Media Rate Stephen Breyer 'Not Too Bad'; Reporters Committee for Freedom of the Press Says His Libel Decisions 'Are Strong and Good,' but He's a 'Disaster' When It Comes to Freedom of Information Cases

By Hernandez, Debra Gersh | Editor & Publisher, June 4, 1994 | Go to article overview

Media Rate Stephen Breyer 'Not Too Bad'; Reporters Committee for Freedom of the Press Says His Libel Decisions 'Are Strong and Good,' but He's a 'Disaster' When It Comes to Freedom of Information Cases


Hernandez, Debra Gersh, Editor & Publisher


Reporters Committee for Freedom of the Pres says his libel decisions 'are strong and good,' but he's a 'disaster' when it comes to Freedom of Information cases

AFTER EXAMINING THE media-related decisions of Supreme Court nominee Judge Stephen Breyer, the Reporters Committee for Freedom of the Press has determined that while it "would've hoped for better," he's not too bad."

Breyer is chief judge of the First U.S. Circuit Court of Appeals in Boston. As it does with each High Court nominee, the Reporters Committee assessed Breyer's participation in media decisions in 12 categories.

Jane Kirtley, executive director of the Reporters Committee, said Breyer's libel decisions "are strong and good," but that he's "a disaster" when it comes to Freedom of Information Act cases, tending to be more deferential toward the government.

"The other thing that I find lacking is any kind of passion for our issues," Kirtley said, adding she may have been spoioed last year by the writings of Justice Ruth Bader Ginsburg.

"Also, he has a tendency to say, 'Well, I think this issue is really moot and we don't need to decide it,' " Kirtley said.

That is particular problem for the media because often by the time a case gets to court, the damage has been done and the media often are looking for a ruling to help avoid similar problems in the future.

An example of this would be media-military relations, Kirtley said.

"He seems to put form over sustance," she continued.

"That does not bode well generally [for the press]. One would prefer to see a more emotional outrage, intellectual outrage, to say, 'We need to set it clear."

Of note is the fact that among the media cases Judge Breyer participated in, he actually wrote very few decisions.

Because of that, Kirtley said she is "wary of drawing too many conclusions from someone joining a decision Some people would point to that and say it is part of his desire for consensus and he only writes when it's unavoidable."

Without knowing how the First Circuit assigns the writing of decisions, Kirtley said, it cannot be explained why he wrote so few media decisions, and that it does make it "difficult to get a clear picture of him as an individual."

One issue Breyer was involved in that could come before the Supreme Court during his tenure is that of the libel law protections for opinion.

In 1992, Breyer joined the panel opinion in Phantom Touring Inc. vs. Affiliated Publications. In its decision, the court found that articles about the touring company of The Phantom of the Opera were protected statements of opinion and not actionable for defamation, according to the Reporters Committee summary. …

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