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Justice Souter: man of few words, including ‘no’

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Gene Policinski
June 27, 2009

U.S. Supreme Court Justice David Souter’s free-press legacy might center more on what he said off the bench than on his role in significant decisions in cases ranging from confidential sources to sidewalk news racks.


Souter announced last month that he would retire. Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals has been nominated as his replacement, and Senate confirmation hearings begin July 13.


In March 1996, Souter was testifying before a U.S. House committee when he responded to a question about opening court proceedings to greater public view.


“The day you see a camera roll into our courtroom, it’s going to roll over my dead body,” he said.


A New York Times account noted that Souter told the committee that when he was a judge in New Hampshire, camera coverage had affected his behavior on the bench because he believed some questions would be taken out of context on the evening news. The judiciary is not a political institution, he said, “nor is it part of the entertainment industry.”


That unyielding opposition to bringing television into the Supreme Court became a touchstone for the federal judiciary and the press whenever the “cameras in courtrooms” subject arose. Many argue the public would be better able to evaluate the justices and the Court if its proceedings were broadcast.


Souter—widely reported at the time of his nomination not to have a television in his Weare, N.H., home—made his views known early about TV and court proceedings. At his 1990 confirmation hearings, he acknowledged there might be some public value to broadcasting from the Court. But he warned that even with advances in technology that make cameras unobtrusive, there remained the danger that they would be distracting, and he said that was something to be avoided by all means.


Even with Souter gone, any renewed congressional proposals to allow TV coverage of all open Supreme Court sessions aren’t likely to succeed. Several justices are strongly opposed, and even Justice Ruth Bader Ginsburg—who might permit telecasts if they were under Court control—is unwilling to allow cameras inside unless there is a unanimous invitation.


Notable free-press cases were rare during Souter’s service on the high court. He generally joined the majority opinions in what were a mix of decisions for or against free-press arguments. But in one landmark case, he dissented in support of a free press.


In Cohen v. Cowles Media Co. (1991), Souter disagreed with the Court’s decision that journalists could be sued for breach of contract for revealing the identity of a confidential source. Free-press advocates had argued such a provision would violate the First Amendment rights of journalists and harm the free flow of information to the public.


Souter wrote that—at least when a public figure was involved—he believed “the States’ interest in enforcing a newspaper’s promise of confidentiality insufficient to outweigh the (public) interest in unfettered publication of information revealed in this case.”


Souter sided with the majority in providing protection for writers from defamation claims even when material quoted differed from the actual remarks, as long as the words didn’t alter the meaning of the statement (Masson v. New Yorker Magazine, 1991). He again voted with the majority in striking down a Cincinnati ordinance regulating news racks that the Court found too arbitrary and restrictive (City of Cincinnati v. Discovery Network, 1993).


In 2001, Souter also agreed with most of his colleagues that the First Amendment protected press disclosure of conversations even when obtained illegally by someone else. In Bartnicki v. Vopper, a West Virginia radio journalist played on-air part of a recording of intercepted cell-phone conversations made during teacher-contract negotiations. The Court noted that the importance of discussion of matters of public importance outweighed other concerns about the initial and illegal interception of the phone call.


In a test of whether different First Amendment standards could be applied to cable and broadcast television (Turner Broadcasting v. FCC, 1994, 1997), Souter joined in majority in the 1997 decision that such different standards were constitutional—a defeat for those who opposed “must carry” channel requirements imposed by Congress.


Souter maintains his “no cameras” rule even outside the Court: In remarks in May to a Washington, D.C., symposium, Souter touted a program to re-educate Americans about the fundamentals of government—but would not allow still or video cameras to record his plea.


However he’s ranked among Supreme Court justices, Souter certainly has this distinction on the camera issue: Opinions don’t get any shorter—or less ambiguous—than “No.”


Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

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