Smith v. Daily Mail Publishing Company

PETITIONER:Smith
RESPONDENT:Daily Mail Publishing Company
LOCATION:Adult Store

DOCKET NO.: 78-482
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Supreme Court of Appeals of West Virginia

CITATION: 443 US 97 (1979)
ARGUED: Mar 20, 1979
DECIDED: Jun 26, 1979

ADVOCATES:
Cletus B. Hanley – Argued the cause for the petitioners
Floyd Abrams – Argued the cause for the respondents

Facts of the case

A West Virginia statute made it a crime for a newspaper to publish, without approval of juvenile court, the name of any youth charged as a juvenile offender.

Question

Did the law violate the First and Fourteenth Amendments?

Warren E. Burger:

Justice Stewart.

We’ll hear arguments first this morning in number 482, Robert K. Smith against the Daily Mail Publishing Company.

Mr. Hanley, you may proceed whenever you’re ready.

Cletus B. Hanley:

Mr. Chief Justice, may it please the Court.

This is a case in which on February 9, 1978, a shooting occurred in the City of St. Albans, West Virginia, that’s about 12 miles from Charleston, the capital city and it’s in a metropolitan area there at West Virginia, (Inaudible).

It was about 250,000 people.

And a 14-year-old boy was apprehended and taken into custody.

Later on that day, a juvenile hearing was held and he was declared a delinquent under our West Virginia law.

It’s against the statute of West Virginia for a newspaper to print the name of a juvenile who was under arrest or pending a hearing.

On the next day, on February 10th, the Charleston Gazette, a statewide newspaper in West Virginia published the name of the juvenile on the front page along with a picture.

And also, an editorial made comment that they were deliberately doing this.

They were the Gazette, wait a minute, then the Daily Mail, an afternoon newspaper, published the name that afternoon.

These — both of these newspapers along with the editors and reporters were indicted by a Kanawha County Grand Jury later on in the month.

Before trial could be held, the newspapers sought provision in the Supreme Court of West Virginia and a rule was issued on both newspapers.

Separate rules were issued on both newspapers putting the case before our Supreme Court for argument.

The cases were then consolidated for arguments and I want to point out to the Court mainly today that these cases, the fact situations are different.

In the Gazette case, they alleged in their petition that it was already common knowledge when they printed this juvenile’s name.

In the answer of the state, it was denied that this was.

The Gazette newspaper then demurred to the answer so for all practical purposes, they were then saying for the purpose of this case, it was not common knowledge.

And the information was not obtained from any other source from hearing or from assistant prosecuting attorney which I noted in the brief, it now says that it’s in prosecuting attorney.

So the bare issue then is whether a newspaper may print the name of a juvenile when they sought the information and obtained it on their own.

The statute doesn’t make any distinction between the case where it’s common knowledge and one where it’s not, does it?

Cletus B. Hanley:

No, Your Honor.

However —

That’s a criminal statute, isn’t it?

Cletus B. Hanley:

Yes, sir.

However, the — I want to point that out because of the past case law of this Court indicating where the information is obtained by court records as in the Cox case where the information is obtained at a public hearing the Nebraska case or when the information is obtained in a closed hearing where the court allowed the press in.

That one makes a big distinction so what I’m saying to the Court, this is a case now of first impression and it’s not a case of a fitting in with the Cox or Nebraska or the Oklahoma case.

If the case fits in for anything, it fits in with the Virgin Island case.

Of course that’s our contention this is the reasoning in the (Inaudible) case should be adopted by this Court.

General Hanley, this I’m sure I understand your point, is it your view that there is no claim is there that the newspaper violated any law in obtaining the information?

Cletus B. Hanley:

No, Your Honor, absolutely not.

No, we’re not contending they violated any law in obtaining it.

All we’re saying is they printed it.

We are saying, what I was trying to say is that the information was not obtained in a court hearing or court record as in the Cox, Nebraska, or Oklahoma cases.

But it was obtained?

Cletus B. Hanley:

Yes, it was.

By let’s say there own investigation so far.

Thurgood Marshall:

The statute doesn’t care how you do that?

Cletus B. Hanley:

No, sir.

The statute doesn’t care.

Thurgood Marshall:

So why is that material?

Cletus B. Hanley:

It’s material because this Court has held in the past or we say it’s material.

Thurgood Marshall:

Was it in the case of — we were the other side was attacking the statute like this one?

Cletus B. Hanley:

No, sir.

The case, the court in those cases —

Thurgood Marshall:

It seems to me the only thing we need in this case is that the newspaper published the name of the juvenile?

Cletus B. Hanley:

Yes, sir.

What else do we need?

Cletus B. Hanley:

We don’t need anything.

Thurgood Marshall:

And beside on constituting that statute?

Cletus B. Hanley:

I’m saying, Your Honor that you don’t need anything.

