Amicus Brief — Smith v. Daily Mail Publishing Co.

s “¢

IN THE

: Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-482

THe Hon. ROBERT K. SMITH, JUDGE, ET AL., ETC.,

Petitioners,

Vv.

STATE EX REL. Dam_y MAtrL PUBLISHING CO., ETC. ET AL.,

Respondents.

THE HON. RoBERT K. SMITH, JUDGE, ET AL., ETC.,

Petitioners,

Vv.

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

Respondents.

On Writ of Certiorari to the West Virginia

Supreme Court of Appeals

MOTION OF AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION

FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE

ARTHUR B. HANSON

FraNK M. NorRTHAM

MITCHELL W. DALE

ArTHUR D. MCKEY

HANSON, O’BRIEN, BIRNEY

AND BUTLER

888 Seventeenth Street, N.W.

Suite 1000

Washington, D.C. 20006

Attorneys for Amicus Curiae

American Newspaper Publishers

Association

IN THE

Supreme Cowt of the Wnited States

OcToBER TERM, 1978

No. 78-482

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

Petitioners,

Vv.

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

Respondents.

THE Hon. Rosert K. SMITH, JUDGE, ET AL., ETC.,

Petitioners,

Vv.

DON MARSH, ET AL., THE DaILy GAZETTE CO., ETC. ET AL.,

Respondents.

On Writ of Certiorari to the

West Virginia Supreme Court of Appeals

MOTION OF AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION

FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The American Newspaper Publishers Association

(ANPA) respectfully moves this Court for leave to file the

accompanying Brief Amicus Curiae in support of Respondents,

2

urging affirmance of the decision of the Supreme Court of

Appeals of West Virginia. Although the attorneys for Respon-

dents have consented to ANPA’s filing a brief amicus curiae,

the Petitioners have withheld consent.

The American Newspaper Publishers Association

(ANPA) is a non-profit membership corporation organized

and existing under the laws of the Commonwealth of Virginia.

Its membership consists of more than 1324 newspapers repre-

senting more than 91 percent of the total daily and Sunday

newspaper circulation in the United States. ANPA is concerned

with issues of general significance to the profession of journa-

lism and the newspaper business and, over the years, ANPA on

several occasions has presented its views to the Supreme Court

of the United States and to other federal and state appellate

courts. ANPA numbers eighteen members in the State of West

Virginia.

In its efforts to stay abreast of the broad realm of matters

affecting the people of our country as served by our newspaper

members, and the journalists who work for them, ANPA is ever

vigilant to protect the public’s right, under the First Amend-

ment, to information concerning the activities of government

and matters of public interest. ANPA and its members are

vitally interested in protecting and maintaining the primary

function of newspapers under our value system; namely, the

dissemination of information which is of vital interest to the

public.

In the case before this Court, the state of West Virginia has

imposed a system of prior restraint aimed specifically at

newspapers and only at newspapers. The statute in question

requires newspapers to apply to a court for prior permission to

publish constitutionally protected information in which the

public has a iegitimate interest. The statute in question is

without any standards to guide the censoring authority and

requires no assessment of its effectiveness prior to imposition of

3

a restraint on publication. Moreover, the statute uncon-

stitutionally discriminates against newspapers in allowing

broadcasters and other print media to publish the name of a

juvenile involved in delinquency proceedings, while denying

that same right to newspapers.

In view of the importance of the issues raised in this case

ANPA desires to present to this Court, for its assistance, the

Association’s views in regard to the significant legal questions

involved in this proceeding.

WHEREFORE, the American Newspaper Publishers Associ-

ation respectfully requests this Court to grant this motion and

permit ANPA to file the Brief Amicus Curiae attached hereto

and submitted herewith.

Respectfully submitted,

ARTHUR B. HANSON

FRANK M. NORTHAM

MITCHELL W. DALE

ARTHUR D.MCKEY

HANSON, O’BRIEN, BIRNEY

AND BUTLER

888 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Amicus Curiae,

American Newspaper Publishers

Association

INDEX

COUT TROIS PRIN Be ooo Sansccsckcccncccesccecocosecsencesccese

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED AND STATEMENT OF THE

PS IE E rinep sabia tocisratnersntenip~inidaimemnensanatiipciapittnaiiinns

I. Under the Decisional Authority Governing

Application of the First Amendment to the

United States Constitution, West Virginia

Code 49-7-3 Constitutes an Impermissible

Prior Restraint on Constitutionally Pro-

RRR EE LAT ESTES Re

II. Where a Statutory Scheme Requiring Official

Permission to Exercise First Amendment

Rights is Unconstitutional for Lack of Stan-

dards, Such Statutory Scheme may be lIg-

nored with Impunity.....................:ecceeeeeeeees

III. West Virginia Code 49-7-3 is Constitutionally

Deficient in Failing to Require, Prior to its

Application, a Showing of its Probable

Effectiveness in Achieving The State Inter-

est it is Designed to Serve................ccccseeeeees

IV. West Virginia Code 49-7-3 Violates the Equal

Protection Clause of the Fourteenth

Amendment in Requiring that Only News-

papers Obtain a Court Order Prior to Publi-

13

19

ii

TABLE OF CITA

CASES:

TIONS

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)...

Bates v. Little Rock, 361 U.S. 516 (1960)

Cantwell v. Connecticut, 310 U.S. 296 (1940)

oer eeeeeee

CBS v. Democratic National Committee, 442 U.S. 94

Ey, CERES ena

Chandler v. Judicial Council, 398 U.S

SOOO RHETT EOE OEE EEEEE

. 74 (1970).......

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)...

Chicago Police Department v. Mosley, 408 U.S. 92 -

(ISTE taicel, LL... EE

(PPT Sitiettepssemaihoniarseyndeiisines.>-

Craig v. Harney, 331 U.S. 367 (1947)

Elrod v. Burns, 427 U.S. 347 (1976)..

Garrison v. Louisiana, 379 U.S. 64 (1964)

In re Gault, 387 U.S. 1 (1967)............

In re Winship, 397 U.S. 358 (1970)...

Gitlow v. New York, 268 U.S. 652 (1925)

eee ee eee eee eee ee ee ee eee

FOTO OReE eee

Fete eee weeee

eee eee eee eee eee eee

TORO Ree H eee

Government of Virgin Islands v. Brodhurst, 285 F.

Supp. 831 (D.C. Virgin Islands, 1968).....................

