Law: A Fragmented, Pragmatic Court

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About the only clear signal from the disjointed court this year was aimed at the press. Claims by the press to special privilege under the First Amendment took a drubbing in several cases. The message struck with the bluntness of a sledgehammer in Zurcher vs. Stanford Daily, which allowed police to raid newsrooms without warning to search for evidence of crimes committed by others. Although the court ruled that police must first obtain warrants, many commentators feared that local magistrates would not hesitate to let police fish through reporters' desks and notebooks, scaring off sources from confiding in the press.

Far from enjoying any special free-speech privilege, broadcasting comes under special restrictions, and the court emphatically affirmed this on its final day last week. In the so-called "seven-dirty-words case," the four Nixon appointees voted together to support an opinion by Stevens. In the 5-to-4 ruling, Stevens said that the Federal Communications Commission could admonish a radio station for airing "patently offensive" language, even if that language would be protected in another medium as less than "legally" obscene. The "uniquely pervasive presence" of broadcasting justifies such regulation, said Stevens, who tried to narrow the ruling to the facts of the case—an explicit comedy routine that could be heard by a child in the afternoon over New York's radio station WBAI-FM. Angrily dissenting, Brennan said that Stevens' rationale "could justify" banning Chaucer from the radio, as well as portions of the Watergate tapes and the Bible.

In another case, a somewhat petulant opinion by Chief Justice Burger declared that the press had no more free-speech rights than anyone else. The outburst caused many to wonder if Burger did not have a personal peeve against the press. "There is a certain undertone of resentment against the press, a sort of 'Who do they think they are?' feeling among a few Justices," remarked Michigan's Blasi. But he warned against overplaying the court as antipress. Like other First Amendment experts, Blasi points to a little-noticed unanimous decision striking down criminal sanctions against a newspaper for disclosing confidential state proceedings against a judge in Virginia. With sweeping language—written by Press Nemesis Burger—the court effectively allows the press to print virtually any government information it can obtain.

Still, the process of getting that information enjoys considerably less protection. In two cases, the court refused to hear challenges to court-imposed limits on what participants in a criminal trial could say to newsmen. In three others, it decided not to review orders to newsmen to reveal their sources in ordinary civil cases. Two weeks ago, the court denied special prison access to San Francisco TV station KQED, specifically telling the press that it had no more right of access than the general public.

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