Skip to content

The Roberts record

From the Summer 2005 issue of The News Media & The Law, page 11. A summary of media-related cases handled…

From the Summer 2005 issue of The News Media & The Law, page 11.

A summary of media-related cases handled by Supreme Court nominee John G. Roberts Jr.

In examining the legal career of Supreme Court nominee John G. Roberts Jr., it is not easy to discern his thoughts on First Amendment, free press and freedom of information issues. This confusion stems mainly from the fact that so much of his writing was done in the service of clients, most notably the U.S. government. During the first Bush administration, he served as deputy solicitor general. The solicitor general, who answers to the attorney general, is responsible for litigating U.S. Supreme Court cases on behalf of the federal government.

But Roberts’ position of the last two years as a judge on the influential U.S. Court of Appeals in Washington, D.C., has given him an opportunity to speak in his own voice, although only a few of the more than 40 opinions he authored touch on media issues.

As deputy attorney general during George H.W. Bush’s administration, Roberts became very familiar with Freedom of Information issues, which are litigated by the Department of Justice, according to a Justice Department attorney.

Still, Roberts’ collected works leave cause for concern among free press advocates. One of the early briefs he coauthored at the Solicitor General’s office, in urging the court to deny review of a prior restraint against CNN, argued, “The critical point is that the First Amendment is part of the rule of law, not above it.”

And a decision he wrote earlier this year stripped newsletter publishers of an attorney fees award because, he held, the government was justified in defending a rule requiring the publishers to register as commodities traders.

Reporter’s privilege

In re Grand Jury Subpoena, Miller (Valerie Plame investigation), 405 F.3d 17 (2005)

After a three-judge panel denied the appeals of Judith Miller and Matthew Cooper of their contempt citations in the grand jury matter concerning the leak of a CIA operative’s name, the entire U.S. Court of Appeals (D.C. Cir.) was asked to rehear the case. Without releasing a vote, the court declined to review the case. Judge Roberts took no part in the matter for unexplained reasons.

Licensing of journalists

Taucher v. Brown-Hruska, 396 F.3d 1168 (D.C. Cir. 2005)

In a case decided earlier this year, Judge Roberts overturned an award of attorney fees to newsletter publishers who had successfully challenged an attempt by the Commodity Futures Trading Commission to require that the publishers be licensed as commodities traders.

While the issue of an award for attorney fees is somewhat technical, Roberts’ decision required him to both ignore a trial judge’s determination (by reviewing the facts anew, as opposed to simply reviewing the decision for abuse of discretion, as precedent dictated) and to find that the issue of whether the government can restrict speech in such a manner was not well settled. (Roberts did not suggest that the newsletters should be subject to the strict registration requirements, but instead was examining whether the CFTC’s position on that question was defensible at the start of the litigation.)

The district court had first ruled that the CFTC trader-registration requirement was unconstitutional as applied to newsletter publishers. When the publishers then sought to recover their attorney fees from the CFTC, a magistrate judge held that such an award was appropriate because the law was “unquestionably” a prior restraint on speech, which the CFTC had wrongly characterized as a “content-neutral” regulation. The difference between brokers giving advice to clients and publishers who produce newsletters was “self-evident and obvious,” the judge held.

But on appeal, Roberts ruled that the distinction was not so obvious. Previous cases had dealt with securities, not commodities, regulations, and, like newsletter publishers, commodities traders are less likely to have direct client contact and to give direct advice to those clients. He also pointed out that previous courts that had to decide the issue in the securities field had acknowledged that the distinction between permissible regulation and unconstitutional suppression of speech was a “rough” issue.

Judge Harry Edwards dissented from the appellate panel’s holding, agreeing with the magistrate judge that the government’s arguments “bordered on the absurd.” He also pointed out that the distinction between advisers and publishers was clearly defined by the Supreme Court in a 1985 case that itself was “grounded in decades of Supreme Court precedent.”

Prior restraints

CNN v. Noriega, 498 U.S. 976 (1990)

Deputy Solicitor General Roberts co-authored a 1990 brief opposing CNN’s unsuccessful effort to seek U.S. Supreme Court review of a prior restraint issued by a federal judge in Miami. The denial of review is believed to be the first time the court allowed a prior restraint against the media to stand.