Hague v. C.1.0., 307 U.S. 496 (1938)

Houchins v. KQED, Inc., ____U.S.____, 57 L.Ed 2d

3593 ( RB}. ii teil abiteiaedl A.

Inmates of Boys Training School v.

Supp. 1354 (D.R.1. 1972) 0...

Kovacs v. Cooper, 336 U.S. 77 (1949)

Kunz v. New York, 340 U.S. 290 (195

Laird v. Tatum, 409 U.S. 824 (1972)

Affleck, 346 F.

PPP ee eee eee eee ere ees

Pee eee eee eee eee eee ee

i niibplnicntdendenssinis

a

Page

Landmark Communications Inc., v. Virginia,

US. es Re TG | 6, 13, 19

Lovell v. Griffin, 303 U.S. 444 (1938) 0... eeeeeeeeeeeee 15

McKeiver v. Pennsylvania 403 U.S. 528 (1971) .......... 11

McLaughlin v. Florida, 379 U.S. 184 (1964)............... 4,10

Mancuso v. Taft, 476 F.2d 187 (Ist Cir. 1973) ........... 22

Martarella v. Kelly, 349 F. Supp. 575 (S.D.N.Y.

OGTR evcccicicicshdicDa chitinase thse tthalpeatiticesbicinisitalaesest 4,11

Miami Herald Publishing Co. vy. Tornillo, 418 U.S.

BOR CTI cacti dhs cticheccdhnthe Mactunititibaniabindscicsctissiginboes 18, 23

Miller v. California, 413 U.S. 15 (1973) 0... eee eeeeeee 9

Mills v. Alabama, 384 U.S. 214 (1966) ..........0..:eeeee 6

Morales v. Thurman, 383 F. Supp. 53 (E.D. Tex.

PB iceckervncs a cnctocsthadal atbtiatengdgttimepedicteeptesvagyecaetinkers 11

NAACP v. Button, 371 U.S. 415 (1963) ..0..... eee eeeeeee 22

Near v. Minnesota, 283 U.S. 697 (1930) ...............e00008 9

Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976) 4, 5, _ be

Nebraska Press Ass'n v. Stuart, 423 US. 1327

(1975) ( Blackmun, Circuit Justice, mem ).............-- 19

Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974)............ 11

New York Times Co. v. Sullivan, 376 U.S. 254

i ncncanscat/sctipngs reader cieainansttigaienggenteinpignapscinces 7

New York Times Co. v. United States, 430 U.S. 713

CRG Fi. cccssorniniiasapasingssninicieecpeilieiestpeibontueidtirantiterevesin 10

Pell vy. Procunier, 417 U.S. 817 (1974) co... ccccccceeeeeeeeees 6

Red Lion Broadcasting Co., Inc. v. FCC, 495 US.

GT occcocecsocesosestedinneeentdaiiateididrewsSneittnnandtapconpooes 5, 22, 23

Reed v. Reed, 404 U.S. 71 (1971) .....:cccccecccceesesceereeeees 21

Regents of the University of California v. Bakke

U.S.____, 57 L.Ed.2d 750, (1978 ).................. 21

iv

Puge

Roth v. United States, 354 U.S. 476 (1957)............000+. 9

Schenck v. United States, 249 U.S. 47 (1919)............. 10

Schneider v. State, 308 U.S. 147 (1939) .........cccceeeeeeee 15

Shuttlesworth v. City of Birmingham, 394 U.S. 147

CD ijeewiccssteseensiditih dvlbiitdnpnitligls tint ds ccunieess 5, 15, 17

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

FE EE cebintintrinscttetsotiritinicdibicigminiiennmetisicigin 22

Southeastern Promotions, Lid. vy. Conrad, 420 U.S.

OE EF Miceositeindnvctetcccenivieoteponnpbtanatiagtintiadinttbthdins 16

State ex rel Harris v. Calendine, 233 S.E. 2d 318

CW AG Or FEF Faia sn piiallintaldlgpeigaeinniinn 12

State ex rel Wilson v. Barnbrick, 195 S.E. 2d 721 -

OE FD whic dies stiiscvtentidsticcsnlaatiaimigpatnicovigiie 12

Staub v. City of Baxley, 355 U.S. 313 (1958) .............. 5

Thomas v. Collins, 323 U.S. 516 (1945) .....ccccccccescceeee 13

United States v. C.1.0., 335 U.S. 106 (1948) «00.0.0... 13

UNITED STATES CONSTITUTION:

TCT Yo OE TE TD passim

Fourteenth Amendment ...................20:ccssccseeceeeeees 12,21,24

CONSTITUTION OF WEST VIRGINIA ............0.c:ccceseeeeeeeees 10

STATUTES:

West Virginia Code § 49-7-3 o00........ccccceceeceecceeeeees passim

OTHER AUTHORITIES:

T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION

Emerson, The Doctrine of Prior Restraint, 20 Law &

CONTEMP. PROB. 648, (1955). ........:ccccseccceceeeeesseeeeeees 4,14

' IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No. 78-482

THE Hon. Rosert K. Smaitu, JupGe, Et AL., Etc.,

Petitioners,

Vv.

STATE Ex Ret. DamLy MAIL PUBLISHING Co., Etc. ET AL.,

Respondents.

THE Hon. ROBERT K. SmiTuH, JuDGE, Et AL., Etc.,

Petitioners,

Vv.

Don Marsh, Et AL., THE DatLy Gazette Co., Etc. Et AL.,

Respondents.

Oa Writ of Certiorari to the West Virginia

Supreme Court of Appeals

BRIEF AMICUS CURIAE OF

AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION

2

PRELIMINARY STATEMENT

The American Newspaper Publishers Association submits

this brief amicus curiae in support of Respondents, Daily Mail

Publishing Co., Don Marsh, The Daily Gazette Co., et al.

INTEREST OF THE AMICUS CURIAE

The American Newspaper Publishers Association (here-

inafter “ANPA”) is a non-profit membership corporation

organized and existing under the laws of the Commonwealth of

Virginia. Its membership consists of more than 1324 news-

papers constituting over 91 percent of the total daily and

Sunday newspaper circulation, and a significant portion of the

weekly newspaper circulation, in the United States. ANPA is

concerned with issues of general significance to the profession

of journalism and the newspaper business, and on several

occasions over the years ANPA has presented its views on such

issues, aS an amicus curiae, to the Supreme Court of the United

States and to other federal and state appellate courts. At

present there are eighteen ANPA members in the State of West

Virginia.

