Roberts on the First Amendment: excerpts from hearings

Wednesday, September 14, 2005

WASHINGTON — The government should not bar the news media from recording events to which the public has access, such as the government's response and recovery effort from the effects of Hurricane Katrina, chief justice nominee John Roberts told the Senate Judiciary Committee.

“There is great difficulty whenever you try to distinguish between public rights and media rights,” Roberts said, responding to a question from Sen. Patrick Leahy, D-Vt., during his confirmation hearing today.

“If it's a situation in which the public is being given access, you can't discriminate against the media and say, as a general matter, that the media don't have access, because their access rights, of course, correspond with those of the public,” Roberts added.

Leahy, the committee's ranking Democrat, said he was concerned generally about the Bush administration's policy toward news media access. He cited reports that government officials had restricted members of the press from reporting and photographing the cleanup and rescue efforts in New Orleans.

“Suppose (administration officials) felt that the rescue operations of the government, whether it's state, local or federal, was being handled in an inept way, or evacuees are being mistreated,” Leahy asked Roberts. “Does that give them a right to bar the media, who may want to expose that?”

Roberts said he hadn't dealt with many First Amendment access cases. And he noted that there exist “some perfectly valid reasons for excluding media,” though he didn't name them.

“On the other hand, simple disagreement about whether it's an appropriate issue for the public to see would not strike me as a very compelling governmental interest,” Roberts said.

The Constitution's framers, he noted, “appreciated the benefits that would come from public awareness. That's an important principle.”

More excerpts about the news media access discussion from the Sept. 14 hearing transcript:

LEAHY: In the last couple of years, the administration fought to prevent the media from covering coffins returning from Iraq. It fought to keep disturbing images of U.S.-run prisons in Iraq from the media. And just last weekend, actually after they lost the initial bout in court, it abandoned its zero-access policy regarding scenes of devastation in New Orleans.

As you know, most of America found out what was going on in New Orleans really from the press not from our government, at least the first few days.

There's been a number of reasons, excuses, which seem to change day by day, for why these things are being blocked. I'm not going to ask you to evaluate them.

But my question is this: If the government seeks to broadly exclude media from access to images or events of public interest or concern, does the First Amendment require the government to justify that denial of access? And if so, what kind of standards — not any particular case, but what kind of standards does the court have to apply?

ROBERTS: Senator, I haven't dealt with a lot of First Amendment access cases. I studied one about media access to prisons, for example; the issue about whether the media had a right of access to prisons — they wanted to report on it. And so I'm not terribly familiar with the precise levels of scrutiny that apply.

There is, obviously, a balancing of sorts between particular interests, when you are dealing with governmental operations. And there's some perfectly valid reasons for excluding media.

On the other hand, simply disagreement about whether it's an appropriate issue for the public to see would not strike me as a very compelling governmental interest.

And I think the courts regularly balance these sorts of things when they get an issue about a challenge by the media saying their First Amendment rights are being violated because of a particular exclusion.

And again, I'm not terribly familiar with the precise legal standards or how they have developed since the prison access case that I'm familiar with, but it does require a consideration and weighing. And the values of the First Amendment, obviously, are something that have to be given careful weight by the court, for the very reasons that you have discussed.

Because the First Amendment serves a purpose. It's not there just because the framers thought this was in general a good idea. It serves a purpose with respect to the government. It provides access to information and allows the people in a free society to make a judgment about what their government is up to.

LEAHY: The media comes and says, Look, the government screwed up. We're trying to get in there to take pictures to show how they screwed up and they say, 'You can't come in.' How would you analyze a claim like that?

ROBERTS: Well, you know, I do start with a general principle in this area. And I think it was Justice Brandeis who talked about, you know, sunlight being the best disinfectant.

And I think that's a lot of what the framers had in mind in guaranteeing freedom of speech and the other rights that go along with it. They appreciated the benefits that would come from public awareness. That's an important principle.

And, again, this (media access) is not an area that I feel completely up to speed on the precedents. And I obviously, if I were in a position as a judge and had to decide a particular case, would study them and become aware.

