First Amendment Friday 12 – Landmark V. Virginia

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 Happy Friday and welcome to the 12th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:

Originally posted at

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

First Amendment Friday 5 – Bridges V California

First Amendment Friday 6 – Planned Parenthood V ACLA

First Amendment Friday 7 – New York Times V Sullivan

First Amendment Friday 8 – Butts V Curtis

First Amendment Friday 9 – Gertz v Welch Inc.

First Amendment Friday 10 – Hustler V Falwell

First Amendment Friday 11 – Bartniki V Vopper

This week we look at a case which falls under the heading Disclosure of Dangerous Information in Professor Balkin’s syllabus.

The Case

Landmark Communications was indicted by a Virginia Grand Jury for violating the statute against divulging the confidential proceedings of a State judicial review board.

The Facts

In October of 1975 a Landmark Communications news paper, the Virginian Pilot, published an article noting the appearance of a judge before the Virginia Judicial Inquiry and Review Commission. This report was accurate in its details and revealed the name of the judge.

The Commonwealth of Virginia had a statute which made it a misdemeanor to “unlawfully divulge the identification of a Judge of a Court not of record, which said Judge was the subject of an investigation and hearing” by the Commission.

The article noted the that no formal complaint had been filed which meant the commission did not find the complaint sufficient or it was still under consideration.

No person associated with the Virginian Pilot participated or was subpoenaed by the Commission.

The Procedural History

Landmark tried to have the indictment quashed on the grounds the statute as written did not apply to the facts in this case and that the enforcement was not in keeping with the First and Fourteenth Amendments. This was denied.

The facts in the case were stipulated by both sides and the only witness to appear was the publisher of the news paper. He testified that his understanding of the statute was it prohibited the publication of illegally obtained information from the commission. The publisher testified he felt the work of the Commission was of importance to the public and this is why he published the article.

The case was tried without jury and Landmark was found guilty. The newspaper was fined $500, plus prosecutions costs .

Landmark appealed to the Virginia Supreme Court, which affirmed the conviction with a single dissent. The Virginia High Court rejected Landmarks claim that the statute only applied to Commission members or the person that originally disclosed the information, not the paper which published the true information.

In response to the Constitutional issues the Virginia Supreme Court first found that the statute was not censorship, as it only applied to the dissemination of information. They then used the “clear and present danger” test to find that there were three States interests which were endangered by Landmarks actions. Those interests were

1)Protection of a Jurists reputation in the case where frivolous complaints were disclosed.

2)Maintenance of confidence in the Judicial system by preventing the disclosure of a complaint until it was determined if the complaint had merit

3)Protection of complainants and witnesses from recrimination by prohibiting the disclosure before the validity of a complaint was determined.

The State Supreme Court found that a statute without criminal sanctions would not adequately ensure the confidentiality of the Commission, which they found necessary for the its function. The court upheld the Conviction.

Justice Poff was the sole dissenter, noting that as applied the statute violated the First Amendment.

Landmark appealed the United States Supreme Court

The Legal Issue

Does the States interest for confidentiality in a judicial review process raise to the level that it allows the State to criminalize the publication of information disclosed to an uninvolved third party?

The Unanimous Opinion

Chief Justice Burger wrote the opinion.

Chief Justice Burger starts out by delimiting what the Court will be deciding. He points out the Court is not looking at the right of the State to punish those who are part of confidential proceeding and divulge information acquired there. Nor is the Court looking at a challenge to the State’s ability to put legal penalties on such actions. Further the Court notes Landmark is not arguing for press access to these proceedings as a right of the free press.

The Chief Justice writes:


Landmark urges as the dispositive answer to the question presented that truthful reporting about public officials in connection with their public duties is always insulated from the imposition of criminal sanctions by the First Amendment. It points to the solicitude accorded even untruthful speech when public officials are its subjects, see, e. g., New York Times Co. v. Sullivan, (1964), and the extension of First Amendment protection to the dissemination of truthful commercial information, see e. g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, (1976); Linmark Associates, Inc. v. Willingboro, (1977), to support its contention. We find it unnecessary to adopt this categorical approach to resolve the issue before us.

What Chief Justice Burger is saying here is that while Landmark has good points of law to argue for their side of the case, nothing that their report was accurate and previous case had protected even inaccurate reporting on the grounds of the need for public discourse the Court didn’t need that level of justification to overturn the Virginia Supreme Court. He notes that Bridges v. California had already protected the right of the press to publish reports on events of public interest. He quotes that Opinion:

“judges as persons, or courts as institutions . . . no greater immunity from criticism than other persons or institutions.

He goes on to say:

The operation of the Virginia Commission, no less than the operation of the judicial system itself, is a matter of public interest, necessarily engaging the attention of the news media. The article published by Landmark provided accurate factual information about a legislatively authorized inquiry pending before the Judicial Inquiry and Review Commission, and in so doing clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect.

