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Holding Court with Joan Biskupic

Post Supreme Court reporter Joan Biskupic. (The Post)

In Shaping of Internet Law, First Amendment Is Winning (Sept. 12)

High Court to Hear Air-Bag Case (Sept. 11)

Live Online: Holding Court

Supreme Court Special Report
Court stories from The Post and the AP.

Friday, September 17, 1999

In the 1999-2000 term, the Supreme Court will consider not only 29 cases carried over from last term, but also another one that tests whether automobile makers can be sued for failing to install air bags when federal regulations did not require them. But outside the Supreme Court, a new development involving free speech and the Internet is poised to attract substantial attention: Recent rulings that generally allow for unrestricted communications on the Web.

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

Biskupic answers your questions on the Supreme Court and legal affairs Fridays at 10 a.m. EDT. Today's transcript follows:

Joan Biskupic: Welcome everyone! The Supreme Court got an early start on its upcoming term by announcing six new cases last week. It now has a total of 35 ready for the term that begins on the First Monday in October. One of those new cases tests whether automobile makers can be sued for failing to install air bags back in the late 1980s when federal law didn't require them. Feel free to ask questions about that case or some of the other hot ones already on the docket, including campaign finance and the regulation of tobacco companies.

And on another topic, last week I looked into cyberspace law and found that even though the Internet has transformed how people go about their lives, it has not transformed the law. Most of the rulings have enhanced free speech on the Web. Relatedly, the Clinton administration announced yesterday it was easing restrictions on posting encryption codes on the Internet. (Encryption software scrambles communications to protect privacy.)

So, bring on questions about Internet law or anything having to do with the nine justices who are getting ready to ascend the bench for a new term.

Newark, Del.: Did you find any surprises on the court's list of cases it accepted last week? What were the other new cases?

Joan Biskupic: Good question. The court had previously declined a few appeals having to do with the air bags case. So, in some ways, that one was a surprise. But there are conflicts among lower courts on how to handle the question. In the case the justices took, the D.C. Circuit court of appeals had said that making Honda liable for its failure to install an air bag in 1987 would interfere with the federal government's policy at the time of making air bags only one of several safety options required. (Automatic seat belts was an option, too.)

And as to other cases recently accepted, one biggie involves the state of Washington's regulations for big oil tankers, adopted after the Exxon Valdez oil spill in Alaska in 1989. The federal government says Washington state's rules conflict with federal policy on the subject and are causing international problems.

Washington, D.C.: How much of a body of "cyberspace" law exists? Does it fall primarily under the header of intellectual property?

Joan Biskupic: It's spotty. And it cuts across a lot of diverse areas: encryption to defamation to library policies for access to computers. And, yes, most of it is considered intellectual property law.

Washington, D.C.: How long do you think courts will continue to rule for generally "unrestricted communications on the Web"?

Joan Biskupic: It's hard to say. The medium is moving so fast. But I think a tone has been set, not just by the lower courts that I referred to in my story last week, but by the Supreme Court itself. The justices called the Web a "unique and wholly new medium" but compared the free speech rights on it to those of newspapers or even pamphleteers ... which is what led to the First Amendment more than 200 years ago.

New York, N.Y.: This air bags case sounds sort of questionable. I mean, what company actually goes to the trouble and expense to install safety devices when not required by law to do so? Isn't this a certain amount of suffering from an accident or mishap and wanting to punish someone for it? Sometimes things just happen, and people are injured.

Joan Biskupic: Your point is well taken and I've heard it from others. But the question is whether car makers had a certain safety obligation under state tort law, despite the absence of an air bag requirement in federal law. The case was brought by a teen-ager and her parents. (The young woman had been seriously injured when she lost control of her car and hit a tree.) The family claims that the car was negligently designed and that if it had been equipped with a driver's side air bag, she wouldn't have been so seriously hurt. The argument is that even though air bags weren't required by federal law, their absence was a defect that should be grounds for a personal injury claim.

Arlington, Va.: What do you make of appeals court judges sitting on cases in which they have a financial interest? Couldn't this also be the case on your beat and will there be more scrutiny of potential conflicts of interest? Happy 60 to David Souter who did to George Bush what Bill Brennan did to Ike.