But my recollection is that there is great difficulty whenever you try to distinguish between public rights and media rights. And that if it's a situation in which the public is being given access, you can't discriminate against the media, and say, as a general matter, that the media don't have access, because their access rights, of course, correspond with those of the public. And as you said, they're in a position — if there are a handful of people who might be able to have access, the media is in a position to make that information or knowledge, or whatever, available on a broader basis.

On other First Amendment-related matters:

  • Televising high court proceedings. Roberts said yesterday he had no “settled view” on whether Supreme Court proceedings should be televised.

    Asked by Sen. Charles Grassley, R-Iowa, whether he would allow cameras in the Supreme Court courtroom or bar them, as did the late Chief Justice William Rehnquist, Roberts referred to former Tennessee senator-turned-actor Fred Thompson, who has been shepherding him through the nomination process.

    “My new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of,” Roberts said, eliciting laughter.

    Sen. Russ Feingold, D-Wis., asked Roberts “if you as chief justice will support televising the court's public proceedings.

    ROBERTS: Senator, it's not something that I have a settled view on. And I do think it's something that I would benefit from the views of my colleagues. And I know that some of them have particular views and some may not.

    And I noticed the last time there was a formal response by the court to a request to televise a particular argument, the chief justice referred the matter to the whole court and then reported back on it.

    I'm also aware that there are — I'm not sure if the right word is experimental or trial efforts going on in some of the courts of appeals, the federal courts of appeals, to televise arguments there. And I know I've watched them. So I appreciate that opportunity.

    And I don't know yet if there's been an evaluation of how that experiment proceeded, whether the judges thought it went fine, the lawyers or whatever. I just don't know.

    At the Supreme Court level, I do know they've experimented recently in a few cases with releasing the audio tapes immediately after the conclusion of the argument. Again, I've listened to those on occasion. Not every case, but selected cases of particular interest.

    I know that on our court, my court, I'm sorry, on the Court of Appeals for the D.C. Circuit, we broadcast, at least within the courthouse, simultaneously, the oral arguments.

    So I know the technology is there to do that. And I certainly understand the interest and I understand how — I know it was very well-received to have the audio tapes immediately available in some of those cases.

    FEINGOLD: I hope you'll seriously consider this.

  • Church-state separation. Sen. Dianne Feinstein, D-Calif., asked Roberts whether he believed in the separation of church and state as set forth in the First Amendment. She quoted President John F. Kennedy as having said in 1960, “I believe in an America where the separation of church and state is absolute.” Feinstein added, “My question is: Do you?”

    ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers' experience. Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers' experience.

    FEINSTEIN: You can't answer my question yes or no?

    ROBERTS: Well, I don't know what you mean by absolute separation of church and state.

    For example, recently in the Ten Commandments case, the Court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it (Van Orden v. Perry). They struck down the posting of the Ten Commandments in a Kentucky courthouse (McCreary County, Ky. v. ACLU of Kentucky).

    Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?

    So I don't know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.

  • Pledge of Allegiance, Ten Commandments. Sen. Jeff Sessions, R-Ala., asked Roberts about the 9th U.S. Circuit Court of Appeals ruling that the phrase “under God” in the Pledge of Allegiance was unconstitutional. The case wound up in the U.S. Supreme Court as Elk Grove Unified School Dist. v. Newdow:

    SESSIONS: Judge, I would just conclude with noting that I remember when the court, in the 9th Circuit, ruled that striking down the Pledge of Allegiance — then-Majority Leader Tom Daschle came to the floor, as now-Minority Leader Harry Reid did at the same afternoon, and they criticized the opinion and criticized the 9th Circuit and expressed concern about activism in that circuit, which I have done often myself. But I responded that my concern was not so much with the circuit, but with the confusing number of opinions from the Supreme Court and that I had no doubt that there was Supreme Court authority that would justify the 9th Circuit rendering the ruling that they did. And I say that because we've just received word today that a judge in San Francisco has upheld — has ruled that the pledge's reference to one nation under God violates the Constitution and should be stricken down. So that case is going to be winding its way forward. I'm not going to ask you to comment on it, because it will obviously come before you. But will you tell us whether or not you are concerned about the inconsistencies of these opinions? And will you work to try to establish a body of law in the Supreme Court that recognizes the free-exercise rights of American citizens in regard to religion and to avoid a state establishment of a religion?

