Commercial Speech Cases Fill The Supreme Court p. 24

By: Debra Gersh Hernandez Decisions involving the media in 1993 focused primarily
on commercial speech, although issues with First Amendment
ramifications brought by nonmedia parties also were decided sp.

U.S. SUPREME COURT decisions involving the media in 1993 focused primarily on commercial speech, although issues with First Amendment ramifications brought by nonmedia parties also were decided.
Many of the broader First Amendment cases often heard by the court ? involving the Freedom of Information Act, privacy issues and press access ? were addressed in other branches of the government during the year.
In one ruling that recognized commercial speech protections, City of Cincinnati vs. Discovery Network Inc., the high court found that the city could not ban from its streets news racks of free publications but not those of commercial papers.
Writing for the 6-3 majority, Justice John Paul Stevens noted that the city failed to justify its "sweeping ban that bars from its sidewalks a whole class of constitutionally protected speech."
In an important tax case, Newark Morning Ledger Co. vs. United States, the court ruled that subscriber lists acquired in the purchase of a newspaper property could be deducted as intangible assets.
Writing for the 5-4 majority, Justice Harry Blackmun noted that the company was able to show that the acquired paid-subscriber list had "substantial value over and above a mere list of customers" and that its value after acquisition "diminished over an ascertainable period of time."
The court also ruled in a Freedom of Information Act case that did not involve the media but had ramifications for all those who use FoIA.
In Department of Justice vs. Landano, the unanimous court decided that all FBI sources cannot automatically be considered confidential and thus exempt from disclosure under FoIA.
As Justice Sandra Day O'Connor wrote, the court does not believe that it is "reasonable to infer that the information is given with an implied understanding of confidentiality in all cases."
Another case with First Amendment implications, but no media participants, was Alexander vs. United States.
The 5-4 decision said the government did not violate the rights of adult bookstore owner Feris Alexander when it seized and destroyed material from his store after he was convicted on obscenity and racketeering charges.
Chief Justice William Rehnquist, writing for the majority, explained that the seizure did not violate Alexander's First Amendment rights because it did not forbid him "from engaging in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations."
In a stinging dissent read from the bench, Justice Anthony Kennedy called the majority decision "a grave repudiation of First Amendment principles."
Kennedy's dissent said, "The admitted design and the overt purpose of the forfeiture in this case are to destroy an entire speech business and all its protected titles, thus depriving the public of access to lawful expression. This is restraint more than theory. It is censorship all too real."
In another highly publicized case, the court acted by not acting.
Without comment, it refused to hear the appeal of Florida reporter Tim Roche, who had been sentenced to jail for criminal contempt after he refused to disclose the source of his articles in a child abuse case.
The court also let stand without comment a $2.4 million judgment against Soldier of Fortune magazine, which was held liable for running a classified ad for a "gun for hire."
The magazine had been sued by the family of a man who was killed in 1985 by a man hired through the ad. The magazine was held responsible for the ad, which lower courts found implicitly had solicited criminal activity. Soldier of Fortune stopped running such ads in 1986, but it argued that it had the First Amendment right to do so.
Two justices found the spotlight turned on them, one posthumously and the other as she prepared to join the court.
When retired Justice Thurgood Marshall died in January, he left his personal papers to the National Archives, with instructions that they be made available to "serious researchers."
The directive was followed without incident until reporters at the Washington Post and other papers began to piece together information in the Marshall papers for articles about the inner workings of the court.
The justices were as dead set against such access as media groups were for it. Congressional hearings did not resolve the issue, though each side had the opportunity to present its case.
The retirement of Justice Byron White gave President Clinton a chance to make his first nomination to the nation's highest court. He chose Judge Ruth Bader Ginsburg from the U.S. Court of Appeals for the District of Columbia Circuit.
A Reporters Committee for Freedom of the Press review of Ginsburg's earlier rulings found that she generally was favorable to the media, though she did tend to lean toward protecting privacy rights of individuals.
Ginsburg's confirmation went through with nary a hitch, although media groups did protest a closed-door meeting with Senate Judiciary Committee members after the public portion of the process.

