Publication of Legally Confidential Information.

Although a state may have valid interests in assuring the confidentiality of certain information, it may not enforce this confidentiality by criminally prosecuting nonparticipant third parties, including the press, who disclose or publish the information.1334 The case that made this point arose in the context of the investigation of a state judge by an official disciplinary body; both by state constitutional provision and by statute, the body’s proceedings were required to be confidential and the statute made the divulging of information about the proceeding a misdemeanor. For publishing an accurate report about an investigation of a sitting judge, the newspaper was indicted and convicted of violating the statute, which the state courts construed to apply to nonparticipants. Although the Court recognized the importance of confidentiality to the effectiveness of such a proceeding, it held that the publication here “lies near the core of the First Amendment” because the free discussion of public affairs, including the operation of the judicial system, is primary and the state’s interests were simply insufficient to justify the encroachment on freedom of speech and of the press.1335 The scope of the privilege thus conferred by this decision on the press and on individuals is, however, somewhat unclear, because the Court appeared to reserve consideration of broader questions than those presented by the facts of the case.1336 It does appear, however, that government would find it difficult to punish the publication of almost any information by a nonparticipant to the process in which the information was developed to the same degree as it would be foreclosed from obtaining prior restraint of such publication.1337 There are also limits on the extent to which government may punish disclosures by participants in the criminal process, the Court having invalidated a restriction on a grand jury witness’s disclosure of his own testimony after the grand jury had been discharged.1338

Footnotes

1334
Landmark Communications v. Virginia, 435 U.S. 829 (1978). The decision by Chief Justice Burger was unanimous, Justices Brennan and Powell not participating, but Justice Stewart would have limited the holding to freedom of the press to publish. Id. at 848. See also Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). back
1335
435 U.S. at 838–42. The Court disapproved of the state court’s use of the clear-and-present-danger test: “Mr. Justice Holmes’ test was never intended ‘to express a technical legal doctrine or to convey a formula for adjudicating cases.’ ” Id. at 842, quoting from Pennekamp v. Florida, 328 U.S. 331, 353 (1946) (Frankfurter, J. concurring). back
1336
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), in the context of a civil proceeding, had held that the First Amendment did not permit the imposition of liability on the press for truthful publication of information released to the public in official court records, id. at 496, but had expressly reserved the question “whether the publication of truthful information withheld by law from the public domain is similarly privileged,” id. at 497 n.27, and Landmark on its face appears to answer the question affirmatively. Caution is impelled, however, by the Court’s similar reservation. “We need not address all the implications of that question here, but only whether in the circumstances of this case Landmark’s publication is protected by the First Amendment.” 435 U.S. at 840. back
1337
See Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). back
1338
Butterworth v. Smith, 494 U.S. 624 (1990). back