Restrained Optimism over Ruth Ginsburg

Article excerpt

With restrained optimism, media lawyers await the impact of Justice Ruth Bader Ginsburg on the Supreme Court. Many of them seem sure that she will be more sympathetic to press pleas than her predecessor, Justice Byron R. White. But they are not certain about just how much better she will be.

Before joining the Supreme Court last month, Ginsburg served for 13 years on the U.S. Circuit Court of Appeals in Washington, D.C., where she earned a reputation as a moderate judge. A Democratic appointee, she was very comfortable voting with judges chosen by conservative Republican presidents, and not quite so comfortable voting with more liberal colleagues who, like her, were named by Democratic President Jimmy Carter.

The D.C. appeals court handles a large number of federal regulatory cases, and a jurist on that bench gets many opportunities to act on disputes over broadcast regulation and Freedom of Information Act issues. But the court does not deal very often with questions of libel, invasion of privacy, subpoenas for reporters and protection of secret news sources.

Broadcast cases and FOIA lawsuits, however, can tell much about the state of press rights and a judge's attitude toward them. Because broadcasting is a government-licensed branch of the press (or, in the cable industry, a government-franchised medium), the government tends to use its powers more aggressively toward broadcasters--unless the courts use the First Amendment as a shield against too much regulation. FOIA cases have symbolic meaning, too, because they tend to show that almost all government agencies are stingy about disclosing their files--unless the courts insist on openness.

Ginsburg's record in these areas suggests that, as a justice, she could be an important vote on the press' side a good deal of the time. If that proves to be true even some of the time, it would gladden the hearts of many editors and reporters--especially since White made something of a career out of being a stubborn adversary of journalists in almost all legal contests over press rights (see "The Press and the Law," July/August 1993).

Ginsburg has resisted efforts by the Federal Communications Commission to put its sometimes heavy hand of restraint on broadcasters. When the FCC moved aggressively to control the hours that radio and television stations could broadcast programs with sexually explicit language or themes, she found that the FCC had not justified its actions. …