In early November 1990, U.S. District Judge William M. Hoeveler ordered CNN not to broadcast tapes of government-recorded phone conversations between Gen. Manuel Noriega, who was being held in a Dade County, Fla., jail on drug charges, and his defense lawyer. The order was in effect until Hoeveler could review the tapes and determine whether the potential threat to Noriega’s right to a fair trial overcame CNN’s First Amendment right to publish them.

But CNN refused to turn over the tapes, and instead appealed Hoeveler’s order to the U.S. Court of Appeals in Atlanta (11th Cir.). At the same time, CNN aired recordings of taped conversations between Noriega and his lawyer in defiance of Hoeveler’s order &#151 an action for which it later apologized. When the appeals court sided with Hoeveler and said CNN had to turn over the tapes, the cable network asked the Supreme Court to intercede.

The government’s opposition brief, submitted by Roberts, then-Solicitor General Kenneth W. Starr, Assistant Attorney General (now FBI Director) Robert S. Mueller III and Assistant to the Solicitor General Michael R. Lazerwitz, urged the Supreme Court to deny CNN’s requests for a stay and for review of the case. The government argued that the First Amendment permitted a temporary restraint on broadcast of the tapes to give Hoeveler the chance to “assess and balance” the free press and fair trial interests at issue. “Only then can the courts be certain that the significant constitutional interests on both sides of the balance are weighted appropriately,” the brief asserted.

The government criticized CNN’s position, which it said contained “an inherent contradiction:” The cable network, according to the government, argued that the court could not issue a prior restraint without making factual findings to support it, yet CNN refused to turn the tapes over to Hoeveler so he could make the factual findings. That argument could only stand, the government contended, if the Supreme Court ruled that a prior restraint could never be warranted in this case &#151 even if publication made it impossible to guarantee Noriega, and the public, a fair trial. “This Court’s decisions do not sanction such an extreme vision of the First Amendment,” the Solicitor General’s brief stated.

The government, while recognizing that prior restraint is an “extraordinary” measure, stressed that First Amendment concerns had to be balanced against other constitutional interests that were “equally weighty,” and that the only way for Hoeveler to do so was by ordering CNN not to air the tapes until he had a chance to review them. Hoeveler’s orders, therefore, were “properly entered” to preserve the status quo &#151 something the government said the high court had endorsed in the past to facilitate judicial review.

“The critical point is that the First Amendment is part of the rule of law, not above it,” the brief states.

The brief accused CNN and the media groups that supported it in a friend-of-the-court brief &#151 including The Reporters Committee for Freedom of the Press &#151 of “trumpet[ing]” the idea that the case presented a conflict between a fair trial and free press.

“Petitioners make generous use of the term ‘unprecedented’ . . . but it is, upon close scrutiny, the ruling they seek from this Court &#151 that a federal court cannot even ask what it is that will be published in considering whether publication is protected &#151 that will be truly unprecedented,” the government wrote.

On Nov. 18, 1990, the Supreme Court refused by a 7-2 vote to stay Hoeveler’s order and grant review. In dissenting from the denial of review, Justice Thurgood Marshall noted with alarm that the district court issued a prior restraint without any showing that broadcasting the tape would threaten Noriega’s right to a fair trial.

“In my view, this case is of extraordinary consequence for freedom of the press,” Marshall wrote, adding that he failed to see how the prior restraint against CNN could be squared with cases such as Nebraska Press Ass’n v. Stuart, in which the court said the party seeking a prior restraint, which is presumed unconstitutional, had a “heavy burden” of justifying such a “drastic remedy.”

Interestingly, Marshall’s dissent was joined by one other justice &#151 Sandra Day O’Connor, whom Roberts has been tapped to succeed.


Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (2005)

Judge Roberts joined a unanimous appellate panel in finding that a treaty provision restoring copyright protection to foreign works whose terms had lapsed in the United States but were still valid in their country of origin did not overstep Congress’ power under the Constitution’s copyright clause.

