NORTHERN KENTUCKY LAW REVIEW Volume 7 1980 Number 3 ARTICLES "DEEP THROAT" JOURNALISM AND THE SUPREME COURT: A CASE OF "BURNING THE BARN TO ROAST THE PIG?" ......................... 323 Allen Sultan THE PRESS, THE PUBLIC, AND THE AMERICAN TRADITION ........... 351 Allen Sultan LEGAL ASPECTS OF HYPERKINESIS: THE RIGHTS OF HYPERKINETIC CHILDREN TO EDUCATION AND TO TREATMENT ..................... 363 John J. Finnigan A FURTHER LOOK AT JAGO V. PAPP: SOME COMMENTS ON THE FOURTH, FIFTH AND SIXTH AMENDMENTS ................................. 385 Jan Paul Koch COMMENTS EYEWITNESS IDENTIFICATION EVIDENCE: FLAWS AND DEFENSES ....... 407 Timothy E. Eble KENTUCKY'S POWER OF EMINENT DOMAIN ........................ 421 David Schwetschenau OPERATION AND USE OF POLICE RADAR IN KENTUCKY .............. 429 J. Richard Clay IN KENTUCKY, A LEASE VERSUS A SALE OF COAL IN PLACE ......... 439 Mark G. Kalpakis NOTES FAIR LABOR STANDARDS ACT-RETALIATION PROVISION-FRCP 52-Marshall v. Canada Dry Bottling Co. of Nashville, Inc., 593 F.2d 712 (6th Cir. 1979) ................... .................... 455 BOOK REVIEWS SOLAR ACCESS LAW. By Gail Boyer Hayes ....................... 463 NORTHERN KENTUCKY LAW REVIEW Volume 7 1980 Number 3 ANN S. DIX Editor-in-Chief THOMAS B. SCHEFFEY Executive Editor CHARLES T. LESTER Managing Editor KEVIN D. HILL M. GAYLE HOFFMAN MICHAEL L. BAKER Articles Editor Comments Editor Notes Editor GEORGANA T. SLATER STEPHEN E. GILLEN MARY K. MOLLOY Ass't Articles Editor Ass't Comments Editor Ass't Notes Editor MEMBERS LARRY W. ALEXANDER MARK N. HARDIG KAREN M. MCLAUGHLIN ELIZABETH M. BLINCOE ROBERT M. HOFFER JAMES R. PIERCE RAYMOND S. BOGUCKI STEPHEN L. HOGG THOMAS A. POWELL BARBARA M. BROWN EDWARD L. JACOBS MARC I. ROSEN MARCUS S. CAREY MARK G. KALPAKIS MICHAEL R. SCHMIDT JOHN R. CLAY APRIL A. KESTEL RICHARD L. SHCMIDT CHARLES G. COULSON, JR. JAMES F. LUMMANICK DAVID SCHWETSCHENAU LINDA CREEK DANIEL MECKLENBORG PHILLIP W. SMITH JOHN L. DAY, JR. KEVIN L. MURPHY JOHN H. WALKER TIMOTHY E. EBLE THOMAS C. MCEADDY, JR. D. REX URICE RON GROEBER CHRISTOPHER F. LESTER Cover Design JOHN M. LINDSEY SUE FLECKENSTEIN Faculty Advisor Typist "DEEP THROAT" JOURNALISM AND THE SUPREME COURT: A CASE OF "BURNING THE BARN TO ROAST THE PIG?" By Allen Sultan* As a working foreign correspondent in the United States for thirty- five years, I came to realize, and never more than during some dan- gerous constitutional crisis, that the Court and the Court alone guards the rights of the citizen, whether he is a bum or a banker, the President or an infant [ . The Court is] the watch dog of the ordinary citizen... it will be a bad day for the United States if the mass of Americans come to lose their faith in it as their fair and final protector.1 We in the United States do not enjoy the political advantages of relative conformity and tranquility derived from a single culture and religion, such as exist, for example, in Sweden and Italy. Rather, the population of the United States, at first blush, seems to require an authoritarian rather than democratic formula. The tensions, pressures, and conflicts one would expect from our heter- ogeneous ethnic base, with its many races, religions, cultures, and national origins suggest that any republican system that vests sov- ereignty in so varied a group of peoples was doomed to failure. The reason it has not failed is most directly due to the wisdom of our Founding Fathers who framed the three basic documents of our national polity, the Declaration of Independence, the Constitution, and the Bill of Rights, and the subsequent wisdom of many of the judges who served on the United States Supreme Court. The Jus- tices have dampened the inevitable centrifugal forces of our mixed and varied population; and, in the process, they have not only con- sistently expanded the application and thereby the citizens' enjoy- ment of rights physically embodied in those instruments, they have also added and expansively applied a host of other rights, like as- sociation and privacy, as if they were a written part of our organic law.2 These are the reasons that the Supreme Court, in the parlance of the media, "makes excellent copy." Simply stated, the Court has * Professor of Law, University of Dayton 1. ALISTAIR COOKE'S AMERICA 145-47 (1973). 