From the book SPEAKING FREELY by renowned first-amendment litigator Floyd Abrams, published back in 2005.
He is discussing his involvement in the case of Landmark Communications v. Virginia (1978). A newspaper owned by Landmark had published an (accurate) story that a certain juvenile-court judge in that state was under investigation on a "fitness" grounds. There had not yet been a disciplinary hearing: the investigation might have concluded there was no need for one.
At this point, under Virginia law, the investigation was supposed to be confidential, for the protection of the reputation of the judge and other reasons. The newspaper was criminally prosecuted.
The matter went up to the US Supreme Court where Abrams argued. Abrams maintained that no accurate reporting about the performance of the duties of a public official can constitutionally be criminalized.
This brings us to the bit I want to quote. Abrams reports that he was discussing this case with an associate the night before his oral argument before the Justices. They speculated the Justices might ask him to discuss a hypothetical situation much like something that happened in 2022 prior to the release of the DOBBS decision. They might ask him to suppose that "a draft opinion of the Supreme Court itself had leaked to the press before it had been released to the public." [p. 67]
He decided that he would have to argue that even in that egregious situation there should be no recourse to the criminal law. "Our answer was clear enough, I would say, the publication of truthful information, lawfully acquired, about the activities of public officials could not be made criminal even if it came from the Supreme Court itself. But the thought of making that assertion to members of the Court itself was unappealing."
Landmark won the case, although the Supreme Court's decision was not as categorical as Abrams' argument for it appeared to have been.
I don't like Abrams' phrase, "even if it came from the Supreme Court itself." The Supreme Court's secrets should get no more consideration than anyone else's. If someone were prosecuted for leaking Supreme Court secrets, I cannot imagine the Supreme Court holding that the prosecution was permitted but that the First Amendment would preclude it if it were someone else's secrets. The justices might want to say that, but they wouldn't dare.
ReplyDeleteI should have written, "If someone were prosecuted for publishing Supreme Court secrets," not "for leaking" them. Leaking them might not be protected by the First Amendment, depending upon how the leaker acquired them.
DeleteIndeed. Ellsberg went to prison, but the NY Times and WaPo published the Pentagon Papers. Both things are true
DeleteGood point.
ReplyDelete