ANPA is greatly concerned about the enactment and

existence of various state statutes which dictate to the press

what matters of public interest may or may not be published;

which subject the exercise of protected press freedoms to prior

censorship at the hands of judges or other governmental

Officials; and which expose American newspapers to criminal

convictions for the truthful publication of newsworthy informa-

tion that has been obtained legally.

Because of these concerns and the potential erosion of First

Amendment freedoms posed by the existence of state statutes

such as West Virginia Code 49-7-3, ANPA respectfully presents

for consideration by this Court its views on the very significant

issues raised in this proceeding.

3

Questions Presented

I. Whether under the decisional authorities of this Court

West Virginia Code Section 49-7-3 constitutes an

unlawful prior restraint on constitutionally protected

speech.

II. Whether West Virginia Code Section 49-7-3 is uncon-

stitutional on its face for lack of ascertainable stan-

dards and may therefore be ignored with impunity.

III. Whether the statute in question is constitutionally

deficient for failing to require the censoring authority

to assess the effectiveness of a prior restraint on

publication.

IV. Whether the statute violates the equal protection clause

of the Fourteenth Amendment in requiring that only

newspapers obtain court permission prior to publica-

tion while the broadcast and other print media are free

to disseminate a juvenile’s name.

Constitutional and Statutory

Provisions Involved and Statement of the Case

ANPA adopts the constitutional and statutory provisions

involved and statement of the case as set forth in the brief of

Respondents. Additionally, ANPA asserts that the statute in

question is violative of the Equal Protection clause of the

Fourteenth Amendment.

SUMMARY OF ARGUMENT

West Virginia Code 49-7-3 imposes an unlawful prior

restraint on publication of information of legitimate public

concern—the identity of a juvenile alleged to have fatally and

feloniously shot a classmate while attending classes at a local

4

public high school. Petitioners assert that maintaining the

confidentiality of a juvenile offender’s identity through a restric-

tion on publication by newspapers serves to effectuate that

juvenile’s “right to rehabilitation” and therefore outweighs any

countervailing First Amendment values. Nonetheless, the

juvenile offender’s so-called right to rehabilitation, which some

courts now regard as correspondent to the Constitution’s prohi-

bition of cruel and unusual punishment and requirement of due

process, see Martarella v. Kelly, 349 F. Supp. 575, 585

(S.D.N.Y. 1972), heretofore has never been held sufficient to

exempt a State from the fundamental doctrine against prior

restraints on publication. See Nebraska Press Association v.

Stuart, 427 U.S. 539 (1976). Moreover, even assuming that

the state policy of rehabilitation rather than punishment, of its

juvenile offenders is “paramount, one of vital importance,”

Elrod v. Burns, 427 U.S. 347, 362 (1976), Petitioners have

presented no evidence to show that West Virginia Code 49-7-3

is “necessary, and not merely rationally related, to the accom-

plishment of [that] policy.” McLaughlin v. Florida, 379 U.S.

184, 196 (1964). If publication of the identity of a juvenile

offender endangers his allegedly paramount right to rehabilita-

tion, “(t]he danger must not be remote or even probable; it

must immediately imperil.” Craig v. Harney, 331 U.S. 367, 376

(1947).

There can be no doubt that the statutory scheme before

this Court, both on its face and in effect, operates as a restraint

on publication since it “undertakes to prevent future publication

without advance approval...{[and is] enforced by criminal

prosecution for having published without the required appro-

val.”” Emerson, The Doctrine of Prior Restraint, 20 LAW AND

CONTEMP. Pros. 648, 655 (1955). But “[iJt is settled by a long

line of ... decisions of this Court that an ordinance which, like

this one, makes the peaceful enjoyment of freedoms which the

Constitution guarantees contingent upon the uncontrolled will

of an official—as by requiring a permit or license which may be

granted or withheld in the discretion of such official—is an

5

unconstitutional censorship or prior restraint upon the enjoy-

ment of those freedoms.” Staub v. Baxley, 355 U.S. 313, 322

(1958).

For, where a statute imposes a prior restraint upon ex-

pression without providing objective and definite standards to

guide the licensing or censoring authority, under the First and

Fourteenth Amendments to the Constitution, parties subject to

such authority “may ignore it and engage with impunity in the

exercise of the right of free expression for which the law

purports to require a license.” Shuttlesworth vy. City of Birming-

ham, 394 U.S. 147, 151 (1969).

In Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976),

this Court struck down a gag order prohibiting the particular

content of publication on the ground, inter alia, that the size of

the small community affected and other practical problems

placed the efficacy of the order in grave doubt. West Virginia

Code 49-7-3 is similarly deficient in failing to explicitly require,

prior to its application to a specific publication, an assessment

of its probable effectiveness in preserving a juvenile offender’s

allegedly compelling right to rehabilitation.

Your amicus respectfully submits that the statute in ques-

tion also violates the equal protection clause of the Fourteenth

Amendment in requiring that only newspapers obtain court

permission to publish although the broadcast and other print

media are free to disseminate a juvenile’s name without prior

approval. Differential treatment among various media of

expression is permissible only if “reasonable and applied

without discrimination.” Red Lion Broadcasting Co., Inc. v.

FCC, 395 U.S. 367, 387 (1969); Kovacs v. Cooper, 336 U.S. 77

(1949). The differential treatment directed at newspapers by

West Virginia Code 47-7-3 is manifestly unreasonable and

discriminatory since no legitimate state purpose is served in

prohibiting only one medium from disseminating the name of a

juvenile, particularly where the broadcast media may reach a

much broader audience.

6

ARGUMENT

As stated by Respondents, the legal issue involved in this

case is whether a newspaper’s truthful publication, in violation

of a criminal statute, of the name of a juvenile who is suspected

in the homicide of a local high school student and who is the

subject of juvenile court proceedings is protected speech under

the First Amendment of the United States Constitution. This

case does not involve the allegation that the Respondent

newspapers unlawfully obtained the identity of the juvenile

suspect. Nor does this case involve the scope of a state’s power

to deny access to juvenile court proceedings’ or to punish

participants in said proceedings for violating a mandate of

confidentiality.

As stated by this Court in Mills v. Alabama, 384 U.S. 214,

218-19 (1966),

Whatever differences may exist about interpretations

of the First Amendment, there is practically universal

agreement that a major purpose of the Amendment

was to protect the free discussion of governmental

affairs.

