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DISBARRMENT PROCEEDINGS JOSEPH P. MCLAUGHLIN v. PHILADELPHIA NEWSPAPERS (11/26/75)

decided: November 26, 1975.

IN RE DISBARRMENT PROCEEDINGS OF JOSEPH P. MCLAUGHLIN
v.
PHILADELPHIA NEWSPAPERS, INC., APPELLANT



COUNSEL

Harold E. Kohn, David H. Marion, Arthur B. Makadon, Philadelphia, for appellant.

John Rogers Carroll, Carroll & Gabriel, for appellee.

Harold Cramer, Philadelphia, amicus curiae.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result. Roberts, J., filed a dissenting opinion.

Author: Pomeroy

[ 465 Pa. Page 106]

OPINION OF THE COURT

Appellant, Philadelphia Newspapers, Inc., is the owner and publisher of The Philadelphia Inquirer, a major daily newspaper of general circulation in the city of Philadelphia. (appellant will sometimes hereinafter be referred to as "the Inquirer"). In early 1974, members of the Inquirer reporting staff began an investigation into the background of Joseph P. McLaughlin, a newly appointed assistant district attorney of Philadelphia County, who was sworn into office on January 8, 1974. The purpose of this inquiry was to gather information which the reporters believed would be useful in assessing Mr. McLaughlin's qualifications for his recently obtained position.

During the course of its investigation, the Inquirer learned that, while engaged in the private practice of law, McLaughlin had been the subject of disciplinary proceedings before the court of common pleas of Philadelphia County. In accordance with long-standing local practice in that court, the proceedings were conducted privately and the record of the hearing was impounded in order to preserve confidentiality. Thus, there is no public record of the nature of the charges brought against Mr. McLaughlin or of their ultimate disposition. All that is known from the record before us is that criminal misconduct was not at issue and that the disciplinary court was satisfied that public discipline was not warranted. Believing that the record would, nevertheless, be relevant to the object of its investigation, the Inquirer sought access to it by petitioning the court to vacate the impoundment order and to permit the Inquirer personnel to inspect and photocopy the record. After

[ 465 Pa. Page 107]

    hearing argument, the court of common pleas dismissed the petition. This appeal ensued.*fn1

Appellant contends that McLaughlin, by accepting a position of public trust, has become a public figure; that the public has a right to be informed as to his fitness to fulfill the obligations of his office; that it is the function and responsibility of the press, as here represented by the Inquirer, to effectuate this end by ferreting out pertinent information; and that it is constitutionally impermissible to deny the press access to records bearing directly on a public official's fitness to hold the office he has assumed. In short, the Inquirer claims that the "freedom of the press" clause of the First Amendment of the Constitution of the United States, applicable to the states through the Fourteenth Amendment, see Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), guarantees access to records of a disciplinary proceeding against a public official, notwithstanding that the record was impounded pursuant to a long-standing local procedure in order to assure confidentiality, and notwithstanding that this was done at a time when the official was a private citizen and did not occupy a position of public trust. We do not agree, and will affirm.

An analysis of appellant's contention requires an inquiry into both the scope of the Inquirer's First Amendment right, and the nature of the disciplinary proceedings the confidentiality of which appellee seeks to maintain. To these considerations we now turn.

I.

Perhaps at no time in the history of this nation have the American people been more acutely sensitive to the issue of the legitimacy of governmental secrecy; and it is

[ 465 Pa. Page 108]

    with increased scepticism that the public responds to the justifications offered by government for its refusal to divulge particular information possessed by it alone.*fn2 In events still fresh in public memory we as a society have recently borne witness to the vital democratic safeguards which inhere in a free and unbridled press. In exposing the abuses that some would have shielded behind a cloak of officially sanctioned secrecy, the press has rekindled our appreciation of its constitutionally designed function:

"Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, . . . muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."

Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484, 488 (1966).

