The Supreme Court agreed yesterday to decide whether the constitutional guarantee of freedom of the press permits criminal prosecution of a newspaper for publishing truthful information relating to a public official's performance of public duties.
The justices will hear arguments within the next year on a 6-to-1 ruling by the Virginia Supreme Court affirming the conviction of Landmark Communications Inc., publisher of the Virginia-Pilot newspaper in Norfolk.
The newspaper published an article reporting that the Virginia Judical Inquiry and Review Commission had held a "formal hearing concerning possible disciplinary action" against a judge who was named and who presides in Norfolk.
The accuracy of the report is undisputed. The Virginian-Pilot published it, on the first page of the second section, on Oct. 4, 1978.
A month later, a grand jury indicted Landmark under the law creating the five-member commission. A provision of the law makes the panels record and proceedings confidential unless they are filed with the state's high court. The provision also makes it a misdemeanor for "any person" to divulge confidential commission material.
The newspaper's managing editor, Joseph W. Dunn Jr., was the only witness at the trial. He testified that he believed the report was important enough to merit public attention and that he had not understood the phrase "any person" to include the press.
The trial court convicted Landmark on Jan. 15, 1976, without addressing its claim that the law violated the First Amendment and other constitutional protections. The court fined the company $500.
The conviction was the first of its kind. Thirty-four other jurisdiction require confidentiality for proceedings before bodies that investigate charges of judges' disability and unfitness, but only Virginia provides criminal sanctions.
In the opinion for the Virginia Supreme Court, Justice Harry L. Carrico rejected Landmark's appeal by saying that the disputed provision's restrictions on disclosure do not violate the First Amendment because they project the state from "a clear and present danger" to the orderly administration of justice."
Dissenting Justice Richard H. Poff wrote that "there is utterly no evidence of record showing a clear and present danger." The majority simply felt 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." He said the majority did this unaided by a declaration of such a danger in the state constitution, the legislative history or the law.
In a brief asking the U.S. Supreme Court to review the case, Landmark said that under the Virginia decision "journalists or reporters could be fined or imprisoned if they ever printed the fact that an unfit judge who had been accused before the commission was still sitting, or that an unfit - or corrupt - commission had covered up for the judge."
Landmark, arguing that the law is unconstitutionally broad, said that undeer the Virginia ruling, readers of the Virginia-Pilot article "repeat what they read at their peril; one who hears from someone else what he heard from someone else about the identify of an accused judge repeats it at his peril; and the like."