Amicus Brief — Smith v. Daily Mail Publishing Co.

INTHE AN 25 1979

Supreme Court of the United EL RODAK, JR., CLERK

October Term, 1978

No. 78-482

THE HONORABLE ROBERT K. SMITH. JUDGE, ET AL., ETC..,

‘ Petitioners

STATE EX REL. DAILY MAIL PUBLISHING CO., ETC., ET AL.,

Respondents

THE HONORABLE ROBERT K. SMITH, JUDGE, ET AL., ETC..,

Petitioners

DON MARSH, ET AL., THE DAILY GAZETTE Co., ETC., ET AL..

Respondents

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

MOTION OF AMERICAN SOCIETY OF NEWSPAPER

EDITORS; RADIO TELEVISION NEWS DIRECTORS

ASSOCIATION; NATIONAL NEWSPAPER ASSOCIATION;

NATIONAL ASSOCIATION OF BROADCASTERS; THE

SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA

DELTA CHI; REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS; NATIONAL PRESS CLUB; ASSOCIATED

PRESS MANAGING EDITORS; WEST VIRGINIA PRESS

ASSOCIATION; ILLINOIS PRESS ASSOCIATION; AND

CLARKSBURG PUBLISHING COMPANY FOR LEAVE TO

FILE BRIEF, AMICI CURIAE. IN SUPPORT OF AF-

FIRMANCE, AND BRIEF AM/C/ CURIAE.

RICHARD M. SCHMIDT, JR.

IAN D. VOLNER

DAVID M. RICKLESS

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae

EEE LTE

THE CASILLAS PRESS. INC -1717 K Street N W -Weshington, 0. C -223:1220

v—-. sae!

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-482

THE HONORABLE ROBERT K. SMITH, JUDGE, ET AL., ETc...

‘ Petitioners

STATE EX REL. DAILY MAIL PUBLISHING CO., ETC., ET AL.,

Respondents

THE HONORABLE ROBERT K. SMITH, JUDGE. ET AL., ETC..

f Petitioners

DON MARSH. ET AL.. THE DAILY GAZETTE CoO., ETC.. ET AL..

Respondents

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

MOTION OF AMERICAN SOCIETY OF NEWSPAPER

EDITORS; RADIO TELEVISION NEWS DIRECTORS

ASSOCIATION; NATIONAL NEWSPAPER ASSOCIATION;

NATIONAL ASSOCIATION OF BROADCASTERS; THE

SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA

DELTA CHI; REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS; NATIONAL PRESS CLUB; ASSOCIATED

PRESS MANAGING EDITORS; WEST VIRGINIA PRESS

ASSOCIATION; ILLINOIS PRESS ASSOCIATION; AND

CLARKSBURG PUBLISHING COMPANY FOR LEAVE TO

FILE BRIEF, AMICI CURIAE. IN SUPPORT OF AF-

FIRMANCE.

The American Society of Newspaper Editors, the Radio

Television News Directors Association and others, whose

interest is set forth below with particularity, respectfully

move this Court, pursuant to Supreme Court Rule 42(3), to

file the accompanying brief as amici curiae in support of af-

firmance of the decision of the Supreme Court of Appeals

2

of West Virginia. The attorneys for the Respondents have

consented to the filing of this brief.’ Although the attorney

for the Petitioners has given his consent to the filing of an

amicus brief supporting reversal of the court below, he has

failed to respond to the requests of the amici for his con-

sent.

Amici are organizations whose members consist of

publishers, broadcasters, editors, and journalists

throughout the United States.

The American Society of Newspaper Editors is a nation-

wide, professional organization of more than 800 persons

who hold positions as directing editors of daily newspapers

throughout the United States. The purposes of the Society,

which was founded over fifty years ago, include the main-

tenance of “‘the dignity and rights of the profession” (ASNE

Constitution, Preamble) and the ongoing responsibility to

improve the manner in which the journalism profession

carries out its responsibilities in providing an unfettered

and effective press in the service of the American people.

Radio Television News Directors Asseciation includes ap-

proximately 1500 members who supervise, gather, report

and edit news and other public affairs information that is

broadcast throughout the nation.

The National Newspaper Association is a national trade

association of 6200 daily and weekly newspapers with mem-

bers in all fifty states. One of the Association’s major pur-

poses is to preserve the constitutional guarantee of freedom

of the press for community newspapers.

The National Association of Broadcasters is a nonprofit

association of radio and television broadcast stations and

networks. Its membership includes 2607 AM stations, 1981

‘Letters of consent from the attorneys for the Respondents have been

filed with the Clerk of this Court simultaneously with this motion.

ee ——————eEeEEE

3

FM stations, 557 television stations and the major nation-

wide commercial broadcast networks.

The Society of Professional Journalists, Sigma Delta Chi

is a society of students and practitioners of journalism. It

has over 158 student chapters, 134 professional chapters,

and more than 35,000 members, among whom the most

distinguished journalists in the United States are included.

The Reporters Committee for Freedom of the Press is a

nonprofit unincorporated legal defense and research fund

devoted to the protection of the First Amendment and

freedom of information rights of working press personnel of

all media.

The National Press Club is the largest press club in the

United States with over 4800 members in 49 states and the

District of Columbia.

The Associated Press Managing Editors is an

organization of 600 editors affiliated with the Associated

Press, which is the largest news collection organization in

the world and is cooperatively owned by its member

newspapers. It is extremely interested in First Amendment

problems and has been active in many ways to further the

news-gathering interest of the press.

The West Virginia Press Association represents ap-

proximately 70 daily and weekly newspaper publishers

throughout West Virginia.

The Illinois Press Association is a trade association

representing approximately 700 daily and weekly papers

throughout the state. Founded in 1865, it is the nation’s

largest press association.

The Clarksburg Publishing Company is the publisher of

The Clarksburg Exponent, Clarksburg Telegram, and Sun-

day Exponent-Telegram. published in West Virginia, with

a combined circulation of approximately 30,000.