    ROBERTS: Well, we talked about this in the committee hearings on a couple of occasions. And I think everyone would agree that the religion jurisprudence under the First Amendment, the establishment clause and the free-exercise clause, could be clearer. The Ten Commandments cases are the example right at hand. You have two decisions of the Supreme Court. Only one justice thinks both are right. That is an area in which I think the Court can redouble its efforts to try to come to some consistency in its approach. Now it obviously is an area that cases depend in a very significant way on the particular facts. And any time that's the case, the differences may be explained by the facts. You do have the two provisions, as your question recognized, the establishment clause and the free-exercise clause.

    And as I've said before, I think that both of those are animated by the principle that the framers intended the rights of full citizenship to be available to all citizens, without regard to their religious belief or lack of religious belief. That, I think, is the underlying principle, and hopefully the Court's precedents over the years will continue to give life to that ideal.

  • Free speech in the public square. Sen. Mike DeWine, R-Ohio, yesterday initiated a discussion with Roberts about “speech in the public arena,” including political signs on private property.

    DEWINE: Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.

    In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.

    At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question.

    The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. C.I.O., a 1939 case which you are well familiar with.

    I want to quote it very briefly: 'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembling, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has from ancient times been a part of the privileges, immunities, rights and liberties of citizens,' end of quote.

    Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.

    In a recent case, a Wisconsin woman was kicked off a city bus. And this is what she was kicked off a city bus for doing: She was trying to distribute a book containing Bible stories to individuals sitting next to her.

    Another case that's repeated time and time again across this country and has been for many years in towns and cities, villages across the country: Individuals are prohibited from placing political signs — and it could be not just for candidates; it could be for school levy, against the school levy — on their own property, on their own property, except during specified times and specified ways.

    Government tells them, so many days before the election: You can't put that up there until so many days before the election — not just for candidates but for bond issues, whatever the issue that they want to talk about through their own political speech, on their own property.

    ROBERTS: It's not a provision in the law. But it's a basic American approach that I think is important, and that's captured in the expression, you know: It's a free country. And when you're talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it's a free country and it's a wonderful thing that people can say things in the public that you may not agree with, because you, of course, have the same right.

    Now, the particular mode of analysis that the Supreme Court uses in addressing these types of public speech issues is to some extent unsettled. Public forum doctrine, as it's called, for many years, you tried to characterize an issue: Is this a public forum, is it a quasi-public forum, is it a private forum? And the definition sort of carried with it the conclusion about what could be allowed. And many of the justices thought that the reasoning was awfully circular.

    I remember, years ago, I argued one of the cases in the Supreme Court about (the) post office and what could be done in a post office area and whether the restriction of that area to postal business meant they could exclude people who wanted to engage in political speech. And I remember thinking at the time that the precedents were very unsettled.

    And I'm not sure that the Court has made much progress since then.

    But you do try to focus a little bit on whether you are dealing with a public forum, one that has traditionally been open to expression, and if it has, then any restrictions on expression are going to be subject to a very exacting standard before they'll be upheld.

    If it's a more limited public forum, it's only been open for certain types of speech, or the nature of the forum requires there to be a restriction — that was the government's argument in the post office case I litigated — then it's a less-demanding standard in those situations.

    DEWINE: Let me just follow up that with a short question, if you can give me just a reaction to this, if I could. Do you think the First Amendment is flexible enough in the year 2005 to account for what I believe, at least, is the shrinking public square?

    Now, I know we have the Internet, we have TV, we have radio; a lot of things that we didn't have when our founders wrote the Constitution. But I think there is a shrinking public square.

    What do I mean by this? Someone who wants to run for school board today, someone who wants to support a school levy, oppose a school levy — when you and I were growing up — you are younger than I am, but when we were growing up in the Midwest, you could go downtown — if you supported a school levy, let's say, you could go downtown and pass out literature in front of the hardware store or the grocery store. And that was a public place, because there was a sidewalk. And you knew everybody in town was probably going to go by there.

