent Nebraska ruling did with issues relating to a fair trail and the Sixth Amendment and First Amendment right kept in some kind of act before us. And the case does not deal with any kind of limitation on a conduct as opposed to free expression or any kind of limit as to time, place, or manner of expression. This is, if the Court please, a classic rather old-fashioned first Amendment case in which I think we may return to first principles. This is a case which raises at the outset at least, the question of whether a law does or does not abridge freedom of the press when it makes criminal the truthful printing of facts about public officials where they need to their public duties. In our view the very notion, that such kind of publication may be made criminal is upon to be permitted constitutional principles.
Potter Stewart: Of course, this is really not an old-fashioned First Amendment case because this is not the federal Government that is involved, is it?
Floyd Abrams: No it is not Federal Government.
Potter Stewart: It is a Fourteenth Amendment case.
Floyd Abrams: It is a First through the Fourteenth Amendment case, yes Your Honor.
Warren E. Burger: Well, it is pretty old-fashioned right now, isn’t it?
Floyd Abrams: That is pretty old-fashioned to me.
Potter Stewart: Well, it is such a release.
Floyd Abrams: Yes. This Court has made clear that truth is a defense a constitutionally required defense in a line of cases. A truth, the Court said in the Garrison case, may not be the subject of either criminal or civil sanctions, where the discussion of public affairs is concerned, and the Court has made clear, of course, in a number of very recent decisions that even truthful commercial speech receives a very wide degree of First Amendment protection. How then can a truthful report about an official proceeding relating to the confidence of a public official be made a criminal offence. According to the Commonwealth brief, the an expression at issue here maybe deemed unprotected or made unprotected by a virtue of the statute at question, because it may “undermine the confidence of the people in the institutions of our free society. Such an explanation, I may respectfully say so, would be an all too familiar one throughout most of the world. That is unfamiliar one, I suggest, for a state to offer in this Court, and it is one which might leave in defense any seditious liable statute in just so many words, including the alien and traditional laws themselves, and even that disasteric relic of our history permitted truth to be stated as a defense. The reasons offered by the Supreme Court of Virginia for requiring confidentiality are real ones. They may well been proper as regard participants before the Commission itself, but they for sure of any which could conceivably permitting (Inaudible) and to First Amendment rights by way of criminal punishment for publication. The Supreme court of Virginia relies first on the question of the reputation of the judge who was accused by a complaint before the Commission, and the reputation of the judiciary, in general. But this Court has already concluded in New York Times against Sullivan and elsewhere that injury of official reputation forwards no more want for the repressing speech that would otherwise be free than this factual error. And in fact, the Virginia Statute as the Chief Justice’s question earlier suggests does permit as much harm at assistance to judicial reputation since it makes criminal publication of the fact that a judge’s reputations has been cleared. There is also the need asserted in the opinion of the Supreme Court of Virginia to protect complaints and witnesses from retributions by judges against whom they offered testimony. Now this case, I should say, does not involve such a situation at all, since all that is involved here, the only claim made here in the indictment is that Landmark unlawfully revealed the name of a judge under investigation. Well, but the statute does not even provide full protection for witnesses surely, and indeed under the statutory language, once a claim is filed, Once a complaint is filed before the Supreme Court of Virginia by the Commission, the judge against whom it is filed receives full access to the testimony against him, as he should, and I suppose, at least I would argue constitutionally --
Thurgood Marshall: If it was public then anybody can use it.
Floyd Abrams: Yes sir, at that point it is public then anybody has full access to it. But if the purpose, if the justification for the kind of suppression as we ordered to the punishment, at least as a press in this case is said to be that the witnesses need to be protected. My point is that once a charge is filed with the Supreme Court of Virginia everything does become fully public.
John Paul Stevens: But, I do not understand the argument Mr. Abrams, because if no charge is filed, wouldn’t the need for protection remain for the same period of time that the statute requires confidentiality?
Floyd Abrams: Well, if no charge is filed --
John Paul Stevens: The judge may never even know about it.
Floyd Abrams: It is possible that the judge may not know about it. Now we do have an instance referred to, which I referred to earlier, of a court clerk, at least this is what it alleged in the papers in the case filed by the court clerk, in which a court clerk has alleged that as a result of her making charges against the judge for whom she worked, she was dismissed. I think the question does arise as to whether a court clerk or witness is better protected by being able to have the benefits of publicity in a situation in which she fears retribution or alleges retribution than to be deprived that the chance to have anything said about her. In short, what I am saying is that I understand that there is an argument that a statute, such as this, by keeping things confidential, helps to protect witnesses in that period prior to a charge is being filed, that there is a counter argument that there are situations in which witnesses are as well protected by publicity at least when they wanted, and this statue prevents that kind of publicity. And in any event, as I have said, that is not really raised, as I view it, by this case since that justification for the criminal punishment on Landmark -- is no justification for criminal punishment of Landmark, since what is involved here is not the disclosure of a witness’ name. If this case did involve that the Court --
John Paul Stevens: No, that is not entirely possible that if there were total confidentiality the judge never knew about but, then Commission decided there was no merit to a charge that was dismissed, he would never have any reason to retaliate against anyone. Whereas if the name of the judge is disclosed, he knows there has been an investigation, he knows there is one likely person who has been his enemy throughout his life who probably said something to Commission, there is then created a danger or retaliation. I think it is at least possible.
