NIXON v. WARNER COMMUNICATIONS, INC.

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Argument of William H. Jeffress, Jr.

Chief Justice Warren E. Burger: We will hear arguments first this morning in 76-944, Nixon against Warner Communication and others.

Mr. Jeffress.

Mr. William H. Jeffress, Jr.: Mr. Chief Justice and may it please the Court.

The tapes that are involved in this case were those that were produced following this Court’s decision for use as evidence in the Watergate trial.

The question in the case is whether the tapes having served their purpose as evidence in that trial will now be distributed by the clerk of the District Court to members of the public for broadcast, for sale and for whatever other uses that members of the public may wish to put them.

The case started when just prior to the Watergate trial, three news reporters requested Judge Sirica to provide copies of the tapes as they were played to the jury during the trial.

Judge Sirica sought the guidance of the chief judge who consulted other members of the District Court.

It was a consensus of those judges of the District Court that while the ultimate decision ought to be left to the trial judge, providing copies of the tapes to the media would appear first to be inconsistent with the Court’s rule against the broadcast and dissemination of the recording via court reporter of trial proceedings and second, it was the consensus of the judges that dissemination of the transcripts to the public would appear to constitute more than adequate disclosure of what the tapes contain.

Judge Sirica agreed with that consensus and denied the request.

A few weeks later, but still during the trial, formal applications were filed by the respondents in this case to obtain copies of the tapes.

Those applications were assigned to Judge Gesell of the District Court and were opposed by Mr. Nixon.

The clerk of the Court filed an affidavit at the request of Judge Gesell which discussed the feasibility of reproducing the tapes that were played to the jury.

The clerk noted that portions of the tapes even of the Court copy of the tapes still remained confidential, that not all of the copy in the custody of the Court had been played to the jury.

He concluded though that with sufficient technical assistance and sufficient time, it would possible to reproduce a set of the tapes played to the jury that would be suitable for dissemination to the applicants.

On December 5, Judge Gesell entered a memorandum opinion and order in the matter.

He rejected the constitutional claims of the applicants based on the First Amendment, but he did find that there was a practice which he felt was supported by cases of Common Law and by the manual for District Court clerks which supported the claim of the respondents of a right to copy the tapes.

He rejected Mr. Nixon’s position that the tape should not be provided for broadcast under any circumstances.

But he reserved decision on the application, pending the submission of a plan which he felt should number one, show that it would not impose an undue burden on the clerk to make and disseminate the copies and number two it would guarantee that there would be no in his words, over commercialization of the evidence.

Justice Potter Stewart: Mr. Jeffress, during these proceedings, the trial was still going on in Judge Sirica’s Court, was it?

Mr. William H. Jeffress, Jr.: During all of the proceedings that I have described so far, the trial was still going on and Judge Gesell’s December 5th opinion was entered before the trial was completed.

The plan however of the respondents for dissemination of the tapes was submitted in late December and by January 8 when Judge Gesell ruled on the applications, the trial was concluded.

Judge Gesell denied the applications without prejudice.

He stated and again I use his words that it was a prerequisite of any plan that commercialization of the tapes or any undignified use be minimized.

He felt that no basis for distribution of the tapes that met this goal or that took the burden off the shoulders of the clerk had been submitted.

After Judge Gesell’s decision, the applications were transferred back to Judge Sirica who by this time was free of his trial duties.

After a hearing and obtaining further submissions form the parties, Judge Sirica entered an order which also denied the applications without prejudice.

Judge Sirica like Judge Gesell noted that in his opinion, there were many obstacles that must be overcome before any release of the tapes might be made.

But the sole issue considered by him at that time was the question of timing of any such release.

Judge Sirica felt the special qualities of the tapes and the uses that undoubtedly would be made of them should they be released, warranted withholding any dissemination of copies or any decision on whether to disseminate copies until the Appeals Court decided whether retrial could be necessary in the Watergate case.