    If you lived in a city, there were communities in the city where you could do the same thing.

    Today, most people — we just don't live that way. Most people don't. Some do, but most don't.

    Today people get in their car and they go to the grocery store. They go to a strip mall, and they go to a grocery store that is surrounded all by private property, and the people who own that strip mall usually say, You cannot come on and distribute any literature of any kind on this facility. And basically they're upheld in that right, because it's private property.

    Or they go buy their clothes or everything else, their hardware, they do in a big mall, and that mall clearly — there's a Supreme Court case right on point that says they can be excluded.

    So the traditional public forum, as we know it, is really shrunk.

    Does the Court take that into consideration when they look at the precedents, they look at all the decisions that have been made? How does that — without deciding any case or talking about any specifics …

    ROBERTS: Well, I do know …

    DEWINE: The world that we live in today.

    ROBERTS: I appreciate the point. And I do know that even the analysis in this particular area, one of the factors that the Court considers is the availability of alternative avenues for expression, and a concern, if they're cutting off a particular mode of expression, a particular avenue, are there alternatives available?

    And I think that's a very important consideration. I think you're quite right that this one of those areas in which technology is going to figure in a very prominent way. And the question of whether this type of analysis that grew up when you are talking about a public square or town hall-type thing applies in the Internet situation and whether there's changes that do need to be made in the analysis.

  • Internet pornography. Sen. DeWine's questions yesterday proceeded to the issue of online obscenity and protections for children.

    DEWINE: Since you've talked about the Internet, let me turn to a disturbing trend in regards to the Internet. And that has, quite frankly, to do with pornography. We have passed several bills in Congress — Communications Decency Act — to protect our children. The Supreme Court struck it down. (Reno v. ACLU, 1997.) I'm not going to ask you to comment about that. A few years later, we passed the Child Online Protection Act, again, with the intent to protect our children. Again, the Court struck it down. (Ashcroft v. ACLU II, 2004.) Unlike the traditional public square, the Internet has really become a place for the distribution of some, I find, very troubling material, and that is pornography.

    And I guess what bothers me about these cases is they failed to account for something that, to me, at least, is very relatively simple. And that is that at the core of the First Amendment is, to me, at least, the protection of political speech, speech on matters of public concern I have talked about this before.

    But it seems to me that pornography is different, particularly pornography that children can easily access. It seems to me that that should be treated differently than political speech.

    Famous case: Young v. American Mini Theatres. In that (1976) case, the Court upheld zoning regulations on adult theaters. Justice Stevens, hardly a right-winger, had this to say, and I quote, 'Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials and have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate. Few of us would march our sons and daughter off to war to preserve the citizens' right to see, quote, 'specified sexual activities,' end of quote, exhibited in the theaters of our choice,' end of quote.

    Judge, in light of that question, here are my questions. Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain's Huck Finn? And how would you, if confirmed to the Supreme Court, decide what protection, if any, certain kinds of expressions are entitled to under the First Amendment?

    ROBERTS: Well, senator, it's my understanding, under the Supreme Court's doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the Court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not. That question is, sort of, antecedent to the question of what the level of protection is, to determine whether it's entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the Court has determined are not entitled to protection under the First Amendment.

    There are different categories, and the Court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don't think I can give a more precise answer.

  • Campaign finance. Sen. Sam Brownback, R-Kan., queried Roberts on restrictions against political speech as embodied in the Bipartisan Campaign Reform Act upheld by the Supreme Court in McConnell v. Federal Election Commission (2003).

    BROWNBACK: I want to take you back to the First Amendment discussions. And this is an issue in an area that I've just not understood where the Court's been going, and I hope you're going to be willing to answer some of this analysis or give me, at least, your thought on how the Court got to where they did on these issues.

    First Amendment, everybody knows: Congress shall make no law abridging the freedom of speech.

