Commercial Speech Cases Fill the Supreme Court: Decisions Involving the Media in 1993 Focused Primarily on Commercial Speech, Although Issues with First Amendment Ramifications Brought by Nonmedia Parties Also Were Decided
Hernandez, Debra Gersh, Editor & Publisher
U.S. SUPREME COURT decisions involving the media in 1993 focused primarily on commercial speech, although issues with First Amendment ramifications brought by nonmedia parties also were decided.
Many of the broader First Amendment cases often heard by the court -- involving the Freedom of Information Act, privacy issues and press access -- were addressed in other branches of the government during the year.
In one ruling that recognized commercial speech protections, City of Cincinnati vs. Discovery Network Inc., the high court found that the city could not ban from its streets news racks of free publications but not those of commercial papers.
Writing for the 6-3 majority, Justice John Paul Stevens noted that the city failed to justify its "sweeping ban that bars from its sidewalks a whole class of constitutionally protected speech?'
In an important tax case, Newark Morning Ledger Co. vs. United States, the court ruled that subscriber lists acquired in the purchase of a newspaper property could be deducted as intangible assets.
Writing for the 5-4 majority, Justice Harry Blackmun noted that the company was able to show that the acquired paid-subscriber list had "substantial value over and above a mere list of customers" and that its value after acquisition "diminished over an ascertainable period of time?'
The court also ruled in a Freedom of Information Act case that did not involve the media but had ramifications for all those who use FolA.
In Department of Justice vs. Landano, the unanimous court decided that all FBI sources cannot automatically be considered confidential and thus exempt from disclosure under FolA.
As Justice Sandra Day O'Connor wrote, the court does not believe that it is "reasonable to infer that the information is given with an implied understanding of confidentiality in all cases?" Another case with First Amendment implications, but no media participants, was Alexander vs. United States.
The 5-4 decision said the government did not violate the rights of adult bookstore owner Feris Alexander when it seized and destroyed material from his store after he was convicted on obscenity and racketeering charges.
Chief Justice William Rehnquist, writing for the majority, explained that the seizure did not violate Alexander's First Amendment rights because it did not forbid him "from engaging in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations."
In a stinging dissent read from the bench, Justice Anthony Kennedy called the majority decision "a grave repudiation of First Amendment principles?"
Kennedy's dissent said, "The admitted design and the overt purpose of the forfeiture in this case are to destroy an entire speech business and all its protected titles, thus depriving the public of access to lawful expression. This is restraint more than theory. It is censorship all too real."
In another highly publicized case, the court acted by not acting.
Without comment, it refused to hear the appeal of Florida reporter Tim Roche, who had been sentenced to jail for criminal contempt after he refused to disclose the source of his articles in a child abuse case.
The court also let stand without comment a $2.4 million judgment against Soldier of Fortune magazine, which was held liable for running a classified ad for a "gun for hire?'
The magazine had been sued by the family of a man who was killed in 1985 by a man hired through the ad. The magazine was held responsible for the ad, which lower courts found implicitly had solicited criminal activity. Soldier of Fortune stopped running such ads in 1986, but it argued that it had the First Amendment right to do so.
Two justices found the spotlight turned on them, one posthumously and the other as she prepared to join the court. …