It is, then, with great caution that we must proceed in weighing an allegation that the state is impermissibly impairing this fundamental function. Yet we must do so with the knowledge that the Constitution has not granted unrestricted power to the press to pursue its purpose, and that the press has been denied access to information, notwithstanding contentions that its function would be impermissibly impaired. See Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); McMullan v. Wohlgemuth, 453 Pa. 147, 308

[ 465 Pa. Page 109]

A.2d 888 (1973); Cf. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

At the outset it should be noted that this is not a case which calls into question the right of the press to print, publish and distribute information which it has already acquired. As such it stands on a different constitutional footing than decisions which have shielded the press from the chilling effect of potential defamation judgments, Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L.Ed.2d 1094, 87 S.Ct. 1975 (1967); New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); and freed the press from the shackles of prior restraint, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). In those cases the freedom of the press clause was held to afford broad protection against governmental interference with the publication of information in the possession of the press; they in no way decided or explored the related but distinct question of the right of the press to gather news. Accordingly, they are of little assistance in resolving the issues now before this Court, for what appellant is asserting is not a right to publish information in its possession, but a constitutional right to acquire information not now in hand.*fn3

The perimeters of the right of the press to gather information remain largely uncharted. A right of access founded solely on the freedom of the press clause was

[ 465 Pa. Page 110]

    first asserted in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). There the United States Supreme Court held that the freedom of the press clause does not accord a newsman a privilege against testifying before a grand jury as to the identity of his sources or as to information received in confidence, where the request is made in good faith and the information sought is relevant to the inquiry. Although the justices of the Court disagreed as to the scope of the newsman's privilege, all members of the Court did recognize that the press, of necessity, has a limited constitutional right to gather news:*fn4

"Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681, 92 S.Ct. at 2656, 33 L.Ed.2d at 639. (opinion of the Court, per White, J.).

This recognition was echoed broadly in the dissenting opinion of Mr. Justice STEWART, in which Mr. Justice BRENNAN and Mr. Justice MARSHALL joined:

"No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist." Id.

[ 465 Pa. Page 111]

    at 728, 92 S.Ct. at 2673, 33 L.Ed.2d at 667 (Stewart, J., dissenting).

The "dimensions" of this right were recently given some definition by the Supreme Court in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). In Pell, members of the communications media challenged an administrative regulation promulgated by the Director of the California Department of Corrections which prohibited "'[p]ress and other media interviews with specific individual inmates'" of California prisons. Id. at 819, 94 S.Ct. at 2802, 41 L.Ed.2d at 500. It was asserted that the regulation infringed the freedom of the press guaranteed by the First and Fourteenth Amendments in that it denied the press access to sources of newsworthy information, viz., prison inmates who desired interviews with the press. In rejecting this claim, the Court first pointed out that, by virtue of a similar regulation, members of the general public were equally denied interviews with specifically named inmates, and that this regulation was a reasonable exercise of administrative discretion. Mr. Justice STEWART, writing for the Court, then went on to hold that the press has no greater right of access than that afforded to the general public -- there is no independent "freedom of the press" right of access:*fn5

"It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources, cf. Branzburg v. Hayes, . . . and that the government cannot restrain the publication of news emanating from such sources. Cf. N. Y. Times v. United States. . . It is quite another thing to suggest that the Constitution imposes upon government the affirmative

[ 465 Pa. Page 112]

    duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision of this Court." 417 U.S. at 834-35, 94 S.Ct. at 2810, 41 L.Ed.2d at 508-09.

Thus, the Court seems clearly to have equated the press' right of access with the right of access of the public. See also Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). It has been aptly observed, however, that this formulation "seems to have defined one unknown in terms of another", for the public's right of access was and remains a constitutionally undefined concept. Note, The Rights of the Press and the Public to Gather Information, 87 Harv.L.Rev. 1505, 1507 (1974). Any circumscription of this right would be a delicate, sensitive process. The facts of this case do not require us to pursue so perilous an undertaking.

II.

This Court has long recognized that "the court before whom the attorney practices has the undoubted power to formulate such rules as it sees fit to discipline, disbar, or admit persons to practice," Hanson's Appeal, 330 Pa. 390, 391, 198 A. 113, 114 (1938), subject, of course, to the safeguards of procedural due process of law. In re Shigon, 462 Pa. 1, 329 A.2d 235, 241 (1974).*fn6 In discussing the regularity of disciplinary

[ 465 Pa. Page 113]

    proceedings held by the court of common pleas of Philadelphia County to hear allegations of misconduct by certain members of the Philadelphia bar, Chief Justice ...


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