College of William & Mary Law School William & Mary Law School Scholarship Repository Popular Media Faculty and Deans 2005 Courtside Paul M. Smith Katherine A. Fallow Daniel Mach Aaron-Andrew P. Bruhl William & Mary Law School, [email protected] Repository Citation Smith, Paul M.; Fallow, Katherine A.; Mach, Daniel; and Bruhl, Aaron-Andrew P., "Courtside" (2005). Popular Media. 412. https://scholarship.law.wm.edu/popular_media/412 Copyright c 2005 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media COURTSIDE BY PAUL M. SMITH, KATHERINE A. FALLOW, DANIEL MACH, AND AARON A. BRUHL As sometimes happens, the most dramatic efforts. Shortly thereafter, columnist a libertarian advocacy group, and the development at the Supreme Court for Robert Novak wrote a piece revealing attorneys general of thirty-four states and First Amendment lawyers in recent that "senior administration officials" the District of Columbia. The brief of the weeks probably was the denial of review told him that Wilson had been sent to attorneys general in support of certiorari in reporter's privilege cases arising Iraq on the recommendation of his wife, was particularly striking in arguing that from the disclosure of the identity of Valerie Plame, a CIA "operative." Critics the absence of a federal privilege frustrat­ Valerie Plame as a CIA operative-an of the Bush administration alleged that ed state policies because all of those action that resulted in the jailing of one White House officials leaked the infor­ states (in addition to almost every other prominent journalist. mation in order to retaliate against state in the country) recognize some form Wilson. The Department of Justice began of reporter's privilege. Miller v. United States; an investigation into whether administra­ The Supreme Court, however, Cooper v. United States tion officials had violated a federal law declined to accept review. (Justice Turning away a request to rule on the prohibiting disclosing the identity of a Breyer did not participate in the decision viability of a federal reporter's privilege, covert agent. to deny certiorari.) Shortly thereafter, the Supreme Court on June 27, 2005, The special counsel heading the Miller was sent to jail in Alexandria, denied certiorari in Miller v. United investigation opened a grand jury inquiry Virginia; Cooper testified before the States, No. 04-1507, and Cooper v. and subpoenaed several reporters in an grand jury after receiving a direct waiver United States, No. 05-1508. The peti­ effort to determine the source of the from his source, Karl Rove; and Time tioners-New York Times reporter Judith leak. Miller, Cooper, and Time refused released Cooper's notes to the special Miller, Time magazine reporter Matthew to reveal their sources, claiming that counsel. The future and scope of the Cooper, and Time's corporate publish­ they enjoyed a privilege under the First federal reporter's privilege continues to er-had been held in contempt of court Amendment and federal common law. be uncertain, thus prompting renewed for refusing to disclose the identities of The district court rejected those argu­ efforts to enact federal legislation that their confidential sources. ments and held the petitioners in con­ will afford protection to journalists simi­ The case arose in the wake of tempt, with imposition of sanctions lar to that given by forty-nine states and President George W. Bush's statement, stayed pending the completion of appel­ the District of Columbia. during the 2003 State of the Union late proceedings. On appeal, the D.C. address, that British intelligence had Circuit (Judges Sentelle, Henderson, Johanns v. Livestock Marketing Ass 'n learned that Iraq had sought uranium and Tatel) affirmed the judgment. The In one of the few merits cases last from Africa. In July 2003, amid public court held that Branzburg v. Hayes' Term involving the First Amendment controversy over the justification for the foreclosed the First Amendment argu­ guarantee of freedom of speech, the war in Iraq, former Ambassador Joseph ment. The court split three different Supreme Court in Johanns v. Livestock Wilson published an op-ed reporting ways on the common law argument but Marketing Ass'n, Nos. 03-1164 and that in 2002 he had been dispatched to concluded that, if such a privilege exist­ 03-1165, reversed a lower court deci­ Niger to investigate the matter and had ed at all, the government had made a sion that had invalidated a federal pro­ found no credible evidence of such sufficient showing to overcome it. gram arranging for a beef promotional The petitions for certiorari argued campaign funded via a mandatory Paul M. Smith ([email protected]), that the lower courts are in disarray in assessment on all beef producers and Katherine A. Fallow ([email protected]), their interpretations of Branzburg and in importers. The Eighth Circuit, relying and Daniel Mach ([email protected]) their rulings on the reporter's privilege. on the Supreme Court's prior decision are partners in the Washington, D.C., office The petitions