NEWS MEDIA UPDATE · WASHINGTON, D.C. · Newsgathering · Sep. 16, 2005
Roberts says he is not “up to speed” on free press issues
Sep. 16, 2005 · Supreme Court nominee John Roberts told the Senate Judiciary Committee this week that he is not “up to speed” on First Amendment cases and does not have a definitive opinion about cameras in the nation’s highest court. Roberts also revealed his thoughts on media access, whistleblowers and protections for pornographic material during his confirmation hearing.
During Wednesday’s questioning, Roberts admitted he is not “up to speed” on First Amendment precedents. “But my recollection is that there is great difficulty whenever you try to distinguish between public rights and media rights, ” he elaborated. “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.”
Responding to questions from Sen. Patrick Leahy (D- Vt.) about his views on the First Amendment, Roberts revealed that outside of a case regarding media access to prisons — which he did not give details about — he had not dealt with many media law cases.
“I studied one [case] 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,” Roberts told Sen. Leahy. “And so I’m not terribly familiar with the precise levels of scrutiny that apply.”
Sen. Leahy asked whether the First Amendment justified denying access to certain images, specifically bringing up coverage of rescue operations in the wake of Hurricane Katrina.
Roberts said he thought there were “perfectly valid” reasons for the government to exclude the media from some images and venues, but he could not specify which reasons would be “perfectly valid.”
Roberts said there was a balance important to maintain between particular interests when dealing with governmental operations.
“On the other hand, 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. “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.”
While Roberts did not specify reasons to curb access, he went on to use Justice Louis Brandeis’ famous quote: “Sunlight is the best disinfectant.” Roberts cited that as his general starting principle in regards to cases involving media access.
Roberts reiterated his lack of familiarity with the “precise legal standards or how they have developed since the prison access case” but said “it does require a consideration and weighing.”
When asked if he favored or opposed cameras in the high court as the late Chief Justice William Rehnquist did, Roberts said that his “new best friend,” actor and former Tennessee senator Fred Thompson, assured him that “television cameras are nothing to be afraid of,” but that he personally “does not have a set view.” Thompson was appointed by the administration to shepherd Roberts through the nomination process.
In Tuesday’s proceedings, Roberts commented briefly on whistleblower cases, an issue raised by Sen. Charles E. Grassley (R- Iowa). Roberts said he recalled some whistleblower cases coming up in the U.S. Court of Appeals in Washington, D.C., on which Roberts serves, but did not have strong opinions that would reveal bias.
Also in Tuesday’s hearings, in response to questioning from Sen. Mike DeWine (R- Ohio), Roberts said he agrees that court precedent has established a lesser protection for pornographic speech than for political speech, and that he wouldn’t know porn until he sees it. Sen. DeWine raised the issue after pointing out that two Internet-related bills, the “Child Online Pornography Act” and the “Communications Decency Act,” had both been struck down by the courts.
Roberts did not indicate what level of protection that graphic speech deserved.
“The difficulty that the court has addressed . . . is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not,” he said.
Though Roberts failed to express explicit First Amendment views on either end of the spectrum, he did stress the importance of the amendment Wednesday in his exchange with Sen. Leahy.
“The values of the First Amendment, obviously, are something that have to be given careful weight by the court, because the First Amendment serves a purpose,” Roberts said.