Floyd Abrams: Mr. Justice Stevens that is possible, and I do not deny that the statute could have in this in other ways, the signatory effects. It does seem to me that even with respect to this particular area of inquiry that one may properly ask, as one does in any First Amendment case, whether there are less restricted ways of going about that task even if protecting witnesses. And, we have suggested in our briefs that there may well be, that there may be monitoring programs the program of judges that he had maybe made a crime, it could be made a crime. But before Judge saw the act, which would have a desired chilling effect, I suppose, upon a judge in that type of situation. We would submit to you that whatever standard have used to judge the statute, it cannot withstand the First Amendment scrutiny provided by this Court. The statute punishes the accurate reporting of news. It does so in interest which, as I have observed, either or not specifically raised in this case or are not protected under the statute or which in any event cannot under any standard overwrite First Amendment interests. Now, there is much in the briefs filed before you with respect to the clear and present danger doctrine. That is not, we submit, a doctrine which should commend itself to you for application in this case or perhaps in the other. I believe, and if it did, we submit that the interests involved here do not approach that to raise in the other cases in which fair and present dangers has been applied.
William H. Rehnquist: Why do you say this clear and present danger doctrine is not one which should commend itself to us generally?
Floyd Abrams: Well, it seems to me Mr. Justice Rehnquist that the doctrine has been eroded by a variety of decisions of this Court Brandenburg versus Ohio, being one of the more recent ones. And indeed New York Times against Sullivan, being a very recent one, at least at applicability in the press area if no other. It seems to me that the problem with clear and present danger doctrine as often applied, at least it is applied in the Dennis case, is that it was changed so significantly from what I perceived to be its initial meaning by the adaption of Judge Hand’s test of the probability of the harm just countered by the likelihood of its occurrence and alike. That at least, as a First Amendment test, it does not provide an awful lot of protection.
William H. Rehnquist: Do you or would you adhere to your same position if we are talking about Justice Holmes’ initial formulation of it in Schenck?
Floyd Abrams: I would argue that if the Schenck case were here now and we did not have all the history that we have, the Court could have gone quite a bit farther than it did in Schenck itself. That the clear and present danger doctrine as set fort in Schenck, it did not provide, at least on the face of Schenck ruling, anything like the kind of First Amendment protection which this Court has since come to afford to the parties up here. I do want to make clear that even the Dennis holding of this Court which from a (Inaudible) First Amendment point of view, if you will, is not generally celebrated. It is one which we can live under in this case, because what Judge Hand did, and what the Court did in the Dennis case was discharged with the notion of the gravity of the harm, discounted by the probability of the harm occurred, and what I would urge on you is that (Inaudible) case or National Security Case is a very different level of gravity than what we have here and indeed the Bridges case, and cases essentially involving Six Amendment rights or the right to fair trial or the right to a judge who has not placed in a position where he simply cannot function. Issue such as that raised in Bridges are not raised in this case.
John Paul Stevens: What would you say about this case if there was an argue -- if there were proof that this judge cannot function effectively if the name was disclosed right on either for trial or something.
Floyd Abrams: Justice Stevens I would say then that for the other reasons I asserted earlier that, that was a social price which the First Amendment requires astutely. People are attacked in the press sometimes very unjustly and sometimes are less able to function because of it.
John Paul Stevens: What is your test? I am puzzled as Justice Rehnquist is by your saying we should not look at clear and present danger. I take it, you do accept the possibility that there might be a National Security type fact situation which might justify suppression even by the -- publication by the press. What kind of limit would you say is appropriate for that sort of exemption if there is one?
Floyd Abrams: But, what I would suggest is the first of all, the way the Court ought to approach such issue is to try to do so far as it is possible in terms of categories of speech which are or might are not protected speech and then deal with the question of what kind of test to apply to speech or expression which mat not be protected. But, it seems to me that the starting place is, is this the kind of area in which there could be any limits on speech or free expression at all? Now what we urge to you at the outset is that at least with respect to truthful speech about public officials in the course of their public functions, that there is no area, none, for imposition of criminal sanctions for publication.
William H. Rehnquist: Well, then you disagree with that part of the Schenck case which talks about a substantive evil which the Government has a right to prevent.
Floyd Abrams: I think that that has been much eroded through the years Mr. Justice Rehnquist. At least -- but that is depended upon one’s motion of what is substantive evil is. But as recently as our Elrod versus Burns, the Court made clear that a reasonable kind of danger, a reasonable kind of state interest is not enough; it has to be at least a compelling --
William H. Rehnquist: Was there a Court opinion in Elrod?