urged the Court to recog­ in United States v. United Foods, Inc., 2 of Jenner & Block LLP. Aaron A. Bruhl nize a common law privilege under had held that this mandatory assessment ([email protected]) is an associate in the Federal Rule of Evidence 501 and to of fees to fund commercial speech on same office. Mr. Smith, Ms. Fallow, and clarify or revisit the holding in Branzburg. behalf of the beef industry constituted Mr. Bruhl filed an amicus brief on behalf The petitions also renewed the argu­ a form of coerced speech violating the of numerous media organizations in support ment, rejected below, that the contempt First Amendment. The United Foods of the petitions for certiorari in Miller v. United States and Cooper v. United States. proceedings violated due process case, which barred a mandatory assess­ Mr. Mach filed an amicus brief in the because the courts relied on evidence to ment to fund mushroom advertising, Livestock Marketing case. Messrs. Smith which the petitioners never had been had in turn distinguished the earlier and Mach are filing an amicus brieffor the given access. The petitioners were sup­ decision of the Supreme Court in American Association of Law Schools in ported by amicus briefs from dozens of Glickman v. Wileman Bros. & Elliott, the Rumsfeld v. FAIR case. major media and journalists' entities, Inc., 3 which upheld a mandatory assess- Spring 2005 D Communications Lawyer D 23 ment on growers of California tree fruit government speech argument unless it Solomon Amendment interferes with on the theory that the generic advertis­ has revealed to the public its responsi­ the schools' constitutional rights in two ing at issue was part of a larger regula­ bility for the speech at issue-especial­ related ways. First, the Third Circuit tory program that in effect collectivized ly when the funding comes from a tar­ reasoned, the law dilutes the schools' the operations of those growers. geted assessment. First Amendment right of associational In the Livestock Marketing case, the expression by requiring federally funded Court for the first time addressed the Rumsfeld v. FAIR schools not only to permit, but actually to argument that these types of mandatory On November 29, 2005, the Supreme facilitate, activities the schools seek to assessments do not implicate First Court will hear argument in Rumsfeld v. condemn. Second, the court of appeals Amendment concerns because the adver­ Forum for Academic and Institutional held, the Solomon Amendment effectu­ tising at issue constitutes "government Rights ("FAIR"), No. 04-1152, a chal­ ates a system of compelled speech, under speech" and the Constitution allows the lenge to a series of federal funding which law schools must affirmatively aid government to demand that the citizenry, restrictions collectively known as the military recruiters in disseminating their or some subset thereof, fund government Solomon Amendment. The FAIR case message. Addressing the government's speech. (That issue had been raised in raises several core First Amendment asserted interest in seeking to raise and United Foods but too late to be address­ issues, including the contours of the support a military, the Third Circuit ed by the Court.) In an opinion written unconstitutional conditions doctrine, deemed that interest to be a "vital" one, by Justice Scalia, joined by the Chief the delineation between speech and but noted that the government had Justice and Justices O'Connor, Thomas, conduct, and the constitutional limits offered "no evidence that would support and Breyer, the Court accepted the argu­ on government-compelled speech. the necessity of requiring law schools to ment that the advertising was really the In its present form, the Solomon provide the military with a forum for, government speaking and thus the beef Amendment denies federal funds to and assistance in, recruiting."5 producers who objected to funding it any institution of higher education that lacked a valid constitutional claim. does not provide military recruiters Potential Reverberations with access to its campus and students In the Supreme Court, the government "Government Speech" on par with the access available to other advances several arguments that, if Responding to the argument that the employers. The statute not only covers accepted, likely would reverberate well Cattlemen's Beef Promotion and funding from a wide variety of federal beyond this case. For example, the gov­ Research Board Operating Committee agencies-including, among others, the ernment advocates a narrow view of the that actually receives the money and Departments of Defense, Labor, Health unconstitutional conditions doctrine, arranges for the advertising is not the and Human Services, Education, under which the First Amendment limits government, the Court noted that its Homeland Security, and Transportation­ Congress's Spending Clause authority activities were comprehensively con­ but also penalizes a parent university for only when a funding condition aims "at trolled by the Secretary of Agriculture.