Reading The Marshall Tea Leaves   

Late justice's papers shed new light on major press cases.
Michael D. Sullivan and Thomas H. Howlett are attorneys at the Washington, D.C., firm of Ross, Dixon & Masback, which represents media clients on First Amendment matters. Alys I. Cohen and Anne G. Depew assisted with research for this article.

In 1975, the Philadelphia Inquirer ran a series of articles suggesting that local businessman Maurice S. Hepps and his Thrifty convenience stores had links to organized crime and had interfered with state liquor board proceedings. Hepps sued the paper for libel. Hepps stood to benefit from a long-standing advantage for plaintiffs in libel suits: Common law presumed that defamatory statements were false, putting the onus on the Inquirer to prove otherwise. The Inquirer sought to change the common law, maintaining that the press freedoms guaranteed by the First Amendment required Hepps to prove the articles were false.

The case went all the way to the U.S. Supreme Court. After oral arguments in December 1985, Justice Sandra Day O'Connor agreed to write the majority decision for the court, which was split 5 to 4 against the Inquirer's position. Two months later, however, O'Connor informed her colleagues that she had changed her mind. In an apologetic memorandum, she explained that she had "reluctantly concluded" that the four dissenting justices were right. As a result of O'Connor's shift, a five-justice majority ruled for the newspaper. The result was a major victory for the press.

O'Connor's change of heart, revealed in the papers of the late Justice Thurgood Marshall, is just one incident that provides a rare, behind-the-scenes glimpse at the evolution of a major court decision affecting First Amendment law. Marshall's vast files contain a trove of memoranda from the justices and their law clerks – including early drafts of opinions and vote tally sheets – and offer a view of the court's deliberative process, which is generally shrouded in secrecy.

A review of the documents from approximately two dozen major cases involving the press and First Amendment protection shows the justices engaged in debates over the breadth of press rights – dialogues that on occasion have led to belated, carefully considered changes in allegiance that sometimes have affected the outcome of cases.

Despite the genteel nature of their deliberations and their mannerly exchanges of judicial views, the justices divided sharply in their struggles to delineate the scope of press freedoms. For example, the papers show how the split court came to decide a crucial 1976 case in which the right of a free press conflicted with the right to a fair trial. The justices' deliberations in that case doomed an appeal by CNN more than a decade later. CNN asked the court to lift a prior restraint order prohibiting the network from broadcasting tapes of conversations between former Panamanian President Manuel Noriega and his lawyers.

The Marshall papers also provide a look at the central role played by Justices William Brennan and Marshall in championing the media's First Amendment rights, and the void left by their retirements in 1990 and 1991 respectively. To the surprise of some, Marshall's papers also indicate that Justices O'Connor and David Souter, who have sided with the press in a number of cases, may be looked to in the future to defend First Amendment freedoms.

Prior Restraint

When CNN vs. Manuel Noriega came before the court in 1990, the justices had to choose between two competing constitutional rights: the First Amendment right of the press to inform the public about criminal proceedings and the Sixth Amendment right of a criminal defendant to a fair trial. At issue was whether the government had the power to prohibit CNN from broadcasting tapes it had obtained of conversations between Noriega and his lawyers if doing so might deprive Noriega of a fair trial.

Although the case was the subject of intense media scrutiny, the Marshall papers provide a much more complete account of how the justices resolved it. In a memo to his colleagues, Justice John Paul Stevens said he was unwilling to join in an opinion that would hold all prior restraint orders unconstitutional. He said if a news organization wants to report the contents of a secretly recorded conversation about strategy between a defendant and his lawyer, that may well be a case when prior restraint is justified to assure a fair trial.

What is remarkable about Stevens' memorandum, however, is that it was written 14 years before the Noriega case, when the court was considering the First Amendment case, Nebraska Press Association vs. Stuart .

That case involved the prosecution of Erwin Charles Simants, who was accused of sexually assaulting and murdering a family in rural Nebraska. To prevent news coverage that might make it difficult to find an impartial jury, a Ne-

braska court issued a gag order restricting what could be

"publicly reported or disclosed to the public." Among other things, the order prohibited the press from reporting Simants' confession to law enforcement officers (which had already been made public in open court at his arraignment); the identity of the victims of the alleged sexual assault; and the type of restrictions on reporting imposed by the court.

The case, heard by the court in April 1976, revealed a split in the justices' approach to cases involving prior restraint. After oral arguments, then-Chief Justice Warren Burger circulated a draft on June 7 of a majority opinion that would strike down the restrictive order in the name of the First Amendment and impose a heavy burden on anyone seeking prior restraint in the future. In a memorandum to his colleagues, the chief justice explained that he would entertain other viewpoints "except those which would decide now and forever to bar prior restraint against pretrial publicity."

