Landmark Communications v. Virginia
Encyclopedia
Landmark Communications v. Virginia, 435 U.S. 829
(1978), was a United States Supreme Court case that was argued on January 11, 1978 and decided on May 1, 1978.
's The Virginian-Pilot
for illegal disclosure of confidential proceedings before the Judicial Inquiry and Review Commission about a judge's misconduct.
represented Landmark Communications
, which owned The Virginian-Pilot. Landmark would be the first case Abrams argued before the Supreme Court by himself. The Pilot had reported on October 4, 1975, that Judge H. Warrington Sharp, who sat on the Juvenile and Domestic Relations Court, was under an investigation by a judicial fitness panel. They were deciding whether or not to begin disciplinary proceedings against Sharp. Under Virginia
statute, each complaint against a judge was to be reviewed in secret; it would be announced only if deemed serious enough to require a public hearing. All states had confidentiality requirements to avoid use of the disciplinary inquiry as retribution against a judge; however, only Virginia and Hawaii
provided for criminal penalties for disclosure.
There was a quick trial and conviction of the publisher of a misdemeanor
and $500 fine plus costs of prosecution. Landmark appealed to the Supreme Court of Virginia
, which affirmed the conviction by 6-1. The court concluded that the "requirement of confidentiality in Commission proceedings" served three purposes:
In his memoir Speaking Freely, Abrams states this was the first case he argued by himself before the Supreme Court. He states that he devoted most of their preparation for the case with three overlapping issues, "ones that have consumed my attention in every later Supreme Court argument as well".
First was jurisprudential: What rule of law would they urge the Court to adopt? What would be its effect as stare decisis
and its impact on the First Amendment to the United States Constitution
?
The Second Question was tactical: Justices are known for taking up the 30 minutes of allotted argument time with question-and-answer sessions; Abrams felt he needed to figure out his core message. What did he want to get across in as little time as possible?
The Third Question was what the court might ask that would be exceptionally difficult to respond to, and what should those responses be?[3]
Assistant Attorney General
James Kulp defended the Virginia Supreme Court opinion with the above-mentioned three reasons for the statute. Justice Byron White
questioned Kulp about whether the case was really about not criticizing public officials, a Constitutional right, and asked whether he would defend a statute calling for confidentiality for protection of the judge. "No, sir," responded Kulp. "I think the cases from this Court have been clear in that respect, that, in other words, a judge, as any public official, may certainly be criticized, the administration of justice may be criticized, and we don't have any argument about that." White said if that was so, then his arguments about protection the judiciary and the system held no weight. Kulp agreed.
Virginia's time before the Court dealt with the scope of the statute. Chief Justice
Warren E. Burger
asked Kulp whether if a lawyer held at a press conference handed a copy of a complaint he filed with the commission to the press, that it would violate the statute; but if he made the statement public but did not file the charges, then First Amendment protection would be granted? Kulp reluctantly agreed.
Abrams declined his rebuttal time, confident in Landmark's victory.
In its conclusion, the Court wrote: "the [clear and present danger] 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."
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1978), was a United States Supreme Court case that was argued on January 11, 1978 and decided on May 1, 1978.
Holding
The court reversed a lower court's conviction of the publisher of NorfolkNorfolk, Virginia
Norfolk is an independent city in the Commonwealth of Virginia in the United States. With a population of 242,803 as of the 2010 Census, it is Virginia's second-largest city behind neighboring Virginia Beach....
's The Virginian-Pilot
The Virginian-Pilot
The Virginian-Pilot is a daily newspaper based in Norfolk, Virginia, and serving the Hampton Roads metropolitan area, southeastern Virginia, the Eastern Shore of Virginia, and northeastern North Carolina. The flagship property of Landmark Media Enterprises, The Pilot is Virginia's largest daily...
for illegal disclosure of confidential proceedings before the Judicial Inquiry and Review Commission about a judge's misconduct.
Background and procedural history
Floyd AbramsFloyd Abrams
Floyd Abrams is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment...
represented Landmark Communications
Landmark Communications
Landmark Media Enterprises LLC is a privately held media company headquartered in Norfolk, Virginia specializing in cable television, broadcast television, print publishing, and internet publishing...
, which owned The Virginian-Pilot. Landmark would be the first case Abrams argued before the Supreme Court by himself. The Pilot had reported on October 4, 1975, that Judge H. Warrington Sharp, who sat on the Juvenile and Domestic Relations Court, was under an investigation by a judicial fitness panel. They were deciding whether or not to begin disciplinary proceedings against Sharp. Under Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
statute, each complaint against a judge was to be reviewed in secret; it would be announced only if deemed serious enough to require a public hearing. All states had confidentiality requirements to avoid use of the disciplinary inquiry as retribution against a judge; however, only Virginia and Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
provided for criminal penalties for disclosure.