2. For evidence of the question of whether the Declaration forms part of our "organic law," see, e.g., Gray v. Sanders, 372 U.S. 368, 381 (1963); Reynolds v. Sims, 377 U.S. 533, 558 (1964). NORTHERN KENTUCKY LAW REVIEW [Vol. 7/323 glamour, drama, and mystic qualities - all because it possesses the ultimate powers of operative government. That power, how- ever, is conditioned on the sovereignty of the people." And, therein lies the danger! For a system that vests ultimate power in the peo- ple cannot afford a sentiment of idolatry towards any branch of government - be it the White House that can spew a Watergate, the Congress that can coin a Gulf of Tonkin Resolution,5 or a Su- preme Court that can explode a Dred Scotts decision on a nation highly agitated over the moral issue of the ownership of one human by another. Since the best of institutions can also err, unc- tuous attribution is dangerous. Rather, true security lies in the constant vigil of the people. It rests in that ongoing interaction with government that evidences the clear rejection of attitudes of paternalism and noblesse oblige that are the almost inevitable con- sequences of a sentiment of idolatry. It rests at bottom with the demand by the body politic that "transcedent values''7 be respected and that failure by government to do so risks the type of 3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816); THE FEDERALIST No. 82 (A. Hamilton). 4. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). This sovereignty is exercised through the amendatory provision, U.S. CONST. art. V. For a further discussion of this point, see, e.g., L. ORFIELD, AMENDING THE FEDERAL CONSTITUTION 154 (1942): ("In the last analy- sis, one is brought to the conclusion that sovereignty in the United States, if it can be said to exist at all, is located in the amending body. The amending body has often been referred to as the sovereign, because it meets the test of the location of sovereignty.") See also, Potter, The Method of Amending the Federal Constitution, 57 U. PA. L. REv. 589, 592 (1909): ("In a government controlled and limited by a written Constitution as is ours, the test of actual sovereignty is to be found in the power to amend the Constitution. When you ascertain where, and how, and by whom that power is exercised, you have located the source of sovereignty."). 5. H. R. J. Res. 1145, 78 Stat. 384 (1964). 6. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 7. See, e.g., Kauper, The Higher Law and the Rights of Man in a Revoluntionary Soci- ety, 18 L. QUAD. NoTEs 8, 10 (1974): The ultimates, identified with transcendent values, must in their very nature lie outside the Constitution, just as basic rights have their source outside the Constitu- tion . .. In the end its decision on ultimate values must be sustained by some higher law rooted in the common consciousness and understanding . .. the con- science of the nation lies outside the Constitution and supports it. The conceptions rooted in common understanding are the stuff of a nation's aspiration and moral vi- sion. It is in the shaping of a common ethnic of the people which draws its inspiration from religious, moral, and philosophical sources .... On the changing implementation of these values, see, e.g., Sultan, The ConstitutionalPrin- ciple of Equality and Sex-Based Differential Treatment in American Law, 23 CATHOLIC LAW. 3, 4-6 (1977) & Sultan, Recent Judicial Concepts of "Cruel and Unusual Punish- ment." 10 VILL. L. REV. 271 (1965). 1980] DEEP THROAT JOURNALISM public eruption that followed that ignominious maneuver, "The Saturday Night Massacre." Thus, the benchmark of our concern when reflecting on the im- pact of any particular form of media activity is not does it destroy any public myths about officials or institutions. It is not does it topple any idols that need toppling. Rather, it is submitted that the correct standard is: Does the impact of the media activity serve the public interest in that it engenders the proper degree of re- spect (or lack of it) for the individual or institution of government that is the object of journalistic inquiry and evaluation? The suita- bility of this standard is proven by the very reason underlying the extensive protection of media activity conferred by our constitu- tional system. That purpose, clearly recognized by the media,' was eloquently characterized by what is developing into a classic state- ment of Mr. Justice Brennan: [W]e consider this case against the background of a profound na- tional commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp at- tacks on government and public officials.' Using the proper degree of respect standard, a presidency that successfully guides us through a global war of the Missile Crisis is deserving of approval, while a criminal in the White House (hypo- thetically speaking, of course) is deserving of immediate removal. A Supreme Court that declares that rocks don't vote and trees don't vote but people do 0 or that unanimously rejects a social phi- losophy11 which causes black children as young as three years to 8. For example, the first standard of the "Code of Ethics" adopted by the Society of Professional Journalists, Sigma Delta Chi, at their national convention on November 16, 1973 reads as follows: Responsibility: The public's right to know the events of public importance and inter- est is the overriding mission of the mass media.