Thurgood Marshall:

We don’t need anymore facts, do we?

Cletus B. Hanley:

No, sir.

Thurgood Marshall:

All you need now is law?

Cletus B. Hanley:

Yes, sir.

Thurgood Marshall:

Which you are getting ready to get there?

Cletus B. Hanley:

Hopefully.

Thurgood Marshall:

That’s rather quick.

Cletus B. Hanley:

The — we’re asking this Court to adopt the reasoning at least in the Virgin Island case where they balance the right of a juvenile as against the First Amendment rights of a newspaper and upheld the rights of a juvenile.

Cletus B. Hanley:

When we speak of freedom of the press, I wonder what are we speaking of.

I say, it’s the right of an editor that owns the newspaper or the owner of the editor to print almost anything he wants to.

And the only recourse that anyone has is, if it’s a private person by libel suit and since the Sullivan case of New York Times versus Sullivan, it’s pretty hard.

This Court has a check and balance as against the legislative branch of government, as against the executive branch of government but how far does this Court going to go to protect the rights of a newspaper in the First Amendment.

We say that it’s going too far to say that the country must be in dire need or war or something of that kind and we’re saying that this Cox case in this later cases in this Court indicate that they don’t intend to go that far.

Mr. Hanley, help me out a little bit, what are the state interests that are being served?

Cletus B. Hanley:

The state interests that are being served are to protect juveniles.

Well, then my next question is why are radio and television excluded from the coverage of your statute?

Cletus B. Hanley:

Your Honor, it’s excluded because that is regulated by the federal government, the FCC regulates them and I can point an analogy to that.

In our state, if a person files and runs for office, and an advertisement is placed in the newspaper, it’s against the law not to say who paid for the ad.

But it doesn’t say anything about radio or television.

However, the FCC controls that and will not let them place an ad without telling who paid for it.

Well, it’s just a matter of regulation as much as it is just the imposition of a criminal statute.

Let me put in other way, do you think there’s a prior restraint involve here?

Cletus B. Hanley:

Your Honor, we’re saying that if there is a prior restraint, the right for the juvenile should be balanced ahead of such restraint and the rights of a juvenile should be protected.

You’re conceding that there might be a prior restraint then?

Cletus B. Hanley:

Yes, sir, I am.

Warren E. Burger:

But a statute is a threat, is it not?

Cletus B. Hanley:

Well, if you compare it for instance with the Landmark case —

Well, any statute there is a threat.

Cletus B. Hanley:

I would say it would be a prior restraint.

Or libel statute is a threat.

It doesn’t prevent anyone from publishing something libelous.

He is liable, I believe he does.

Cletus B. Hanley:

Well, that’s true, Your Honor.

I know that your opposition takes the position that’s prior restraint, maybe I should ask him.

Cletus B. Hanley:

Well, I have been confused in the — frankly, I’ve been confused in reading the cases on prior restraint.

For instance, the Landmark case, it says that’s not a prior restraint.

That’s my reading of it and I want to mention that case.

But doesn’t Landmark help or hinder you?

Cletus B. Hanley:

Well, of course the opposition is going to say it hinders me but what I’m saying is that case was attempting to protect the judiciary and this Court said that the judiciary does not need protect him and that the people are entitled to know what the judiciaries are doing and what I’m saying is juveniles, it’s a separate thing all over this country.

Most states have some method and some statutes to protect juveniles and to rehabilitate them and not to treat them as criminals.

Well, I am not an opposition to you particularly, but the other side of that coin is that the public has a right to know whose committing crimes thereon?

Cletus B. Hanley:

Well, of course the newspaper Is not clearly prohibited.

They can print all about the instant.

They want to, they just can’t print the name and I might say the flagrancy and deliberateness, and arrogance, it was demonstrated in this editorial.

It show how far the newspaper goes if somebody thence — if somebody doesn’t do something to balance that out.

Well, even the Constitution have to do something?

Cletus B. Hanley:

Well, Your Honor, I don’t — I think it’s a question of interpretation and I think this Court has not decided that question because this Court also thought that maybe it would be going too far to just say a prior restraint is forbidden absolutely.

On the constitutional sense, does the public have a right to know anything as individuals that say a newspaper or television station doesn’t choose to print or that their neighbors don’t choose to tell them?

Cletus B. Hanley:

Well, of course when the newspaper don’t choose to print it, they won’t do it.

I don’t know about that part, Your Honor, but it’s just a question if you want to protect the juveniles and most of the thinking throughout the country is that we do.

Is it against the law in your state for a police officer or judge to tell him the press who committed the crime?

Cletus B. Hanley:

Your Honor, the statute provides.

I was going to get to that.

The statute provides that the judge may order — may allow by order may allow the newspaper to print.

In other words, —

That isn’t quite what I asked you.

Say he does — is it against the law for police officer or judge to tell the press who committed the crime?

