The News Media Won't Miss Byron White
The retiring justice was no champion of the First Amendment.
By Lyle Denniston
It would be in bad taste for the nation's media to openly celebrate the retirement of Justice Byron R. White from the U.S. Supreme Court. But it would be understandable if there were a quiet feeling of relief among journalists over his departure from the bench.
The news industry has had a love/hate relationship with White for years. Fascinated that someone who could play football well could be smart enough to serve on the Supreme Court, journalists have given vast amounts of space and air time – most of it highly favorable – to "Whizzer" White. But to reporters and editors who deal in controversial stories and often risk getting sued, and to the lawyers who defend them, White has been a nemesis.
In an era when media lawyers were able to gain some ground in establishing or protecting press rights, Justice White tended to be suspicious of those rights, did not often vote to protect them and sometimes was downright hostile to them.
The justice's private attitude toward the press, shared with his intimates, was described as distinctly unfriendly. One old friend suggested that the explanation was simple: White never stopped resenting the continuous use of his football nickname "Whizzer" in stories about him, apparently feeling that it diminished his stature as a judge.
In White's 31 years on the court, libel issues outranked all others in importance in the law governing the press. Not long after he joined the court, for the first time it put some constitutional curbs on libel judgments. That came in the 1964 case of New York Times vs. Sullivan . Although the Sullivan decision has never lived up to its initial liberating promise (because the court has never wanted to take a chance with sweeping press freedom), the ruling did mark a historic breakthrough for the press – at least when the claim of libel was by a public official.
White voted for the Sullivan decision, but ultimately concluded that he had been wrong to do so. He later complained the decision was "the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander."
Twenty-one years after the ruling, White reached the conclusion that "the court [in Sullivan] struck an improvident balance..between the public's interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation." He made that remark as he joined a court majority in the decision in Dun & Bradstreet vs. Greenmoss Builders , taking away much of the protection granted in Sullivan if a story did not deal with "a matter of public concern."
Even though he waited until 1985 to express fully his displeasure with the Sullivan ruling, White had begun to question its rationale much earlier. In 1974, when the court used part of the Sullivan approach to make it more difficult for private individuals (those who hold no public position and are not celebrities) to collect heavy damages in libel cases, White dissented, complaining angrily that the court had undercut states' rights.
That was in the case of Gertz vs. Welch . White commented disapprovingly in his dissenting opinion about "the communications industry" controlled by "a few powerful hands" and suggested that the industry was wealthy enough "to pay for the occasional damage they do to private reputation."
White was even less accommodating of press interests when the court took up the claim that the First Amendment protected confidential news sources. He wrote the court's 1972 decision in Branzburg vs. Hayes , declaring that the First Amendment contains no "newsman's privilege" to resist court orders requiring reporters to testify about their sources.
When the court considered the question of a constitutional right to gather news through access to courts and other parts of government (in the 1980 case of Richmond Newspapers vs. Virginia) , White went along with a limited right of access. But the recently released Supreme Court papers of the late Justice Thurgood Marshall show that White was a reluctant press ally in that case, and wanted then-Chief Justice Warren E. Burger to frame the decision more narrowly.
No part of the press has a deeper grievance with White's career than the broadcast industry. He wrote the 1969 decision in the case of Red Lion Broadcasting vs. Federal Communications Commission – the "most important broadcast regulation case ever decided," according to one treatise on the First Amendment. That decision clearly established that, in constitutional terms, broadcasting has second-class rights. The Red Lion decision upheld the constitutionality of the "fairness doctrine," under which the FCC seeks to monitor and sometimes to second guess the way broadcast stations handle controversial issues. In doing so, the court enshrined in constitutional law the principle that broadcasters have lesser rights of expression than the print press. l###