In the Court of Appeals, by the time the case was decided, the convictions in the Watergate case except for that of Mr. Mardian had been affirmed.

The Court of Appeals, however, decided to rule on the ultimate question in the case, that is whether the tapes ought to be provided for broadcast and sale at all.

Justice William H. Rehnquist: Mr. Jeffress, you said the ultimate question, but it may not be the ultimate question in the case is varied depending on the stage of other proceedings in the Courts involved?

Mr. William H. Jeffress, Jr.: Your Honor if I understand your question, what I meant by the ultimate question in the case, was whether the tapes, given present circumstances, ought to be disseminated to the press and to members of the public.

Nothing has happened since that time to change at least what the Court of Appeals stated to be the basis for its conclusion.

Now the Court of Appeals decided that there was a Common Law right of access to judicial records that encompassed the right to obtain copies of these tapes.

It held that the burden was in Mr. Nixon to establish that justice required making an exception to that Common Law principle and third, it concluded that no such showing had been made.

The Court said that Judge Sirica had abused his discretion and withholding any decision on release of the tapes until the Watergate appeals were decided and paradoxically because Judge Gesell had actually denied the applications, the Court characterized his decision as one in essence affirming his exercise of discretion.

If the Court please, preliminary, I would like to deal with a theme that runs throughout the opinion of the Court of Appeals and the arguments of the respondents in this case.

It said that the tapes are items of extreme historical importance.

It said that there is an enormous public desire to hear them.

It said the broadcast and providing these tapes to the public will make the public better acquainted with our content and the public is and can be now having access only to the transcripts.

We do not take issue with those three propositions, but we do say that they are not properly addressed to a Court.

The Court has no authority, no power generally to decide what property, whether in the custody of the government or anyone else ought to be broadcast and these tapes are in the Court’s custody solely by virtue of subpoena and solely for use as evidence in the Watergate trial.

Justice William H. Rehnquist: Do you say then that even under this Court and the Court of Appeals and the District Courts, presume the housekeeping authority to decide what shall be done with exhibits until they are returned or exhibits that may not be the property of any one individual, it would not have the authority to grant the request of these respondents?

Mr. William H. Jeffress, Jr.: Certainly, Your Honor, the Court has control of the exhibits and has authority to do with them anything that is necessary to fulfill the purpose for which they are in the Court’s custody.

It is our position that the relief that is sought here, the effect of releasing them for broadcast is not to serve those purposes and at the interests that are retained and material that is under subpoena should preclude the Court from making that sort of use of the materials.

Unknown Speaker: Would you feel otherwise if these items have not been subpoenaed?

Do you conceive that then there would be a right to reproduce the tapes as tapes as distinguished from reproducing their contents?

Mr. William H. Jeffress, Jr.: I do not at all Your Honor.

Number one, you would have the case of for example wiretap conversations.

The person whose voice is wiretapped or is recorded in the course of a wiretap does not own the tape on which that recording is made, but nevertheless, it seems to me that the same considerations that we are arguing here this morning would apply to that and that the Court should not make public broadcast and public release of that tape recording.

Justice William H. Rehnquist: But it seems to me that the releasing Court is not deciding as to the propriety or the action ability of the use that may be made of the tape after its release.

It is simply authorizing the copying of something that is in its custody.

If the people who get it out of the custody, use it in a manner that infringes someone’s right of privacy, it may be actionable, but is that a decision that ought to be made by the Court that simply has custody of it?

Mr. William H. Jeffress, Jr.: It is your Honor for this reason.

The Court has to make the decision as to whether to provide tapes of its own proceedings or tapes that it obtained from private parties to the public or to the broadcasters with knowledge of the uses that are going to be made of them.

This Court’s decisions and one thing we do recognize is that this Court’s decisions under the First Amendment would seriously limit any use, any suit by Mr. Nixon, any suit by any other party to prevent broadcasters from using the items that come into their custody that are released by the Court in any matter they might see it fit.