See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92,

94 (1975); Garrison v. Louisiana, 379 U.S. 64, 74 (1964); New

‘Your amicus agrees that in the presence of a compelling

interest, it may be permissible for the state to attempt to preserve the

confidentiality of certain information by limiting the access of the

press to the sources of such information. Pell v. Procunier, 417 U.S.

817, 834 (1974). Furthermore, this Court has held that the press

enjoys no greater right of access than that of the general populace.

Houchins v. KQED, Inc., US. , 57 L.Ed 2d 553 (1978).

ANPA strongly asserts, however, that it is unconstitutional to prohibit

publication of information, no matter how such information is obtain-

ed. Nebraska Ass'n v. Stuart, 427 U.S. 539, 570 (1976) ( Brennan, J.,

concurring). It is similarly unconstitutional to punish, by criminal

sanction, the publication of “information once it falls into the hands of

the press, unless the need for secrecy is manifestly overwhelming.”

Landmark Communications Inc., v. Virginia, US. , 56

L.Ed. 2d 1, 17 (1978).

7

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Your

amicus respectfully submits that, as a general matter, the

operations of the local juvenile court system in its effort to cope

with the increasing problems of youth crime and juvenile

delinquency are “governmental affairs” of public interest to

citizens within the affected community. More specifically, the

apprehension, incarceration, judicial disposition, and identity of

a local juvenile alleged to have fatally and feloniously shot a

classmate while attending a local public high school are un-

doubtedly matters which legitimately concern students and

adults alike and constitute protected speech under the First

Amendment.

Counterposed against the constitutional right to publish the

identity of a suspected murderer is the juvenile suspect’s so-

called “right to rehabilitation,” asserted herein by the state

acting in its parens patriae role.2 Petitioners contend that a vital

aspect of the process of rehabilitating juvenile offenders is

maintaining to the greatest extent possible the confidentiality of

the juvenile’s name. It is contended that focusing public

attention on a juvenile miscreant hampers that juvenile’s efforts

to reintegrate himself into lawful society and to lead a normal

life. Petitioners maintain that, rather than serving as a deterrent

to further delinquent behavior, publication of the names of

juveniles involved in delinquency proceedings handicaps the

2 In 1899 the Chicago Bar Association described the function of a

state juvenile court system acting in its parens patriae role:

The fundamental idea of the juvenile court law is that the

state must step in and exercise guardianship over a child

found under such adverse social or individual conditions as

to develop crime .... It proposes a plan whereby he may

be treated not as criminal or legally charged with crime,

but as a ward of the state, to receive practically the care,

trust and discipline that are accorded the neglected and

dependent child, and which, as the State acts, shall

approximate as nearly as may be that which should be

given by parents. R. Pound, “The Juveniie Court and the

Law,” National Probation Association Yearbook, 1944,

Vol. 1, No. 3, p. 13.

8

juveniles’ ability to obtain employment and earn the respect

and confidence of the local community. Thus, Petitioners

contend that, by barring publication, the state’s efforts at

successful rehabilitation of its wayward juveniles are enhanced

to a degree sufficient to outweigh the abridgement of First

Amendment freedoms imposed by West Virginia Code 49-7-3.

Petitioners urge this Court to endorse the decision in

Government of Virgin Islands v. Brodhurst, 285 F.Supp. 831

(D.C. Virgin Islands, 1968). There, the United States District

Court for the Virgin Islands held “that the advantages accom-

plished by the shielding of the names of juveniles from

publicity outweighed those gained by allowing the publication

of the names of children, [and that] [t]he limitation placed

upon the press was justified in light of the interest of rehabilitat-

ing juvenile offenders.” Brief of the Petitioners at 9. While

recognizing the vital need for providing a juvenile court system

which can offer effective means of rehabilitating youthfv!

offenders, your amicus respectfully submits that the statutory

“right” of juvenile suspects in West Virginia not to have their

identities disclosed by newspapers is of no constitutional con-

sequence. It simply is not sufficiently compelling to justify the

creation of a new exception to the constitutional prohibition on

prior restraints on publication.

I. Under The Decisional Authority Governing Application

Of The First Amendment To The United States Con-

stitution, West Virginia Code 49-7-3 Constitutes An

Impermissible Prior Restraint On Constitutionally Pro-

tected Speech

In Nebraska Press Ass’n v. Stuart, Mr. Justice Brennan

correctly noted:

{I]t has been generally, if not universally, considered

that it is the chief purpose of the [First Amend-

ment’s] guaranty to prevent previous restraints upon

publication. Near v. Minnesota ex rel. Olson, 283 U.S.

697, 713 [1930]

9

427 U.S. 539, 588 (1976) (Brennan, J., joined by Stewart and

Marshall, J.J., concurring). Thus, “[a]ny system of prior

restraints of expression comes to this Court bearing a heavy

presumption against its constitutional validity.” Bantam Books,

Inc. v. Sullivan, 372 U.S. 58, 70 (1963).

It also is true, however, that “the [First Amendment]

protection even as to previous restraint is not absolutely unlim-

ited.” Near v. Minnesota, 283 U.S. 697, 716 (1930). The

established exceptions to such protection against previous re-

straints upon publication fall into three categories:

The first two exceptions were that “the primary

requirements of decency may be enforced against

obscene publications,” and that “[t]he security of the

community life may be protected against incitements

to acts of violence and the overthrow by force of

orderly government [for] [t]he constitutional guar-

anty of free speech does not ‘protect a man from an

injunction against uttering words that may have all

the effect of force....’”

Nebraska Press Ass’n, supra, at 590 (Brennan, J. concurring,

citing Near v. Minnesota, supra).

The third recognized exception, but one which this Court

has never actually applied in practice, may arise when our

country is at war, during which time “[n]o one would question

but that a government might prevent actual obstruction to its

recruiting service or the publication of the sailing dates of

transports or the number and location of troops.” Near v.

Minnesota, supra at 716.

Yet, even in a situation of national emergency caused by

war, “the First Amendment [will] tolerate absolutely no prior

3 These exceptions now have come to be construed as situations

involving communications other than “speech” as encompassed with-

in the meaning of the First Amendment. See, e.g., Miller v.