The next day, Brennan responded with a memo and draft opinion that took the opposite approach. Brennan's draft, which was joined by Justice Potter Stewart and Marshall, advocated an absolute rule stating that prior restraint is "a constitutionally impermissible method" for ensuring a criminal defendant's right to a fair trial – the very option Burger said he would not consider.

The chief justice responded somewhat curtly to Brennan's suggestion that his opinion reflected the views of a majority of the court: "If the Conference [court] consensus was as you suggest, to 'forever bar prior restraint' on pretrial publicity, I would be prepared to articulate that, but that is not my recollection." Justice Lewis F. Powell Jr. supported the chief justice's recollection with a memorandum stating he did not "understand that a majority of the Conference voted to hold that never, under any conceivable circumstances, would a court have the power to restrain prejudicial publicity even for the briefest period of time."

The following day, Stevens wrote what was to become a pivotal memorandum. Although Brennan's opinion barring prior restraint came closest to expressing his own views, Stevens said he was not prepared to state that "there could never be a case in which any restraint would be appropriate." Stevens then posed for his colleagues the hypothetical case that would actually be presented to the court 14 years later in CNN vs. Noriega : "Consider, for example, the possibility of surreptitious recording of strategy conferences between the defendant and his lawyer."

Later that day, Brennan responded that in such a case, the news media would risk criminal prosecution as well as civil action under common law. But, he argued, "the very essence of the prior restraint doctrine is that sanctions must await the publication." In short, Brennan contended that while government could not prohibit the dissemination of information, it could punish the press if it violated the law.

On June 30, 1976, the court issued its decision. Burger's opinion, on behalf of the majority, struck down the prior restraint and established guidelines to determine when such orders would be justifiable. Burger wrote that in making such rulings, courts should consider the "nature and extent of pretrial news coverage," whether other measures would "mitigate the effects of pretrial publicity" and whether a gag order would "prevent the threatened danger."

Brennan, joined by Marshall and Stewart, concurred in the ruling but did not join the majority opinion. Instead, Brennan wrote an opinion flatly rejecting the notion that "prior restraints could be justified" based on Burger's " ad hoc balancing approach." In Brennan's view, "At least in the context of prior restraints on publication, the decision of what, when and how to publish is for editors, not judges."

Stevens also wrote a separate opinion, agreeing with Brennan that a gag order to prohibit the "press from publishing information in the public domain" was constitutionally impermissible. Perhaps mindful of his hypothetical example of a "surreptitious recording of strategy conferences" between a defendant and his lawyer, Stevens concluded that he was not prepared to say that prior restraints were never justifiable, "no matter how shabby or illegal the means by which the information is obtained, [and] no matter how serious an intrusion on privacy might be involved."

The Noriega Case

Fourteen years later, Stevens' hypothetical case became a reality when Manuel Noriega's lawyers obtained a temporary restraining order preventing CNN from broadcasting tapes of their conversations with Noriega allegedly recorded by federal prison authorities. The order required CNN to turn over copies of the tapes so the court could determine if they contained privileged attorney-client communications. CNN urged the Supreme Court to lift the Florida judge's order, arguing that it constituted an unlawful prior restraint on publication.

While CNN's appeal was pending, Stevens sent a memo to his colleagues arguing in favor of rejecting it. CNN vs. Noriega was different from Nebraska Press in three respects, Stevens wrote. First, Nebraska Press involved "a prior restraint on the publication of information in the public domain, whereas the content of the Noriega tapes has not been disclosed to the trial court." Also, those seeking the restraint order in Nebraska Press "had a fair opportunity to try to establish the need for protection, whereas Noriega has not had such an opportunity here," because CNN refused to turn over the tapes. Finally, Stevens argued, "the restraint in Nebraska Press lasted until the jury was impanelled, whereas the restraint in this case might well have expired in a few hours if CNN had turned over the tapes."

Stevens concluded that the delay in broadcasting the tapes is "largely the consequence of CNN's decision to defy the district court [by refusing to provide copies of the tapes] and to institute appellate proceedings."

Marshall responded that day. He wrote that he would vote to grant CNN's appeal, but turned Stevens' argument around. Marshall reminded his colleagues that under Nebraska Press , a prior restraint on news about a criminal proceeding "could be justified only by a compelling and concrete showing that publication would impair a fair trial." By declining to apply the Nebraska balancing tests before CNN surrendered the tapes, Marshall argued, the lower courts prohibited publication without " any concrete showing of harm."

