HOW SHE SEES IT Roberts' First Amendment views unknown

By LINDA P. CAMPBELL
KNIGHT RIDDER NEWSPAPERS
No one asked John G. Roberts Jr. whether he was a literalist about the First Amendment.
Does the man who is likely to become the next chief justice of the United States believe that the phrase "Congress shall make no law ... abridging the freedom of speech, or of the press" really means "no law" restricting expression?
Or does he subscribe to the Supreme Court's approach of allowing the government to limit certain kinds of expression so long as it's for a "compelling reason" and through "narrowly tailored" means?
During the three days of questioning Roberts, only a few of the Senate Judiciary Committee's members ventured into the arena of open government, a direct corollary to the free speech and press guarantees.
Sen. Charles Grassley, R-Iowa, and Sen. Russ Feingold, D-Wis., asked about cameras in the courtroom, a practice that has not won a popular vote among the justices.
Recently deceased Chief Justice William Rehnquist opposed cameras in the Supreme Court. Justice Antonin Scalia is notoriously camera-shy in his public appearances, and Justice David Souter has said that the cameras would have to roll in over his dead body.
The high court now releases audiotapes shortly after select arguments of enormous public interest and posts transcripts on its Web site, but it stops there.
The justices' reluctance hasn't deterred Grassley from pushing legislation to put cameras in the high court.
Roberts, who has been shepherded through the confirmation process by senator-turned-actor Fred Thompson, delivered a light-hearted, noncommittal performance on the issue.
"Well, you know, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of," Roberts said.
"But I don't have a set view on that. I do think it's something that I would have to be -- I would want to listen to the views, if I were confirmed, of my colleagues."
To which Grassley quipped: "I would suggest, then, to the chairman that we move quickly on that bill before he's got an opinion on it."
Secret tribunal
Sen. Patrick Leahy, D-Vt., asked Roberts about the Foreign Intelligence Surveillance Act court, a secret tribunal established by Congress in 1978 to hear federal government applications to set up wiretaps in espionage investigations. Unlike other courts, the FISA court's proceedings aren't open to the public, and the proceedings aren't adversarial; in other words, only government lawyers appear.
Decisions of the FISA court can be appealed to a three-member FISA appeals panel, which has met only once, but its proceedings largely are secret.
The chief justice appoints members of the FISA court and its appellate component, and their names are public. An annual report to Congress tells only how many surveillance applications were made to the court and how many were granted.
"It is a specialized court. I will tell you when I became aware of it, it's a surprising institution. It's an unusual set-up," Roberts said. "On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way. I was asked a question about appointing the judges to it, and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties.
"That, I think, is very important. Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns."
Media exclusion
Asked about government exclusion of the media from particular events, such as the return of soldiers killed at war, Roberts said he didn't have much experience with First Amendment cases, except for one dealing with media access to prisons.
"There is, obviously, a balancing of sorts between particular interests, when you are dealing with governmental operations. And there's some perfectly valid reasons for excluding media," he said.
"On the other hand, ... disagreement about whether it's an appropriate issue for the public to see would not strike me as a very compelling governmental interest. ...
"And the values of the First Amendment, obviously, are something that have to be given careful weight by the court, for the very reasons that you have discussed. Because the First Amendment serves a purpose. It's not there just because the Framers thought this was in general a good idea. It serves a purpose with respect to the government. It provides access to information and allows the people in a free society to make a judgment about what their government is up to."
Roberts should be assured that if he's confirmed, as is almost certain, we'll be watching what he's up to -- cameras or not.
X Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Distributed by Knight Ridder/Tribune Information Services.