Cletus B. Hanley:

No, sir, absolutely not.

And — but you say that no matter how the press learns it, the statute would apply?

Cletus B. Hanley:

No, I don’t Your Honor, because of the —

Well, absent and order permitting the publication.

Cletus B. Hanley:

No, I don’t Your Honor, because from the prior cases of this Court —

Well, yes, but that all you’re saying is that the statute would be invalid if it was applied.

But the statute on its face seems to cover the —

Cletus B. Hanley:

Yes, that’s true, that’s absolutely true.

This Court has not stuck a statute as such down as yet in that regard.

Warren E. Burger:

Do you rely or to what extent if you do rely on the fact that step by step, criminal conducts of juveniles has been treated by the court in terms of procedure and prosecution to be more and more like the prosecution of adult crime except for a jury and a few other factors?

Cletus B. Hanley:

Well, Your Honor, I would answer that by saying this.

Cletus B. Hanley:

I think that the court is giving a juvenile double protection.

They are giving them the same rights as an adult and also the rights of a juvenile.

Not just giving him the rights of an adult and taking away the rights of a juvenile.

But now they received both rights.

The right to be treated as a juvenile and also have the same rights as an adult as to attorney, have an attorney and given the rights and so forth.

In this particular case, this juvenile has not been tried yet for this alleged crime.

It’s my understanding that he has a good defense to this alleges act of murder.

He has not had a chance to have his day in court as yet.

Thurgood Marshall:

Is that the newspaper’s call?

Cletus B. Hanley:

No, it’s not the newspaper.

Thurgood Marshall:

Well, why are we interested in that point?

Cletus B. Hanley:

Well, I just want to point it out that he hasn’t —

Thurgood Marshall:

Do you want to draw the influence if the newspapers are holding this case up?

Cletus B. Hanley:

Well, it didn’t happen, Your Honor.

Thurgood Marshall:

I thought you’re going to drop a little on the newspaper, didn’t you?

Cletus B. Hanley:

Yes, sir.

I thought so.

Thurgood Marshall:

I don’t see how we can.

Cletus B. Hanley:

No, you can’t but —

Thurgood Marshall:

But why don’t we talk in law in this case as still all this experience now? I mean in all deference, you say this is the first case of this kind?

Cletus B. Hanley:

Yes, sir.

Thurgood Marshall:

It involves the First Amendment which is important.

Cletus B. Hanley:

Yes, sir.

Thurgood Marshall:

So, why don’t we get to the law and that’s all it’s here?

Cletus B. Hanley:

Well, Your Honor, then if — as far as the law is concerned, I think the reasoning in the Virgin Island case fits this case on all force that in the Court in that case indicated that the balance, the right to preserve —

Thurgood Marshall:

Did that case say that the radio, the television, and anybody else could print it but the newspaper?

Cletus B. Hanley:

No, sir.

But Your Honor —

Thurgood Marshall:

Well, isn’t that one of the points that’s before us?

Cletus B. Hanley:

No, that’s not before you.

Cletus B. Hanley:

I say that’s not before you.

The Fourteenth Amendment is not in this case because it wasn’t decided in the court below.

That is brought up for the first time up here.

Thurgood Marshall:

You don’t agree that we can uphold the court on any ground?

Cletus B. Hanley:

Well, I would suggest that possibly, —

Thurgood Marshall:

Of course if we affirm on the First Amendment, we don’t have to get to the Fourteenth, is that right?

Cletus B. Hanley:

Yes, sir.

Thurgood Marshall:

But if we don’t affirm on the First, can’t we get to the Fourteenth?

Cletus B. Hanley:

I would suggest and argue that I don’t think the court should get to the Fourteenth.

Thurgood Marshall:

I said, could.

Cletus B. Hanley:

Absolutely, Your Honor.

General Hanley on that point, do you say that the explanation of the exclusion for radio and TV is they are regulated by the Federal Communications Commission?

Cletus B. Hanley:

Yes, sir.

Is there a federal regulation that prohibits them from publishing the name of juvenile?

Cletus B. Hanley:

Your Honor, yes, there is.

There is a federal statute that prohibits publishing a juvenile’s name just like the statute in West Virginia.

So in practical effect to say they really are — all the media are treated the same but if you look at the entire statute —

Cletus B. Hanley:

As far as the federal statute is concerned, yes, sir.

I don’t want to misrepresent.

There is a federal statute, that is, I assume that means that if there is a federal law violated by juvenile, they cannot print his name, the press nor the media or any of the media.

Thurgood Marshall:

What about the state law?

Cletus B. Hanley:

That’s a federal law, Your Honor.

Thurgood Marshall:

I misunderstood.

If you violate, if a juvenile violates a state law, can it publish it on the radio?

Cletus B. Hanley:

As far as the state statute, yes?

Thurgood Marshall:

No, sir.