California, 413 U.S. 15 (1973); Roth v. United States, 354 U.S. 476,

481 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

10

judicial restraints of the press predicated upon surmise or

conjecture that untoward consequences may result.” New York

Times Co. v. United States, 403 U.S. 713, 725-26 (1971)

(Brennan J., concurring). Previous restraint upon the freedom

of speech encompassed within the First Amendment is per-

missible only when said speech “wiil surely result in direct,

immediate, and irreparable damage to our Nation or its

people.” Jd. at 730 (Stewart, J., joined by White, J., con-

curring). Cf., Craig v. Harney, 331 U.S. 367, 373 (1947);

Schenck v. United States, 249 U.S. 47, 52 (1919).

It is clear that West Virginia Code 49-7-3 imposes a prior

restraint on speech which is protected under both the First

Amendment to the United States Constitution and Article 3, §7

of the Constitution of West Virginia.‘ It requires newspapers

(and only newspapers) to obtain a court order before publish-

ing the name of a juvenile who is the subject of a delinquency

proceeding. It also is clear that the alleged violation of a

juvenile offender’s right to rehabilitation, which Petitioners

assert will result from publication of the juvenile offender’s

identity, does not fall within the traditional exceptions to the

ban on prior restraints. The issue which this Court must face,

therefore, is whether a juvenile offender’s specific right under

West Virginia Code 49-7-3 not to have his identity published

constitutes either (a) a new right of constitutional dimension

which justifies the curtailment of freedom of speech or (b) a

compelling state interest which is seriously and imminently

threatened by the publication at issue herein and which cannot

be accomplished by other means less restrictive of First Amend-

ment freedoms. See, e.g., McLaughlin v. Florida, 379 U.S. 184,

196 (1964); Bates v. Little Rock, 361 U.S. 516, 524 (1960);

Craig v. Harney, 331 U.S. 367, 373 (1947).

4 No law abridging the freedom of speech, or of the press, shall

be passed; but the legislature may by suitable penalties, restrain the

publication or sale of obscene books, papers, or pictures, and provide

for the punishment of libel, and defamation of character, and for the

recovery, in civil actions, by the aggrieved party, of suitable damages

for such libel, or defamation.

it can be assumed that significant state interests underlie

West Virginia’s statutory policy of providing a mechanism for

the rehabilitation, rather than punishment, of its juvenile

offenders. In other jurisdictions the courts have held that

juvenile inmates have a constitutional right to rehabilitative

treatment. See Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974);

Morales v. Thurman, 383 F.Supp. 53 (E.D. Tex. 1974);

Martarella v. Kelley, 349 F.Supp. 575 (S.D.N.Y. 1972); In-

mates of Boys Training School v. Affieck, 346 F.Supp. 1354

(D.R.I. 1972). These courts have held that the minimal

treatment required to provide incarcerated juveniles their right

to constitutional due process “should, so far as can be reason-

ably required, be what proper parental care would provide.”

Nelson v. Heyne, 491 F.2d 352, 360 (7th Cir. 1974). None of

these decisions, however, have held that provision for maintain-

ing the confidentiality of a juvenile offender’s identity is either

an element of due process or necessary to prevent cruel and

unusual punishment.

Nor has this Court definitively decided that a youth

confined under jurisdiction of a juvenile court has a general

constitutional right to treatmentS or that a provision such as

West Virginia Code 49-7-3 is a necessary element in either a

constitutional or a compelling state statutory scheme of

rehabilitation.6

5 The primary thrust of this court’s decisions in Jn re Winship,

397 U.S. 358 (1970) and In re Gault, 387 U.S. | (1967) is the

desirability, or rather necessity, for accurate fact-finding and adjudica-

tive procedures. Cf., McKeiver v. Pennsylvania, 403 U.S. 528, 531

(1971) (juveniles not entitled to jury trial).

6 The fundamental constitutional interest in protecting the press

from previous restraints on publication need not be balanced herein

against the state’s interest in the rehabilitation of maladjusted or

delinquent juveniles. I: is not contended herein that the numerous

elements of West Virginia’s juvenile rehabilitation program other than

West Virginia Code 49-7-3 conflict with Respondents’ First Amend-

ment freedoms. Nor have Petitioners demonstrated that an effective

overall program of rehabilitation necessitates keeping the identity of

juvenile offenders confidential.

12

As justification for the prior restraint on publication im-

posed by the statute in question, Petitioners also advert to the

West Virginia state policy of rehabilitation as discussed in State

ex rel. Harris vy. Calendine, 233 S.E. 2d 318 (W.Va. 1977).

There, the West Virginia Supreme Court of Appeals reaffirmed

that a juvenile defendant in a delinquency proceeding is

entitled to the procedural protections of the due process clause

of the Fourteenth Amendment to the Federal Constitution.

See, In re Gault, 387 U.S. 1, 24 (1967); State ex rel. Wilson v.

Barnbrick, 195 S.E. 2d 7Z1 (W.Va. 1973); W.Va.Code, 49-5-10

(1975). While noting that “[t]he legislature could choose to

punish children guilty of criminal conduct ..., but as a matter

of public policy ... provided instead for a comprehensive sys-

tem of child welfare,”” 233 S.E.2d at 325, the Court specifically

held that because of the fundamental difference between a

juvenile status offender and a juvenile criminal offender, the

indiscriminate incarceration of status offenders together with

criminal offenders violated the status offenders’ right to equal

protection of the laws, their right to substantive due process,

and their right to protection against cruel and unusual punish-

ment. Thus, Petitioners’ reliance upon Harris is misplaced, for

the Court there did not address either the specific state policy

contained in West Virginia Code 49-7-3 or the resolution of any

7 The court nevertheless acknowledged that “[i]t has always

been assumed that the Legislature can at any time withdraw some or

all of the benefits of this system from children guilty of criminal

conduct.” 233 S.E.2nd at 326. Thus, although legal proceedings for

the adjudication of a juvenile as a “delinquent” must comport with

procedural due process, and the incarceration of status offenders

under the states’ statutory policy of parens patriae must afford

substantive due process and equal protection of the laws, the court did

not hold that either the general right of a juvenile criminal offender to

rehabilitation, or his specific right not to have his identity published, is

a constitutional protection.