4

Amici believe that the information published in the in-

stant case is necessary for the people to make informed

judgments concerning one aspect of the system of govern-

ment under which they live. Hence, the publication in

question involves those values that lie at the very core of

the First Amendment and are protected by a rule of

constitutional privilege against any governmental in-

fringement. The existence of a free press depends on the

ability to publish without first having obtained official im-

primatur. Without this limitation on governmental power,

all the other protections of the First Amendment, which

this Court has articulated throughout its nearly two cen-

turies of existence, would be reduced to chimera.

Because of the importance of the issues presented to this

Court in the instant case, the above-listed amici desire to

present their views to this Court for its assistance.

WHEREFORE, amici respectfully request this Court to

grant this motion and permit them to file their brief amici

curiae attached hereto and submitted herewith.

Respectfully submitted,

RICHARD M. SCHMIDT, Jr.

IAN D. VOLNER

DAVID M. RICKLESS

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae

January 25, 1979

Of Counsel:

J. LAURENT SCHARFF. ESQUIRE

PIERSON, BALL & Dowp

1000 Ring Building

1200 Eighteenth Street, N.W.

Washington, D.C. 20036

Attorney for Radio Television News

Directors Association

ERWIN G. KRASNOW, ESQUIRE

1771 N Street, N.W.

Washington, D.C. 20036

Attorney for National Association

of Broadcasters

W. TERRY MAGUIRE, ESQUIRE

1627 K Street, N.W.

Suite 400

Washington, D.C. 20006

Attorney for National Newspaper

Association, West Virginia Press

Association, Illinois Press Association,

and Clarksburg Publishing Company

JACK LANDAU, ESQUIRE

17S0 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Attorney for Reporters Committee

for Freedom of the Press

(i)

TABLE OF CONTENTS

INTRODUCTORY STATEMENT ..........0c0ccceccecceeease

INTEREST OF THE AMICi

oeoeceeeoe eee eevee eevee evr ee eevee eevneveeee

CI i Wie nd 0 ein vino 6008 606 1 be cena wbed is

II.

WEST VIRGINIA CODE SECTION 49-7-3 CONSTITUTES A PRIOR

RESTRAINT ON PUBLICATION

THE FIRST AMENDMENT CREATES A CONSTITUTIONAL RULE

OF PRIVILEGE UNDER WHICH RESPONDENTS’ PUBLICATIONS

MAY NOT BE SUBJECT TO PRIOR RESTRAINT ............-.

A. AS RESPONDENTS’ PUBLICATIONS ARE TRUTHFUL, AC-

CURATE, FACTUAL REPORTS INVOLVING AN ASPECT OF

THE FUNCTIONING OF GOVERNMENT. AND THEIR IN.

FORMATION WAS LAWFULLY OBTAINED, RESPONDENTS

ARE PRIMA FACIE ENTITLED TO THE PROTECTION OF

THE FIRST AMENDMENT

eo we sO er er ae fe ee ee ee ee ee

BECAUSE RESPONDENTS’ PUBLICATIONS MERIT PRIMA

FACIE CONSTITUTIONAL PROTECTION, THE STATE

May NoT IMPOSE A PRIOR RESTRAINT ON THOSE PUB-

LICATIONS EXCEPT BY DISCHARGING A PAR-

TICULARLY HEAVY BURDEN TO SHOW THAT ITs Law

COMES WITHIN A SUBSTANTIVE EXCEPTION TO THE

RULE AGAINST PRIOR RESTRAINT, DOES NOT ALLOW

THE OFFICIAL WHO ADMINISTERS THE LAW TOO GREAT

DISCRETION, AND PROVIDES FOR MEANINGFUL JuDI-

IE oc Chee ee ee siete

1. Respondents’ Publications Do Not Fall

Within One of the Substantive Exceptions

a

to the Rule Against Prior Restraint ............... 13

(ii)

Page

2. West Virginia Code Section 49-7-3 is Uncon-

stitutional in That It Imposes No Standards

on a Judge’s Discretion to Permit or Forbid

Publication and Does Not Provide for Expe-

ee a ee ee ee 16

CE eT eric eric cic cecsneciacpecttarosstbecoees 18

CERTIFICATE OF SERVICE... 1.00.0... ccc cece ceccecuucues 20

(iii)

TABLE OF AUTHORITIES

Page

CASES:

Aptheker v. Secretary of State,

BIO PNT bcc resovccessunnnve wawetnl a pee 1S

Bantam Books, Inc. v. Sullivan,

FIA PRETO sv bc veccceraercessrveeeniackeeenne 12

Carroll y. President and Comm'rs,

FOO BIE Fock e sc vcasouveosneecanckenaeeee 12

Cox Broadcasting Corp. v. Cohn,

ge re ne rn rer rte yr 8,9, 10n.2

Craig v. Harney.

Fe MEE onc cbc e iene se 0e dct een ee 9,10

Curtis Publishing Co. v. Butts,

PE RUE sb oe see edeeceenes te Cae eee 9

Estes v. Texas.

ee TOE bee ch videlhed cane adn cae ee 8

Freedman vy. Maryland.

Sa IE has 560-9 oe ba cs oe 6 ed hs bee heen 12,17

Gertz v. Robert Welch. Inc..

Se | rn a ares atte a 9

Gregg v. Georgia.

ES as aes kad de wake nen aaa eee eee 1S

Grosjean v. American Press Co..

gg hd en oda ech Oh ee eR ee 8

Houchins v. KQED. Inc..

SO Ee herr reer yt eer 8,9

Haynes vy. Mayor and Council.

