Judge Ginsburg and the Press: Reporters Committee for Freedom of the Press Examines the U.S. Supreme Court Nominee's Record in Media-Related Cases

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ALTHOUGH SHE MAY be best known for her legal writings and court decisions affirming women's rights, U.S. Supreme Court nominee Judge Ruth Bader Ginsburg participated in a number of media-related decisions while serving on the U.S. Court of Appeals for the District of Columbia Circuit.

As it has done with other nominees to the High Court, the Washington, D.C.-based Reporters Committee for Freedom of the Press (RCFP) has analyzed the media decisions written by Judge Ginsburg and cases in which she participated.

Judge Ginsburg has a tendency to make the government justify everything it does, to make its case before infringing on First Amendment rights, explained Jane E. Kirtley, executive director of the RCFP.

That held true in Freedom of Information Act cases, when Judge Ginsburg's rulings did not allow the government to get away with unsupported assertions for withholding information. The government had to prove why material was exempted, Kirtley added.

However, Kirtley said she is somewhat concerned about Judge Ginsburg's tendency to give additional weight to privacy exemptions, especially since that is an exemption to FoIA the government has been using more lately.

Judge Ginsburg's rulings show a great deal of emphasis on government following the right procedures, and she shows no evident hostility toward the press, Kirtley continued.

"I don't think she's going to be bad," Kirtley said. "My biggest concern is that she'll be inclined to always be looking for the privacy concern .... She's not going to make across-the board assertions that there are no privacy issues."

One of the more recent decisions involving privacy in which Judge Ginsburg participated was New York Times v. NASA.

In that 1990 case, the New York Times sought access to transcripts and audiotapes of the final voice recordings inside the space shuttle Challenger in the moments before it exploded.

The Times was granted access to the transcripts, but not to the tapes. NASA argued that release of the tapes would be an unwarranted invasion of the privacy of the deceased astronauts and their families.

The District Court ordered the tapes released and was upheld by the Court of Appeals panel 2-1. When reheard by the full appeals court, however, the panel's decision was reversed and remanded to determine if disclosure would constitute an unwarranted invasion of privacy.

Judge Ginsburg joined a dissenting opinion criticizing the ruling for creating a general exemption for any information "whose privacy value outweighs its public value," the RCFP reported.

Judge Ginsburg wrote the opinion in Securities Exchange Commission v. McGoff, which found that SEC subpoenas of newspaper publisher John P. McGoff were not subject to reporter's privilege protection.

The SEC had been investigating McGoff's financial ties to the South African government, and subsequently subpoenaed him. The subpoenas eventually were modified to exclude editorial or news-gathering material.

According to the RCFP report, the opinion written by Judge Ginsburg found that McGoff's voluntary association with a public company made him subject to federal securities laws.

The RCFP quoted Judge Ginsburg's opinion as noting that McGoff and his companies "enjoy no special privilege as press entities to withhold information others must furnish to the investing public," even if the request might affect the ability to gather news. …