U.S. District Judge Robert R. Merhige Jr. has temporarily blocked prosecution of a Richmond television station for broadcasting a report about a judge supposedly being investigated for judicial misconduct.
Merhige's ruling on Tuesday came only 11 days after the Virginia State Supreme Court, in a 6-to-1 ruling, upheld the conviction of a Norfolk newspaper for publishing a similar story about another judge being investigated by the state's secretive Judicial Inquiry and Review Commission.
Officials of Richmond television station WXEX-TV said yesterday they feared the station would also be indicted if it broadcast its story. The officials went into U.S. District Court in Richmond in an effort to force another court test of the constitutionality of the Virginia law used against the Norfolk newspaper, The Virginian Pilot.
Merhige seemingly sided with lawyers for the American Civil Liberties Union, who represented the station. Merhige warned state officials who opposed his order that the mere threat of prosecution could have a chilling effect on the station's First Amendment rights to free speech.
The state attorney general's office and a lawyer representing the Richmond commonwealth attorney's office countered that there was "no basis" for the station or its reporters to fear prosecution under the law.
The statute makes disclosure of a commission investigation a misdemeanor punishable by a fine of up to $1,000 and 12 months in jail. The Virginian-Pilot was fined $500 for publishing a report that a Norfolk Juvenile and Domestic Relations Court judge was under investigation by the commission.
Merhige's temporary restraining order, however, will expire March 25 and WXEX-TV news director George Foulder said yesterday the ACLU lawyers are attempting to gain a full-scale hearing on the state law by that time.
Shortly after Merhige entered his order, the station carried a report saying that Richmond General District Court Judge Harold C. Maurice had made a second appearance before the judicial commission last Friday, according to Foulder.
Maurice, 71, resigned from the bench on Monday, but the station said the outcome of the Commission investigation could affect his retirement benefits.
The Richmond Times-Dispatch carried a news article on Jan. 29 about the investigation of Maurice. Foulder said one of the station's reporters had learned that Richmond Commonwealth's Attorney Aubrey M. Davis was about to seek an indictment of the newspaper for its account.
Foulder said the station had previously delayed broadcasting reports on the judge because of the then-pending Supreme Court decision. "We didn't want to break the law, even though our lawyers told us it was probably unconstitutional," he said.
Obtaining the restraining order in a federal court was the only way the station believed it could carry the account and not face immediate prosecution, he said.
Deputy Virginia Attorney General Reno S. Harp III, who serves as counsel to the judicial commission, said yesterday that no judge's name was mentioned in the hearing before Merhige and Maurice's name also is not mentioned in court papers.
Citing the state law, Harp refused to make any comment about Maurice and called a reporter's questions "highly improper . . . You are suggesting that I violate a state law."
Whatever happens in the television case, it probably will not affect the conviction of the Norfolk newspaper. The publisher of The Virginian-Pilot has said that his company will appeal that conviction to the U.S. Supreme Court on the grounds that the law violates the newspaper's First Amendment rights to a free press.
In its ruling, the Virginia Supreme Court brushed aside the arguments that the law violated the First Amendment, declaring that the publication of stories naming judges under investment, declaring that the publication of stories naming judges under investigation posed "a clear and present danger" to the orderly administration of justice and were "clearly" illegal under the state law.