Media Rate Stephen Breyer ‘Not Too Bad’ p. 13

By: Debra Gersh Hernandez

Reporters Committee for Freedom of the Press says
his libel decisions ‘are strong and good,’ but he’s a
‘disaster’ when it comes to Freedom of Information cases sp.

AFTER EXAMINING THE media-related decisions of Supreme Court nominee Judge Stephen Breyer, the Reporters Committee for Freedom of the Press has determined that while it “would’ve hoped for better,” he’s “not too bad.”
Breyer is chief judge of the First U.S. Circuit Court of Appeals in Boston. As it does with each High Court nominee, the Reporters Committee assessed Breyer’s participation in media decisions in 12 categories.
Jane Kirtley, executive director of the Reporters Committee, said Breyer’s libel decisions “are strong and good,” but that he’s “a disaster” when it comes to Freedom of Information Act cases, tending to be more deferential toward the government.
“The other thing that I find lacking is any kind of passion for our issues,” Kirtley said, adding she may have been spoiled last year by the writings of Justice Ruth Bader Ginsburg.
“Also, he has a tendency to say, ‘Well, I think this issue is really moot and we don’t need to decide it,’ ” Kirtley said.
That is a particular problem for the media because often by the time a case gets to court, the damage has been done and the media often are looking for a ruling to help avoid similar problems in the future.
An example of this would be media-military relations, Kirtley said.
“He seems to put form over substance,” she continued.
“That does not bode well generally [for the press]. One would prefer to see a more emotional outrage, intellectual outrage, to say, ‘We need to set it clear.'”
Of note is the fact that among the media cases Judge Breyer participated in, he actually wrote very few decisions.
Because of that, Kirtley said she is “wary of drawing too many conclusions from someone joining a decision. Some people would point to that and say it is part of his desire for consensus and he only writes when it’s unavoidable.”
Without knowing how the First Circuit assigns the writing of decisions, Kirtley said, it cannot be explained why he wrote so few media decisions, and that it does make it “difficult to get a clear picture of him as an individual.”
One issue Breyer was involved in that could come before the Supreme Court during his tenure is that of the libel law protections for opinion.
In 1992, Breyer joined the panel opinion in Phantom Touring Inc. vs. Affiliated Publications. In its decision, the court found that articles about the touring company of The Phantom of the Opera were protected statements of opinion and not actionable for defamation, according to the Reporters Committee summary.
Applying the Supreme Court’s 1990 decision in Milkovich vs. Lorain Journal Co., Breyer and his colleagues determined that the statements in question either were true, not capable of being proven false, hyperbole, not defamatory, or were based on disclosed, truthful facts, as well as appearing in a regular theater column, the Reporters Committee explained.
It is possible the Supreme Court may be asked to hear arguments in a similar case, pitting author Dan Moldea against the New York Times over a book review he says is defamatory (E&P, May 21, p. 20).
In one decision he wrote in 1982, Breyer expressed the unanimous opinion that a New York resident could not sue Ohio-based Hustler magazine in New Hampshire simply because the magazine is distributed in that state, which had the longest statute of limitations in the United States. The decision was later reversed by the U.S. Supreme Court, according to the Reporters Committee study.
Breyer was included on a three-judge appeals panel that in 1988 denied a request by NBC to quash a subpoena asking to review in the judge’s chamber network outtakes from an interview with a key witness in a criminal prosecution.
The court found that because no confidential source or information was involved, First Amendment interests were “elusive,” but it also cautioned about a “lurking and subtle threat to journalists.”
“Even though the ruling was not favorable to the press, it included directions to the trial court that they were to apply various constitutional privileges with care,” Kirtley pointed out.
Breyer wrote the unanimous opinion in a 1992 FoIA case in which the court found that a lawyer who acts as a private tracer of lost taxpayers was not entitled to information on the last known addresses of persons from tax refunds owed them, the Reporters Committee study said.
While noting the basic aim of FoIA was “sunlight,” Breyer added that when it came to tax returns, Congress had a different idea, as “confidentiality, not sunlight, is the proper aim.”
An exemption for media was found to be discretionary, not mandatory, but moot since the lawyer clearly was not a member of the media.
The 19-page Reporters Committee review of Breyer’s decisions on media issues covers libel, reporter’s privilege, court access, the federal FoIA, access to state government records and meetings, prior restraints, broadcasting and cable, copyright, privacy, obscenity, free expression and antitrust.
Photo by Jim Bourg/Reuter
?(Stephen Breyer) [Photo]

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