As far as the federal statute.

Cletus B. Hanley:

I don’t know whether there’s any — I don’t think there is a regulation against it but they can regulate it and I don’t point that it be proper for the state to regulate the TV and radio.

I don’t think there’s no pace that I could find it or that’s been determined but there’s certainly as a federal statute preventing the juvenile so it indicates the federal government, thanks that they can protect the juvenile.

Thurgood Marshall:

Do you think that federal statute can?

Cletus B. Hanley:

Yes, sir.

Thurgood Marshall:

Which one?

On page 31 of the respondent’s brief in the footnote.

Warren E. Burger:

In operative effect, Mr. Hanley, the statute gives the judge the opportunity to — gives the judge the power to decide whether there shall be or shall not be publication, isn’t that true?

Cletus B. Hanley:

Yes, Your Honor.

And I think that the past years, they have done that right along as sort of a routine but I don’t know —

Warren E. Burger:

Then what happens to the underlying — what happens to the underlying proposition of the juvenile must be protected even from public knowledge when the judge can waive it?

The judge can waive it theoretically in every case, couldn’t he?

Cletus B. Hanley:

Yes, he could Your Honor.

Warren E. Burger:

And that would mean the particular judge could wipe out the statute if he wanted to?

Cletus B. Hanley:

Yes, but under the now and old juvenile — most juvenile laws, the judge was considered the parens patriae of the child and assuming that — we assume that the judge would do a better job than some newspaper or some stranger will be acquainted with these things, with these matters.

Do you happen to know when the West Virginia statute was passed?

Cletus B. Hanley:

Not offhand, Your Honor, I think it’s been on the books about 30 years.

It’s been at least that long.

I think one of the, I read one of the amicus brief and it indicated that it was a 40-year statute.

Thank you.

Warren E. Burger:

Very well.

Mary Abrams.

Floyd Abrams:

Mr. Chief Justice and may it please the Court.

I just like to respond very briefly to one or two questions which were asked of General Hanley before proceeding to my argument.

The statute was adopted in 1915 in West Virginia.

It is 64 years old, as far as we know this is the first prosecution under it against any newspaper.

So its limitation to the press is fully explainable just by the —

Floyd Abrams:

Yes, sir.

It was adopted at a time when the —

At the time there was no television and very little radio?

Floyd Abrams:

And at the time when the First Amendment did not apply to the states as well.

Yes, sir.

Floyd Abrams:

The statutory language as of 1915 is very similar as to what is it today.

It said, nor shall the name of any child in connection with any proceeding under this Act be published in any newspaper without a written order of the court.

Floyd Abrams:

I shall like to proceed first to the question of whether this statute is indeed a prior restraint.

As I understand, General Hanley, he has conceded or but conceded that it is that I think it is a matter which is for the Court to decide, of course.

It is not a prior restraint because it is a threat.

All criminal statutes directed at the press threats the Landmark statute was a threat and it was not a prior restraint.

It is a prior restraint in our view because the essence of it and the essence of the crime alleged here is that you must seek written permission of the judge before you can print the name of the child.

That in our view is what makes it a prior restraint.

Harry A. Blackmun:

Mr. Abrams, would it be a different situation that that exception were not provided in the statute?

Floyd Abrams:

Yes, it would Mr. Justice Blackmun.

It would not be a prior restraint statute in our view then.

It would be a straight subsequent punishment, a criminal statute to be judged as you judge against First Amendment interest and First Amendment claims, criminal statutes which affect or directly implicate the rights of the press.

William H. Rehnquist:

So an even rigorous prohibition would not be a prior restraint?

Floyd Abrams:

That is often the case in terms of licensing statute, sir.

I mean if a license — if instead of a licensing statute, Mr. Justice Rehnquist, you have a flat ban on any kind of publication, I there say it would likely be unconstitutional but it wouldn’t be a prior restraint.

And the fact that the essence of this crime as alleged and as the essence of this misdemeanor which can lead to six months jail sentences here is not obtaining the permission of the court in printing without that permission in our view next is a prior restraint and a far more classic sense than most of the prior restraint cases which this Court has had in recent years.

Far more than Pentagon Papers or the Nebraska Press Association case, far more than near itself.

William H. Rehnquist:

And yet if the paper here it simply chosen to abide the statute and not seek permission and say, we’re prohibited as the editorial indicated they were from publishing, it would have the same effect as the criminal statute and not the prior restraint?

Floyd Abrams:

The particular facts of this case, I think the paper would have been able to defend and indeed if this criminal case proceeds would be able to defend on the grounds that permission wasn’t needed but the essence is I understand it.

One of the things that’s wrong with prior restraint as I understand it, is that it establishes a censorial authority with a relationship to the censored entity which is one of the things that this Court has indicated it doesn’t like that it’s particularly low to accept in prior restraint statutes.