Joan Biskupic: Someone who remembered it is David Souter's birthday!!!! (For the record, the late Chief Justice Warren Burger was also born on Sept. 17. And if I'm remembering right, this is also National Constitution day.)... And as for judges and potential conflicts of interest: They are forbidden by law to sit on any case in which they have a financial stake, no matter how small that stake is. The judges who were recently caught with conflicts said they didn't know they owned stocks in some of the companies that came before them or that the mistakes were otherwise inadvertent. I think the judges need to be more vigilant.

Washington, D.C.: Ms. Biskupic –

Although the justices – who we thought may be moving off the court are not, who are the various candidates and short-list people in the legal community that may be candidates for the court? How does this play in the elections? Who do vice president Gore and Gov. Bush have in mind?

Joan Biskupic: Don't I wish I knew..... But, actually, I don't think the candidates themselves have a firm list, either. Much will depend not just on the qualifications of the nominees but what statement the future president wants to make. Maybe the first Hispanic justice? (That's a real possibility if Gore wins.) Timing is everything. President Clinton at first wanted NY Gov. Mario Cuomo, who said no. Then he proceeded to look at other candidates, with one issue being whether the person had had any trouble with nanny taxes. The whole Zoe Baird controversy was in the air. The president usually tries to make a big statement (Bush with Clarence Thomas, for example) but also avoid confirmation pitfalls like failed tax filings.

Mt. Rainier, Md.: Joan, I'm having a problem with the proper division of responsibility between the family of the un-air-bagged teenager and the car company. (I hate it when I sound like my father, but people do have to be responsible for themselves now and again). When I bought a car, FIRST thing I did was check out the Consumer Reports and safety reviews, then bought the safest that I could afford. Isn't that a personal responsibility? Like driving carefully, maybe?

Joan Biskupic: You're not alone in your sentiment. But, still, manufacturers have a responsibility to make their products safe. Maybe Honda did. But the family believes it didn't.

Detroit, Mich.: On the subject of retiring and future justices: How pristine do these folks have to be to be considered for the bench? Robert Bork and Clarence Thomas showed how brutal the confirmation process can be. I was thinking in terms of past vetting for possible Supreme Court justices, when people like Mario Cuomo and Bruce Babbitt were mentioned as possibles. Babbitt, for example: do you think that his political troubles – even if the independent counsel investigation turns up nothing – take him completely off the table as a possible nominee?

Joan Biskupic: Clinton considered Babbitt for the bench earlier in his term. But I don't think a future Democratic president would. Any investigation puts a taint on potential nominees these days. That's not necessarily good or bad, just the reality. And if the president's opponents don't like the nominee, they can make mountains out of molehills. So ever since Bork presidents have tried to avoid anyone who would give them even the least bit of trouble. Clearly, the trouble-shooting isn't foolproof.

Washington, D.C.: How has the Internet changed contracts? Are you hearing about new clauses or things people need to be aware of in terms of reproducing materials? I'm thinking mostly about media and rights to stories, photos, etc., and the distribution of columns or original pieces – even discussions – by oh, I don't know, Washington Post or other reporters.

Joan Biskupic: Most definitely. I'm no expert in this area, but in the personal experiences I've had in contracts for freelance materials, electronic reproduction is a big issue. Copyright, royalties, a host of intellectual property questions become much more complicated. ... Think of how people get their information these days: so many more folks are going on-line, rather than thumbing through dusty old volumes, to do research.

Arlington, Va.: I am curious about the conflict of interest question. Judge Silberman of the local court of appeals appears to be too much of a "close former associate" of Ken Starr to be making decisions on Starr's leaking or not leaking. Do judges ordinarily recuse themselves if they are friends or former colleagues of one of the parties to the case?

Joan Biskupic: That is an excellent question. And I don't know how the judges of the D.C. Circuit (where Starr was once a judge) resolved that question when they ruled recently in Starr's case. ... But judges will often recuse themselves when matters involving close associates or friends come before them. Here's a good example: In the Nixon tapes case back in 1974, William Rehnquist did not participate. Rehnquist had worked in the Nixon Justice Department with Mitchell and other Watergate figures.

Indianapolis, Ind.: What's the case on the regulation of tobacco companies? Are the companies fighting back against the lawsuits, or does it have to do with FDA oversight?