    Well-known, well-regarded, highly — broadly interpreted by the courts to the point that you would get court opinions — and I just want to quote these. This is actually in a Supreme Court opinion, that the Court would in the past four years when this opinion was issued, in — I think it was 2003 — the last four years, the Court had sternly disapproved — sternly disapproved — (of) restrictions upon certain forms of speech such as virtual child pornography. The Court said, can't do that, (can't) limit that speech. Tobacco advertising: The Court said, can't limit that speech. Dissemination of illegally intercepted communications: You can't limit that speech. Sexually explicit cable programming: Can't limit that speech.

    All right, so the Court has been, it seems to me, very pronounced in this area — free speech, can't limit it — basically to the Congress. Can't limit it.

    And to the point, you know, where it goes to the issue of virtual child pornography — and that was the case of Ashcroft v. Free Speech Coalition. And I want to describe this in a little bit of detail, because I want to back it up and ask another question associated with it.

    (In) Ashcroft v. Free Speech Coalition, the Court struck down a congressional statute regulating pornography, in this case (the) Child Pornography Prevention Act of 1996, expanded the federal prohibition on pornography to include virtual child pornography — realistic images which were made without the use of actual children.

    But the Congress based its opinion on the basis that pedophiles will use this material to recruit, over the Internet, individuals to draw in children into sexual activity.

    And so we found out about that, investigated it, did a number of hearings and said, We've got to stop this stuff.

    The Court says you can't do it. It's limitation on free speech.

    Then, not long ago — as a matter of fact, the opinion was issued in 2003 — we had a big debate on campaign-finance reform, in front of the Congress. One of the members of our committee, Senator Feingold, was one of the lead sponsors of the McCain-Feingold piece of legislation.

    And it came in front of the courts — McConnell v. Federal Election Commission. And the (Supreme) Court largely upheld the McCain-Feingold law, one section of which did this: prohibited corporations, labor unions and other organizations from political advertisement that mentioned a specific candidate or officeholder within 60 days of a general election.

    Under the Court decision, this congressional action prohibiting speech — and not just any speech, and not just pornography. This is political speech close to the time when people are making decisions on elections.

    The Court decided that this congressional action prohibiting political speech was upheld under a First Amendment ostensibly designed to protect this, I would contend, form of political participation and speech.

    And I looked at that. I voted on the McCain-Feingold law. I did not think there was any way the Court would hold that this is constitutional, because you're limiting political free speech, and right when people are making their decision.

    And one of the lead reasons or lead abilities we have in this country is to be able to criticize the government, and certainly at a point in time when it matters the most — right ahead of elections.

    How do you square such a broad interpretation of the First Amendment in these cases and such a limitation on political free speech? Can you explain that to me?

    ROBERTS: Well, Senator, I'm not sure that I can put the two together side by side and talk about it, other than to say that I think the Court tends to address each case on its own terms.

    And in the case of the Bipartisan Campaign Reform Act, I do know that we're dealing there with an extraordinarily extensive record in that case. The judicial opinions addressing the issue before the three-judge district court I know went on for several hundred pages, just dealing with the records and the issues involved — the record that had been developed, including before Congress. And my reading of the Court's opinion in the Bipartisan Campaign Reform Act case is that that was a case where the Court decision was driven in large part by the record that had been compiled by Congress. I think the determination there was based — just reading the opinion; it's no great insight — that the extensive record carried a lot of weight with the justices. Now, with respect to the other areas, again, I think the Court would tend to look at those, sort of put the one case aside and then move on to the next case. And they're dealing there with developments in that area. And again, I …

    BROWNBACK: Doesn't this strike you as odd, these two side by side under the same First Amendment?

    ROBERTS: Only in the sense, senator, that obviously they come out different ways. And your point that the political speech is generally regarded as at the core of what the First Amendment was designed to protect and some of the other speech is not, I certainly appreciate that concern. But whether, again, whether the particular cases were correctly decided or not is not something I feel it's appropriate for me to say.

    BROWNBACK: I looked at those, and I just — this didn't make much sense. If you're going to read it expansively on the First Amendment, which I agree with, that should be consistently done.

