The Virginia FOIA Opinion Archive

An executive session/closed meeting based on the legal matters exemption is not justified by an attorney's mere presence in the room

A motion to go into executive/closed session to discuss personnel issues need not identify the identity of the employee to be discussed.

In consolidated cases, several newspapers challenged trial court orders that closed to the public pretrial suppression hearings in three criminal prosecutions. The trial courts had overruled all objections by the newspapers. The Court reversed and vacated the trial court orders. It is unconstitutional to close pretrial hearings without an 'overriding interest articulated in findings,' and those findings should have been aired in a hearing on the merits. In addition, motions to close a hearing should be made in writing and filed with the trial court before the day of the hearing, and the public should be given reasonable notice.

A broker wanted to build a low-income residential development on land neighboring Moore, a U.Va. professor who opposed the development. The broker's application for rezoning was denied. Consequently, he published paid advertisements in The Cavalier Daily (U.Va.’s newspaper) saying Moore did "not want any black people within his sight." Moore brought a libel action alleging the advertisement injured his reputation in the university community. The Court reversed and remanded a trial court judgment for Moore. The advertisement was not defamatory per se, because the allegation of racism was not made in the context of the professor's employment as a teacher. In addition, the Court held that Moore was not a public figure as a professor or an outspoken resident. He would be entitled to recover compensatory damages upon proof of actual injury, including such elements as damage to his reputation and standing in the community, embarrassment, humiliation, and mental suffering.

The Va. Supreme Court upheld a Virginia law punishing anyone who divulged information about the proceedings of the Virginia Judicial Inquiry and Review Commission. The defendant newspaper, after identifying a judge whose conduct was being investigated by the Commission, was convicted and fined for violating the law. The Court said the law was constitutional because freedom of the press is not absolute and the Commission could not function without confidentiality. NOTE: The U.S. Supreme Court overturned this case in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), ruling that the publication served the interests of public scrutiny and discussion of governmental affairs that the First Amendment was adopted to protect. Neither the state's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts, was sufficient to justify the subsequent punishment of speech.

An injunction is not justified where there is not a reasonable probability that violations of FOIA will occur again.

Charlottesville Newspapers Inc. v. Berry, 206 S.E.2d 267, 215 Va. 116 (6/19/1974)

Virginia Supreme Court

CHARLOTTESVILLE NEWSPAPERS, INC., DOUGLAS PARDUE, AND BENJAMIN F. CRITZER

v.

DAVID F. BERRY, JUDGE OF THE CIRCUIT COURT OF ALBEMARLE COUNTY

Upon a Petition for a Writ of Prohibition and Mandamus.

John C. Lowe (Edward L. Hogshire; Lowe & Gordon, on brief), for petitioners.

James E. Kulp, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for respondent.

Brown was convicted of a murder in an auto parts junkyard. A newspaper article published on the day after the killing quoted a "spokesman" for the sheriff's department who gave a different version of the facts than the prosecution later presented in court. Brown wanted to make the reporter give up the identity of that confidential source, but the trial court refused to do so. Here, the Court affirmed that decision, ruling that a journalist’s promise of confidentiality should yield only when a defendant’s need is essential to a fair trial. In this case, the Court ruled, the confidential statements would not have affected Brown’s conviction or the severity of his sentence.

SUPREME COURT OF VIRGINIA

Archer v. Mayes

Record No. 8110

194 S.E.2d 707, 213 Va. 633

March 5, 1973

GRACE ARCHER AND JAMES JOHNSON v. D. CARLETON MAYES, JUDGE OF THE CIRCUIT COURT OF AMELIA COUNTY; S. L. FARRAR, JR., CLERK OF THE CIRCUIT COURT OF AMELIA COUNTY; JOHN L. SMITH, JAMES E. FORD AND GRAHAM W. THOMPSON, JURY COMMISSIONERS OF THE CIRCUIT COURT OF AMELIA COUNTY

SYLLABUS BY THE COURT

Appeal from an order of the Circuit Court of Amelia County. Hon. William M. Sweeney, judge designate presiding.

Sanders, a professor at Virginia Western Community College, sued after a newspaper wrongly reported that she improperly withheld documents from her department head. Her employment contract with the university was not renewed after the article appeared, and she was unable to obtain another position with a university. The Court affirmed a circuit court’s ruling in favor of the defendants, the publisher and the source for the article, because Sanders had not proved actual malice or reckless disregard for the truth. That standard applies when published statements relate to matters of public or general concern, because they are protected by the First Amendment and subject to qualified privilege.

The Court reversed and dismissed an indictment for a gentleman who sold the "girlie" magazines KNIGHT and RAW. They were not proved beyond a reasonable doubt to be obscene and beyond the area of constitutionally protected expressions, the Court ruled. Determination of whether a particular work of expression is obscene is not merely a factual matter on which jury's verdict is conclusive, but also involves an issue of constitutional law which must ultimately be decided by the Court. The definition of obscenity depends in part on "contemporary community standards," and expert testimony is required to establish those standards. The personal opinions of jurors or witnesses do not in themselves necessarily express or reflect community standards.

Bigelow was tried, convicted, and fined for publishing an advertisement in the Virginia Weekly, a Charlottesville newspaper, that advertised abortion services in New York. The Court ruled that the statute, which forbid "encouraging or prompting" abortions in any way, was constitutional. The ruling distinguished the lawful regulation of advertisements from the unlawful abridgement of free expression. The Court said that Bigelow could not assert the hypothetical rights of those whose speech is usually protected -- such as doctors or lecturers -- in making his own claim about commercial advertising.