An attorney representing the State of Virginia argued before the U.S. Supreme Court yesterday that the state, not newspaper editors, should determine whether the existence of disciplinary proceedings against state judges should be made public.
By contrast, an attorney for a Virginia newspaper convicted of publishing a story saying that a local judge was being investigate argued that laws forbidding the publication of such information abridge the constitutionally-protected right of freedom of the press. The story was true.
The eight-man court heard an hour of oral arguments yesterday over an Oct. 4, 1975, story in The Norfolk Virinian-Pilot that said the Virginia Judical Inquiry and Review Commission was investigation for possible disciplinary action, Juvenile and Domestic Relations Court Judge H. Warrington (Spike) Sharp.
State law makes it a misdemeanor to divulge records and proceedings of the commission unless they are filed with the Virginia Supreme Court.
Landmark Communications Inc., owner of The Virginian-Pilot, two years ago was convicted and fined $500 for running the article. The conviction was affirmed by the Virginia Supreme Court on a 6-to-1 vote. The Supreme Court said that publication of such information posed a "clear and present danger" to the orderly administration of justice.
Floyd Abrams, attorney for Landmark, the corporation that operates the newspapers, told the justices that the statute "punishes accurate reporting of the news." No "clear and present danger" to the administration of justice exists in such stories, he said.
Justice John P. Stevens asked Abrams if he believes confidential information should be published for instance on the eve of a trial, if this made it impossible for the judge to function properly the next day.
"That's the social price that the First Amendment requires us to pay," Abrams responded.
Kulp said that without the protection of the statute, witnesses, particularly lawyers, would be reluctant to file complaints or come forward with information against unfit judges.
Justice Thurgood Marshall asked if Virginia guarantees members of the General Assembly or other public officials the same confidentiality if they should come under investigation.
"Why is the judge entitled to this special protection?" Justice Marshall asked.
"I think you have the difference between administration of justice and the legislative and executive positions," Kulp said. "They (legislators) are purely political. They're rough and tumble. They have ways to defend themselves."
In response to questioning by-Chief Justice Warren E. Burger, Kulp said a newspaper would not be punished for publishing information given at a press conference by a witness who revealed what he planned to tell the commission. But if, at the end of the press conference, the witness filed his statements with the commission, the newspaper could be punished, Kulp said.
Kulp also berated The Virginian-Pilot for not revealing to the state its sources of information about the proceedings and for attempting to talk to witnesses and commission members after the closed session.
"They tried to get honest citizens to breach their confidentiality," Kulp said. "That flies in the face of what we consider a civilized society."
Judge Sharp resigned from his position in 1976 and the commission did not file a complaint against him with the State Supreme Court.