Floyd Abrams: There was not a Court opinion in Elrod, but there was a Court opinion in the Buckley case, which used very similar language as to that. I do think it further, say, that -- at least as I read this Court’s opinions that the Court has as a body come to the view that the kind of presumption of constitutionality of the state statute in this area that used to be applied, is no longer applied, and that something more than a reasonable state interest must exist so as to permit the imposition of a sanctions.
Thurgood Marshall: Mr. Abrams did the state at any time relied on the clear and present danger doctrine?
Floyd Abrams: Did the state do what sir?
Thurgood Marshall: Rely on that in this case.
Floyd Abrams: The state did -- let me say this Mr. Justice Marshall, both sides argued in part on the basis of the clear and present danger doctrine. Landmark argue in court below that the clear and present danger doctrine could not be made in any event, because there were no factual proof adduced by the state and that that least was one of the requirements, a minimal requirement of application.
Thurgood Marshall: My question was what did the state show about clear and present danger?
Floyd Abrams: The state showed nothing. The state put in no evidence other than that which I have referred to.
Thurgood Marshall: We have it here.
Floyd Abrams: Sorry.
Thurgood Marshall: How about -- how do we have it here?
Floyd Abrams: All that you have is the stipulation of evidence, there was stipulation of evidence which was no more than that the article was printed by Landmark and that that was what it said. The only findings of clear and present danger are contained in the opinion out of Supreme Court of Virginia itself.
Lewis F. Powell, Jr.: But the Supreme Court of Virginia did make that finding?
Floyd Abrams: Yes, your honor. That is correct.
Lewis F. Powell, Jr.: And basted it on the legislative history and the obvious purpose of legislation, the general background, there was no evidence produced at trial.
Floyd Abrams: The Supreme Court of Virginia made a finding that sanctions were indispensable to the prevention of the loss of confidentiality.
Lewis F. Powell, Jr.: And the purpose was to protect the administration of justice.
Floyd Abrams: Yes sir. It made that finding. It did not base it on legislative history since there was none as such save the language of the Virginia Constitution which required confidentiality and the language of the statute which I have adverted to earlier.
Warren E. Burger: Would it be fair to say that they have indulged in a presumption that that was the reason the legislature enacted the statute.
Floyd Abrams: I think that is very fair to say Mr. Chief Justice.
Byron R. White: Mr. Abrams are there laws the country against the publication of grand jury proceeding?
Floyd Abrams: I believe there is some such laws your Honor. There is no federal law to that effect.
Byron R. White: But there are state laws against the press publishing confidential information from grand juries?
Floyd Abrams: There maybe. There is none in Virginia or in New York. I do not know of any but, I could certainly --
Byron R. White: But anyway I would take it that situation would be involved in the decision of this case.
Floyd Abrams: It could be Your Honor. It depends whether for one thing, the Court were to view the grand jury at least as possibly different because of the historic role of secrecy in grand jury proceedings, But I would say Your Honor that it would be our submission to you at least --
Byron R. White: It would be about the same.
Floyd Abrams: That a law which made it a crime to print a leak from a grand jury would be unconstitutional for some of the same reasons that we urge upon you on this case.
Warren E. Burger: Isn’t there a difference in that grand jury is concerned exclusively with criminal conduct whereas a Commission of this kind is inquiring into fitness of duty, is that an important difference?
Floyd Abrams: Yes, that is one very relevant difference.
Byron R. White: Which way does it cut, Mr. Abrams?
Floyd Abrams: Well, I think it would cut at least in the favor of us in this case and make the grand jury case, if anything, a little bit harder. I do want to say Mr. Justice White that it would be our argument to you that the press serves the public well on occasion and it is protected by the First Amendment.
Byron R. White: Wouldn’t’ you think it would be hard for you to win this case or lose the grand jury case?
Floyd Abrams: I hope so Your Honor.
Byron R. White: Now you hope --
Floyd Abrams: I think so, but one really could distinguish it. If you believe that either because of the historic nature of the secrecy and reasons for it and the peculiar reason for the existence of the Commission here, adverted to by the Chief Justice that those were differences. I simply did not mean to run from your question and suggest that if you were to rule in our favor in this case that it would have not any bearing on the grand jury case.
William H. Rehnquist: I do not quite see why you responded to the Chief Justice and Justice White’s question that the difference in the nature of the Commission as opposed to grand jury cuts in your favor rather than the other one.
Floyd Abrams: To the extent what is involved in the Commission is a determination of the fitness of public officials for their public service. It seems to us that if anything that cuts more in favor of full or fuller freedom to publish.
William H. Rehnquist: Well, what about the facts presented to a grand jury that say a high public official or a well-known private businessman is guilty of a crime?