CF TTD oo ve ea as ee creek eas one e es tee eKeD 12

(iv)

Page

In re Gault,

ee eS ee ee 7,7n.1, 13,14

In re Winship,

a eh SS tye es oOo 7n.1

Kingsley Books. Inc. vy. Brown,

a a Oy a scan ak as oa hb eater’ 12

Kent v. United States,

el he ete on aie 7

Landmark Communications, Inc. v. Virginia,

I TED gs > nbn oe boo sedocleaes 6, 7,9, 10, 13n.3, 15

Malinski v. New York,

es erermonieanactl aw’ 18

Lovell y. City of Griffin,

I a ee a Bee ae 12,18

McKeiver v. Pennsylvania,

eae uw eb ee om 7,7n.1, 14

Miami Herald Publishing Co. y. Tornillo,

a ae le nas was as 6 Rem owbdee pa 10, 11

Mills v. Alabama,

ee ng a hte By cee hte ai 7.9

Near v. Minnesota ex rel. Olson,

a a ho - ¥-goanbemeave’s 5, 6,13

Nebraska Press Ass'n v. Stuart,

fg eS ll. | 5,6, 10 n.2, 12, 131n.3, 14, 15, 17, 18

New York Times Co. v. Sullivan,

ESSE ee a een PRE EeIne WE 4 25 TP x SPO 4

New York Times Co. v. United States.

I MURINE whe ry o.oo a vem xin’ 6, 12, 13, 16,17, 18

(v)

Page

Oklahoma Publishing Co. v. District Court,

Sas ET ck RES wba t Boi ds wc ches whe oe 6,9

Pell y. Procunier.

eee Ss as PPR Pea Pee eer eT Te ee ee ee 7

Pennekamp v. Florida,

Se WA OO LEE 6 odd be uv ade¥ ines bin eee shew eeeeean 8

Police Dep't v. Mosley.

TD UD. TRS s sc cick rnd enee hy Cote Eee 1S

Sheppard v. Maxwell.

SOO US. FARIS hs wv evtend Ce erne xo coke V ere bie eee 9

Shuttelsworth vy. City of Birmingham,

TOOLS. AT GOR: 5c 8.h 5 Ep Ta 5s Phe s 840 bee eTeere es 12,16

Southeastern Promotions, Ltd. y. Conrad.

Sa ck a vs Den ea eee eee 5,12, 18

Thornhill y. Alabama.

Rg th i rr eM orl wie Sy og HL gh 7,8

Times Film Corp. v. City of Chicago.

Bee UI eA cc ha kccheige savas TeVCrere rst cey tenes 5

Walker v. City of Birmingham,

Se ae eT PS TO ee ihc bach cei ss bau ees oe hoe eee 6

Williams v. Rhodes.

Rg A een Se eee ear eo ae y i)

Wood vy. Georgia.

FPS UD: Sr a wie se cabiee Fe Peace Me be way > ne gs was 8

Government of Virgin Islands y. Broadhurst.

285 F. Supp. 831(D.V.1. 1968) 2.6... eee eee eee eens 14

STATUTES:

West Virginia Code § 49-7-3 . 0... cece ccc ccersccens 5, 16

(vi)

Page

MISCELLANEOUS:

2 T. Cooley, Constitutional

Limitations (8th ed. 1927)

T. Emerson, The System of

Pee OE SOO LEDTOD... oko ecko op nee ¥R anemone ee 5

G. Hunt ed., 1910

9 Writings of James Madison,

Letter from James Madison to

es ce ckekseceseraweeyanecmn eens 11

President’s Comm'n on Law Enforce-

ment and Administration of Justice,

Task Force Report: Juvenile

Delinquency and Youth Crime (1967) ............0 0.000 e ee 7

Restatement (Second) of Torts

§ 652 D (Tent. Draft No. 13,

PL Oe EEE Caled cdi M8 Ke kee eds neha eee 10n.2

IJA/ABA Juvenile Justice Standards

PUNE, PF Meal ie HUNT. RF CEOTTD voc cccrecscvnsevntearwrnt 8

Monaghan, First Amendment

“Due Process’, 83 Harv. L.

SE, doo 6 oikih kok 6 2 6k ene 13,17n.5

Note, Rights and Rehabilitation in

the Juvenile Courts, 67 Colum.

ie UV Ue SE TED bs ones tapers ac cvniceen steele 7

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-482

THE HONORABLE ROBERT K. SMITH, JUDGE, ET AL., ETC...

‘ Petitioners

STATE EX REL. DAILY MAIL PUBLISHING CO., E7C., ET AL..

Respondents

THE HONORABLE ROBERT K. SMITH, JUDGE. ET AL., ETC.,

y Petitioners

DON [ARSH. ET AL.. THE DAILY GAZETTE Co., ETC., ET AL.,

Respondents

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

BRIEF OF AMERICAN SOCIETY OF NEWSPAPER EDI-

TORS; RADIO TELEVISION NEWS DIRECTORS

ASSOCIATION; NATIONAL NEWSPAPER ASSOCIATION;

NATIONAL ASSOCIATION OF BROADCASTERS; THE

SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA

DELTA CHI; REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS; NATIONAL PRESS CLUB; ASSOCIATED

PRESS MANAGING EDITORS; WEST VIRGINIA PRESS

ASSOCIATION; ILLINOIS PRESS ASSOCIATION; AND

CLARKSBURG PUBLISHING COMPANY FOR LEAVE TO

FILE BRIEF, AMICI CURIAE, IN SUPPORT OF AF-

FIRMANCE.

INTRODUCTORY STATEMENT

The American Society of Newspaper Editors, the Radio

Television News Directors Association and others, whose

interest is set forth below with particularity, hereby submit

this joint brief as amici curiae in support of affirmance of

2

the decision of the Supreme Court of Appeals of West

Virginia. The amici, believe that the question presented in

this case is clear — whether West Virginia Code § 49-7-3,

which outlaws newspaper, but not broadcast, publication of

the name of a juvenile delinquent without prior approval by

a court, and which prescribes no standards to govern the

discretion exercised to permit such publication, constitutes

a prior restraint on freedom of the press in violation of the

First Amendment.

We submit and will show that the issue in this case im-

plicates the ability of the press in the United States to func-

tion as a free, independent and effective institution. We,

therefore, urge this Court’s affirmance of the decision

reached below.

INTEREST OF THE AMICI

Amici are organizations whose members consist of pub-

lishers, broadcasters, editors, and journalists through-

out the United States.

