Court nominee is a free-press advocate
Boston — The sword of press freedom would be held aloft by Judge Anthony Kennedy if he is seated on the United States Supreme Court. So say two prominent monitors of news media rights. And they tend to agree that President Reagan's third nominee to fill the vacancy created last spring by the retirement of Associate Justice Lewis Powell Jr. will get little or no opposition from press-rights watchdogs on his First Amendment stances.
``He's evenhanded in the area of freedom of speech, particularly prior restraint, and he understands the practical problems of the press,'' says Jane Kirtley, executive director of the Washington, D.C.-based Reporters Committee for Freedom of the Press.
Miss Kirtley was less sanguine about the White House's first nominee, Robert Bork, who was rejected by the Senate. Judge Bork, however, had strongly upheld media protections against libel claims while on the appellate bench.
There was little chance for media groups to assess the First Amendment positions of Judge Douglas Ginsburg, whose bid for the high court was early aborted.
Other kudos for Judge Kennedy comes from Floyd Abrams, a media lawyer and freedom-of-speech specialist. He says the new nominee - for whom Senate confirmation hearings convene next Monday - would be ``at least as supportive of the First Amendment as Justice Powell.''
Justice Powell, Mr. Abrams points out, was considered the ``consummate centrist'' on First Amendment cases. And even when Mr. Powell voted against the press, he presented a balanced and tempered view, Abrams adds. The media lawyer places the new nominee in this same mold. He is impressed with specific Kennedy rulings as an appellate judge in California in the areas of libel and prior restraint of the press. But he also feels that the judge adopts an overall legal approach that is conducive to media protections.
``He [Kennedy] appears not at all to be doctrinaire and to believe in the balancing of different views and concepts,'' Abrams explains. He stresses, however, that there is nothing in Mr. Kennedy's writings or lower-court rulings that would put him in the camp of Associate Justices William Brennan and Thurgood Marshall - staunch civil libertarians and freedom-of-speech and press protectors.
And Kirtley and Abrams agree that the nominee's record would indicate that he might side with federal or state agencies against the press in freedom-of-information disputes. These would involve public disclosure of information and data that government has classified for security or other reasons.
If Kennedy is elevated to the high court, he will almost immediately be faced with deciding key First Amendment press cases. One such appeal the Supreme Court will hear is a Rhode Island case stemming from the Providence Journal-Bulletin's decision to publish an article on a reputed New England crime boss while a temporary restraining order was in effect.
A federal judge found the newspaper in contempt, but the US Circuit Court of Appeals for the First District overturned the ruling. The high court now must decide whether the federal judge acted properly when he barred the newspaper from publishing the article.
The Supreme Court has also agreed to examine an appeal by the Boston Globe in a libel suit brought by former Massachusetts Gov. Edward J. King. Mr. King sued the paper over various articles and editorial cartoons published in 1981. The state Supreme Judicial Court threw out most of the charges but allowed the possibility of a jury trial on the defamation issue. That proceeding could now be blocked by the high court.
Meanwhile, the justices may also agree to decide a Florida case that involves a challenge to the validity of a law making it a crime for the press to publish the name of a rape victim. Earlier this term, the Supreme Court rejected a $2 million libel claim against the Washington Post by the former president of Mobil Oil Corporation. It thus left intact an appellate court ruling that dismissed charges against the newspaper for a 1979 story on the executive's business dealings.
Just last week, the court heard arguments in a free-speech case involving a claim of damages by television evangelist Jerry Falwell against Hustler magazine for a parody describing him and his mother in sexually derogatory terms. The issue, a novel one, is over an award of damages without a finding of libel. Should the eight sitting justices reach a tie vote on this case, it could well be heard again in 1988 when a full panel is present.