There was a quick trial and conviction of the publisher of a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
and $500 fine plus costs of prosecution. Landmark appealed to the Supreme Court of Virginia
Supreme Court of Virginia
The Supreme Court of Virginia is the highest court in the Commonwealth of Virginia. It primarily hears appeals from the trial-level city and county Circuit Courts, as well as the criminal law, family law and administrative law cases that go through the Court of Appeals of Virginia. It is one of...
, which affirmed the conviction by 6-1. The court concluded that the "requirement of confidentiality in Commission proceedings" served three purposes:
- protection of the judge's reputation;
- protection of public confidence in the judicial system; and
- protection of complaintants and witnesses from possible recriminations.
Arguments
Abrams wrote that his primary argument was straightforward: The newspaper published a true account, had not obtained the information illegally, and the alleged offense was simply reporting a complaint about how a public official performed his civic role. In his brief, Abrams argued that the case raised "anew a question which penetrates to the core of our concept of self-government: whether the press may be punished for printing the truth about a public official with his public duties".In his memoir Speaking Freely, Abrams states this was the first case he argued by himself before the Supreme Court. He states that he devoted most of their preparation for the case with three overlapping issues, "ones that have consumed my attention in every later Supreme Court argument as well".
First was jurisprudential: What rule of law would they urge the Court to adopt? What would be its effect as stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
and its impact on the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
?
The Second Question was tactical: Justices are known for taking up the 30 minutes of allotted argument time with question-and-answer sessions; Abrams felt he needed to figure out his core message. What did he want to get across in as little time as possible?
The Third Question was what the court might ask that would be exceptionally difficult to respond to, and what should those responses be?[3]
Assistant Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
James Kulp defended the Virginia Supreme Court opinion with the above-mentioned three reasons for the statute. Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
questioned Kulp about whether the case was really about not criticizing public officials, a Constitutional right, and asked whether he would defend a statute calling for confidentiality for protection of the judge. "No, sir," responded Kulp. "I think the cases from this Court have been clear in that respect, that, in other words, a judge, as any public official, may certainly be criticized, the administration of justice may be criticized, and we don't have any argument about that." White said if that was so, then his arguments about protection the judiciary and the system held no weight. Kulp agreed.
Virginia's time before the Court dealt with the scope of the statute. Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
asked Kulp whether if a lawyer held at a press conference handed a copy of a complaint he filed with the commission to the press, that it would violate the statute; but if he made the statement public but did not file the charges, then First Amendment protection would be granted? Kulp reluctantly agreed.
Abrams declined his rebuttal time, confident in Landmark's victory.
- "During one exchange, Justice William H. RehnquistWilliam RehnquistWilliam Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
asked a question for which Mr. Abrams said he was "totally unprepared," but Justice Potter StewartPotter StewartPotter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
came to his rescue. Of all the justices, Mr. Abrams found Justice Byron R. White the most unnerving. White "invariably asked questions that were both pointed and powerful," he recalls, and Mr. Abrams never once "had the sense that anything I said pleased him." He confides that during oral argumentOral argumentOral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
he often felt like a mouse with "a tormenting cat." Nonetheless, he won a unanimous victory."[4]
- "It had been quite an introduction for me to arguing for a complete thirty minutes in the Supreme Court: fifty-four judicial questions and comments. Years later, when I saw Albert BrooksAlbert BrooksAlbert Lawrence Brooks is an American actor, voice actor, writer, comedian and director. He received an Academy Award nomination in 1987 for his role in Broadcast News...
play a television journalist in Broadcast News who perspired so much when on the air that his shirt looked like he had just returned from a swim, I wondered if I had presented the same appearance after my Landmark argument." Floyd Abrams.[5]
Holdings and influence
The Court held unanimously in favor of Landmark. Chief Justice Burger wrote the opinion for himself and the other five members (Justices Brennan and Stevens recused themselves). The Court did not adopt Abrams's categorical approach (all truth reporting in reference to public duties was insulated from criminal sanctions by the First Amendment). However, the Court rejected the argument that these interests were sufficient grounds for criminal sanctions on nonparticipants in proceedings.[6]In its conclusion, the Court wrote: "the [clear and present danger] 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."
- "Perhaps most satisfying to me, the Court not only questioned the relevance of the clear-and-present danger test to Landmark's claims...but noted, in language frequently quoted by the Supreme court thereafter, that it was insufficient for the Virginia Supreme Court simply to defer to the legislative judgment that there was some sort of clear and present danger." Floyd Abrams.[7]
See also
- Floyd Abrams and the Landmark Communications case
- Landmark CommunicationsLandmark CommunicationsLandmark Media Enterprises LLC is a privately held media company headquartered in Norfolk, Virginia specializing in cable television, broadcast television, print publishing, and internet publishing...
- The Virginian-PilotThe Virginian-PilotThe Virginian-Pilot is a daily newspaper based in Norfolk, Virginia, and serving the Hampton Roads metropolitan area, southeastern Virginia, the Eastern Shore of Virginia, and northeastern North Carolina. The flagship property of Landmark Media Enterprises, The Pilot is Virginia's largest daily...
- List of United States Supreme Court cases, volume 435