Recording Industry Ass’n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (2003)

Judge Roberts joined a unanimous appellate panel finding that the Digital Millennium Copyright Act does not apply to Internet service providers that are acting only as a conduit for their client’s communications. The DMCA gives copyright holders broad subpoena power to discover computer users who are storing copyrighted materials illegally on a computer server. In overturning a lower court opinion upholding subpoenas served by a recording industry association against Verizon, the appellate panel found that the plain language of the act makes clear that the subpoenas are meant to be directed at ISPs that store infringing materials on their servers, rejecting the association’s argument that ISPs are legally responsible for the information stored on their client’s computers.

Libel and other torts

Lohrenz v. Donnelly, 350 F.3d 1272 (2003)

Judge Roberts joined a unanimous appellate panel in determining that Carey Lohrenz, one of the first two female Navy fighter pilots, was a limited-purpose public figure for purposes of a libel suit alleging that the Navy had lowered its standards for political reasons to allow women to achieve such positions. While she had not sought publicity about her then-controversial position, she chose to fly the F-14 combat jet while well aware of the public controversy over women in combat roles, the court found. As a limited-purpose public figure, she was required to show that any defamatory statements were made with actual malice &#151 knowledge of falsity or reckless disregard for the truth &#151 which she could not do. The appellate panel thus upheld the lower court’s dismissal of her libel case.Eimann v. Soldier of Fortune Magazine, 880 F.2d 830 (5th Cir. 1989)

As a private attorney in the 1980s, Roberts was one of a number of attorneys representing Soldier of Fortune magazine in a suit over an advertisement. The plaintiff sued the magazine for negligently running a classified ad that her son-in-law used to find a hit man to kill his wife. The ad itself did not mention any illegal activity, but referred to “high risk assignments,” which allegedly was known to the magazine’s readers to mean bodyguard or security work. The plaintiff argued that within the mercenary military context of the magazine, this should have been seen as an offer to commit murder. A jury returned a verdict against the magazine for $1.9 million.

On appeal, the magazine argued that holding the publisher liable would violate the First Amendment because it would impose a duty upon publishers to investigate advertisers, and that the trial court’s broad definition of context allowed the jury to punish the magazine for its mercenary and military focus. The U.S. Court of Appeals in New Orleans (5th Cir.) reversed the award without reaching the First Amendment arguments because it found that the magazine could not be negligent for running an ad that did not solicit criminal activity as written and in context was “at most” ambiguous.

Government regulation of speech and the media

Livestock Marketing Association v. USDA, 335 F.3d 711 (8th Cir. 2003)

As an attorney at Hogan & Hartson before joining the federal bench, Roberts represented Nebraska Cattlemen Inc. in a suit over a government-sponsored advertising campaign. The Nebraska Cattlemen and U.S. Department of Agriculture supported the campaign, and appealed a lower court order that a federal law compelling beef producers to contribute to a generic advertising fund was compelled speech in violation of the First Amendment. The Nebraska Cattlemen and USDA argued on appeal that the law did not violate the First Amendment because the advertising was “government speech” and because it was subject to a lower level of First Amendment protection as “commercial speech.” The U.S. Court of Appeals in St. Louis (8th Cir.) held that the law violated the First Amendment.

The U.S. Supreme Court later reversed. Roberts was by then on the D.C. Circuit and did not represent the Nebraska Cattlemen before the Supreme Court.

Fox Television Stations v. FCC, 350 U.S. App. D.C. 79 (D.C. Cir. 2002)

Before becoming a judge, Roberts was part of a team of attorneys representing a coalition of broadcasting networks including Fox, CBS, Viacom and NBC. Fox and the other networks successfully sued the FCC to eliminate the 35-percent cap on national ownership previously required by the Telecommunications Act of 1996. The networks argued that the rule violated their First Amendment rights by preventing them from speaking directly to 65 percent of the American viewing audience, and further, that the “spectrum scarcity” rule adopted by the court had no practical application to the ownership cap. Although the three-judge panel rejected these specific arguments, it threw out the ownership rule because they found no evidence to support the FCC’s contentions that the cap promoted the public interest by increasing competition and promoting a diversity of viewpoints on television.

Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987)

In the 1980s, Roberts wrote a friend-of-the-court brief to the U.S. Supreme Court for Time magazine in a publications tax case. The court struck down on First Amendment grounds an Arkansas sales tax scheme that taxed general interest magazines, but not newspapers and religious, professional, trade and sports journals.


Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993)

Deputy Solicitor General Roberts argued before the Supreme Court on behalf of the United States as a friend of the court, supporting the position of a right-to-life group that routinely protested at and inhibited access to abortion clinics.

The case was brought as a civil rights claim, arguing that the protesters were engaged in a type of gender discrimination protected by civil rights legislation. On behalf of the government, Roberts argued that the protesters were engaging in expression protected by the First Amendment. Pro-choice advocates have expressed concern that the government chose to involve itself by using a First Amendment argument to protect anti-abortion interests. The Supreme Court held 6-3 that the protests did not amount to gender discrimination, but the decision prompted Congress to enact the Freedom of Access to Clinic Entrances Act shortly thereafter.

Whistleblowing and freedom of information

In re Cheney, 406 F.3d 723 (D.C. Cir. 2005)

Judge Roberts joined the full unanimous U.S. Court of Appeals in Washington, D.C., in ruling that the open meeting and open records provisions of the Federal Advisory Committee Act did not apply to President George W. Bush’s National Energy Policy Development Group, commonly called the “energy task force,” headed by Vice President Dick Cheney. FACA’s openness requirements do not apply to advisory committees composed entirely of government employees, but environmental and government watchdog groups sued for access to the task force’s records because they believed that energy industry executives had been secretly allowed to participate in the meetings.

The appeals court ruled on remand from the U.S. Supreme Court that constitutional separation of powers concerns required the court to construe FACA narrowly. The court ruled that because Bush officially named only government employees to the task force, it was exempt from the requirements of FACA.

Koszola v. Federal Deposit Insurance Corporation, 393 F.3d 1294 (D.C. Cir. 2005)

Judge Roberts affirmed a lower court’s dismissal of a whistleblower retaliation lawsuit. The lower court had found that the federal Resolution Trust Corporation had actually fired the plaintiff for reasons unrelated to protected whistleblowing activity.

Whistleblower Michael Koszola argued in his appeal that his dismissal for various improper conduct had suspiciously occurred right after an allegedly protected disclosure of RTC waste to a newspaper. According the lower court’s fact-finding “substantial deference,” Roberts noted that Koszola’s timing argument ignored “the cumulative effect” of his improper conduct at work. “The adage about the straw breaking the camel’s back is familiar because of the truth it conveys,” he wrote. The last episode of misconduct, coincidentally timed around his allegedly protected disclosure, simply “the latest in an accumulation of incidents that exhausted the patience of Koszola’s supervisors,” Roberts concluded.

Stewart v. Evans, 351 F.3d 1239 (D.C. Cir. 2003)

Judge Roberts wrote for a unanimous three-judge panel that a government employee’s Fourth Amendment rights against illegal search and seizure were not violated when Department of Commerce attorneys looked at documents pertaining to her employment discrimination charges against the agency’s then-Inspector General Frank DeGeorge.

When The Washington Post made a Freedom of Information Act request for records concerning DeGeorge, Sonya Stewart permitted select agency officials to review her records to determine their responsiveness to The Post‘s request on the condition that they not be shown to Commerce attorneys who might later have to defend DeGeorge against her action. When those Commerce attorneys saw the documents anyway, Stewart sued, saying that their examination of her records constituted a Fourth Amendment violation of her privacy. Roberts disagreed, saying that government employees have no reasonable expectation of privacy in documents once they were transferred for FOI Act review.

“The reason Stewart transferred the documents is highly pertinent,” he wrote. The transfer was “the first step in a process that could . . . result in broader disclosure of the documents [pursuant to the FOI Act],” he said in affirming the lower court. “When the threat of mandatory disclosure accompanies the transfer of documents to a third party, little reasonable expectation of privacy exists.”

Tax Analysts v. Internal Revenue Service, 350 F.3d 100 (D.C. Cir. 2003)

Judge Roberts was part of a unanimous three-judge-panel ruling that the Tax Reform Act required the Internal Revenue Service to publicly release documents pertaining to its denial or revocation of tax exempt-status for various organizations. In its arguments the IRS had invoked Treasury Department regulations ordering secrecy for denials and revocations. Those regulations violated federal law and were invalid, the court said, because they contrasted the general public disclosure scheme envisioned by Congress and prevented “the very monitoring of the IRS that the Tax Reform Act was designed to facilitate.”