Floyd Abrams: Your Honor, the fact the President Nixon was an unindicted co-conspirator was printed in the press. I would want to make clear that I do think that that case, if there were a federal statute that, as of course there is not, that that case would be closed to this but not quite the same as this. But, all I am saying is that if the question is whether grand jury secrecy in general -- I am sorry, if the question is whether a decision our favor in this case would necessarily govern the question of the constitutionality of the statute with respect to publication by the press of information from grand juries regardless of what the information was. But I think if one must distinguish between them then we have the stronger case because we are always dealing here with the fitness of public officials.
John Paul Stevens: Well, isn’t it also true, you made also the argument that that sort of publication might implicate interest in the fair trail of the person being investigated before the grand jury. So you might have an independent policy reason for saying that should be confidential.
Floyd Abrams: Absolutely, that is the of course one of the main reasons in favor of grand jury secrecy. Thank you.
Warren E. Burger: Mr. Kulp.
James E. Kulp: Mr. Chief Justice and may it please the Court. On behalf of Commonwealth Virginia I would like to tell this Court that the questions and issues in this Court are easy or ones which the Commonwealth had not wrestled with. But, I would say that the circumstances and the facts of this case come to this Court are the quite different circumstances than other case which had been ruled upon from this Court. I speak for example cases where, such as Oklahoma Publishing Company and Cox Broadcasting Company where this court has said -- and we did not make any contention otherwise -- that once information is placed in the public domain, there is absolutely no prohibition for being made public or being published in the newspapers. Also, additionally in those cases where the Court has, in Bridges versus California; in Pennekamp versus Florida; in Craig versus Harney; in Wood versus Georgia, where there were statements or criticisms printed about the judges in the newspapers. We again say that the factual situation of this case is greatly different from that. On the basis that the information which was published in those articles occurred in the public domain and this Court said specifically that there were no legislative prior enactment which would give this Court any guidance as to the legislative intent. Now we submit to the Court that in this case, we have not only a legislative intent but we have the intent manifested by the both of the people or Commonwealth of Virginia. I would like to go just into a little bit of history as to the reasons for the enactment of this particular statute on consideration today. Prior to the enactment of the Constitution in 1971, Virginia had the ways of removal of a unfit of a judge or one who was guilt of misconduct, the provisions of impeachment, there was also the situation in Virginia in that judges are elected by the legislature for different periods of time depending on whether they are justices of state supreme court and on down (ph). So at each time when the legislature would meet to consider the reappointment of the judge, of course, that presented an opportunity for information to be given as to his character, his fitness or his position. For over 200 years in the Commonwealth of Virginia there is not a single reported case wherein a judge was removed from office by impeachment. The citizens of the Commonwealth of Virginia recognized that there must be some better way in order to effectively and efficiently deal with errant judges, judges who are becoming senile or other physical incapacities. Virginia has been looked what other states were doing. California, I think is a leading state in this area where they enacted legislations setting up a Judicial Inquiry and Review Commission. One of the cornerstones in the hallmark of that legislation was decided to be by Judge Neely of California who was a former chairman of the California Commission is that the confidentiality of this proceedings is a necessary component in order to effectively administer the system. Forty states including Commonwealth Virginia, and two Puerto Rico and the District of Columbia all have made provisions either by constitutional mandate or by statutory mandate to set up a review commission of the nature and type of the Commonwealth Virginia.
Warren E. Burger: How many of them have stature comparable to Virginia’s on the disclosure aspect?
James E. Kulp: I think Mr. Chief Justice to answer your question first, each of the 42 require confidentiality. The only other stature that compares exactly I think or would say comparatively with Virginia is Hawaii. Hawaii makes a felony to make disclosure of confidential information. There are three other states --
Warren E. Burger: A felony on the disclosure in terms of the internal function or on the publisher of the disclosed material?
James E. Kulp: Well, I have to say I think it is both but we really do not have a cage which has construed that. The only case I have pointed out in my brief is pending presently in the Supreme Court of Hawaii and in that case it actually was a disclosure by a complainant which is a little bit different from the case we have today.
Warren E. Burger: What would you think if the judge who was under inquiry out at press conference said he you welcomed the inquiry and he was sure it would be vindicated and --
James E. Kulp: Mr. Chief Justice I believe that the question, some or that was answered by the State of California in McCarthy versus the Commission. In that case the judge under investigation made a request that the Commission opened up the hearing to the public. And I assume for the same very reasons that Your Honor is suggesting that he thought that he would be vindicated. But the Supreme Court of California found that while it might be argued that the confidentiality has one of its main purposes to protect the judge from unfounded allegations and that if he so desired that he could himself play that privilege. They found nonetheless that that was not the only reason. They gave other reasons for the protection of witnesses and complainants. And that was the reason in addition to the protection of judges that they therefore held that the Commission had not violated any constitutional provision by not allowing the hearing to be over.
Warren E. Burger: Would this one of your reasons for justification of this stature that this confidentiality is not guaranteed with witnesses, complainants will not come forward?