The American Society of Newspaper Editors is a nation-

wide, professional organization of more than 800 persons

who hold positions as directing editors of daily newspapers

throughout the United States. The purposes of the Society,

which was founded over fifty years ago, include the main-

tenance of “‘the dignity and rights of the profession” (ASNE

Constitution, Preamble) and the ongoing responsibility to

improve the manner in which the journalism profession

carries out its responsibilities in providing an unfettered

and effective press in the service of the American people.

Radio Television News Directors Association includes ap-

proximately 1500 members who supervise, gather, report

and edit news and other public affairs information that is

broadcast throughout the nation.

3

The National Newspaper Association is a national trade

association of 6200 daily and weekly newspapers with mem-

bers in all fifty states. One of the Association’s major pur-

poses is to preserve the constitutional guarantee of freedom

of the press for community newspapers.

The National Association of Broadcasters is a nonprofit

association of radio and television broadcast stations and

networks. Its membership includes 2607 AM stations, 1981

FM stations, 557 television stations and the major nation-

wide commercial broadcast networks.

The Society of Professional Journalists, Sigma Delta Chi

is a society of students and practitioners of journalism. It

has over 158 student chapters, 134 professional chapters,

and more than 35,000 members, among whom the most

distinguished journalists in the United States are included.

The Reporters Committee for Freedom of the Press is a

nonprofit unincorporated legal defense and research fund

devoted to the protection of the First Amendment and

freedom of information rights of working press personnel of

all media.

The National Press Club is the largest press club in the

United States with over 4800 members in 49 states and the

District of Columbia.

The Associated Press Managing Editors is an

organization of 600 editors affiliated with the Associated

Press, which is the largest news collection organization in

the world and is cooperatively owned by its member

newspapers. !t is extremely interested in First Amendment

problems and has been active in many ways to further the

news-gathering interest of the press.

The West Virginia Press Association represents ap-

proximately 70 daily and weekly newspaper publishers

throughout West Virginia.

4

The Illinois Press Association is a trade association

representing approximately 700 daily and weekly

publishers throughout the state. Founded in 1865, it is the

nation’s largest press association.

The Clarksburg Publishing Company is the publisher of

The Clarksburg Exponent, Clarksburg Telegram, and Sun-

day Exponent-Telegram, published in West Virginia, with

a combined circulation of approximately 30,000.

Amici believe that the information published in the in-

stant case is necessary for the people to make informed

judgments concerning one aspect of the system of govern-

ment under which they live. Hence, the publication in

question involves those values that lie at the very core of the

First Amendment and are protected by a rule of con-

stitutional privilege against any governmental in-

fringement. The existence of a free press depends on the

ability to publish without first having obtained official im-

primatur. Without this limitation on governmental power,

all the other protections of the First Amendment, which

this Court has articulated throughout its nearly two cen-

turies of existence, would be reduced to chimera.

The Supreme Court of Appeals of West Virginia has

heeded the admonitions of this Court. Faithful to the dic-

tates of the First Amendment, that court has removed a

legislatively imposed barrier on the ability of the press to

freely report to the public information on one aspect of the

state’s system for administering justice. Amici believe that

to sanction this limitation would threaten the ability of the

press to inform the public about a vital aspect of this system

and ultimately its ability to inform the public on all matters

needed for the people to make informed judgments on their

system of government. Hence, amici submit this brief to

urge this Court to vindicate their interests, and those of the

public that the press serves, against constitutionally

prohibited governmental action.

S

ARGUMENT

I. WEST VIRGINIA CODE SECTION 49-7-3 CON-

STITUTES A PRIOR RESTRAINT ON

PUBLICATION.

The manner in which the Court states the question

presented in this case — whether the statute creates a prior

restraint that violates the First Amendment — suggests

that it harbors doubt about the statute’s identity as a prior

restraint. Amici submit that under the analysis of this

Court in recent cases, no doubt can remain on this

question.

The classic model of a prior restraint is a system under

which publication is prohibited without advance approval

by an official. T. Emerson, The System of Freedom of Ex-

pression 50S (1970); see Times Film Corp. v. City of

Chicago, 365 U.S. 43, 55-56 (1961) (Warren, C.J., dissent-

ing). The identifying mark of a prior restraint is its cen-

sorship effect; officials have the power to interdict or delay

speech before its expression. Southeastern Promotions, Ltd.

v. Conrad, 420 U.S. 546, 552-53 (1975). West Virginia Code

section 49-7-3 does not outlaw all newspaper publications

of delinquents’ names, only those publications that are not

first authorized by a court. Clearly, then, that statute is a

prior restraint.

The only distinction between the statute in question and

the more usual form of prior restraint is that a judge rather

than an executive official administers the restraint. But as

this Court’s decisions abundantly demonstrate, it is func-

tionally irrelevant to the purposes of the First Amendment

whether an executive official or a court administers the

requirement for advance approval. Nebraska Press Ass'n v.

Stuart, 427 U.S. 539 (1976); Near v. Minnesota ex rel.

Olson, 283 U.S. 697 (1931). The effect upon speech is iden-

tical; sanctions are imposed not because the message is

6

illegal, but because the message is published without per-

mission. Indeed, if prior application must be made to the

judiciary, the restraint upon speech could be intensified.

Such a restraint is often administered through, or rein-

forced by, an injunction, and the validity of an injunctive

restraint on publication cannot be challenged at a con-

tempt hearing after the injunction has been violated. See

Walker v. City of Birmingham, 388 U.S. 307 (1967); cf.

Nebraska Press Ass'n v. Stuart, supra at 559. Hence,

whether application must be sought from executive officials

or the judiciary, is, under this Court’s decisions, a distinc-

tion without a difference. See, e.g., Oklahoma Publishing

Co. v. District Court, 430 U.S. 308 (1977) (per curiam);

Nebraska Press Ass'n vy. Stuart, supra; New York Times

Co. v. United States, 403 U.S. 713 (1971) (per curiam); Near

v. Minnesota ex rel. Olson, supra.

Il. THE FIRST AMENDMENT CREATES A CON-

STITUTIONAL RULE OF PRIVILEGE UNDER

WHICH RESPONDENTS’ MAY NOT BE SUBJECT

TO PRIOR RESTRAINT.

