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14 Media L. Notes 1 (1986-1987)

handle is hein.journals/mdilwnts14 and id is 1 raw text is: Media Law Notes Volume 14. Number 1 Newsletter of the AEJMC Law Division and the AALS Mass Communications Law Section Fall 1986 Justice Scalia May Be Like Judge Scalia Reprinted with permission from the Washington Joumalism Review. EDITOR'S NOTE: The nation's most astute and widely read Supreme Court watcher, Lyle Denniston, covers the High Courtforthe BaltimoreSun andwritesregularcolumnson First Amendment issues for the Washington Journalism Review.Hefrequentlyappearson NiInterviewshowsafter Important Court decisions are handed down. Also a book author and popular speaker on First Amendment issues, Lyle has long Supreme Court experience, having covered It for the Washington Star before he joined the Sun. Before the fall term of the Court opened with William Rehnquist as chief justice and Antonin Scalia as the newlty conirned associate justice tobe seated on the first Monday of October, Lyle wrote the column below for WJR's September issue. In December, after he had observed the Courtin its new composition for two months, he suggested this column on Scalia when asked what he would like to contribute to Media Law Notes. Nothing Lyle has seen so far has changed his mind about anything he wrote here. By Lyle Denniston Predictions about the Supreme Court are never sure bets, but it is reasonable to expect that the elevation of Circuit Judge Antonin Scalia to the highest court means trouble for the rights of the press under the First Amendment. Few new justices have arrived with such awell-developed background on a given issue as Scalia on press rights. He has been involved in several significant test cases on the First Amendment before the U.S. Circuit Court of Appeals in Washington, and has revealed his thinking plainly and quite fully. At best, Scalia has been skeptical of the press' claims to constitutional protection, believing that media organiza- tions have enough power and influence to get what they need by going to Congress and the state legislatures, rather than to the courts. It has not often been thought, he once wrote, that the press is among the least effective of legislative lobbyists. At worst, he appears to harbor an almost cynical view of the press' fears of the law as a governing factor in the newsroom. He has developed a reputation for using rather heavy sarcasm in response to the arguments of press lawyers. Whatever his views, Scalia, of course, will not be the Supreme Court all by himself. His vote will be only one of nine, and his philosophy, however eloquently expressed (and he Is considered a master of eloquence), will have to attract the support of at least four other justices to prevail. But both his vote and his attitude should not be discounted. He will be filling a vacancy created by the retirement of Chief Justice Warren E. Burger, who voted most of the time in favor of the press (despite his personal distrust of It). Burger considered himself something of a protector of the press, and made a common practice of writing the court's opinions when the result favored the press. It is already quite clear that Scalia does not view himself as a constitutional patron of the press, and would not be inclined to vote as such very often. In addition, Scalia brings askeptical attitude to a court in the midst of transition over press law issues.The prevailing majority at the court is not yet unfriendly toward the press, but the bloc oftruly sympatheticjustices is dwindling. When the press wins a big case these days, it usually does so on the narrowest ground. Indeed, almost every recent press victory has contained some limiting or qualifying language that spells trouble when lowercourts seek to applythe result to subsequent cases. Scalia could hardly be expected to seek to reverse that recent trend. His record on the Circuit Court, particularly on libel issues-the most important questions facing the press today-indicates he could be aforce within the court to cut back on the scope of First Amendment protection. His most important declarations on libel law came in an opinion he wrote in dissent in 1984 when a Circuit Court majority threw out the libel claims of a Marxist college professor, Bertell Oilman, against syndicated columnists Rowland Evans and Robert Novak. Opening with a comment that the columnists had published classic and coolly crafted libel, Scalia went on to belittle the concern that libel law had become a serious threat to press freedom. He wrote, Perhaps those are right who discem a distressing tendency for our political commentary to descend from discussion of public issues to destruction of private reputations; who believe that, by putting some brake upon that tendency, defamation liability under existing standards not only does not impair but fosters the type of discussion the First Amendment is most concerned to protect; and who view high libel judgments as no more than (Continued on page 8.)

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