James E. Kulp: If it please the Court Mr. Chief Justice I do not think there is any question about that. History and experience has so shown all of the legal items, every court that has decided the case, every state that has taken a look at it has come up with the same exact conclusion. That was a recent study of attorneys, for example, and they said without the equivocation that they would not make complaints against sitting judges if they had any question that their names would be divulged as the original complainant. I think it goes without saying that it would be very difficult for a judge who is sitting in the same circuit with another judge to make a complaint and that his name be brought into the matter. Under the provisions of the Virginia Stature the original complainant’s name is never divulged even in those situations where the case goes to the Supreme Court of Virginia, because the Commission never makes the name complainant a matter of public record.
Thurgood Marshall: Mr. Kulp, you are talking about confidentiality or criminal prosecution when we say that you cannot do it and that these witnesses insist of, what do they insist of, confidentiality or the prosecution of the newspaper?
James E. Kulp: Well, I think Mr. Justice Marshall that what they are asking for is confidentiality,.
Thurgood Marshall: And that is not involved in this case.
James E. Kulp: No sir, well, I think it is to a great extent, because the fact is --
Thurgood Marshall: That this raises a criminal prosecution.
James E. Kulp: That is right sir.
Thurgood Marshall: And that is a little different from confidentiality.
James E. Kulp: We have it, if it please --
Thurgood Marshall: It is a little step forward, isn’t it?
James E. Kulp: Well, we do not think so.
Thurgood Marshall: Or backward then?
James E. Kulp: No sir, I think that it is a necessary measure I think that it is found by the Supreme Court.
Thurgood Marshall: I know but, Mr. Kulp my only point is, am I correct that Virginia is the only state that has this criminal provision other than Hawaii?
James E. Kulp: No sir, the State of Hawaii had, yes sir.
Thurgood Marshall: That is the only two.
James E. Kulp: And there are three of them --
Thurgood Marshall: So any broad statements you make about the other 48 states is just not true?
James E. Kulp: I never said that except for the fact that they feel that the foundation for the Commission itself must be in rest around confidentiality. It appears to me Mr. Justice Marshall that if the citizens and the citizens around the country, and I would submit that the Federal Government even today is considering that somewhat type statute and in that they are making it requirement of confidentiality. I submit that it just simple does not follow, if we say that the very essence --
Thurgood Marshall: Well, is there any confidentiality when you are investigating a member of the General Assembly in Virginia?
James E. Kulp: No sir I think that --
Thurgood Marshall: Well, is there any confidentiality in any other branches of the government other than judges?
James E. Kulp: No sir, but I think we have --
Thurgood Marshall: Why is a judge entitled to that special treatment?
James E. Kulp: I do not think it is just the judge, that is not what the Supreme Court Virginia said.
Thurgood Marshall: Well, who else is covered by this?
James E. Kulp: I think only -- their allegations made only against judges, I think with that --
Thurgood Marshall: That is what I was saying, well, why is that particular phase of government deserving of this special protection? I am not saying that it is right or wrong, there must be a reason for it, shouldn’t it?
James E. Kulp: I think that because of the fact that I think you have a different between the administration of justice which the Supreme Court of Virginia found as the reason on the one hand. On the other hand where you have Legislative and Executive situations, particularly in Virginia they are purely political. They are used to the rough and tumble. They have ways to defend themselves but if we say that the confidentiality in this case as several of the justices have indicated that if it were limited to witnesses then you see the newspapers when they print the information first of all will not give us the information as to who broke their oath to secrecy and who breeched the confidentiality. We ask them for the information and they have refused to give it to us. So we have no viable protection. And I submit to the Court that the whole history shows that in this case -- I agree with Mr. Abrams as far as the Landmark case is concerned which is a case before this Court that there has not been any printing in the article here giving the name of any complainant nor giving the name of any witness, but I do contest their contention in the brief that that has been the theme of publication in Virginia because it simply has not. As I indicated in the Appendix to the Commonwealth’s brief on Page 41, The Richmond Newspaper printed not only the name that the judge was under investigation but they printed names of the witnesses and they additionally gave the name of the attorney who was the original complainant and his law firm.
Thurgood Marshall: Which would never be released under normal effects of that?
James E. Kulp: That is correct. No sir, I would have to go back to that because this particular article, Mr. Justice Marshall dealt with judge which in fact did go to the Spring Court of Virginia, have the name of a complainant would not be released even in the public papers, the names of the witnesses would. And as I have indicated, the Supreme Court of Virginia said that what the stature attempts to do is to protect the complainants and witnesses until such time as the Commission has found sufficient background and sufficient justification to bring a formal complaint. As Mr. Justice Stevens was mentioning a moment ago. We know for example, the reports are from California, that well over I think about two thirds at least 50% of two thirds somewhere in that neighborhood of the complaints are found to be initially frivolous. Now, if we did not have and did not provide for confidentiality, the names of these people who made these complaints in good faith, the names of any people who may have been called upon to give testimony in the preliminary stages, all of their names would be subject to being released. We submit to the Court that that is what we are tempting to, and the people of Virginia are attempting to avoid.
