This Project Does Not Please the Court   

Justices are angry over public release of their tapes.

The increasingly nasty feud between the U.S. Supreme Court and a California professor over tape recordings of some famous court hearings is generating more heat than light on a serious legal issue. Access for reporters, scholars and others to court records of all kinds, including audiotapes, remains a cloudy area of the law; the justices themselves may be the only ones who can clear it up.

For months this summer and fall, the court has been in a lather over a publishing project of Peter Irons, who teaches political science at the University of California at San Diego. The project includes tapes of hearings held before the court on Roe vs. Wade and 22 other historic cases, along with a book of printed transcripts. It has become a matter of bitter irony that the project is titled, "May It Please the Court..." That, of course, is the typical opening line of lawyers as they start an argument at the court's lectern.

Irons got the tapes from the National Archives. The court requires the Archives to get a promise from anyone copying the tapes to use them only for "private research and teaching purposes" and bars reproduction of them on radio, television or "other similar" media. Irons signed papers agreeing to those terms, and the court has argued in a press release that he is in "clear violation of..contractual commitments." Before the tapes/book combo came out in mid-September, the court darkly announced that it was pondering "legal remedies."

The professor, for his part, insists that he shouldn't be forced to abide by the agreement. He has contended in interviews that the originals held at the Archives are "public records," and thus should be available for reproduction and use. He believes that there is a First Amendment right of access to the tapes.

While both sides in this spat have been talking aggressively about their legal rights, the court was the first to make a move. It ordered the Archives not to give Irons "or any project with which he is associated" the opportunity to copy more tapes without the consent of the court, through its marshal, Alfred Wong. That mandate is understood around the courthouse as a clear sign that Irons will get no more access.

Some legal commentators have speculated that the court is acting lawlessly by making the tapes available only with very stringent restrictions on use. But that may be beside the point. The reality is that the court probably can do what it wants with its tapes (as with its other records), and break no law in the process.

Since 1980, the court has been developing a legal doctrine that says the public and press have a constitutional right to observe court proceedings – chiefly trials. But that right of access, under the First Amendment, has been limited explicitly by the court to proceedings that traditionally have been open. Court records do not necessarily fit into that category. Courts routinely keep some records under seal – and often do so without explaining why.

Efforts to create a guaranteed right of access to court records have not fared well, except when a particular state has chosen to mandate openness. The Constitution, so far, does not appear to be a promising lever to pry open court documents that have been kept out of reach. (In the federal courts, the Freedom of Information Act is of no help; it does not apply to the judiciary.)

What Irons is fighting is the well-established custom of the Supreme Court acting as the sole arbiter of what it will make public. The court makes the rules on access and reacts with nervous anxiety, and sometimes anger, when someone else forces it into the open in unwanted ways.

The justices were most unhappy in private when Bob Woodward and Scott Armstrong revealed many court secrets in their 1979 bestseller, "The Brethren." And the justices reacted with public fury when the Library of Congress earlier this year put the late Justice Thurgood Marshall's private court papers on the public shelves.

Although the court has done a good deal through its First Amendment right-of-access cases to bring more openness to courts in general, it clearly sees no contradiction between these rulings and its habit of deciding who will have access to its own records and under what conditions. It is pure folly to think that the court's hand on the latter could be forced by a lawsuit. And what the court does about access is essentially none of Congress' business under the "separation of powers" doctrine.

What the Irons controversy may well do is harden the court's attitude about its own sense of privacy, and cool any temptation to think about allowing its public activities to be broadcast on radio or television. That temptation has never been strong, anyway.

The press' greatest fear over this controversy, though, is that it might cause the court to be less generous as it confronts the abiding issue of public access to court files generally. No one can say whether that is a realistic fear. l