Now, I appreciate the fact that is on its face anomalous to say that because there is this provision in the statute which says that you can go to a court and get permission, that that makes it a prior restraint.

But in our view that, that is always what licensing statutes have.

It is precisely that provision which brings into account the essential prior restraint relationship of the censored to the party who is doing the censoring, but you have to go and ask permission.

Potter Stewart:

So you would concede, are you, I suppose assert would you not that the — even in the absence of this provision for judicial authority to publish that the statute would be equally unconstitutional.

Floyd Abrams:

Absolutely, Mr. Just Stewart.

I was —

Potter Stewart:

So what’s difference does it make?

What we label it?

Floyd Abrams:

It only makes difference in terms of how you choose to analyze and it seems to me that the statute is so clearly unconstitutional for a variety of reasons that whether or not it is a prior restraint or a subsequent punishment statute that would be just as unconstitutional.

William H. Rehnquist:

But you can read some of our cases indicating that a prior restraint is the most onerous of all prohibitions against publication and I take it from your answer to my brother Stewart and my own question that that isn’t necessary the case.

Floyd Abrams:

Mr. Justice Rehnquist, it —

William H. Rehnquist:

The most jargonic.

Floyd Abrams:

Prior restraints by their nature are the most jargonic restraints upon speech, that doesn’t mean that subsequent punishment statute in a particular case doesn’t fall on speech with even greater brutality.

Professor Chaffee once wrote that if there were capital punishment for the advocacy of socialism that that would have pretty chilling effect.

I have no doubt that that would have more of the chilling effect on advocacy of socialism than this prior restraint statute would.

All I’m saying is that if you do have an established body of law of a view of prior restraints, it is our view that this is a prior restraint statute and that that body of law ought to be the overview with which you look at the statute.

William H. Rehnquist:

But prior, prior restraint statutes aren’t the most severe repressions of publication?

Floyd Abrams:

Prior restraint statute this Court has indicated time and again are to be viewed with the particular harshness by this Court to see if there is an exception which allows the statute to stand.

This Court is indicator as I understand all of its prior restraint rulings that prior restraints are presumptively unconstitutional unlike other statutes that prior restraints where a heavy burden unlike certain other statutes.

I don’t — as Justice Stewart suggest, I don’t have to persuade you.

I think that is a prior restraint but if it is it seems to me that your cases lead you to analyze a legal question in a somewhat different way.

William H. Rehnquist:

Why wouldn’t a flat ban be even worse?

Floyd Abrams:

The flat ban may be even worse just as a flat ban on publication of all literature by the King of England would have been worse than sending people to the censorial authority to get permission to print.

Nonetheless, we have a body of law which says the prior restraints because of the effects that they have are particularly presumptively unconstitutional.

Warren E. Burger:

Mr. Abrams, I noticed that you put, at least you put a good deal of weight on the fact that between 1960 and 1975, as we all know has been an enormous increase in juvenile crime, serious violent crime.

Now, suppose the statistics were the other way?

Suppose it showed that juvenile crime was going down, would it make any difference to your constitutional point?

Floyd Abrams:

No, it would not Mr. Chief Justice.

I simply indicated that to indicate to you why the press might want to print as a matter of information for the court but that is not the heart of our argument.

Warren E. Burger:

But it is irrelevant, isn’t it (Voice Overlap)?

Floyd Abrams:

It is irrelevant as to the legal position —

Warren E. Burger:

Constitutional question?

Floyd Abrams:

Yes, sir.

Yes, sir it is simply suggested to you since I thought you’ve —

Warren E. Burger:

That explains your answers why you’re not sure (Voice Overlap).

Floyd Abrams:

And that’s the only reason that it’s there.

Entirely size from the question if it is a question of whether this is a prior restraint it must meet those harsh standards.

It’s our view that this statute cannot meet any First Amendment test.

This Court has indicated but it seems to us whatever greater clarity in recent years, the proposition articulated last term by the Chief Justice in the Houchins versus KQED case but the Government may not restrain communications or whatever information the media acquires and which they elected to reveal.

That proposition reflected an opinion such as Tornillo and a variety of others by this Court, is in our view flatly inconsistent with the statute which bars the next criminal.

Precisely, the publication of what the press has learned and chooses to print.

It is a core First Amendment interests in our view which cannot give way even to societal interests at least as great as those which are asserted here.

Floyd Abrams:

The fact of the matter is that under this statute, as General Hanley has conceded, it doesn’t make any difference how the press learns the information.

It doesn’t make any difference that in this case for example on what I take to be the admitted facts of this case that this was a killing in a public school which there were seven eyewitnesses and that entirely aside from the question of who gave the information to the press and on this record I think it is admitted that it the information came from police authorities, that this community was filled with eyewitnesses that knew what happened there.