John Paul Stevens: Mr. Kulp, isn’t it another very important reason for confidentiality that you want to be able to persuade the judge to resign before the matter becomes public?
James E. Kulp: I do not think there is any question about that Mr. Justice Stevens. That has been certainly the practice in California particularly. They make the report and they have shown that prior to the attempt they have never had any formal hearings. That once the Commission -- and I want to make that clear -- it is the Commission that makes a complaint against the judge, the initial complainant simply files his papers with the Commission. The commission at that point then makes its investigation. If they find that the complaint is justified or at least has merit then they are the ones that been the contacting of the judge and so they take it over at that point. So, I would say to the Court also in this case while Virginia does not normally publish the results as they do in California about how many complaints have been filed and how many judges may have resigned prior to the time coming to the Supreme Court of Virginia. In the report which is the subject of this particular case the report filed by Landmark, the publication they do have from Mr. Bakeman who was one of the members -- it is Page 47-A of the Appendix shows the original new article, and it does show that Mr. Bakeman did indicate. It says when asked via one case that had ever been referred to Supree Court, Bakeman said, Mr. Bakeman being a member of the Commission “several judges did resign a number have retired or something like that.” So we know that even in Virginia on that information that the Commission has had its impact.
Warren E. Burger: I am not sure you have made the point but isn’t one of your strong points that purpose of the legislature is to try to encourage people to come forward and to give evidence against unfit judges and make complaints against them, and that the protection of the judge is something of parallel consideration.
James E. Kulp: Indeed is Mr. Chief Justice. In other words the studies which have been made indicate that the complainants will not come forward if you do not ensure them of confidentiality. So, or course, that is one of the whole essence of the confidentiality provisions itself is to encourage the complaints.
Warren E. Burger: What provisions do you have in the Commonwealth of Virginia for the disqualification of the judge in the motion of the counsel?
James E. Kulp: We do have that but of course that is at his discretion.
Warren E. Burger: The discretion of the judge or something.
James E. Kulp: The discretion of the judge, yes sir, and of course I assume we could if he refuses to recuse himself that you could file a petition for mandamus but of course there you are faced with a situation of whether it has been arbitrary and capricious action on his part.
Thurgood Marshall: Mr. Kulp, am I correct that the other side does not object to the confidentiality of it at all?
James E. Kulp: I am sorry Mr. Justice Marshall I am not sure.
Thurgood Marshall: Am I not correct that the petitioner does not object to the confidentiality of the law? It only objects to being prosecuted for publishing what they have found out.
James E. Kulp: I would say that is their position, yes sir.
Thurgood Marshall: So the confidentiality is out of it?
James E. Kulp: I could not agree with that sir because I think it has to be all taken together. If it worked for the violation of the constitution -- of the confidentiality then there would have been the criminal prosecution in the first place. I would also like to say to the Court that I think that as I indicated the circumstances in this case are entirely different from any case that I am aware of that has ever been to this Court before. The Supreme Court of Virginia in its opinion indicated that they had not found any case somewhat to the one here, I have not found any in my research, the Landmark has not cited any to the Court, so I am assuming fairly honestly that there is no such case.
Potter Stewart: Well it is not far away from the New York Times case, not the Sullivan’s case but the Pentagon Papers case except that this does not involve the prior restraint?
James E. Kulp: That is correct sir, I think that that is one thing, and I think also that in the New York Times case several of the justice on this Court indicated first of all that there was no guidance from Congress as to whether there should be any restraint on the publication of those particular materials, and it was the Congress to set --
Potter Stewart: Or almost there has not somebody subsequently prosecuted in a prosecution that aborted to be sure for violating some federal law and in divulging those Pentagon Papers to the --
James E. Kulp: I think though if I am thinking of the same case if it was Allsburg, I think it was aborted not though because of anything, any failure in the law, but because of --
Potter Stewart: No, because there was law, that is the point. You said that by contrast that in the New York Times case there was not a law and here there is, but there in New York Times case there was a law sanctioning the violation of confidences.
James E. Kulp: Yes sir, but I think that the point that I am trying to make is that the Court found that there was no law which sanction the prior restraint, and that was the issue as I read the New York Times case that was before the Court.
William H. Rehnquist: The action was not a criminal prosecution; that was kind of an effort by the Government to enjoin the prior restraint.
James E. Kulp: That is why we say that this is an entirely different matter and when you look at it in that context, we think that you get a different result. We do not disagree as we have taken position in brief with the New York Times case, the prior restraint case, in that it is conceded by Landmark in this case, that is not the case here. It is not a prior restraint. We are talking about subsequent punishment. And I think the law in regards to that is different, because while the presumption of the validity of a statute the prior restraint is very hard to overcome as this Court in its prior opinion certainly indicated. It is almost a situation where you cannot overcome it, but the Court has not said that when you are talking in situations of subsequent punishment.
