The question presented on this appeal is whether the Commonwealth of Virginia may subject persons, including newspapers, to criminal sanctions for divulging information regarding proceedings before a state judicial review commission which is authorized to hear complaints as to judges' disability or misconduct, when such proceedings are declared confidential by the State Constitution and statutes.[1]
I
On October 4, 1975, the Virginian Pilot, a Landmark newspaper, published an article which accurately reported on a pending inquiry by the Virginia Judicial Inquiry and Review Commission and identified the state judge whose conduct was being investigated. The article reported that "[n]o formal complaint has been filed by the commission against [the judge], indicating either that the five-man panel found insufficient cause for action or that the case is still under review." App. 47a. A month later, on November 5, a grand jury indicted Landmark for violating Va. Code § 2.1-37.13 (1973) by "unlawfully divulg[ing] the identification of a Judge of a Court not of record, which said Judge was the subject of an investigation and hearing" by the Commission.
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