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Smith v. Daily Mail Publishing Co.
Decided on June 26, 1979; 443 US 97

Newspaper sued for publishing the name of a juvenile offender without prior written approval


A. Issues Discussed: 1st Amendment (press, speech, association)

B. Legal Question Presented:

Did a West Virginia statute violate the First and Fourteenth Amendments by making it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of any youth charged as a juvenile offender?


A. Background:

Respondent newspapers (The Charleston Daily Mail and the Charleston Gazette) published articles which contained the name of a juvenile who had been arrested for allegedly killing another youth. Respondents learned of the event and the name of the alleged assailant by monitoring the police band radio frequency and by interviewing various witnesses. Respondents were indicted for violating a West Virginia statute which made it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of any youth charged as a juvenile offender.

Respondents then filed a petition with the West Virginia Supreme Court of Appeals, seeking a writ of prohibition against petitioners. Respondents alleged that the indictment was based on a statute that violated the First and Fourteenth Amendments of the United States Constitution, and several provisions of the state's Constitution, and requested an order prohibiting the county officials from taking any action on the indictment. The West Virginia Supreme Court of Appeals granted the writ of prohibition against petitioners, holding that the statute on which the indictment was based violated the First and Fourteenth Amendments.

The US Supreme Court granted certiorari to review the case.
B. Counsel of Record:
Opposing Side
Floyd Abrams argued the cause for respondent. With him on the brief were Dean Ringel, Patricia A. Pickrel, F. Paul Chambers, Michael A. Albert, W. Henry Jernigan, and Rudolph L. Di Trapano.
Cletus B. Hanley argued the cause for petitioner. With him on the brief were Chauncey H. Browning, and Betty L. Caplan.
C. The Arguments:
Opposing Side
"The question for decision is not whether the public's interest in knowing the name of a juvenile defendant outweighs the harm which may result from revealing it. There are many situations and this may well be one in which the prudent newspaper editor would conclude that it is better not to publish. But the First Amendment does not protect only the prudent. 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. The information at issue here was neither obscene nor untruthful. It concerned a matter of public importance. It was not secret. It was acquired by lawful means. It is precisely the sort of information to which First Amendment values most clearly attach. No compelling exigency justifies its suppression. This Court's prior rulings require that the judgment below be affirmed." -ACLU brief in Smith v. Daily Publishing Co.
"West Virginia Code 49-7-3 is not violative of the First Amendment to the Constitution of the United States in that it does not create an impermissible prior restraint on the freedom of the press. West Virginia Code 49-7-3 provides that with regard to any proceedings under that chapter, the name of a child shall not be published in any newspaper without an order of the court. Respondent newspapers deliberately violated the statute this Court has not reached the issue raised by the facts in the case at bar this Court has expressly refrained from deciding questions involving state policy which denies the public and the press access to juvenile records... the Court does not and should not desire to destroy any of the beneficial aspects of the juvenile system, such as shielding the child from publicity. The purpose of the juvenile system should be to rehabilitate...

Code 49-7-3 provides that a newspaper may publish a child's name upon obtaining an order from the Court. Therefore, petitioners assert that the statute does not impose an absolute prohibition. The judge is the proper person to determine whether a child's name should be published, because he possesses the necessary legal expertise, and, as judge he has the duty to uphold the State's policy of protecting the juvenile for later rehabilitation.

Respondent submits that the effect of Code 49-7-3 upon the First Amendment freedoms of the press is relatively slight and the interest the statute seeks to protect is substantial. The press is usually more interested in events than in names and under West Virginia law no prohibition is placed upon the press as to the reporting of events, such as the shooting here." -Petitioner's brief in Smith v. Daily Publishing Co.

Opposing Side
Bruce J. Ennis, Charles S. Sims, and George Kannar filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.

Other briefs of amicus curiae urging affirmance were filed by Richard M. Schmidt, Jr., Ian D. Volner, and David M. Rickless for American Society of Newspaper Editors; Radio Television News Directors Association; National Newspaper Association; National Association of Broadcasters; the Society of Professional Journalists, Sigma Delta Chi; Reporters Committee for Freedom of the Press; National Press Club; Associated Press Managing Editors; West Virginia Press Association; Illinois Press Association; and Clarksburg Publishing Company; Don H. Reuben, Lawrence Gunnels, and James A. Klenk for Chicago Tribune Company; Arthur B. Hanson, Frank M. Northam, Mitchell W. Dale, and Arthur D. McKey for American Newspaper Publishers Association.
Paul Raymond Stone and Charles R. Garten filed a brief as amicus curiae urging reversal.

"If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. These cases involved situations where the government itself provided or made possible press access to the information. That factor is not controlling. Here respondents relied upon routine newspaper reporting techniques to ascertain the identity of the alleged assailant. A free press cannot be made to rely solely upon the sufferance of government to supply it with information. If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here.

The sole interest advanced by the State to justify its criminal statute is to protect the anonymity of the juvenile offender. It is asserted that confidentiality will further his rehabilitation because publication of the name may encourage further antisocial conduct and also may cause the juvenile to lose future employment or suffer other consequences for this single offense. In Davis v. Alaska, similar arguments were advanced by the State to justify not permitting a criminal defendant to impeach a prosecution witness on the basis of his juvenile record. We said there that 'we do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender.' However, we concluded that the State's policy must be subordinated to the defendant's Sixth Amendment right of confrontation. The important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment. Therefore, the reasoning of Davis that the constitutional right must prevail over the state's interest in protecting juveniles applies with equal force here.

The magnitude of the State's interest in this statute is not sufficient to justify application of a criminal penalty to respondents. Moreover, the statute's approach does not satisfy constitutional requirements. The statute does not restrict the electronic media or any form of publication, except 'newspapers,' from printing the names of youths charged in a juvenile proceeding. In this very case, three radio stations announced the alleged assailant's name before the Daily Mail decided to publish it. Thus, even assuming the statute served a state interest of the highest order, it does not accomplish its stated purpose. There is no evidence to demonstrate that the imposition of criminal penalties is necessary to protect the confidentiality of juvenile proceedings...

There is no issue before us of unlawful press access to confidential judicial proceedings, there is no issue here of privacy or prejudicial pretrial publicity. At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent's name lawfully obtained by a newspaper. The asserted state interest cannot justify the statute's imposition of criminal sanctions on this type of publication. Accordingly, the judgment of the West Virginia Supreme Court of Appeals is affirmed."

Justice Vote: 8 Pro vs. 0 Con  
  • Burger, W. Pro (Wrote majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Powell, L. Took no part in the decision of the case

The ACLU filed as amicus urging affirmance; the US Supreme Court affirmed the ruling of the Supreme Court of Appeals of West Virginia in an 8-0 vote, giving the ACLU an apparent win.