13

conflict between a juvenile criminal offender’s right to have his

identity kept secret and the First Amendment rights of anyone

else.®

In assessing whether West Virginia’s policy for the

rehabilitation of Stewart Perrock, as advanced by section

49-7-3, outweighs the First Amendment right of newspapers to

publish his identity, various factors relevant to this Court’s

standard of review must be borne in mind. First, this Court has

made it clear that laws which regulate activities protected by

the First Amendment are not accorded the presumption of

constitutionality normally accorded to acts of a legislature. See

United States v. C.1.0., 335 U.S. 106( 1948). Second, statutes

regulating constitutionally protected activities must be more

than merely rational; the government must have a compelling

state interest to justify the curtailment of otherwise protected

speech, and the scope of the curtailment must not be greater

than reasonably necessary to serve the state’s purpose. Thomas

v. Collins, 323 U.S. 516, 530 (1945).

Il. Where A Statutory Scheme Requiring Official Per-

mission To Exercise First Amendment Rights Is Uncon-

stitutional For Lack Of Standards, Such Statutory

Scheme May Be Ignored With Impunity

Your amicus respectfully submits that the Supreme Court

of Appeals of West Virginia correctly concluded that West

8In Landmark Communications, Inc. v. Virginia, US.

_____, 56 L.Ed.2d 1, (1978), the Commonwealth of Virginia argued

that criminal penalties against third parties who divulge information

regarding confidential proceedings before a state judicial review

commission were necessary to insure the effectiveness of said commis-

sion, and thereby protect the reputation of its judges and maintain the

integrity of its judicial system. Yet this Court held that “neither the

Commonwealth’s interest in protecting the reputation of its judges,

nor in maintaining the institutional integrity of its courts is sufficient to

justify the subsequent punishment of speech at issue here, even on the

assumption that criminal sanctions do in fact enhance the guarantee of

confidentiality.” Jd. at 12.

id

Virginia Code 49-7-3 imposed a prior restraint upon publica-

tion. The language of the statute prohibits publication without

explicit court permission:

Nor shall the name of any child in connection with any

proceedings under this chapter be published in any

newspaper without a written order of the court.

Review and analysis of the cases decided by this Court and

of the theory underlying the doctrine of prior restraint demon-

Strate that the statute at issue, both on its face and in effect,

operates as an unlawful prior restraint on publication.® More-

over, it is firmly established that, where a statute imposes a

prior restraint without adequate standards, a person faced with

such an unconstitutional statute may ignore it and engage with

impunity in the exercise of the right of free expression for which

9In Professor Thomas I. Emerson’s now famous article, “The

Doctrine of Prior Restraint,” 20, Law and Contemp. Prob. 648,

(1955), he sets out four categories, the first of which is pertinent to

analysis of the case at bar. Professor Emerson states:

The clearest form of prior restraint arises in those

situations where the government limitation, expressed in

Statute, regulation, or otherwise, undertakes to prevent

future publication or other communication without ad-

vance approval of an executive official. Such limitations

are normally enforced by criminal prosecution for having

published without the required approval, the prosecution

being based upon mere failure to obtain approval and not

on any issue concerning the content or manner of the

publication. Examples of this type of prior restraint are the

English licensing laws, motion picture censorship, the

requirement of permits for park meetings, and the like. In

some cases, the method of enforcement may be refusal by

the official to make available government facilities or

services, such as in denial of the use of the mails.

Id. at 655.

The statutory scheme in question involves a slight variation. A

judicial official rather than an executive official is empowered to grant

or refuse approval to publish. But here again, prosecution is based

upon “mere failure to obtain approval” and not upon the content or

manner of publication.

15

the law purports to require prior official approval. Shut-

tlesworth v. City of Birmingham, 394 U.S. 147 (1969). “[This]}

rule seems eminently sound and has not been seriously con-

tested.” T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION,

378-79 (1970). See also, Kunz v. New York, 340 U.S. 290, 293-

94 (1951); Schneider v. State, 308 U.S. 147, 161-62 (1939);

Lovell v. Griffin, 303 U.S. 444 (1938).

In Shuttlesworth v. City of Birmingham, 394 U.S. 147

(1969), this Court held violative of the First Amendment a

statute giving a City Commission power to refuse to issue a

permit for any “parade,” “procession” or “demonstration”

where the Commission determined that the “public welfare,

peace, safety, health, decency, good order, morale or con-

venience” were endangered. This result was reached in spite of

the Supreme Court of Alabama’s attempt to “perform ...

plastic surgery upon the face of the ordinance” by holding that,

in the future, certain standards should apply. Jd. at 153-54.

Writing for the Court, Justice Stewart, made an unequivo-

cal finding that a prior restraint existed and that the statute

could be properly ignored by those who sought to exercise First

Amendment rights. The opinion stated:

[A] law subjecting the exercise of First Amend-

ment freedoms to the prior restraint of a license,

without narrow, objective and definite standards to

guide the licensing authority is unconstitutional. “It

is settled by a long line of recent decisions of this

Court that an ordinance, which:like this one, makes

the peaceful enjoyment of freedoms which the Con-

stitution guarantees contingent upon the uncontrolled

will of an official—as by requiring a permit or license

which may be granted or withheld in the discretion of

such official—is an unconstitutional censorship or

prior restraint upon the enjoyment of those free-

doms.” Staub v. Baxley, 355 U.S. 313, 322.

16

394 US. at 150-51. Justice Stewart went on to say:

And our decisions have made clear that a person

faced with such an unconstitutional licensing law may

ignore and engage with impunity in the exercise of

the right of free expression for which the law purports

to require a license.

Id.

This Court reached a similar conclusion in Hague v. C.1.0.,

307 U.S. 496 (1938). There, a city ordinance purportedly

forbade public assembly in parks or streets in the absence of an

appropriate permit; such a permit could be obtained only from

a local official who was empowered to refuse issuance of the

permit if, in his judgment, riots or disturbances would be

prevented thereby. The ordinance was struck down as violative

of the First Amendment.

In Cantwell v. Connecticut, 310 U.S. 296 (1940), a Con-

necticut statute, which required religious groups to obtain

approval from a state administrative office prior to soliciting

support for their organizations, was held to constitute an

unlawful prior restraint on the exercise of First Amendment

rights. Speaking for a unanimous Court, Justice Roberts stated:

But to condition the solicitation of aid for the perpet-

uation of religious views or systems upon a license,

the grant of which rests in the exercise of a determi-

nation by state authority as to what is a religious

cause, is to lay a forbidden burden upon the exercise

of liberty protected by the Constitution.