Coming in 1994

Among the cases that were appealed to the court for possible arguments in 1994 was that of James Scarce, a Washington State University doctoral student, who was called as a witness to the trashing of and theft from an animal research lab.
Scarce, who has written one book and various essays and papers, argued before lower courts that he should have the same First Amendment privilege rights as reporters, likening what he calls "scholar's privilege" to reporter's privilege.
"The way the petition is framed, he is asking the court to determine what reporter's privilege is," explained RCFP executive director Jane Kirtley. "What he has done is what the media have tried not to do, which is to bring to the court what reporter's privilege is."
Another First Amendment case in which the court was petitioned for a hearing, City of Ladue vs. Gilleo, involves a Missouri town that banned all signs in residential areas except for municipal, safety and "For Sale" signs. This case was kicked off when a resident put up a sign saying, "For peace in the Gulf." The city required the resident to take it down. Lower courts struck down the ordinance, calling it improper content-based discrimination.
Among those filing friend-of-the-court briefs in the case is the Association of National Advertisers Inc., which noted that the First Amendment prohibits any content-based censorship without a powerful government interest.
ANA president Harry Davis, in a statement announcing the filing, noted, "The Ladue case is important to the advertising community because it raises the crucial issue again of how much power government has to choke off speech that is 'disfavored.' The City of Ladue has attempted, under the guise of aesthetics and community beautification, to ban virtually all signs on private property. If allowed to succeed, this approach would have an adverse impact on advertisers."

Rocky start

Across town, the media's relationship with the White House got off to a rocky start, with reporters grumbling about lack of access to inaugural events, including the president and vice president's bus trip to the capital.
The relationship did not improve much when the new administration cut off access to the press secretary's offices adjoining the press room at the White House. Reporters began to complain about the arrogance of the young, inexperienced White House press staffers.
That improved a few months later, however, when Clinton hired veteran White House spinmeister David Gergen to take over the press operation.
At the start of Clinton's term, six media organizations wrote to him and Vice President Al Gore, urging them to adopt new policies regarding classification of documents and access to information.
Their wish apparently came true early in the fall, when Clinton and Attorney General Janet Reno issued new FoIA policy directives calling for a presumption of disclosure.
Reno also called for reviewing the more than 500 pending FoIA cases and getting them settled as quickly as possible.
In one move, they reversed 12 years of policy that allowed withholding of information if there was a "substantial legal basis" for doing so.
But talk, as they say, is cheap, and as the year wound down, the president's task force on health care reform was being charged with withholding some of its documents from medical groups that had sued, and won, the right to see them.
"The Clinton FoIA policy is still very much a question up in the air," Kirtley noted.
"On one hand, he took a very aggressive attitude against openness with the [health care] task force. On the other hand, we had the Clinton and Reno statements [about FoIA policy]," she said.
"What we come down to is that this administration is like any other. There is certain hostility toward making information available to the public, especially when it's near and dear to the White House . . . .
"I'm still optimistic about the Janet Reno mandate, but it's still early to tell how that will affect access to information," Kirtley added.
Some state press groups can look forward in 1994 to movement in their legislatures on the Uniform Correction or Clarification of Defamation Act.
Conceived as the Uniform Defamation Act, the toned-down proposal offers a framework for alternatives to libel lawsuits by allowing for correction or clarification of a false statement.
Another national issue of "grave concern is the increasing tendency of state courts to issue gag orders and restrict information," Kirtley said. "The Canada case is getting tons of publicity, but similar things are happening in courts here."
In one case, she said, a judge in Biloxi, Miss., moved a trial location and would tell reporters where it would be held only after they promised not to report about it.
In another instance, an editor/publisher was found in contempt when he reported that a judge had placed a gag order on the paper.
There also are increasing numbers of cases of closed jury questioning and anonymous juries.
"Because it's happening all around the country, but in isolated cases, people are not putting it all together," Kirtley said, warning that the problem "is a crisis."
She said she didn't know exactly why closing jury questioning has become a trend.
But she suspected that it can be traced to a new generation of judges who don't have the same sensitivities as their predecessors.
Further, while it's easy to overlook this or take solace in the fact that these rulings are likely to be overturned by appeals courts, Kirtley warned that it will not be long until the same judges are elevated to those courts.
"We're dropping the ball in educating judges," she said, suggesting more bench-bar-media conferences focusing on these subjects.