He then goes on to look at the claims of the Virginia Supreme Courts findings of States interest.

The Commonwealth also focuses on what it perceives to be the pernicious effects of public discussion of Commission proceedings to support its argument. It contends that the public interest is not served by discussion of unfounded allegations of misconduct which defames honest judges and serves only to demean the administration of justice. The functioning of the Commission itself is also claimed to be impeded by premature disclosure of the complainant, witnesses, and the judge under investigation. Criminal sanctions minimize these harmful consequences, according to the Commonwealth, by ensuring that the guarantee of confidentiality is more than an empty promise.

It can be assumed for purposes of decision that confidentiality of Commission proceedings serves legitimate state interests. The question, however, is whether these interests are sufficient to justify the encroachment on First Amendment guarantees which the imposition of criminal sanctions entails with respect to nonparticipants such as Landmark. The Commonwealth has offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined. While not dispositive, we note that more than 40 States having similar commissions have not found it necessary to enforce confidentiality by use of criminal sanctions against nonparticipants.

While the Chief Justice is granting the idea that it is in the interest of the State to have the proceedings of the Commission be confidential, he slaps it down as totally unsupported by evidence. He also notes that of the other 45 Commissions in other states that do not impose criminal sanction there is more of a problem than in Virginia.

This is pretty hard rebuke of the Virginia Supreme Court. They did not look into the specific facts of the case but relied on the legislation the State had passed when they made their findings. This is not a good practice of law, and they are about to get into deeper trouble over it.

Chief Justice Burger:

The Supreme Court of Virginia relied on the clear-and-present-danger test in rejecting Landmark’s claim. We question the relevance of that standard here; moreover we cannot accept the mechanical application of the test which led that court to its conclusion. Mr. Justice Holmes’ test was never intended “to express a technical legal doctrine or to convey a formula for adjudicating cases.” Pennekamp v. Florida,  (1946) (Frankfurter, J., concurring). Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State’s interests should also be weighed.

He then uses Justice Brandeis’s concurring opinion in Whitney v. California to put the take the Virginia Supreme Court to the woodshed:

“A legislative declaration does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.”

A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified.

It was thus incumbent upon the Supreme Court of Virginia to go behind the legislative determination and examine for itself “the particular utteranc[e] here in question and the circumstances of [its] publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify [subsequent] punishment.” Bridges v. California. Our precedents leave little doubt as to the proper outcome of such an inquiry.

In non-lawyer speak the Chief Justice just said “You were lazy and used the Legislatures words to get you out of doing the job you are elected to do. Beyond that you should have known it was unconstitutional on its face.”

He  then finishes demolishing the premises of the Virginia Supreme Court by taking on level at which they applied the “clear and present danger” test:

The efforts of the Supreme Court of Virginia to distinguish those cases from this case are unpersuasive. The threat to the administration of justice posed by the speech and publications in Bridges, Pennekamp, Craig, and Wood was, if anything, more direct and substantial than the threat posed by Landmark’s article. If the clear-and-present-danger test could not be satisfied in the more extreme circumstances of those cases, it would seem to follow that the test cannot be met here.

It is true that some risk of injury to the judge under inquiry, to the system of justice, or to the operation of the Judicial Inquiry and Review Commission may be posed by premature disclosure, but the test requires that the danger be “clear and present” and in our view the risk here falls far short of that requirement. Moreover, much of the risk can be eliminated through careful internal procedures to protect the confidentiality of Commission proceedings. Cf. Nebraska Press Assn. v. Stuart, (BRENNAN, J., concurring in judgment). In any event, we must conclude as we did in Wood v. Georgia, that “[t]he type of `danger’ evidenced by the record is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification.

Here he is basically saying while there is indeed a time and a place for the “clear and present danger” test, the Virginia Supreme Court was applying it far, far too strictly. They had ignored previous Supreme Court decisions which had set the bar for using it in terms of substantial evil and immediacy completely. This means it was the wrong test applied wrongly.

The Supreme Court overturned the Virginia Supreme Court’s decision and found for Landmark.

There you have this week’s case. The Dog really likes this one. It shows the Supreme Court acting in not just its role as arbiter of the Constitution but also correcting State Courts that go too far in the wrong direction. There was very little chance the Virginia statute was Constitutional based on other case law, but until the Supreme Court could weigh in, it was the law of the Commonwealth.

This is case is also important as it supports the very real need for the people to have access to information about those who govern or judge them. There is a danger that people will not understand the information or draw an incorrect conclusion from it. However it is another time where the remedy for something caused by speech is not less speech but more. If there is problem from this information an accurate and open discussion is the most likely way to address it effectively.

So, what are you thoughts on Landmark V. Virginia Citizens?

The floor is yours.

Housekeeping: This week the case data came from For some reason the Legal Information Institute did not have this case in its database. You can find this weeks case here.  


  1. I love doing it, but if it is a yawn for folks, I could post on other topics.  

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