310 US. at 307.

More recently, in Southeastern Promotions, Ltd. vy. Conrad,

420 U.S. 546 (1975), this Court struck down as violative of the

First Amendment a statutory scheme which enabled a munici-

pal licensing board to deny permission to use a city-leased

theater where, in the Board’s view, the production sought to be

17

presented would not be “in the best interests of the commu-

nity.” This standard was held to be lacking in constitutionally

required procedural safeguards. Justice White and Chief

Justice Burger pointed out in dissent, however, that the stan-

dard lease form used by the city required compliance with state

and local laws governing obscenity and “in this respect the

licensing system [was] not without standards.” Jd. at 564. In

the area of obscenity. however, this Court has developed a well

established body of constitutional law providing extensive

jurisprudential standards for determining when a prior restraint

on publication is constitutionally permissible under state law.

Reference to that body of law provides state and local adminis-

trative authorities and courts with the ultimate standards under

which they may exercise their authority to grant or deny use of

the theater.

In the case before this Court, there is no analogous body of

law to provide a judge in a juvenile proceeding with standards

for determining when the name of the accused may be pub-

lished. Moreover, it seems clear from Shuttlesworth that a

statute which provides no standards on its face may not be

rendered constitutional by “plastic surgery”, however skillfully

performed, by an appellate court. 394 US. at 153-54.

West Virginia Code 49-7-3 requires that a newspaper

obtain a “permit” in the form of a court order prior to

publishing the name of a juvenile adjudicated delinquent. This

statute is without any standards whatever. It therefore allows a

judge to act in an arbitrary manner with unfettered discretion in

regard to the issuance of orders allowing publication.

The fact that a judicial official rather than an adminis-

trative official is the grantor of the “license” provides no basis

for distinguishing this statute from the statute held uncon-

stitutional in Shuttlesworth. The fear that an administrative

official, exercising his discretion in the absence of appropriate

standards, may make decisions based on his own pre-

dispositions and beliefs is applicable equally to judges. As

18

Justice Douglas stated in Chandler v. Judicial Council, 398 US.

74 (1970):

Judges are not fungible; they cover the con-

stitutional spectrum; and a particular judge’s empha-

sis may make a world of difference when it comes to

rulings on evidence, the temper of the courtroom, the

tolerance for the proffered defense, and the like.

Lawyers recognize this when they talk about ‘shop-

ping’ for a judge; Senators recognize this when they

are asked to give their “advice and consent” to

judicial appointments; laymen recognize this when

they appraise the quality and image of the judiciary

in their own community.

Id. at 137 (Douglas, J., dissenting), quoted with approval in

Laird v. Tatum, 409 U.S. 824, 834 (1972) (Rehnquist, J.,

mem.). For this reason, judges as well as administrators must

be supplied with narrow, objective and definite standards when

First Amendment rights are involved.

To distinguish West Virginia Code 49-7-3 on the ground

that it involves a judicial rather than an administrative official

would be to exalt form over substance. As this Court has

recognized, “[g]overnmental restraint on publishing need not

fall into familiar or traditional patterns to be subject to

constitutional limitations on governmental powers.” Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974).

In view of the foregoing, it is clear that West Virginia Code

49-7-3 imposes an unconstitutional prior restraint on publica-

tion by requiring a newspaper to obtain a court order before it

may publish, while providing no standards to govern the

issuance of such an order. When controls on publication

operate in advance through a system of administrative permits,

court injunction, or, as here, judicial sanction, delay is endemic.

Time is of the essence in “the reporting of news by the media,

[for] each passing day may constitute a separate and cogni-

zable infringement of the First Amendment. The suppressed

19

information grows older. Other events crowd upon it. To this

extent, any First Amendment infringement that occurs with

each pa‘sing day is irreparable.” Nebraska Press Ass’n. v.

Stuart, 423 U.S. 1327, 1329 (1975) (Blackmum, Circuit Jus-

tice, mem). A prior restraint is more easily imposed, requires

less foundation in provable facts, and is less carefully weighed

than is the imposition of subsequent punishment. Even the best

intended system of advance controls is difficult to administer in

a way that fully safeguards First Amendment rights; an ill-

intended system easily can be utilized to throttle those rights.

“If the constitutional protection of a free press means anything,

it means that government cannot take it upon itself to decide

what a newspaper may and may not publish.” Landmark

Communications, Inc., v. Virginia, USS. , 56 L.ed 2d 1,

17 (1978) (Stewart, J., concurring ).

Il. West Virginia Code 49-7-3 Is Constitutionally

Deficient In Failing To Require, Prior To Its Appli-

cation, A Showing Of Its Probable Effectiveness In

Achieving The State Interest It Is Designed To Serve.

In assessing whether a particular state interest is sufficient

to justify the curtailment of free speech, this Court has taken the

firm position that, where a prior restraint on publication is

involved, the probable efficacy of such a measure must be

carefully assessed. In Nebraska Press Ass’n v. Stuart, 427 US.

539 (1976), this Court struck down a gag order prohibiting

publication on the ground, inter alia, that the practical prob-

lems involved placed the efficacy of the order in grave doubt.

Chief Justice Burger, writing for the Court, stated:

Finally, we note that the events disclosed by the

record took place in a community of 850 people. It is

reasonable to assume that, without any news ac-

counts being printed or broadcast, rumors would

travel swiftly by word of mouth. One can only

speculate on the accuracy of such reports, given the

generative propensities of rumors; they could well be

20

more damaging than reasonably accurate news ac-

counts. But plainly a whole community cannot be

restrained from discussing 2. subject intimately affect-

ing life within it.

Id. at 567.

Your amicus respectfully submits that a statute prohibiting

publication by newspapers of the name of a juvenile offender is

similarly ineffective and therefore unconstitutional. Under the

terms of West Virginia Code 49-7-3, news media other than

newspapers are free to publish the names of juvenile offenders;

and ail news media evidently may publish other details about a

juvenile offender which in a community the size of St. Albans,

West Virginia, may be just as identifying as his name—i.e., his

address, his parents’ names, his school, his photograph, etc. In

addition, court reporters, prosecuting attorneys, defense at-

torneys, and other participants in delinquency proceedings are

not subject to this statute and presumably may divulge a

juvenile offender’s identity with impunity.

The ineffectiveness of this statute in the instant case can be

easily demonstrated. The alleged murder occurred in the town

of St. Albans, West Virginia, a community of approximately

14,300 people.'? Many of the residents of this community were

personally acquainted with both the accused and the victim.