A. AS RESPONDENTS’ PUBLICATIONS ARE TRUTHFUL, AC.

CURATE, FACTUAL REPORTS INVOLVING AN ASPECT OF

THE FUNCTIONING OF GOVERNMENT, AND THEIR IN-

FORMATION WAS LAWFULLY OBTAINED, RESPONDENTS

ARE PRIMA FACIE ENTITLED TO THE PROTECTION OF

THE FIRST AMENDMENT.

Through the enactment of section 47-7-3, West Virginia

has made illegal the newspaper publication of the name of

a delinquent child without prior court permission. Amici

assert that the publication of this information fully merits

complete constitutional protection, at very least when the

publisher did not employ illegal means to obtain the

delinquent’s name. Cf. Landmark Communications, Inc. v.

7

Virginia, 435 U.S. 829, 837 (1978). Central to amici's con-

tention is that Respondents’ publications are imbued with

three attributes that this Court has identified as salient

features in its decisions extending First Amendment pro-

tection to both published material and speech.

First. The juvenile justice system is clearly both a “govern-

mental affair,”’ see Mills v. Alabama, 384 U.S. 214, 218-19

(1966); cf. Landmark Communications, Inc. vy. Virginia,

supra at 837-39, and a matter of public concern and im-

portance, cf. Pell v. Procunier, 417. U.S. 817, 830 n.7

(1974); Thornhill y. Alabama, 310 U.S. 88, 101-02 (1940).

Juvenile courts were established as an entity of the judicial

system separate from the criminal courts on the theory that

delinquent children should not be subjected to the harsh-

ness of the criminal process. Jn re Gault, 387 U.S. 1, 14-

16 (1967); Kent v. United States, 383 U.S. 541, 554-55

(1966); Note, Rights and Rehabilitation in the Juvenile

Courts, 67 Colum. L. Rev. 281, 282 (1967). Hence an article

on the juvenile justice system clearly falls: within the Mills

definition of discussions of ‘‘governmental affairs,”’ which

covers discussion of the structure and forin of government

and the manner in which government is or should be

operated. 384 U.S. at 218-19.' Moreover, because of the

disappointing results realized by the juvenile justice

system, McKeiver v. Pennsylvania, 403 U.S. 528, 543-45

(1971); Kent v. United States, supra at 555-56, the system

has come under a torrent of criticism. E.g., President’s

Commission on Law Enforcement and Administration of

Justice, Task Force Report: Juvenile Delinquency and

Youth Crime (1967). The result has been ever increasing

pressure for change and for the trial of many youths as

adults. Clearly, then, the proper functioning of the juvenile

'By applying the due process clause to the procedures used in juvenile

court, ¢.g.. In re Winship, 397 U.S. 358 (1970); In re Gault, supra; see

McKeiver y. Pennsylvania, 403 U.S. 528 (1971), this Court has

recognized the juvenile justice system as a function of state government.

8

justice system is a matter of great public concern. See

generally IJA/ABA Juvenile Justice Standards Project, 57

B.U.L. Rev. 617 (1977).

The protection of discussion of governmental affairs and

matters of public concern as a major purpose of the First

Amendment has been a constant theme running through

this Court’s opinions. For example, in Thornhill vy.

Alabama, 310 U.S. at 101-02, the court proclaimed that at

very least freedom of speech embraced the truthful, public

discussion of ‘‘all matters of public concern without

previous restraint or fear of subsequent punishment,” to

adequately supply “the public need for information and

education with respect to significant issues of the times.”

Accord, Grosjean v. American Press Co., 297 U.S. 233, 230

(1936). See also 2 T. Cooley, Constitutional Limitations

885 (8th ed. 1927). The need to freely discuss society’s

problems, protected by the First Amendment, overcomes

even the need for courts to restrain out-of-court attacks on

the conduct of their judicial affairs. Wood v. Georgia, 370

U.S. 375 (1962); Pennekamp v. Florida, 328 U.S. 331

(1946).

Concomitantly, the Court has voiced the recognition that

in modern society individuals have only limited time and

resources with which to observe for themselves the

operations of government. Consequently, they must rely on

the media as their ‘‘eyes and ears,’ Houchins vy. KQED,

Inc., 98 S. Ct. 2588, 2594 (1978) (plurality opinion), to

digest and present the facts of those operations, Estes y.

Texas, 381 U.S. 532, 539 (1965). Especially with respect to

judicial proceedings, ‘‘the function of the press serves to

guarantee the fairness of trials and to bring to bear the

beneficial effects of public scrutiny upon the ad-

ministration of justice.’’ Cox Broadcasting Corp. vy. Cohn.

420 U.S. 469, 491-92 (1975). Not without justification has

this Court regarded the press as ‘‘the handmaiden of ef-

fective judicial administration . . . guard[ing] against the

—

9

miscarriage of justice by subjecting the police, prosecutors,

and judicial process to extensive public scrutiny and

criticism.”’ Sheppard v. Maxwell, 384 U.S. 333, 350 (1966);

cf. Mills v. Alabama, 384 U.S. at 219.

Second. These publications are, beyond dispute, truthful

and accurate descriptions of the events that transpired. The

functions of free speech and a free press are so fun-

damental that this Court has extended extraordinary con-

stitutional protection to false statements of fact concerning

government officials and public figures. Curtis Publishing

Co. v. Butts, 388 U.S. 130 (1967); New York Times Co. v.

Sullivan, 376 U.S. 254 (1964); cf. Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974). Hence, it would be the height of

irony for the Court to deny protection to publishers of

truthful statements of governmental affairs. Cf. Landmark

Communications, Inc. v. Virginia, supra; Cox Broadcasting

Corp. v. Cohn, supra.

Third. The means by which the delinquent’s name was

procured brings Respondents within the protection of the

First Amendment; they relied primarily on public officials

who knew the delinquent’s name. In Cox Broadcasting

Corp. v. Cohn, 420 U.S. at 491, 495, this Court held that the

press could not be subject to civil liability for publishing in-

formation it obtained through a court record. Cf. Craig v.

