# Amicus Brief — Smith v. Daily Mail Publishing Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1979
- **Citation:** 443 U.S. 97

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1752%3A07. Public record. Not legal advice.