High court ends drought of free-press cases; media advocates worry

Monday, October 2, 2000

Last term, the Supreme
Court's First Amendment menu was dominated by cases that touched on freedom of
religion and association, producing decisions on football prayer, aid to
parochial schools, membership in the Boy Scouts, and open-primary laws.

In the term that begins today, the Supreme Court will turn its
attention, for the first time in nearly a decade, to another clause of the
First Amendment — freedom of the press.

And that has the press worried. After a long period of benign neglect,
the press comes in for Supreme Court attention at a time when the justices
— and the public — appear increasingly concerned over newsgathering
techniques and media invasion of privacy. Both come into play in the
press case before the court,
Bartnicki v. Vopper, which is to be
argued before the court on Dec. 5.

At issue in the case is whether the federal wiretapping statute
barring disclosure of illegally intercepted communications can be used against
the press. In the tangled dispute before the court, a Pennsylvania radio
talk-show host aired the damaging taped contents of an intercepted cellular
phone conversation between two teachers union officials during a strike. The
tape came to the radio station through an intermediary. One of the people whose
intercepted words were on the tape sued the radio host.

The 3rd U.S. Circuit Court of Appeals said the law violated the First
Amendment when applied to hold the media liable for the disclosure. A long line
of Supreme Court cases in the 1970s holds that under the First Amendment, the
press may not be punished for publishing lawfully obtained material. But the
Clinton administration argues that the law can be applied to the media when
they know or have reason to believe that the interception was illegal.

The Supreme Court, increasingly sensitive to personal privacy claims,
could decide to uphold the wiretapping law — a result that would have
“enormous impact on the way journalists do their job,” says Lee
Levine of the D.C. firm Levine Sullivan & Koch, who represents the radio
station. Invoking the
Papers case, Levine says journalists will shy away from important stories
if they have to trace the source of their information all the way back to make
sure it was legally obtained. Leading media lawyer Floyd Abrams of New York's
Cahill Gordon & Reindel is filing a friend-of-the-court brief on behalf of
news organizations.

In recent years, in cases that did not turn on the press clause of the
First Amendment, the media have not fared well when privacy has been at stake.
The court ruled against the police practice of allowing the
media to ride along on
searches, and in favor of a law that restricts commercial use
of police blotter information. The last time the
Court ruled on squarely presented free-press cases was in 1991,
the court ruled in Cohen v. Cowles
and Masson v. New Yorker

Also on the court's First Amendment docket this fall is
Legal Services Corp. v. Velazquez,
an important test of congressional
restrictions placed on federally funded legal services lawyers in 1996. The
restrictions bar lawyers from challenging welfare statutes in litigation
— a clear violation of the free speech provision of the First Amendment
and separation of powers, say opponents. But the Legal Services Corp., backed
by the Clinton administration, says Rust v.
approved restrictions on what federally funded medical clinics could tell
patients about abortions, governs the current case. The case is to be
argued Oct. 4.

Cook v. Gralike, the next
in a series of First Amendment cases looking at state election laws, will
test the constitutionality of
Missouri's so-called “scarlet letter” ballot requirement. In
1996, Missouri voters passed a constitutional amendment ordering the state's
members of Congress to work and vote for term limits. It also required new
candidates for congressional seats to make a similar pledge. Members of
Congress and candidates who did not cooperate would have the label
“Disregarded Instructions on Term Limits” or “Declined to Pledge
To Support Term Limits” placed next to their names on the next election
ballot. No label would be placed next to the name of candidates who favor term
limits. The 8th U.S. Circuit Court of Appeals found the law to be a form of
government-compelled speech that violates the First Amendment.

The case is to be argued Nov. 6.

In a case that
involves the First Amendment less directly, Brentwood Academy v. Tennessee Secondary School Athletic
the question is whether the association, which
governs public and private school scholastic sports, is a state entity.
Brentwood Academy, a leading Tennessee private school, claims the association
is a government entity and therefore cannot impose certain restrictions on its
recruiting efforts because of the First Amendment. If the association is found
to be a private group, the First Amendment cannot be invoked because it only
prohibits government restrictions on speech.

“The association tramples the school's free-speech rights and now
claims it is not accountable for protecting constitutional rights because it is
a 'private' organization,” says Lee Barfield, a lawyer for the
association. The Brentwood case is to be argued Oct. 11.

Another First Amendment
case pending before the court is City News and Novelty v. City of Waukesha, involving an adult bookstore in the
Wisconsin city. The city denied the store's request to renew its license to
operate in 1995. The store appealed, and has now challenged the licensing and
appeals process on First Amendment grounds. Because protected free speech is
involved, lawyers for the store argue that it is entitled to a speedy decision
so as to minimize the “prior restraint” on speech while the appeals
process is under way. The city argues that the store is only entitled to speedy
access to an appeals process. The case is scheduled for argument Nov. 28.

Two more First Amendment-related cases were added to the court's
docket on Sept. 26. In Shaw v.
the state of Montana is
challenging the claim by prison
inmate Kevin Murphy that he has a First Amendment right to offer legal advice
to a fellow inmate. U.S. v. Klamath Water Users
Protective Association
is an unusual Freedom of Information Act
case, testing whether confidential communications between American Indian
tribes and the Department of the Interior must be disclosed under the FOIA. The
Clinton administration argued they should be kept private under the provision
of FOIA that protects “intra-agency” documents from disclosure.
Neither case has yet been set for argument.

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