General Hanley rightly and candidly concedes to you that that makes no difference if the statute still applies but it seems to us that to put that kind of onus on the press to say that there will be no punishment of the police, to say that the statute does not even apply to the police but to say that there will be no punishment of anyone else and no other efforts made of a meaningful sort not even an effort made if this state interests is so great to ban magazines, let alone newspapers, radio and television but to ban individuals from repeating these things.

Thurgood Marshall:

These radio and television do you think the General was relying on applies to federal juvenile?

Floyd Abrams:

Yes, the statute cites it.

Thurgood Marshall:

It’s only that applies.

But it doesn’t apply the state?

Floyd Abrams:

Yes, it allowed the law of course as the one example where —

Thurgood Marshall:

No, but I’m talking about this one that says you can’t publish any —

Floyd Abrams:

That’s right, that statute has no application whatsoever to —

Thurgood Marshall:

— that applies to a federal juvenile hearing, the United States hearing.

Floyd Abrams:

That is correct Mr. Justice Marshall.

It has nothing to do with a state prosecution.

The —

Warren E. Burger:

How does there, if it all on your case that tendency over the last dozen years more or less has been to assimilate procedure for juvenile prosecutions if there to be called juvenile procedures to the full panoply of criminal procedures?

Floyd Abrams:

If anything, Mr. Chief Justice, it suggest that there is perhaps less need for this kind of special unique protection for juveniles.

Now that is not an argument that we have made in our brief to you but to the extent that that it is relevant at all that this Court has in recent years with the exception of jury trial extended a wide variety of rights to juveniles on the theory that they are entitled to the same treatment constitutionally as adults.

It doesn’t seem to us that that it can cut against us in any event.

Warren E. Burger:

Would that be a consideration primarily for the legislature rather than for judges?

Floyd Abrams:

I think that that consideration is for legislatures.

But when you balance against a First Amendment interest as we view it as pristine as this, the right of the juvenile involved here, what it said to be the right of the juvenile involved here we don’t think that that comes out very close as a matter of law.

We cite here for example your own decision of Davis versus Alaska which this Court came to consider the rights of the juvenile to confidentiality of his juvenile criminal record as against the Sixth Amendment rights of confrontation of a party accused f a crime, in that case Alaska have put a juvenile on the stand so far as the case reads and without the consent, without any waiver by the juvenile, put him on the stand that this Court held that testimony must be permitted as to his prior juvenile record and even though temporary imbalancement that might result to the juvenile and his family, the court said the Sixth Amendment right of the defendant in that case, triumph had to prevail over the right of the juvenile.

We would think that any kind of equitable treatment of First Amendment rights so that at least the same ruling ought to apply here in the Nebraska case and the ruling of the court was that the court would not choose between the First and Sixth Amendment rights but not put one above the other.

If that is so, we think at the very least and that the First Amendment is entitled to as much regard in this context as a Sixth Amendment was given in the Alaska case.

There are two additional factors which I’d like to mention.

What is it the statute simply cannot work assuming that First Amendment law were less clear than we think it is, one would (Inaudible) and I’d look to the question what the statute is going to do, what would it accomplish assuming the Court were even to engage in the kind of ad hoc balancing test of which we would strongly disapprove, the statute simply cannot accomplish the end of leading to rehabilitation for juveniles or the like.

How could it when it is so under inclusive not only have it exclude radio and television, to include magazines to include everything in the world including private conversations except newspaper publication.

William H. Rehnquist:

But doesn’t a newspaper more you have a particular significance say 10 years after the event, the state can close the juvenile record but some reporter can go into a — into a newspaper more 10 years later and say so and so age 25 was proceeded against a juvenile 10 years ago, if the proceedings against him were dismissed and because of the story was reported in the newspaper and that would be the only source of information you would have.

Floyd Abrams:

That is possible Mr. Justice Rehnquist.

I think it is fair to say that even to the extent that that is considered a distinguishing factor of newspapers although not I think of magazines for example which also have indexes of West Virginia can’t control without a state newspapers published about materials such as this.

Floyd Abrams:

I take they can and I read the Nebraska case to indicate that they cannot therefore they couldn’t even affect all the newspapers even if they wanted to deal with newspapers as discreet class.

And as I’ve suggested already, this case is illustrative, the facts of this case it seems to are illustrative of why this statute can’t work.

We do not rely as Mr. Justice Marshall indicated earlier on the facts of this case that the statute in our view is facially unconstitutional but this killing occurred in a community of 14,000 people.

It occurred in a junior high school, the only junior high school in town.

It occurred in front of at least seven eyewitnesses.

Everybody in that community knows about this and everybody knew about it, to think that a statute can pass constitutional master where the interest that is promote is that of protecting the right of the juvenile for what, against the publicity or for rehabilitation later on when everybody in his community knows exactly what happened to him.

Warren E. Burger:

But suppose they didn’t so?