Byron R. White: Well, General Kulp, I take it you are saying that the protection of the judge and the protection of the legal systems generally against insult are secondary justifications for the statute that you are saying that it is necessary to have an effective system to give, to offer confidentiality. Is that your submission?
James E. Kulp: Yes sir.
Byron R. White: So you would not contend, I take it then, that the Virginia Statute that said, no one may publish a report that a judge is incompetent or that he is not doing his job right, until they have filed a complaint with the Commission and the Commissioner itself investigated and filed a formal complaint.
James E. Kulp: Yes sir.
Byron R. White: Well, then you would not -- would you defend that kind of a statute?
James E. Kulp: No sir I do not think that is what the Supreme Court of Virginia, as well as the stature has indicated that it is merely drawn --
Byron R. White: But that was protection for the judge, and protection at least for the judicial system generally, that was involved. I would take you would defend that kind of a statute?
James E. Kulp: No sir, I think that the cases from this Court are too clear in that respect that in other words a judge as any of public official may certainly be criticized, the administration of justice may be criticized, and we do not have any argument about that. All we are saying is that, and as the Supreme Court of Virginia found in its opinion, it says, considering this matters we believe it can be set safely without need apart in court evidence that absent a requirement of confidentiality the Judicial Inquiry and Review Commission could not function properly or discharge effectively his intended purpose. The sanctions are indispensable to the suppression of the clear and present danger posed by the premature disclosure by the Commission’s sensitive proceedings. The imminent impairment of the effectiveness of the Commission in the companying immediate throughout to the orderly administration of justice. So it only has an incidental matter I think that one of the reasons that the Supreme Court gave was to protect the judge. I do not think that that --
Byron R. White: Or to protect against insult to the judicial system generally?
James E. Kulp: Or the insults against the judicial system in general. I do not think that is the purpose of the statute.
Warren E. Burger: General Kulp do you have in our common stake the Commonwealth of Virginia, districts where there is only one Judge?
James E. Kulp: We do not now Mr. Chief Justice.
Warren E. Burger: There are always more than one.
James E. Kulp: There used to be. There was reorganization several years ago in order to have more than one Judge in every circuit. So, that you would not have to be appointing someone if the judge for some reason could not --
Warren E. Burger: Now suppose the lawyer is referenced to whom references made in your exhibit at Page 41. Instead going to the Commission and called a press conference in sensibly assembled if he did get an assembly of them, all of the things that he said to the Commission. Now, laying aside the question of whether he would be opened to the civil claim for damages and somewhere could there be any actions against the press for publishing that, such information?
James E. Kulp: No sir, the statute would not prohibit that.
Warren E. Burger: Well, what if he then said at the end of his press conference, “Tomorrow I will file all of these statements that I have made to you with the Commission and here is a copy of what I am going to give to the Commission.” (Inaudible) to all of this?
James E. Kulp: I believe that part of it would be a violation of the statute.
Warren E. Burger: If it is done before in advance to the filing?
James E. Kulp: Well, I think if the -- perhaps not Mr. Chief Justice, but I think that if he did carry forth and make the filing, then I would have to assume that the it probably would come under the provisions of the statute, because it would be telling the press in advance that I am going to file it tomorrow, and that would be disclosing the information which is not confidential at that moment, but would take on confidentiality at the time.
Thurgood Marshall: Just a little point, it would depend on him to file it.
James E. Kulp: Yes sir.
Thurgood Marshall: If he did not file it, it would be printable.
James E. Kulp: Yes sir, and we do not assert -- the statute does not --
Thurgood Marshall: Since the statute is concerned.
James E. Kulp: Prohibit that. Now I would like to make one of the --
John Paul Stevens: Mr. Kulp, may I just ask one of the questions on this prior restraint presentation of the statute. Did I correctly understand that if the charge is filed, and then it is not -- no formal complaint is subsequently filed, so you never released the confidential character, and that that information is permanently made secret? Let us say 20 years later some historian stumbled upon this information and were then to divulge it, if we sustain the statute he then be guilty of the crime.
James E. Kulp: Yes sir, I would have to say that that is true, because the statute provides that all confidential materials of the Commission must be files in the confidential files. But, I would say this Mr. Justice Stevens is that there is provision in the statute. And, I think this answers some of the criticism of the statute by saying, suppose that we had a corrupt commission which I find to be an extreme state of affairs to say that this commission all would be corrupt, but, assuming that there were for a moment, it does provide that members of the legislature may request and the Commission may release the information to the legislature when the reappointment of a judge is to be reconsidered by the legislature. And we take a position that if the legislature does in fact ask for the information and releases it, then it becomes in the public domain and it would not fall under the strictures of this particular section for the same reasons that I believe that the Court was talking about in Cox Broadcasting Company. In other words, once the state itself releases the information and puts it into the public domain, then there is no right to suppress it. And, we would not contend to --
John Paul Stevens: But, the only way in which the statute permits the information to become into the public domain is through this legislative request. If the Judge did not run for re-election and resigned or whatever might have happened, he would be permanently protected but there would be a permanent veil of secrecy on the effected characters who --
James E. Kulp: Yes sir, I would say under the statute that would be true. I would like to make two further points if I may. One is that we think that the Commission has answered the problem which Virginia citizens have foreseen. As I have indicated previously for the 200 years where impeachment and others types of removals were available, there was not a single removal of any judge for any mental disability, any incompetence, any malfeasons (ph) in office. Since 1971, when the Constitution was enacted by the people providing for the Commission, and since the Commission was specifically then thereafter set up by legislation in 1971, the Commission has taken action which had been reported to the Supreme Court of Virginia, which has been reported to the citizens of the Commonwealth, which has been reported by the press, one judge has been removed from office and three other judges have been publicly censored for activity which has an effect on the administration of justice. So I would say that that is where the public interest lies. The public interest lies in being able to effectively handle these types of problems. And I think that history shows across the country that this is precisely why the states have gone to this procedure.