As support, Marshall quoted Brennan's concurring opinion in Nebraska Press . "If the only way to administer the strict standard recognized in Nebraska Press is to authorize an automatic preliminary restraint of speech, then I think the time has come for the full court to recognize 'that resort to prior restraints on freedom of the press is a constitutionally impermissible method for enforcing [the right of a fair trial].' "

Despite Marshall's plea on behalf of CNN, the court denied CNN's application in a two-sentence order. Marshall, joined only by O'Connor, filed a brief dissent. Three days later CNN turned over the tapes. On November 28, the trial judge lifted the restraining order after reviewing transcripts of the tapes.

Courtroom Access

The papers from Marshall's tenure also reveal the court's struggle to find a constitutional basis for the public's right of access to criminal trial proceedings. In 1979, the court came close to recognizing a right of access rooted in the Sixth Amendment in the case of Gannett Co. vs. DePasquale . The justices ultimately rejected that approach, however. It wasn't until three years later, in Globe Newspaper Co. vs. Superior Court , that Brennan convinced a majority of the court that the First Amendment provided a constitutional right of access to criminal trials.

In the Gannett case, a New York judge excluded the press and public from a pretrial hearing on whether confessions and physical evidence should be admitted in a murder trial. The victim was a Rochester man who had disappeared from a fishing boat found riddled with bullet holes. The judge had closed the courtroom after the two defendants had argued, without objection from the prosecution, that adverse publicity was jeopardizing their trial. The case raised the question of whether the press possessed an independent constitutional right to report pretrial proceedings when the prosecution and defense ask to keep them out because of fair trial concerns.

By a vote of 5 to 4, the court held that excluding the press did not violate the Constitution, rejecting Gannett's argument that the public and the press have a right to attend judicial proceedings under the Sixth Amendment. But behind the scenes, the Marshall papers reveal the Gannett decision differed sharply from the outcome expected after the court's initial vote following oral arguments. Justice Harry A. Blackmun – who ultimately wrote a dissent on behalf of Justices Byron White, Brennan, Marshall and himself – initially was charged with writing the court's majority opinion. Blackmun's first draft declared closing the hearing unconstitutional.

Support for this view, however, eroded within a month. In a May 1979 memorandum to Blackmun, Powell warned his colleagues that "I cannot be sure where I will come down." Powell was concerned that at the court's conference, where an initial vote had been taken, "I expressed agreement with some of what was said by Potter [Stewart], Byron [White] and you" but that "I do not think a majority of the Court agreed as to exactly how the competing interests in this case should be resolved."

In a follow-up memorandum, Powell joined Stewart's opinion that held that the public has no Sixth Amendment right to attend criminal trials. Powell's switch gave Stewart a majority, converting his planned dissent into the law of the land.

In the wake of the Gannett ruling, an unprecedented rash of courtroom closures elicited a new round of challenges, this time on First Amendment grounds.

These cases proved difficult for the court as well. In Richmond Newspapers vs. Virginia , the 1980 case that first tested the First Amendment right of access to a criminal trial, seven justices agreed that the lower court was wrong in closing the trial to the press. But they were unable to agree on the reason. The seven justices wrote four separate opinions wrestling with the propriety of a judge's order closing a notorious murder trial, a case that had been tried three times before without resolution. In the closed trial, the judge set the defendant free at the end of the prosecution's case. The closure, however, forced the press and the public to learn about the proceedings from tapes made available at the end of the trial.

The failure to agree on a majority view in Richmond Newspapers proved to be a source of consternation within the court that kindled frustrations over what had happened behind the scenes during the Gannett case. In a memorandum to his colleagues 10 days before the court's decision was announced, Chief Justice Burger expressed his disappointment over failing to enlist more justices in his attempt at a "majority" opinion. (Only two justices joined Burger, forcing the chief justice to merely "announce" the judgment of the court and deliver his three-justice opinion recognizing an implicit First Amendment right to attend criminal trials.)

"It is most unfortunate," he wrote, "that, although seven of us are of one mind on the essentials of this case – the openness of criminal trials – we fail, apparently, to clarify the confusion that followed in the wake of Gannett... An unnecessarily 'fractionated court' serves no good purpose; it causes those reading our opinions to find differences of substance which are not actually there."

In an early memorandum, White also referred to the Gannett deliberations. "Although I thought, and still do, that the Sixth Amendment is the preferable approach to the issue of public access to both pretrial and trial proceedings, particularly the latter, it does not appear that the Conference is prepared to proceed on this basis."

