Freedom of Expression Afforded to

¶ … freedom of expression afforded to Americans through the First Amendment of the United States Constitution come with the burden of proof; of validity, lawfulness in acquisition and whether the information presents "clear and present danger" with exposure. In many ways it affords news publications great opportunities to shed light on proceedings, processes and events without fear of recrimination. It allows a journalist access to important, life-altering information many other countries can hide from the public.

But with this freedom daily newspapers, perhaps more than any other form of publication in the United State, are required to exercise restraint over certain kinds of information. For example, news organizations do not publish the names of rape victims or youthful offenders of minor crimes because of the damage such information inflicts upon innocent (in the case of rape victims) and the futures of underage, naive accused criminals.

In lawsuits filed against two newspapers in the late 1970s, however, the complainants said certain news publications went too far with the freedoms afforded to them by the First Amendment and wrongly published names of accused people, one a judge facing disciplinary action and in the other, a 14-year-old accused by several eye-witnesses of murdering a classmate. Both cases were argued before the United States Supreme Court. In Landmark Communications, Inc. v.

Virginia (1978) the Virginia-Pilot, a newspaper that Landmark Communications owned, published an article on October 4, 1975 about a judge who was under investigation by a panel charged with determining the capability of sitting judges. According to ProCon.org, an organization that evaluates court decisions on how closely they support the American Civil Liberties Union's stance, the judge in question, H. Warrington Sharp, sat on the Juvenile and Domestic Relations Court (aclu.procon.org).

All states require some form of confidentiality in disciplinary measures for judges to prevent such information from being used to influence a judge's decisions. Virginia and Hawaii are the only states that have criminal penalties for such kinds of disclosure. According to the full text of the case, Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), in a trial without a jury, held two months later, the newspaper was found guilty of a misdemeanor by publishing the name of the judge and fined the paper $500 plus the cost of prosecution.

Joseph W. Dunn Jr., managing editor for the Virginia Pilot, was the only witness to the trial. He said the paper decided to print the information about the judge because it was a matter that should be brought to the public's attention. Dunn knew it was a misdemeanor to for anyone involved in the commission to give out information about its proceedings, but Dunn said he did not think the law held newspapers liable for gathering the information legally and reporting it (Landmark 435 U.S. 829, (1978)).

Landmark appealed to the Supreme Court of Virginia, which held up the conviction by a vote of 6-1, stating that the newspaper had hurt the judge's reputation, the public's confidence in the judicial system and made the judge vulnerable to attacks by printing the article. In its appeal, Landmark Communication, Inc. argued that the statue only applied to those directly involved with the commission and its proceedings and that it did not apply to third parties, such as newspapers.

The paper further argued that it received the information legally, that the information was true and the newspaper carried out its constitutional duty as a public watchdog by reporting it. In its decision, the U.S. Supreme Court ruled that the paper was "a third party who was a stranger to the commission's proceedings" and that was justified in publishing true information it had received legally and were not the guilty parties (Landmark 435 U.S. 829, (1978)). The case of Smith v. Daily Mail Pub. Co., 443 U.S.

97 (1979) was brought before the U.S. Supreme Court after two West Virginia newspapers, the Charleston Daily Mail and the Charleston Gazette, published the name of a 14-year-old boy who was arrested for allegedly shooting and killing another boy. The name of the killer was broadcast over police band radio frequencies and reported to the papers by eyewitnesses.

The papers were charged with violating a state statute that makes it a crime for a newspaper to publish the name of a person charged as a juvenile offender without permission from the juvenile court. This statute protects youthful offenders from suffering from being ostracized from society, which would further prohibit the chances of them becoming rehabilitated.

The case was brought to the West Virginia Supreme Court of Appeals, which granted a writ of prohibition against the petitioners, the prosecuting attorney and the Circuit Judges of Kanawha County, WA, saying that the statute by which the indictment was based violated the First and Fourteenth Amendments (Daily Mail Pub. Co., 443 U.S. 97 (1979)). The U.S. Supreme Court in 1979 upheld the West Virginia Supreme Court of Appeals' decision, stating that the newspaper was within its constitutional rights to publish truthful information that was gathered legally.

In fact, the information was actually supplied by the local government when the youthful offender's name was broadcast over police band radio frequencies. In a brief submitted for Smith v. The Daily Mail Publication Co. The American Civil Liberties Union stated in a brief submitted for the case that the First Amendment afforded newspapers the right to make decisions on the information it would publish.

While acknowledging that a "prudent newspaper editor" may decide not to publish the youthful offender's name, the ACLU brief pointed out that "the First Amendment does not protect only the prudent"(aclu.procon.org). "Rather, it guarantees that in all but the most compelling circumstances each editor has the right to decide whether particular information in his possession should be published, at least where the information is lawfully acquired" (aclu.procon.org).

The First Amendment was written to ensure the American public that proceedings, issues, and decisions made in their government, legal entities, and events in all other aspects of life would be made public in all cases except when revealing such information would present a more detrimental than good. With the pledge of the First Amendment to provide American citizens with free press, however, comes the burden of deciding what information does present liabilities by being revealed.

Governmental officials and members of the public often complain that newspapers take liberties with the First Amendment, publishing information they feel should have been kept private. In both "Landmark Communications" and "Smith v. The Daily Mail Publications," however, the U.S. Supreme Court firmly stated that newspaper editors and publishers have enough knowledge about the U.S. Constitution and the interests of the public to make their own decisions on what or what not to publish.

Ryan Kilkenny, in an Ohio State Law Journal article that examined individuals' right to privacy and First Amendment rights, pointed out that the decisions of Landmark Communications" and "Smith v. The Daily Mail Publications" may not seem necessary any more as technology such as cell phones and social web sites allow individuals to voluntarily expose themselves to public scrutiny. However, Kilkenny stated in his article -- Invasion of Privacy for the Greater Good: Why Barnicki v.

Vopper Disserves the Right of Privacy and the First Amendment, "Telephone conversations that were once carried on in private or near-private are now carried out on a public stage: busy sidewalks, malls, libraries, and movie theaters. However, there is still reason to believe.