Harney, 331 U.S. 367, 374 (1947). Logically, however,

protection for publishing material obtained from public

sources cannot be limited to that obtained from court

records. See Oklahoma Publishing Co. v. District Court,

430 U.S. at 310 (information was placed in the public

domain). Indeed, in Landmark Communications Inc. v.

Virginia, supra, the material could only have come from a

public official or other state employee. Yet the Court held

that publishing the information so obtained could not be

punished consistent with the First Amendment. The

plurality opinion in Houchins v. KQED, Inc., 98 S. Ct. at

2594, synthesized these and other cases, concluding that

10

‘the government cannot restrain communication of

whatever information the media acquires — and which they

elect to reveal.”

Altogether, Houchins, Oklahoma Publishing, Landmark

and Cohn hold that if the government has a legitimate

expectation of confidentiality, it must ensure that con-

fidentiality by withholding that information from the

public. These cases stand for the proposition that once that

information has escaped the confines of the government

circle and found its way into the public domain, the press

may publish it with impunity, at least so long as the press

used no illegal means to obtain that information. Cf. Land-

mark Communications, Inc. v. Virginia, 435 U.S. at 837;

Craig v. Harney, 331 U.S. at 374.”

The West Virginia statute acutely undermines the ability

of the press to serve the functions in a free society that this

Court has recognized as vital. In addition to its immediate

effect is the potential for abuse that such a ruling would

have. A ruling by this Court upholding the West Virginia

statute will encourage local jurisdictions to try to shield

various parts of their operations from disclosure by im-

posing punishment on the press for publishing confidential

information.

Such a decision could represent a first intrusion of govern-

ment into the function of newspaper editors — to decide

what will go into a newspaper. Miami Herald Publishing

*Moreover, in this case, the name of the delinquent was a matter of

general public knowledge. It had been broadcast over three radio

stations. Cf. Nebraska Press Ass'n v. Stuart, 427 U.S. at 567; id. at 595-

S6 (Brennan, J., concurring); Cox Broadcasting Corp. y. Cohn. 420 U.S.

at 493-94, quoting Restatement (Second) of Torts § 652D (Tent. Draft

No. 13, Apr. 27, 1967).

It would be ironic that if the Court upholds the West Virginia statute,

the privacy interest of a rape victim will not protect her name from

publication while that of the alleged rapist will be protected if he is a

juvenile, even if both names are in the public domain.

11

Co. v. Tornillo, 418 U.S. 241, 258 (1974). The Court there

stated:

The choice of material to go into a newspaper,

and the decisions made as to limitations on the

size and content of the paper . . . constitute the

exercise of editorial control and judgement. It has

yet to be demonstrated how governmental

regulation can be exercised consistent with First

Amendment guarantees . . . as they have evolved

to this time.

Id. at 258.

The case before the Court presents the other side of the

coin from Tornillo. Rather than indirectly inhibiting the

vital functions of the press, the state reduces the coverage of

governmental affairs by directly prohibiting the publishing

of information it does not wish the public to receive. Thus

the ultimate effect of such a law is to sanction direct govern-

ment regulation of the content of a newspaper, to permit a

state to do directly what it cannot do indirectly. In vitiating

Tornillo, this Court would set out on a path that would lead

to “{a] popular Government without popular information,

or the means of acquiring it,” which Madison noted, is

but a Prologue to a Farce or a Tragedy; or, perhaps both.

Letter from James Madison to W.T. Barry (Aug. 4, 1822),

reprinted in 9 Writings of James Madison 103 (G. Hunt ed.

1910).

12

B. BECAUSE RESPONDENTS’ PUBLICATIONS MERIT PRIMA

FACIE CONSTITUTIONAL PROTECTION, THE STATE

MAY NOT IMPOSE A PRIOR RESTRAINT ON THOSE PuB.-

LICATIONS EXCEPT BY DISCHARGING A PAR-

TICULARLY HEAVY BURDEN TO SHOW THAT ITs LAw

COMES WITHIN A SUBSTANTIVE EXCEPTION TO THE

RULE AGAINST PRIOR RESTRAINT, DoES NOT ALLOW

THE OFFICIAL WHO ADMINISTERS THE LAW Too GREAT

DISCRETION, AND PROVIDES FOR MEANINGFUL JupI-

CIAL REVIEW.

This case thus involves a statutorily imposed prior

restraint that impacts directly upon the exercise of fun-

damental First Amendment rights. All prior restraints

come before this Court presumptively unconstitutional.

E.g., New York Times Co. y. United States, 403 U.S. at

714; Carroll vy. President and Comm'rs, 393 U.S. 175, 181

(1968); Bantam Books, Inc. vy. Sullivan, 372 U.S. 58, 70

(1963). The state must bear a heavy burden to justify the

imposition of such a restraint. Nebraska Press Ass'n v.

Stuart, 427 U.S. at 545, 558, and must demonstrate that its

regulation affects only those substantive matters that this

Court has identified as exceptions to the First Amendment

rule against prior restraints. Jd. at 592 (Brennan, J., con-

curring); Southeastern Promotions, Ltd. v. Conrad, 420

U.S. at 559. Even if the state can bear this burden suc-

cessfully, it must provide standards that impose strict

limitations on the discretion of the official administering

the restraint, e.g., Hynes v. Mayor and Council, 425 U.S.

610, 616-18 (1976); Shuttelsworth v. City of Birmingham,

394 U.S. 147, 150-51 (1969); Lovell v. City of Griffin, 303

U.S. 444, 451 (1938), “procedural safeguards designed to

obviate the dangers of a censorship system,” e.g.

Southeastern Promotions, Ltd. v. Conrad, supra at 559-62:

Freedman v. Maryland, 380 U.S. 51, 58 (1965), and an op-

portunity for prompt and meaningful judicial review with

the burdens of going forward and proof on the govern-

ment, Freedman vy. Maryland, supra, at 58; see Bantam

Books, Inc. v. Sullivan, supra at 70-71; cf. Kingsley Books,

13

Inc. v. Brown, 354 U.S. 436, 441-42 (1957). See generally

Monaghan, First Amendment ‘Due Process’’, 83 Harv. L.

