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American Journalism Review
Once Again, No First Amendment Champion  | American Journalism Review
 AJR  Columns :    THE PRESS & THE LAW    
From AJR,   October 1994

Once Again, No First Amendment Champion   

Stephen Breyer, the second Supreme Court justice named by Clinton, is not likely to make waves.

By Lyle Denniston

Any hope that a Democrat in the White House would mean journalism-friendly Supreme Court nominees has all but vanished. President Clinton has now named two justices, and the second may be no more sympathetic to the press than the first (see "The Press and the Law," September 1993).

Stephen H. Breyer, like Ruth Bader Ginsburg before him, is a moderate jurist, not inclined to make waves, cautious in interpreting the law and the Constitution, fretful about appearing to be too liberal. If the press is to make any gains under the First ümendment, it would need a court more willing to view the First Amendment expansively, the way former Justices William J. Brennan Jr., Thurgood Marshall, Potter Stewart, William O. Douglas and Hugo L. Black did. Neither Breyer nor Ginsburg is in that camp.

It may be of some solace to the press, though, that Breyer's arrival is not likely to mean a net loss for media rights. Breyer probably won't be less friendly than the justice he replaced in August, Harry A. Blackmun. While Blackmun had become the courtÝs most liberal member by the time he retired last summer, he was more moderate than liberal on many issues affecting the news media.

From a dissent early in his career when the court allowed the New York Times and Washington Post to publish the Pentagon Papers – a dissent in which he noted, "The First Amendment, after all, is only one part of the entire Constitution" – to his final vote last June to limit the First Amendment rights of cable television, Blackmun could be a press adversary.

To be sure, Blackmun made significant efforts to expand the commercial speech rights of advertisers, fought vigorously to give the press broad constitutional freedom to cover the courts, and favored extensive rights for student newspaper editors and writers.

In the field of libel law, however, Blackmun often was no press ally. He cast the decisive fifth vote to narrow the First Amendment's protection for stories about private individuals; supported the right of those suing the press to probe editorial decision making and to file suits in any state where a few copies of the publication in question are sold; refused to support full protection for editorials and opinion columns; helped narrow First Amendment protection for political coverage challenged as libelous; and supported a major role for libel trial juries to second-guess the accuracy of quotations used in news or feature stories.

Blackmun also supported government regulation of "indecent" radio broadcasts, refused to insulate the press from grand jury and other official subpoenas, and voted to limit coverage of the copyrighted memoirs of presidents.

In 14 years on a federal court of appeals in Boston, Breyer similiarly compiled a mixed record on free press and free speech issues. A highly pragmatic judge who has shown no abiding devotion to any brand of constitutional theory, Breyer is a classic example of a judge who views each case solely within its own context, to be decided as narrowly as possible. It is futile to search his work for signs of a judicial agenda or social vision. When Breyer's nomination was up for Senate review, some of his stroýgest supporters argued that he is highly sensitive to issues of free expression, and he himself spoke about the virtues of free speech before the Senate Judiciary Committee. However, his decisions touching on the First Amendment reinforce his image as a pragmatist who will vote for or against a claim of free expression depending upon the specifics of a case and the real world effect of allowing such freedom.

For example, he joined in an opinion requiring NBC News to turn over for a judge's review unused footage of an interview with a witness in a criminal case, saying that particular witness was too important to let the network withhold its outtakes. But in another case, Breyer joined in a ruling giving the press access to the identities of jurors in a high-profile criminal case, but mainly because the trial was over and the risk of disrupting the court was past.

In a series of rulings that he supported testing the long-standing question of when the government may use "prior restraint" to prevent disclosure, Breyer showed a strong tendency to balance the practical interests at stake rather than aggressively apply a general theory or strong rhetoric for free expression.

His rulings on media law issues such as libel, press access to court documents, open meetings and open records laws (including the federal Freedom of Information Act), broadcasting rights and copyright show little consistency. While he is not a mystery, there is little that tells media lawyers what to do to get his vote, and nothing to indicate he is likely to become an architect of major First Amendment doctrine. l



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