Justices affirm First Amendment in 2 cases

Friday, June 25, 2010

WASHINGTON — In two separate decisions yesterday, the Supreme Court ruled in ways that protected the First Amendment values of public disclosure and robust news coverage of trials.

But it did so in an almost quaint fashion, with scant mention of the Internet, a factor that could have, if it wanted to, changed the Court’s calculus in both cases.

In Skilling v. United States, the Court ruled 6-3 that the poisoned climate of Houston in the wake of the Enron collapse — and the press’s coverage of it — did not automatically make it an improper venue for the trial. Some news-media advocates were concerned that with the pervasiveness of the Internet and the blogosphere, the Court would give more weight to the claim that pretrial publicity could spoil the fairness of jury trials. But that turned out not to be the case.

Justice Ruth Bader Ginsburg described the news coverage as intense, but not overwhelming, and the words “Internet” and “blog” did not appear in her decision. “Although news stories about Skilling were not kind, they contained no confession or blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight,” Ginsburg wrote.

Her starting point for the decision was the pre-Internet 1963 case of Rideau v. Louisiana, in which a televised confession was aired repeatedly in the small Louisiana town where the trial took place. Arguments that the Internet has turned the nation into one small town did not enter Ginsburg’s analysis. With a “large, diverse pool” of potential jurors, the city of Houston could produce at least 12 impartial jurors without any problem, she said.

In dissent, Justice Sonia Sotomayor said the coverage was “massive in volume and often caustic in tone.” But even though she mentioned that several jurors learned about the Enron scandal from Internet news reports, she too did not single out the Internet as an engine driving the negative climate that she said made the trial unfair. She mainly wrote about local saturation newspaper coverage, with Enron accounts even on the sports page.

(The larger aspect of the case involved whether prosecutors erred in using the federal “honest services” fraud statute to convict Skilling.)

In Doe v. Reed, the Internet also did not play as much of a role as it could have. In that case, signers of a petition seeking to have a ballot measure opposing same-sex marriage placed before voters in Washington state went to court to prevent their names from being made public. Such disclosure, they claimed, could expose them to harassment by opponents who said they would post the names on the Internet. That prospect could have tilted the Court away from supporting public disclosure.

Chief Justice John Roberts writing for the 8-1 majority, did recite the plaintiffs’ objections that the release of their names would provide adversaries with a “blueprint for harassment and intimidation” by enabling adversaries to match names with addresses.

But Roberts did not seem overly concerned about the threat in general, especially in that most ballot initiatives deal with less-controversial matters like land use and insurance. In any event, he said the danger was outweighed by the benefit of public disclosure.

In addition to helping to prevent ballot fraud, Roberts said, “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Roberts did leave open the possibility that the signers in the Washington state dispute could try to make the case that they face a special threat of harassment. Justices Sotomayor and John Paul Stevens in concurrences also minimized the threat to signers from disclosure.

In a concurrence, Justice Antonin Scalia was even more supportive of public disclosure than Roberts, reaching back more than two centuries for evidence of its longstanding benefits. In First Amendment areas and others, Scalia is often willing to embrace Colonial-era practices as the standard for what is constitutional now. “The Colonies mostly continued the English traditions of voting by a show of hands or by voice — viva voce voting,” Scalia wrote.

Even when many jurisdictions moved to paper ballots, he said, voting was not private. “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

Only Justice Clarence Thomas, the lone dissenter in Doe v. Reed, considered the impact of the Internet on the disclosure issue. “The state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed,” he wrote.

Advocates of public disclosure can consider themselves lucky that Thomas was the only justice to voice this concern.

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