Rev. 518 (1970). Amici submit that Petitioners have not, in-

deed cannot, satisfy their burden.

1, Respondents’ Publications Do Not Fall Within One of

the Substantive Exceptions to the Rule Against Prior

Restraint.

The First Amendment’s protection against prior restraint

is broad and the exceptions to the rule correspondingly

narrow; there are only three. A publication may be subject

to prior approval when it implicates the need to protect

“the primary requirements of decency . . . against obscene

publications” or the security of “‘community life . . . against

incitements to acts of violence and the overthrow by force of

orderly government ... .’’ Near v. Minnesota ex rel. Olson,

283 U.S. at 716. The third exception involves the sup-

pression of military information when the nation ‘s at war.

Id.; cf. New York Times Co. v. United States, supra.

It belabors the obvious to state that none of these ex-

ceptions apply to the case bar. As its sole interest,’ the

Petitioner alludes to this Court’s statement in /n re Gault,

387 U.S. at 25, that

there is no reason why, consistently with due

process, a State can ot continue if it deems it ap-

propriate, to provide for the confidentiality of

records of police contacts and court action

relating to juveniles.

‘Here the state does not advance an interest in the delinquent’s

receiving a fair trial. Cf: Nebraska Press Ass'n v. Stuart, supra. Indeed,

it could not advance such an interest because juvenile trials are con-

ducted to judges. whom this Court assumes will act responsibly to

“ignore the public clamor or media reports and editorials in reaching

their decisions ... ."° Landmark Communications, Inc. vy. Virginia, 43S

U.S. at 839.

14

Relying on Government of Virgin Islands v. Broadhurst,

285 F. Supp. 831 (D.V.I. 1968), the Petitioner argues that

the limitations placed upon the press were justified in light

of the interest of rehabilitating juvenile offenders.

In short, Petitioners are asking this Court to create a new

exception to the rule against prior restraints for the names

of juvenile delinquents. Amici most strenuously assert that

such an exception to one of the premier protections of a free

press in this country would be most inappropriate. In

Nebraska Press, the state effectively invited the Court to

engraft another exception on the prior restraint rule to

protect the right to a fair trial guaranteed by the Sixth

Amendment. 427 U.S. at 594 (Brennan, J., concurring).

The Court, however, refused to order the priority among

constitutional rights. Jd. at 561 (majority opinion). In the - -

present case, there is not even a possible conflict between

constitutional rights; the conflict is between a fundamental

constitutional right and a state created remedy to a per-

ceived evil.

Even if an interest of less-than-fundamental con-

stitutional importance could ever support an exception to

the First Amendment rule against prior restraints, the

Petitioners have failed to show by specific facts that even a

statute requiring all media that wish to publish names of

delinquents to submit such publications for prior approval

would necessarily, or even arguably, advance the cause of

juvenile rehabilitation. Indeed, this Court has indicated its

doubt that juvenile proceedings complete with the mantle

of secrecy, has advanced the cause of juvenile rehabilitation

one iota. McKeiver vy. Pennsylvania, 403 U.S. at 543-45; In

re Gault, 387 U.S. at 17-20. Thus, even if juvenile

rehabilitation were an interest sufficient to subordinate

fundamental First Amendment rights to the shackles of a

prior restraint, the state has failed to produce “actual facts”

to demonstrate that the publication of delinquents’

a a ee rrr: + eet 0 mE ee a Aa RAT

Fs)

names present a clear and present danger to that interest.

Landmark Communications. Inc. v. Virginia, 435 U.S. at

842-44.

Moreover, even when a state’s interest is sufficient to

restrict First Amendment freedoms, its statute must be

framed to utilize the least restrictive means that necessarily

furthers only that interest. Aptheker v. Secretary of State,

378 U.S. 500, 508 (1964); see Nebraska Press Ass'n v.

Stuart, 427 U.S. at 563-70. As amici have already noted, see

pp. 9-10 supra, Houchins, Oklahoma Publishing, Land-

mark Communications and Cohn taken altogether require

the state to maintain confidentiality by withholding the in-

formation for which it seeks secrecy from the public rather

than punishing its disseminators or restraining its

dissemination once the information has reached the public

domain. That approach is entirely consistent with the

Gault dictum. Whether there is an interest in rehabilitation

sufficient to support the state statute in question, cf. Gregg

v. Georgia, 428 U.S. 153 (1976) (upholding death penalty),

when such a less restrictive means is available, indeed is

constitutionally mandated, denying the press the protection

of the First Amendment would fly in the face of nearly 200

years of constitutional adjudication. Here, as in Nebraska

Press, the information under the prior restraint was already

public knowledge. Having reached the attention of the

public, that information may no longer be shielded from

publication.

Finally, the statute suffers from the constitutionally

prohibited infirmity of according unequal treatment among

the media based on content to protected First Amendment

interests. See Police Dep't v. Mosley, 408 U.S. 92, 94-96,

99-102 (1972); Williams v. Rhodes. 393 U.S. 23 (1968). The

statute reaches publication but makes no attempt to

require prior approval of broadcast of the identical in-

formation. The Petitioners can hardly claim that its

disparate treatment of newspapers necessarily furthers its

16

asserted interest. The statute prohibits only newspaper

publication. The state has not attempted to show, indeed it

could not show consistent with common sense, that sup-

pressing only newspaper publication, while permitting

broadcast, or other media circulation, of delinquents’

names will result in juvenile rehabilitation. For that reason

the statute must fall as being underinclusive.

2. West Virginia Code Section 49-7-3 is Unconstitutional in

That It Imposes No Standards on a Judge’s Discretion to

Permit or Forbid Publication and Does Not Provide for

Expedited Judicial Review.