Suppose Mr. Abrams that there weren’t seven eyewitnesses, indeed no eyewitness and that he was apprehended on some circumstantial evidence, would it make any difference to your constitutional issue?

Floyd Abrams:

The constitutional issue, no.

And that is why I indicated that as in Nebraska case, this is simply illustrative.

The functioning of the statute, the constitutional argument remains precisely the same whether or not anybody knows about it in any particular case.

It seems to us that this statute which punishes speech which is in our view a prior restraint as well on speech and on the press cannot pass master.

But that one of the reasons it can’t is the reason that the Court indicated in the Nebraska Press Association case in which the court said that a whole community cannot be restrained from discussing a subject intimately affecting life within it.

There is a final point.

There are other means in West Virginia has sought out some of them to accomplish this end legislation against discrimination and employment against people with juvenile records is on the books in West Virginia and it was at the time of this alleged crime.

Legislation which would at that time, 1977 destroy arrest record was in effect in West Virginia at that time.

There are wide variety of other means and of course the most obvious one that comes to mind is the one which General Hanley has indicated West Virginia does not have and that is prosecution against public officials who release information of that sort.

William H. Rehnquist:

Of course the destruction of arrest records legislation isn’t to be very useful if a person can go to the newspaper morgue and find out the fact of arrest from that.

Floyd Abrams:

That is true Mr. Justice Rehnquist but the destruction of arrest of records which has its own panoply of constitutional problems which I’m not reaching here but the — is one way taken in conjunction with other ways that the state can attempt to assure that a juvenile will be protected from the effects of whatever crime that he is accused of.

It is not a totally successful way anymore than anything else could be in the situation where anybody can know what happened and everybody can know in any case whether juvenile did something or what he didn’t do.

It is relevant I think as it was in Landmark that the approach taken by West Virginia here is one of a very small minority of states.

As our brief points out, the West Virginia is one of only six states at which purports to impose criminal punishments on the press or for its publication of information of this sort.

To just last month, after our briefs were submitted to this Court, the American Bar Association adopted the recommendations of the Juvenile Justice Standards Project of the Institute for Judicial Administration and of the ABA itself.

William H. Rehnquist:

That didn’t constitute a constitutional amendment, I take it?

Floyd Abrams:

No, sir.

And the conclusion that they reached —

(Inaudible)

Floyd Abrams:

That’s right. —

was that there were alternative ways to do this and what they recommended was essentially greater control over files held in the juvenile court system.

I don’t suggest for a moment that control over files would have kept this information from coming out as it happens the facts of this case was such that everybody knew what happened anyway.

Floyd Abrams:

But the position of the ABA is also the position as our brief indicates of a wide range of other entities.

William H. Rehnquist:

(Voice Overlap) Well we have a case out here not long ago in Vienna where there was a family killing and there was no doubt as to who was apprehended for juvenile proceeding but the press was very unhappy and presumably other people may have been.

They were simply unable to find out about what transpired at the closed juvenile hearing.

Would your argument extend that far?

Floyd Abrams:

No, we make no argument to get that today with respect to any right of press access to closed juvenile hearings that raises entirely different issues and that is neither how this information was obtained nor is it an argument that we’re making in this case at all.

We have not taken the position in this case and that the press is entitled to access to closed juvenile proceedings.

Mr. Abrams, —

Floyd Abrams:

Yes.

— going back to the ABA recommendation, is it your view that a statute making it a crime for a court aide or some kind of clerk or something like that to reveal information like this be constitutional?

You suggested —

Floyd Abrams:

It is my view that it would be constitutional for a statute to imposed criminal penalties on those within the judicial system itself.

Yes, sir.

And they would apply let’s say also prohibition against the police for revealing that?

Floyd Abrams:

Yes, sir.

Warren E. Burger:

That issue wasn’t presented in the Landmark case, was it?

Floyd Abrams:

That was not presented, no.

Warren E. Burger:

Suppose this picture that’s in the appendix had been published without the name, is that a violation of the statute?

Would it be functionally equivalent of identifying the juvenile defendant?

Floyd Abrams:

I suppose, I would think that while it would obviously carry a lot of the same effects, it would not be the “name” I think it would not, I would think the statute would not apply.

I would think you have to read the criminal statute not early so as to avoid other constitutional problems and I would think that if the picture were published that — without a name that that would not constitute violation of the statute.

I would point out in conclusion that what this case pits against each other is on the one hand the First Amendment interest which we think are long recognized by this Court as being at the apex of First Amendment protection.

The ban on prior restraints as we view it, the freedom of the press to print news within its possession, the protection of truthful speech about public events against another societal interest, non-constitutional in nature, there’s no suggestion here in this case nor as I understand it in any ruling of this Court but the right to confidentiality imposed by statute of this sort is of constitutional magnitude, speculative, there is nothing in this record or so far as we know in the literature to suggest that a statute of this sort is even needed to lead to the societal result of which the sort here incapable of fulfillment by the statute because of its under inclusiveness and because in any event the information as in this case is often widely known.

