THE VIRGINIA Supreme Cout ruled last week that there is no constitutional objection to a law that makes it a crime to divulge the name of a judge who is under investigation by the state's judicial review commission. We will be greatly surprised if the decision is not reversed summarily by the U.S. Supreme Court; there are no precedents for it, and it is out of line with 200 years of history. But we are appalled, nevertheless, that any state supreme court, particularly the one in Virginia where the Bill of Rights originated, would treat the First Amendment so lightly.
We concede that we are particularly sensitive to this kind of case. It does involve a newspaper - the Norfolk Virginian-Pilot, which was convicted of a crime for telling its readers about a judge who was being investigated. But the language of the court's opinion is not confined to newspapers. Under the court's interpretation of a state law and the federal constitution, any person who finds out anything about the commission's confidential work commits a crime by telling it to someone else. And that someone else also commits a crime by repeating it.
Even the Virginia Supreme Court admits that this infringes of free speech and on freedom of the press. But it justifies the infringement on the grond that divulgence of a judge's name creates an "imminent and substantial threat" and a "clear and present danger" to the orderly administration of justice. The justices think that is so because they believe the commission cannot operate effectively without total secrecy and that the judicial system cannot operate at its best without the commission. In other words, the justices believe the administration of justice is so fragile in Virginia that its orderly operations will be destroyed if someone speaks the name of a judge who is under investigation.
That - may it please the court - is ludicrous. Virginia got along for more than two centuries without a judical review commission.It is absured to contend that once the commission was creatd in 1971 its operations became so essential to the administration of justice as to override the First Amendment rights of every resident of the state.
The commission, of course, is directed by state law to keep its proceedings confidential. And perhaps it is permissible for the state to punish those who are privy to those proceedings and then break the law. But to take the matter a step beyond - a step the Virginia Supreme Court has now upheld - is to create an Official Secrets Act, something that has not previously occurred in this country. Virginians have always been proud that their state was the birthplace of the First Amendment. It has now become the birthplace of a legal theory that would wipe out much of that amendment's promise in the name of protecting judges from public embarrassment.