William H. Rehnquist: But if all of the participants in the procedure had adhered to the statutory ammunition to confidentiality, it would have remained confidential.
James E. Kulp: Yes sir, Mr. Justice Rehnquist, and as I say, we are in sort of a dilemma here in certain respects, because the press wants to print the confidential information then on the other hand they want to protect the confidentiality of their source. We have asked them for the information, and they will not give us the names.
William H. Rehnquist: Well, but that case is not being for us.
Speaker: No.
James E. Kulp: No sir, it is not, but as I say I think that it all evolves around the same ball of lack, so to speak.
Byron R. White: But that is not unusual.
James E. Kulp: No sir, I would not say you that is unusual; I say, as I pointed out in my brief, I think it is a very untidy way for us to be trying to run a democratic society to be competing one with another on information of that nature. I would also like to make one further comment --
William H. Rehnquist: Well, the court does not believe untidiness, does is?
James E. Kulp: No sir. I would have to concede that I do not believe they do, and it gets -- I do not recognize, it is not about my personal views might be, and I am sure they are not consistent with Mr. Abrams and others. And, I recognize a responsibility and the requirements of the First Amendment. But I think also that even as members of this Court indicated that there is a line of responsibility. And, I would certainly hoping that -- I know for example in California, Judge Neely said that they have had the understanding of the press out there and they do not print this information. I would like to make one further point if I may, in its active way in which this information is obtained -- now the record in this case and what was found by the Supreme Court if Virginia does not show exactly how the press first got the information. It does not show whether they went into private commission files, or some other way. And, I do not really indicate and I do not really think that the press did that.
Warren E. Burger: Well, it does not make any difference, does it?
James E. Kulp: No sir, but I think though that -- the point I am trying to make Mr. Chief Justice is that here we have a situation in the article itself which is published -- and this in the Appendix on Page 47-A -- shows that once they get this initial information they went around to the Commission members, they went around to purported witnesses, they went around to the judge himself, and attempted to cajole out of them information which they say that the State has, at least I take it, they are saying the State has a right to keep confidential. I see the position of the newspaper, they are saying, well, if we can get it. That is one thing. It is a right for you to try to keep it confidential, but if we can get it, then it is a right for us to publish it. And I submit that that just applies in the phase of what we think of as a civilized society. We say on the one hand, that the government cannot go about inducing innocent people to commit crimes, such as entrapment, for example, but again in this case, and the article shows in fact they tried to do it, tried to get honest public citizens of Commonwealth Virginia to breach their confidentiality and witnesses do not even say that you even talk to me because I am not to tell you anything. and he did not tell them anything, but apparently some did not.
Warren E. Burger: But, even if you can show that some of these press reporters paying $50 or $100 to a clerk in the Commission’s office to get it, it would not have any bearing on the issue now before this Court, would it? That is another problem, a separate distinction, isn’t it?
James E. Kulp: Well, Mr. Chief Justice, I do not know whether it is or not, because if you draw a distinction and say, well, if they did not get it in a unlawful criminal way that may be one thing, but if they do it is another thing. I do think there can be distinctions drawn in it.
Warren E. Burger: But your case, in any means of getting it is unlawful because, using it is may become an act State of Virginia, by the Commonwealth of Virginia.
James E. Kulp: Well, but I believe Mr. Chief Justice, because in other words if the complainant and the witnesses and those people who are involved in the proceedings, and the Commission rules themselves which are referred to and they printed in point 215 of Virginia Reports say specifically that they advise every participant of the confidential nature of the matter and that it is a crime to divulge it. And all I am saying is that here we have the press going out, attempting to get otherwise honest citizens to breach an oath to breach the confidentiality. And I submit that therefore it puts it in a different context. And, I would close by saying that I think in the last analysis the issue in this case is whether the people of Virginia, in passing the Constitution of 1971 and their elected officials by enacting the statutes in question, may constitutionally determine that certain matters of public interest are to kept confidential or is that decision to be made by an unelected and unnamed editor of some newspaper.
Warren E. Burger: Thank you gentlemen. The case is submitted.