    Post-hearing written questions submitted to Roberts, his replies

    From Sen. Dianne Feinstein, D-Calif., on behalf of Maryland Democratic Sen. Barbara Mikulski: Following 9/11, there are serious issues of national security but how do we balance these with every citizen’s right to be protected from unwarranted government scrutiny and intrusion, rampant and possibly unnecessary data collection, and potential misuse of this data? Where do you draw the line between First Amendment rights and National Security?

    ROBERTS’ RESPONSE: As a general matter, public safety and the right of every person to be free from unwanted governmental intrusions are both prominent concerns that animate the Supreme Court’s interpretation of the Fourth Amendment. As the Supreme Court has explained, the constitutional “touchstone” of a search or seizure is reasonableness. …

    The First Amendment preserves some of our most treasured and basic rights — preserving the freedoms of speech, religion, press, and association. Yet it is elementary that national security and foreign relations may at times require confidentiality. [(]See, e.g., Snepp v. United States, 444 U.S. 507, 509 n.3 1980) (“The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.”) The Supreme Court has struggled to draw a line between these competing concerns; if confirmed, I would look to the Court’s precedents under principles of stare decisis, with an eye to an appropriate balance between civil liberties and national security, in accord with the Framers’ vision in the Constitution.

    From Sen. Charles Schumer, D-N.Y.: In 1985 you wrote a memo about a recently decided Supreme Court case, Wallace v. Jaffree, which involved issues relating to the separation of church and state. In that memo, you wrote: “Rehnquist … tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided.” We began, but did not finish, discussing this at the hearing. Your memo was surprising, given your invocation of “modesty” and “stability.” You were speaking approvingly of Rehnquist’s attempt to revolutionize a well-settled area of law.

    In that memo, you also criticized the opinion of Lewis Powell in the same case, criticizing it as a “lame concurring opinion focusing on stare decisis.” As you know, Justice Powell, in voting to retain the Lemon test, noted that the earlier precedent was a carefully considered opinion of the Chief Justice, was decided by a 7-2 margin, and had been undisturbed for fourteen years.

    a. Do you still stand by your analysis?
    b. Whether one agrees or disagrees with the Lemon test, which Rehnquist sought to eliminate, what are we to make of your endorsement of Rehnquist’s attempt to “revolutionize” an important area of constitutional law? …

    ROBERTS: I wrote that memorandum you quote in my capacity as a staff attorney in the White House Counsel’s office. The Reagan Administration believed that moments of silence in schools were constitutional. Any administration has the prerogative to advance particular constitutional interpretations, and the Reagan Administration — like all others — attempted on occasion to so. You describe the area of law as “well-settled,” but as the memorandum noted, this particular case generated no fewer than six separate opinions.

    More than twenty years after the fact, I have no recollection that would allow me to explain further my description of the various opinions in the memorandum. …

    Schumer: Do you agree with the landmark decision in NY Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? Who do you believe constitutes a public figure under this standard?

    ROBERTS: New York Times v. Sullivan is a precedent of the Court, and I would start with it in any case implicating this area of law. The application of that precedent, however, continues to present issues for the Court. In particular, the scope of the definition of a “public figure” has been the subject of numerous decisions. See, e.g., Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157 (1979) (committing a crime does not necessarily render one a public figure); Hutchinson v. Proxmire, 443 U.S. 111 (1979) (receipt of significant amounts of federal funding does not necessarily render one a public figure); Gertz v. Robert Welch, Inc., 419 U.S. 323 (1974) (attorney who litigated a civil case against a police officer was not a public figure). In recent years, lower courts have continued to pass upon the public/private figure distinction. See, e.g., Lohrenz v. Donnelly, 350 F.3d 372 (D.C. Cir. 2003); Carr v. Forbes, Inc., 259 F.3d 273 (4th Cir. 2001). I therefore must be careful in answering your question, so as not to comment on an area that may come before me.

    The Gertz Court described public figures as follows:

    For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

    418 U.S. at 345. I have no quarrel with this basic formulation, and would start with it and other pertinent Supreme Court precedents in evaluating who qualifies as a public figure.

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