Under West Virginia Code section 49-7-3, a judge may

grant or withhold permission to publish the juvenile’s name

for any reason or no reason at all. His authority is com-

pletely unfettered. Thus in a case like this, when the in-

formation has already reached the public and the con-

fidentiality provision would serve no further purpose, a

judge may still withhold permission to disclose the name,

thus making its newspaper publication punishable. Such

unfettered discretion has been heretofore anathema. See,

e.g., Shuttlesworth y. City of Birmingham, 394 U.S. at 150-

S1 & n.2.

The statute also contains significant procedural defects.

The fact that a judge first passes upon a newspaper’s

request to publish the juvenile’s name does not, in this case,

answer this Court’s concern with procedural safeguards. A

newspaper must present its petition to the court that has

jurisdiction over the delinquent. Thus the judge might not

be a disinterested adjudicator; the judge would have the

power to suppress a name the revelation of which would be

embarassing to him. Cf. New York Times Co. v. United

States, 403 U.S. at 724 (Douglas, J., concurring). If per-

mission to publish is refused, the newspaper has the burden

of petitioning for review of that decision. This Court clearly

requires that once permission is denied, the state must vin-

dicate the validity of the prior restraint by seeking judicial

17

affirmance of that decision. Freedman v. Maryland, 380

U.S. at 58-59, and it bears the burden of showing that

publication should be restrained. Yet, should the

newspaper lose under the statute at issue here, it, not the

state, would bear the burden of instituting the appeal and

the burden of proof on appeal. /d.

Furthermore, no provision guarantees that such a

petition will result in prompt review. Time is of the essence

in publishing newsworthy events. See Nebraska Press Ass'n

v. Stuart, 423 U.S. 1327, 1328-29 (1975) (Blackmun, Circuit

Justice). Every day the press is denied permission to publish

amounts to a “flagrant, indefensible, and continuing

violation of the First Amendment.” New York Times Co. vy.

United States, supra at 715 (Black, J., concurring). In this

case, the Respondents petitioned for an extraordinary

remedy after their indictment. Although the West Virginia

Court acted with admirable dispatch, significant time elap-

sed before a final order issued. Because the name had been

published, the harsher effects of a prior restraint were not

in issue. Had the Respondents withheld publication pen-

ding permission from the lower court and had it been

necessary to appeal a refusal, the news story would have

been delayed by several months, even if the court had

acted with equal speed.*

The distinction between this Court’s ‘‘First Amendment

‘Due Process’’’> cases and the case at bar lies in the judicial

administration of the prior restraint. However, a prior

restraint is just as pernicious in the hands of a judge, who

might well not enjoy the insulation from the political

‘The West Virginia Court issued a rule in prohibition several weeks

before its judgment. Preliminary injunctive relief would not have been

possible to it if it were reviewing the denial of authorization to

publish. because such preliminary relief would have cleared the way

for the publication of the name the juvenile, the very damage that the

statute seeks to avert.

‘Monaghan, First Amendment ‘Due Process”. supra.

18

process that Article III provides for federal judges, as in

those of an executive official. Compare Nebraska Press

Ass'n v. Stuart, supra, and New York Times Co. y. United

States, supra, with Southeastern Promotions, Ltd. v.

Conrad, supra, and Lovell v. City of Griffin, supra. With a

fundamental First Amendment right at stake, this Court

should not be parsimonious with procedural protections,

which as Justice Frankfurter recognized, are inseparable

from the history of American freedom. Malinski vy. New

York, 324 U.S. 401, 414 (1945) (separate opinion).

CONCLUSION

WHEREFORE, in view of the above, amici respectfully

request that this Court affirm the judgment of the West

Virginia Supreme Court of Appeals, thereby vindicating

the right of the press and the public to receive and publish

information on governmental affairs and matters of con-

cern to the public, information necessary to the survival of

democratic government.

Respectfully submitted,

RICHARD M. SCHMIDT, JR.

IAN D. VOLNER

DAVID M. RICKLESS

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae

January 25, 1979

19

Of Counsel:

J. LAURENT SCHARFF, ESQUIRE

PIERSON, BALL & DowD

1000 Ring Building

1200 Eighteenth Street, N.W.

Washington, D.C. 20036

Attorney for Radio Television News

Directors Association

ERWIN G. KRASNOW, ESQUIRE

1771 N Street, N.W.

Washington, D.C. 20036

Attorney for National Association

of Broadcasters

W. TERRY MAGUIRE, ESQUIRE

1627 K Street, N.W.

Suite 400

Washington, D.C. 20006

Attorney for National Newspaper

Association, West Virginia Press

Association, Illinois Press Association,

and Clarksburg Publishing Company

JACK LANDAU, ESQUIRE

1750 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Attorney for Reporters Committee

for Freedom of the Press

20

CERTIFICATE OF SERVICE

I, Richard M. Schmidt, Jr., a member of the Bar of the

United States Supreme Court, hereby certify that three true

copies of the Motion of American Society of Newspaper

Editors; Radio Television News Directors Association;

National Newspaper Association; National Association of

Broadcasters; The Society of Professional Journalists,

Sigma Delta Chi; Reporters Committee for Freedom of the

Press; National Press Club; Associated Press Managing

Editors; West Virginia Press Association; Illinois Press

Association; and Clarksburg Publishing Company for

Leave to File Brief, Amici Curiae, in Support of Af-

firmance, and Brief Amici Curiae were served pursuant to

Supreme Court Rule 33(1) by mailing the same through the

United States Postal Service, first class postage prepaid, on

this 25th day of January 1979, upon the following:

F. Paul Chambers

Michael A. Albert

W. Henry Jernigan, Jr.

Jackson, Kelley, Holt & O’Farrell

1500 One Valley Square

Charleston, West Virginia 25322

Attorneys for Respondent Daily Mail

Publishing Company

Rudolph L. DiTrapano

DiTrapano, Mitchell, Lawson & Field

604 West Virginia Street East

Charleston, West Virginia 25301

Attorney for Respondent Daily

Gazette Company

21

Chauncey H. Browning

Cletus B. Hanley

Betty L. Caplan

State Capitol, Room E-26

Charleston, West Virginia 25305

Attorneys for Petitioners