Joan Biskupic: The case involves whether the Food and Drug Administration has authority to regulate tobacco products, as it would drugs and other medical devices. Back in 1996, the FDA asserted broad authority over tobacco in light of evidence that manufacturers deliberately fed smokers' nicotine habits and targeted young people with their advertising. ... But in the case now before the justices, a federal appeals court ruled that the agency went too far by imposing policy that supposed to be the domain of Congress.

This is one of the biggest cases in the upcoming term, a high-stakes dispute over the government's crusade against tobacco at a time of increasing legal and political attacks on the industry.

Cincinnati, Ohio: Which justice had the best-sounding vacation over this summer? Didn't one of them go to Italy a couple of years ago? Nice gig.

Joan Biskupic: They go to great places: Italy, the Riviera, Australia, Japan... Justice Scalia takes pretty good trips. But so do Justices O'Connor and Ginsburg ... and Rehnquist and Kennedy almost always have at least one nice European jaunt each summer. Actually, most of them travel well on speaking engagements. The only three who don't are Justices Stevens, Thomas and Souter.

New York, N.Y.: Given the presence of the Internet in many of the high-profile shooting incidents over the summer (Columbine) do you see the court finding a way to restrict the Internet?

Joan Biskupic: No. But I'm not sure I understand the question. Are you suggesting that the Internet provoked the killings (I don't think so). Or are you comparing the Web to violent movies? You might be referring to the fact that many of the suspects communicated with each other on the Web, through chat groups ... but that wouldn't be legal grounds for restrictions. ... I know that a lot of info about the incidents was available on the Web ... But I don't think the medium is generating the violence. It's playing a central role in all communications today, including such tragedies.

Miami, Fla.: What's the campaign finance case coming up on the docket?

Joan Biskupic: Thanks, Miami. The case tests whether Missouri's limit on political campaign contributions violates free-speech guarantees. A state law prohibits candidates for public office from accepting contributions over $1,075 for most statewide offices.

The 8th Circuit appeals court struck it down as a "heavy-handed restriction of protected speech" and said it was not justified by the state's interest in preventing real or perceived corruption.

Washington, D.C.: I'm really concerned about Internet privacy – I was even leery of giving out credit card information over the Web until I realized that mail-order companies and people like TicketMaster got it too, so the risk was the same. But the idea of information about me out there in the ether really worries me, particularly the instantaneous transmission of that information. Is privacy becoming a bigger issue in legal circles, particularly with "cyberspace" law?

Joan Biskupic: I'm like you. It has become so much easier for people to gather information on any of us. And I think it pays to be cautious with personal and financial information on the Web. So yes, privacy has become an overriding issue in legal circles. Anything you write down can be passed on to a limitless audience with the click of a button. .... Relatedly, the Supreme Court this term is taking up a case that involves federal privacy restrictions on information that states collect when they issue driver's licenses. Many states like to sell the information.

washingtonpost.com: Do you see any trends developing with online communications and court rulings? Are courts likely to start being more restrictive about communications on the Web when they involve corporate secrets? Will they focus on the business aspects of certain Web endeavors as interstate commerce and not speech?

Joan Biskupic: Interesting question. In a recent case involving a Web site that was publishing confidential Ford Motor Co. documents, the battle was between free speech and trade secrets. The federal judge sided with the First Amendment, even though she acknowledged the commercial stakes for Ford. Her order allowed the operator of the site to continue posting the internal documents that he said he received anonymously. ... But each of these business cases will be different. At this point, however, judges are emphasizing the primacy of free speech.

Washington, D.C.: Off-topic Ken Starr question. I was really surprised about the ruling on leaks. Did that come out of left field or what?

Joan Biskupic: I don't think so. My colleagues who have covered the case believed that the trial judge had taken a very aggressive view of the law in this area and that it was a strong possibility she would be overturned. (That doesn't necessarily mean there were no leaks, only no leaks that violated federal law.)

Thanks to all who sent in questions and tuned in. Next week: In light of the recent congressional action on campaign finance reform, and the fact that one of the Supreme Court's first big cases is on Missouri's contribution limits, "Holding Court" will look at campaign finance issues next Friday. But, as always, other questions on the court or legal issues are welcome too. (Happy Birthday David Souter!)

© Copyright 1999 The Washington Post Company

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