Sotomayor’s Freedom of the Press Record Has Pros and Cons

By Kristin Billera

As the Supreme Court nomination hearings of Judge Sonia Sotomayor draw closer, people from all walks of life and with many different concerns have questions about her record. I have elected to take a closer look at Sotomayor’s record on media and communication law issues. Today, I have chosen to focus on freedom of the press issues.

Currently, there appear to be no cases on the 2009-2010 Supreme Court docket yet pertaining to freedom of the press.

U.S. v. Quattrone (2005) 402 F.3d 304

• Facts and History: In this case, which came up to the 2^nd Circuit Court of Appeals from the District Court for the Southern District of New York, media outlets (including Forbes, ABC, Associated Press, NBC, the New York Times and the Washington Post) appealed a judge’s decision to forbid the media from publishing the names of jurors which were revealed in open court in the retrial of Frank Quattrone, a former executive of Credit Suisse First Boston.

• Holding and Judgment:  The court’s gag order was a violation of the 1st Amendment.

• Sotomayor’s Take: Sotomayor makes it a point to go through an analysis of balancing the defendant’s 6th Amendment but in this case, does not reach the conclusion that the defendant’s right to a fair trial would be impeded. “Moreover, because a ‘responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field,’ the protection against prior restraint carries particular force in the reporting of criminal proceedings. Nebraska Press, 427 U.S. at 559-60 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966)). A prior restraint is not constitutionally inoffensive merely because it is temporary,” she wrote.

• Still Good Law? Shepard’s indicates “Possible negative treatment.” Distinguished in In re Natural Gas  Commodities Litig. (2006) 235 F.R.D. 241

Dow Jones & Co. v. Department of Justice (1995) 907 F. Supp. 79

• Facts and History: In 1995, the Wall Street Journal and editor Robert Bartley challenged the Department of Justice in the US District Court for the Southern District of New York over the DOJ’s refusal to release the full, original copy of a suicide note written by White House counsel Vincent Foster in a FOIA request. The DOJ said it was authorized to withhold the note to prevent an “unwarranted intrusion of personal privacy.” The Wall Street Journal argued that while they had some of the contents of the note, perhaps through a copy which was leaked when it was sent to Congress, “they still needed an ‘authenticated, actual-sized copy’ of the Note to confirm that they had published a genuine copy of the Note and to test certain claims made during the investigation of Vincent Foster’s death.”

• Holding and Judgment:  The court granted the defendants’ motion to vacate portions of the court’s prior order which required the DOJ to release a copy of Foster’s note to the public and granted the defendants’ motion to dismiss the portion of the complaint which sought to obtain a copy of the note from the investigative reports as moot.

• Sotomayor’s Take:  Sotomayor sided with the government in this case. She wrote that the plaintiffs rendered their own complaint moot by voluntarily receiving a copy of the note from another source. She continues: “Furthermore, I am unpersuaded by plaintiffs’ contention that without confirmation from the DOJ, plaintiffs would have remained forever uncertain of the Note’s provenance. In light of the Journal’s unequivocal and unconditional statements on August 2 that it was ‘reprinting’  a copy of the Note, it is disingenuous for plaintiffs now to maintain that they published a document that they ‘thought probably was the Note’ but which still required DOJ authentication.”

• Still Good Law? Yes,  Shepard’s reveals only citation information.

US v. Sanders (2000) 211 F.3d 711

• Facts and History: After the 1996 crash of TWA Flight 800, investigative journalist James Sanders who theorized that the flight was struck by a Navy missile gone astray contacted, through his wife Elizabeth who worked for TWA, TWA pilot Terrell Stacey, who was part of the official investigation of the crash. Sanders urged Stacey to obtain pieces of the wreckage so he could have it sent to a private lab to test it for explosive residue. Stacey did so. Shortly afterwards, an article was published in California which reported on Sanders’ theory and upcoming book about the crash, stating that Sanders, through a confidential source had obtained pieces of the wreckage. Shortly afterwards, the FBI began investigating Sanders and his wife. Sanders insisted that he did not need to reveal his source and that he was protected by reporter’s privilege from being prosecuted.

• Holding and Judgment: No journalist’s privilege is applicable to protect a journalist from having charges brought against him by a prosecutor.

• Sotomayor’s Take: Sotomayor did not write this opinion, and instead reviewed the case en banc, however, she agreed with the panel which upheld Sanders’ prosecution.

• Still Good Law? Shepard’s indicates “Possible negative treatment.” Distinguished in United States v. Scneider, 395 F.3d 78

Of the examples I have chosen, I was rather impressed with her thoughtful and careful opinion in the Quattrone case. She cited to a litany of cases which helped her arrive to her decision to ultimately strike down the gag order, which was clearly the right decision in this case.

The Dow Jones case I am somewhat worried about. I understand that the note was available from other sources, however, if this was the case, and the note had already been published, albeit, without being authorized for publication, one would assume the need to protect Foster’s personal privacy no longer applies if it had already been violated. In a high profile case such as that one, a real copy of the note is crucial to verify facts, and is information that the public should have access to, especially given his connections to the Whitewater scandal.

As for the Sanders case, on its face, it worries me, however, after thinking it through, the decision makes sense in this case. Reporters should be granted privileges to do their jobs, but privilege doesn’t equate to immunity, which is essentially what Sanders was claiming he had. I can understand reporters needing protection from subpoenas; however, exempting reporters from prosecution in cases such as this would be a gross misunderstanding of the justice system.

Next week I will present Part Two and I will be focusing on other freedom of speech and communications issues.

See also the Reporter’s Committee for Freedom of the Press report.