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Imminent Release of Court Material Rankles Court

By Joan Biskupic
The Washington Post

WASHINGTON

For the second time this year, the Supreme Court is agitated over the release of court materials that allow the public a rare glimpse into an institution wedded to secrecy and decorum.

The justices are considering "legal remedies" to Peter Irons's imminent distribution of a tape-and-book set of oral arguments in 23 famous cases at the court -- including Roe vs. Wade, which made abortion legal; New York Times vs. United States, the Pentagon Papers case; and Loving vs. Virginia, which struck down a state ban on interracial marriage.

The one-hour oral arguments have been recorded by the Supreme Court since 1955, and the tapes are open to the public at the National Archives. But before Irons, a lawyer and political science professor at the University of California at San Diego, copied the tapes, he signed a statement saying he would use them only for his private work.

Irons's package of edited tapes is titled "May It Please The Court . . . " -- the customary opening of lawyers who appear before the justices. But the package, which is published by the nonprofit New Press of New York, does not please the court.

The court's public information officer, Toni House, said Friday that the justices expect to take action within the next two weeks. She would not elaborate. The court's options range from dropping the matter or issuing a strong public admonition to suing Irons on grounds that he broke the terms of the Archives arrangement.

House said the justices are disturbed that Irons promised he would use the tapes only for his private work and then turned them into a commercial venture. The six-tape set, which costs $75, is being marketed mostly to schools.

None of the justices has commented publicly on the project.

Irons, in a telephone interview, contended that the statement he signed at the Archives did not constitute a valid contract. Because the tapes are public, he said, constitutionally they cannot be subject to such restrictions. While other lawyers agree that the tapes are public, some believe that the restriction should not have been ignored.

Irons contends that in 1955, when audiotaping of oral arguments before the court began, then-Chief Justice Earl Warren envisioned open access to the tapes by the public and for any purpose.

The current flap recalls the controversy last May when Chief Justice William H. Rehnquist rebuked the Library of Congress for making public the files of the late Justice Thurgood Marshall. The Washington Post and other newspapers published stories from the private conference papers about the court's inner workings.

Rehnquist urged the Library of Congress to close the Marshall files, and he warned that other justices might not give their papers to the library. But despite protests by the court and Marshall's family, who said the library wrongly interpreted the late justice's wishes, the files remained open. Since then, no justice who had previously agreed to donate papers has withdrawn or changed the agreement, Library of Congress spokeswoman Jill Brett said Friday.

While distribution of the oral-argument tapes and release of the Marshall papers arose from different situations -- and the tapes, unlike the conference papers of Marshall, always had been in the public domain -- both reflect an interest in how the court works.

"With the increased public focus on the confirmation process and on the court as a national player ... there has been a gradual stripping away of the court's mystique," said Laurence H. Tribe, a professor at Harvard Law School.

"Any objection that the court would have to the widest possible availability of the tapes is unjustified," said Tribe, whose oral arguments are included in the Irons project.

"We are not talking about secrets and leaks. These are clearly public documents," Tribe said. "Why access should be limited to the few who are lucky enough to sit in the courtroom is beyond me."

The court has refused to allow radio or television broadcasts of its public proceedings.

But another Harvard law professor, Charles Fried, whose views are more in line with the conservative court majority, dismissed the tapes as "pure entertainment value."

"The court is concerned about the difference between legitimate publicity and anything that encourages grandstanding" by lawyers who appear before the court, said Fried, a solicitor general in the Reagan administration.

Tribe and Fried agreed, however, that the situation raises a legitimate question of whether Irons violated an express agreement that he would not distribute the tapes. The statement Irons signed said he would use the tapes "for private research and teaching purposes only" and that he agreed "not to reproduce or allow to be reproduced for any purposes any portion of such audiotape."

The restrictions at the National Archives began in 1986 and apparently arose from a media controversy more than 10 years ago. After CBS correspondent Fred Graham played part of the tapes from the 1971 Pentagon Papers case in a television report, then-Chief Justice Warren E. Burger pressed the Archives to require people who use the tapes to promise to use them only for private research. (In the Pentagon Papers case, the court allowed newspaper publication of classified government documents on U.S. involvement in Vietnam.)