There were seven eyewitnesses to the shooting. News sources

for a story published by the Charleston Daily Mail on February

10, 1978, included a Lieutenant in the Kanawha County

Sheriff's Office, a trooper with the West Virginia State Police,

and an Assistant Prosecuting Attorney for Kanawha County.

Moreover, the name of the accused had already been made

public by the broadcast media on February 9, 1978, prior to

publication by the Charleston Gazette and Daily Mail. In light

of these facts, there can be little doubt that the prohibition upon

publication contained in West Virginia Code 49-7-3 is in-

effective in preserving the anonymity of juvenile offenders.

10 Rand McNally Commercial Atlas & Marketing Guide (1977)

(estimated population ).

21

Your amicus respectfully submits that, at the time and

under the circumstances of Respondents’ publications, there

was absolutely no evidence that, but for such publications

Stewart Perrock’s identity would have remained confidential, or

that his chances for ultimate rehabilitation would have been

diminished in any way. Moreover, the statute in question is

constitutionally deficient in failing to require this type of an

assessment of the effectiveness of the restraint on publication.

IV. West Virginia Code 49-7-3 Violates The Equal

Protection Clause Of The Fourteenth Amendment In

Requiring That Only Newspapers Obtain A Court

Order Prior To Publication.

The Supreme Court of Appeals of West Virginia found it

unnecessary to address the equal protection issue, choosing

instead to decide this case on First Amendment grounds. The

question of equal protection, however, was argued before that

court. In a recent case characterized by a similar procedural

posture, this Court utilized as the basis for its decision an

argument which was raised but not addressed by the court

below. Regents of the University of California v. Bakke,

U.S. , 57 L.Ed.2d 750, 765 (1978).

Your amicus respectfully submits that the West Virginia

statute which prohibits all newspapers from publishing the

name of juveniles accused of a crime, while permitting the

accused’s name to be broadcast or disseminated by other

individuals, clearly violates the equal protection guarantees

embodied in the Fourteenth Amendment. The right to equal

protection assures that the government cannot “legislate that

different treatment be accorded to persons placed by a statute

into different classes on the basis of criteria wholly unrelated to

the objective of that statute. A classification ‘must be reason-

able, not arbitrary, and must rest upon some ground of

difference having a fair and substantial relation to the object of

the legislation, so that all persons similarly circumstanced shall

be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412,

22

415 (1920).” Reed v. Reed, 404 U.S. 71, 75-76 (1971). A

denial of equal protection is subject to “strict scrutiny” where

the classification involved affects “basic civil rights.” Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).

Among those rights is the right to publish a newspaper. Gitlow

v. New York, 268 U.S. 652 (1925). This Court has required

strict scrutiny whenever a classification is even “closely inter-

twined” with First Amendment rights. Chicago Police Depart-

ment v. Mosley 408 U.S. 92, 95 (1972). See also NAACP v.

Button, 371 U.S. 415, 438 (1963); Mancuso y. Taft, 476 F.2d

187, 192-96 (Ist Cir. 1973). Under this standard, “the crucial

question is whether there is an appropriate governmental

interest suitably furthered by the differential treatment.” Chi-

cago Police Department v. Mosley, supra at 95. The statute in

question clearly fails this test. The state of West Virginia is

apparently attempting to prevent the dissemination of the

names of juveniles accused of crimes. This objective is in no

way “furthered” by prohibiting publication in a newspaper

while allowing the name to be disseminated by the broadcast

media.

In two cases involving broadcasting regulations, this Court

has upheld differential treatment for broadcasters as opposed to

newspapers. See CBS v. Democratic National Committee, 412

U.S. 94 (1973); Red Lion Broadcasting Co., Inc. v. FCC, 395

U.S. 367 (1969). In Red Lion, this Court concluded that such

differential treatment was warranted because:

[ B]roadcast frequencies constituted a scarce resource

whose use could be regulated and rationalized only

by the Government. Without government control,

the medium would be of little use because of the

cacaphony of competing voices, none of which could

be clearly and predictably heard.

Id. at 376.

Your amicus strongly asserts that Red Lion and CBS are

inapposite to the case before this Court. In those cases, federal

23

regulation of the broadcast media was held permissible on the

ground that inherent differences in the technical nature of the

broadcast media justified differential treatment under the First

Amendment. In the case before this Court, the discriminatory

treatment which newspapers receive is arbitrary, irrational, and

unrelated to the purposes the statute seeks to achieve. Broad-

casting a juvenile’s name may well result in greater dis-

semination than “illegal” publication in a newspaper. The

differential treatment afforded newspapers by this statute,

therefore, is certainly not based on inherent differences in the

nature of the two media. Differential treatment among various

media of expression is only permissible if “reasonable and

applied without discrimination.” Red Lion, supra at 387; Ko-

vacs v. Cooper, 336 U.S. 77 (1949). The differential treatment

directed at newspapers by West Virginia Code 47-7-3 is

manifestly unreasonable and discriminatory since no legitimate

state purpose is served in prohibiting only one medium from

disseminating the name of a juvenile, particularly where the

broadcast media may well reach a larger audience.

Your amicus does not suggest, that redrafting the statute to

include the broadcast media would render it constitutionally

permissible. The statute would still violate the First Amend-

ment. We note in passing that all our arguments regarding

prior restraints on publication should apply with equal weight

to prior restraints on broadcasting. See Miami Herald Publish-

ing Co. v. Tornillo, 418 U.S. 241 (1974).

y

:

24

CONCLUSION

In light of the foregoing, your amicus urges this Court to

uphold the ruling of the Supreme Court of Anpeals of West

Virginia in striking down West Virginia Code, Section 49-7-3 as

an unconstitutional prior restraint on the right of a newspaper

to publish. Likewise, this Court well might find the West

Virginia Statute to be violative of the equal protection clause of

the Fourteenth Amendment, in denying to newspapers a right,

enjoyed by other media, to fully inform the public.

Respectfully submitted,

ARTHUR B. HANSON

FRANK M. NORTHAM

MITCHELL W. DALE

ARTHUR D. McKEy

HANSON, O’BRIEN, BIRNEY

AND BUTLER

888 Seventeenth Street, N.W.

Suite 1000

Washington, D.C. 20006

Attorneys for Amicus Curiae

Amican Newspaper Publishers

Association