White said he agreed with the First Amendment basis for reversing the courtroom closure in the Richmond case and was one of the two justices to join Burger's opinion, although he also filed a one-paragraph concurring opinion. White, who had ended up in the minority in the Gannett case, underscored that the prickly First Amendment issues that were giving the justices difficulty could have been avoided if the court had recognized a public right of access via the Sixth Amendment a year before. "This case," he wrote, "would have been unnecessary had [the] Gannett [decision] construed the Sixth Amendment to forbid excluding the public from criminal proceedings except in narrowly defined circumstances."

In 1982, the court reached a decision that firmly recognized a constitutional right of access to criminal trials grounded in the First Amendment. In a majority opinion written by Brennan in Globe Newspaper , the court struck down a Massachusetts statute that excluded the press and public from rape trials during the testimony of underage victims.

Brennan's opinion adopted a rigorous standard for closing criminal trials. It declared that to throw out First Amendment protection of open proceedings, there must be a "compelling governmental interest" and a finding that any closure "is narrowly tailored to serve that interest." Subsequent cases considered by the court in 1984 and 1986 involving the Press-Enterprise in Riverside, California, established a similar presumption in favor of public access to jury selection and preliminary hearings in criminal cases.

Looking Ahead

With the departure of Brennan and Marshall, the news media must look for new champions of press freedoms. While it is much too early to reach definitive conclusions, the Marshall papers suggest that O'Connor and Souter may lend support to the press in the years ahead.

In June 1991, months after the initial vote was taken in the case of Cohen vs. Cowles Media Co ., both O'Connor and the newly confirmed Souter (taking the seat held by Brennan for 34 years) adopted the minority view that a confidential source should not be able to bring a breach of contract action against a newspaper that had disclosed his identity in print.

Souter initially voted to uphold the claim by political activist Dan Cohen that the Minneapolis Star and Tribune and St. Paul Pioneer Press were liable for breach of contract when both identified him as the source of damaging information about a candidate in a hotly contested gubernatorial campaign. But Souter subsequently informed his colleagues in a memo that he had "argued myself to the other view while writing what I had originally meant to be a concurrence." Souter circulated a dissent that said Cohen's argument could not be sustained when it sought damages for the publication of truthful information.

The next day, O'Connor, who had also previously sided with the majority, switched allegiances as well. "I dislike late in the term shifts," O'Connor wrote, "but, nevertheless, I am persuaded by David's writing that we should not dispense with the balancing test in this case." With "apologies" to White, who had written the majority opinion, O'Connor joined Souter's dissent. As a result of the shift, Cohen's breach-of-contract claim was upheld by the court by only a 5 to 4 margin.

Similarly, in 1986, O'Connor provided the critical fifth vote in Philadelphia Newspapers, Inc. vs. Hepps , leading to a ruling that greatly strengthened the rights of the press in libel cases. When Hepps' suit over Inquirer articles about his companies' alleged ties to organized crime reached the high court in 1985, libel laws in many states presumed that any published statement that injured someone's reputation was false until proven otherwise. Truth was a defense, but the news media bore the burden of proving it. If the evidence was equally balanced, the plaintiff won.

Like most other states, Pennsylvania required libel defendants to prove the truth of defamatory statements. The Inquirer, however, argued that the First Amendment prevailed over common law and required plaintiffs to carry the burden of proving falsity in order to provide the "breathing space" for a free press necessary to ensure "uninhibited, robust, and wide-open" debate on public issues.

Following oral arguments in Hepps , a majority of the court was prepared to uphold Pennsylvania's view that the First Amendment did not require Hepps to prove that the Inquirer articles were false to collect damages. Chief Justice Burger assigned O'Connor to draft an opinion leaving the common law intact.

Two months later, however, O'Connor told her colleagues that her views had changed. Noting in a February 18, 1986, memorandum to Burger that "my vote to affirm was very tentative," she stated, "I have reluctantly concluded that the better view is that, in a libel case such as this against a media defendant and involving matters of public concern, the plaintiff is required to prove not only fault but also falsity." She added, "I am distressed to be the cause of such a change and can only offer my apologies to all."

At Brennan's request, O'Connor then assumed responsibility for drafting the new majority's opinion, in which she wrote, "To ensure that true speech on matters of public concern is not deterred, we hold that the common law presumption that defamatory speech is false cannot stand."

The Marshall papers afford some perspective on not only the court's past struggles over press issues, but its future as well. By offering insights into the origins of leading Supreme Court decisions affecting the press, the papers reinforce the conclusions of many court watchers regarding the critical role played by Brennan and Marshall in ensuring that hard-won press freedoms were preserved. By revealing that O'Connor and Souter have occasionally sided with the press, but only after initially voting the other way, the papers also underscore the uncertainty the press faces with the current court – and the opportunity that the new era presents for leadership on First Amendment freedoms. l