How Retiring Supreme Court Justice White Voted in First Amendment Cases
Hale, Dennis, Editor & Publisher
ASSOCIATE JUSTICE BYRON White will have completed 31 years on the U.S. Supreme Court when he retires later this summer.
Those three decades have been marked by an explosion of media law decisions, but White was not a leader in that development.
In the area of freedom of press and speech, White has been a follower, a pragmatist, a non-doctrinaire and an independent. Frequently, he has been an opponent.
Three recent and close decisions demonstrate why advocates of a free press will celebrate the justice's retirement.
The most significant is the 1991 decision Cohen v. Cowles Media. White was the author of a 5-4 decision against the Minneapolis and St. Paul, Minn., newspapers.
The newspapers had identified a political consultant who had spread dirty campaign information. The problem was newspaper reporters had promised the consultant confidentiality.
The editors overruled the reporters and identified the consultant, whereupon the consultant successfully sued the newspapers for $700,000 for breaking the promise. White and four other Court members ruled that the award did not violate the First Amendment.
White's spirited dissent in the 1988 decision Lakewood v. Plain Dealer has created uncertainty in the law governing sidewalk newsracks. Two justices did not participate, resulting in an unusual, squeaker vote of 4-3 in favor of the Cleveland paper.
White's dissent stated unequivocally, "There is no constitutional right to place newsracks on city sidewalks over the objections of the city."
The third White decision that was ominous for journalists was the 1989 case of Florida Star v. B.J.F. A weekly newspaper accidentally reported the name of a rape victim, which appeared on a public document in the police department. This violated Florida law and the rape victim was awarded $100,000 in damages by a jury.
The Supreme Court voted 6-3 to reverse the award, but White wrote a dissent, saying, "There is no public interest in publishing the names, addresses and phone numbers of persons who are the victims of crimes."
White participated in other highvisibility cases that attracted press criticism:
* He was the majority author in the controversial, 6-3, 1979 decision Herbert v. Lando. The case allowed libel plaintiffs to question reporters about newsroom conversations and the veracity of news sources.
* He was the majority author of the 5-3, 1978 decision Zurcher v. Stanford. The Court ruled that the First Amendment does not prevent warranted searches of newsrooms.
* He was the majority author of the 5-4, 1977 decision Zacchini v. Scripps Howard. Hugo Zacchini had warned a TV photographer not to film his human cannonball act at a county fair. He sued the station after it broadcast 15 seconds of the performance. White's majority ruled that the suit did not violate the First Amendment.
* White wrote a dissent to the 5-4, 1986 libel decision Philadelphia Newspapers v. Hepps. The majority protected the press, requiring libel plaintiffs to prove the falsity of defamatory statements.
* Lastly, White provided a fifth vote for three major decisions against the press in the 1970s. Those were Saxbe v. Washington Post (1976), limiting reporter access to prison inmates; Branzburg v. Hayes (1972), denying First Amendment protection for confidential sources; and Miller v. California (1973), which reduced protection for sexually explicit speech.
White's record is not entirely negative as far as free expression is concerned. Many editors and journalists respect White for his independence, integrity, scholarship and judicial decorum, and they appreciate the occasions when White favored the rights of the press. …