Mr. Abrams, can I go back once more at the ABA —

Floyd Abrams:

Yes.

I take it the statute could not prohibit a victim or family of a victim from telling the press who the young man under suspicion was?

Floyd Abrams:

I don’t believe that would be constitutional.

So isn’t that all that’s going be true that the information would be obtainable probably, potentially available.

Floyd Abrams:

It would be potentially obtainable, yes.

I have nothing else Your Honors.

Thank you very much.

Warren E. Burger:

Do you have anything further Mr. Hanley?

Cletus B. Hanley:

Yes, sir.

I just like to make a few — point out few things.

If Your Honors please, regardless of whether this is considered a prior restraint or not, I’m not conceding that it is or it isn’t.

All I’m saying is that I’m asking this Court to follow the view and reasoning in the Virgin Island case.

In that case, they said it was a prior restraint.

They said that the rights of the juvenile outweighed the First Amendment.

Counsel has brought up again the fact that this one common knowledge and I’m requesting the Court to consider only the petition and pleadings in the Gazette case because this case was consolidated under two separate sets of facts.

The Daily Mail obtained more facts I suppose because they came to, they printed later.

But in the Gazette case, the petition says that — their petition says that they obtained the knowledge from a policeman and I imagine that so.

But we don’t concede for a minute that this was common knowledge and this place where the shooting occurred is about 13 miles from Charleston that is one big metropolitan area.

Well, General even if – even if it was common knowledge, the statute would cover it, I take it?

Cletus B. Hanley:

Well, if it was common knowledge out there, it wouldn’t be common knowledge in the community which is Charleston and that’s where the boy is going to be tried.

No, wherever it was common knowledge, if it was common knowledge in Charleston or anywhere else, the statute would forbid the publication?

Cletus B. Hanley:

Yes, but we do not concede it.

And to that extent it, the statute is at the very minimum would be overbroad, I take it?

Cletus B. Hanley:

Pardon, Your Honor?

Would you say that a statute may validly forbid the publication of the juvenile’s name where the name is common knowledge in the community?

Cletus B. Hanley:

I don’t — I don’t — I think it could.

Yes, but we don’t concede that it was common knowledge at all.

And there’s no evidence taken here, that’s my point There’s been no evidence taken in this case and yet counsel for the other side says it’s common knowledge and they got the information here and got the information there.

We don’t concede that and if the Court raised the pleadings —

I understand.

Cletus B. Hanley:

Yes.

In the Cox case, this Court said we reaffirm that the guarantees that’s the First Amendment guarantees are not an absolute prohibition under all circumstances but the barriers to prior restraint remain high and the presumption against each use continues intact.

Well, we concede that but we’re saying that the — this is a barrier.

This is under the holding of the Virgin Island case, it’s important; this Court could destroy the whole juvenile system throughout the country if it doesn’t protect the juvenile in this instance.

Thurgood Marshall:

How many all throughout the country, I thought there are only five or six states in interstate?

Cletus B. Hanley:

Well, —

Thurgood Marshall:

Well, how can you say that that will affect the whole country?

Cletus B. Hanley:

Because — for this reason Your Honor.

I’m not talking about a similar type statute.

I’m talking about juvenile programs.

Thurgood Marshall:

But the only thing we have before us is the statute?

Right?

Cletus B. Hanley:

Yes, sir.

The Federal Act goes to all media, I just read it —

Thurgood Marshall:

It applies to federal cases?

Cletus B. Hanley:

Only.

Yes, sir, federal cases only.

Thurgood Marshall:

And what relation does that have to with this case?

Cletus B. Hanley:

In this regard, Your Honor.

It’s an analogy if the federal government can do it, why couldn’t the state government do it?

That’s the only reason that it applies.

Thurgood Marshall:

Well, I don’t know why the federal government could do it or not?

And I won’t be able to know until the case involved here comes here.

Cletus B. Hanley:

Well, —

Thurgood Marshall:

But this one is here.

Cletus B. Hanley:

Yes, sir.

And we are arguing that as an analogy at least, we urge the Court to consider the Virgin Island ruling in holding in that case.

Thank you very much.

General Hanley, just a matter of curiosity, what has happened to this minor?

Cletus B. Hanley:

He’s still pending trial.

Is he incarcerated?

He’s free, I take it.

Cletus B. Hanley:

I think he’s out on bond, Your Honor, I believe.

Going to school?

Cletus B. Hanley:

I don’t know.

I have no idea.

I want to say one more thing, that at the close of the year, that this newspaper published the story of the year and published the story of this boy’s troubles again and called it a story of the year and printed his name again, while this case was pending.

Cletus B. Hanley:

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.