The Roberts Record
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.
In re Grand Jury Subpoena, Miller (Valérie Plume 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
Taucherv. 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 …
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Publication information: Article title: The Roberts Record. Contributors: Not available. Magazine title: News Media and the Law. Volume: 29. Issue: 3 Publication date: Summer 2005. Page number: 11+. © Reporters Committee for Freedom of the Press Fall 2008. Provided by ProQuest LLC. All Rights Reserved.
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