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Restrained optimism over Ruth Ginsburg.

With restrained optimism, media lawyers await the impact of Justice Ruth Bader Ginsburg on the Supreme Court. Many of them seem sure that she will be more sympathetic to press pleas than her predecessor, Justice Byron R. White. But they are not certain about just how much better she will be.

Before joining the Supreme Court last month, Ginsburg served for 13 years on the U.S. Circuit Court of Appeals in Washington, D.C., where she earned a reputation as a moderate judge. A Democratic appointee, she was very comfortable voting with judges chosen by conservative Republican presidents, and not quite so comfortable voting with more liberal colleagues who, like her, were named by Democratic President Jimmy Carter.

The D.C. appeals court handles a large number of federal regulatory cases, and a jurist on that bench gets many opportunities to act on disputes over broadcast regulation and Freedom of Information Act issues. But the court does not deal very often with questions of libel, invasion of privacy, subpoenas for reporters and protection of secret news sources.

Broadcast cases and FOIA lawsuits, however, can tell much about the state of press rights and a judge's attitude toward them. Because broadcasting is a government-licensed branch of the press (or, in the cable industry, a government-franchised medium), the government tends to use its powers more aggressively toward broadcasters--unless the courts use the First Amendment as a shield against too much regulation. FOIA cases have symbolic meaning, too, because they tend to show that almost all government agencies are stingy about disclosing their files--unless the courts insist on openness.

Ginsburg's record in these areas suggests that, as a justice, she could be an important vote on the press' side a good deal of the time. If that proves to be true even some of the time, it would gladden the hearts of many editors and reporters--especially since White made something of a career out of being a stubborn adversary of journalists in almost all legal contests over press rights (see "The Press and the Law," July/August 1993).

Ginsburg has resisted efforts by the Federal Communications Commission to put its sometimes heavy hand of restraint on broadcasters. When the FCC moved aggressively to control the hours that radio and television stations could broadcast programs with sexually explicit language or themes, she found that the FCC had not justified its actions.

While conceding that the commission may take steps to limit children's exposure to broadcast "indecency," she has insisted that the agency act in careful, measured ways.

Similarly, she has been deeply skeptical about the FCC's keen interest in forcing cable television station operators to carry the programs of all broadcasters in their communities, whether or not a cable station wants to offer the programs.

In both situations, Ginsburg acted out of an expressed concern for freedom in programming--a concern she traces to the First Amendment's mandate of free expression.

On key tests of access to government information under the Freedom of Information Act, Ginsburg has shown repeatedly that she understands the act's goal to be open government, not excuses for keeping public files secret. She has said that Congress has instructed the courts to keep "always in view" FOIA's "dominant disclosure direction."

Perhaps her most significant opinion concerning FOIA came in a 1987 ruling. Ginsburg wrote that a nuclear power industry group's reports on the causes of safety-related incidents at nuclear power plants had to be made public after being filed voluntarily with the Nuclear Regulatory Commission. She was unimpressed with the industry position that such documents should be confidential.

Ginsburg later wrote a broader opinion arguing for public release of the documents, when in 1992 the full Circuit Court voted 7-4 to overturn Ginsburg's earlier ruling; this time, Ginsburg was writing in dissent.

She also joined in a vigorous dissent when a majority of her court allowed the government to keep secret the actual voice recording of the crew of the space shuttle Challenger in the final minutes before the craft exploded, killing the crew. The majority fashioned a rule that protected the privacy of the crews' survivors, because their loved ones' voices were on the tape.

Although Ginsburg has not written extensively on First Amendment issues that are vital to the print media, she has indicated that she would have difficulty with aggressive government attempts to impose prior restraints and with onerous damages in libel lawsuits.

And in the libel field, she wrote an opinion in 1987 offering important practical tips for trial judges to follow to make sure that jurors understand the increasingly complex nuances in "this unsettling area of law."
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Title Annotation:The Press and the Law
Author:Denniston, Lyle
Publication:American Journalism Review
Date:Sep 1, 1993
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