So the only point at which the uses can be controlled is the point at which it is decided whether to put them in the hands of the broadcasters, whether to put them in the hands of the record companies.

Justice William H. Rehnquist: But it seems to me, that really puts the cart before the horse, it puts all the constitutional freight really on the custodial court rather than it seems to me, it might be much simpler to just look at this as a problem of custody, copying by Joe Dokes or by NBC of something that is in custody and let the subsequent transactions in connection with the tape carry the constitutional freight?

Mr. William H. Jeffress, Jr.: Your Honor as I said, number one, our claims do not rest on a constitutional right of not to have the tape disseminated, but as for the subsequent uses that might be made, whether we have a right of privacy or a right of copyright or some cause of action in a Federal Court or in a State Court to prevent those uses is an entirely separate question from whether the Court having obtained property from an individual for limited uses might provide that to other people knowing that those other people, members of the public are going to make uses that are going to be offensive to the person from whom the property was obtained.

Unknown Speaker: Why would you not say the question is whether the Court can make them avail it to another person for any purpose?

Because if you go on and say for obnoxious purposes then the Court really is going to have to distinguish between one use from another?

Mr. William H. Jeffress, Jr.: Well, certainly for the Court and we do not think it would be unconstitutional for the Court to provide a copy to a person who agrees and signs an agreement that he would really use them to listen, for research.

That he would not disseminate them to other people.

Unknown Speaker: You mean what privacy interest that you assert would not be invaded by that or what property interests would be invaded by that?

Mr. William H. Jeffress, Jr.: Well, certainly not as much.

Justice John Paul Stevens: Could I make sure of one thing?

What is at issue here, the underlying tapes that were filed or is it just the composite that was made by the Court?

Mr. William H. Jeffress, Jr.: I think it is fair to call it a composite.

What happened was Judge Sirica received the underlying tapes and excluded those things that were not relevant and were not admissible and produced what we call a Court copy of the tapes.

Justice John Paul Stevens: Well, it is not a Court copy, it is an extract and are the original tapes involved at all?

If you lose this case, will the underlying tapes be covered by the judgment, what do you know?

Mr. William H. Jeffress, Jr.: Well, certainly the copies are nothing but the underlying tapes and the only thing that the respondents have claimed in this case, they do not really claim a right to a copy of the entirety of the Court copy, the trial copy of the tapes.

As I have said, that trial copy contains many conversations that are still confidential.

So there is nothing, actually, the item that the respondents claim a right to copy does not now exist.

They ask that that item i.e. the tapes of all the conversations that were played to the jury be produced.

Justice Potter Stewart: Is that the only thing that is involved?

Is the extract that was played to the jury?

Mr. William H. Jeffress, Jr.: The extracts, that is correct.

It is about 22 hours conversation.

Justice Potter Stewart: That running tape that was made of the extracts, but the tapes or the copies from which that jury played tape was made is not involved here?

Mr. William H. Jeffress, Jr.: Copies could have well been made from those tapes as from the Court copies, but the plan is to make the copies for dissemination.

Justice Potter Stewart: I am still not sure that you have answered my question.

Chief Justice Warren E. Burger: What is involved is the 22 hours of electronic transcription that were introduced as evidence in the trial before Judge Sirica, is that not correct?

Mr. William H. Jeffress, Jr.: That are contained in the Court copy of the tapes.

You understand that no separate recording was made of those 22 hours.

The machine was there, the special prosecutor turned it to the place he wanted and played it during the trial.

Chief Justice Warren E. Burger: And that is the material that would take seven man days to reproduce?

Mr. William H. Jeffress, Jr.: That is correct.

Even the process of reproducing these tapes required in the District Court of approximately a three-page order.

Justice Byron R. White: Is it perfectly clear that the portions of the tapes that were not played to the jury, are not involved here?

Mr. William H. Jeffress, Jr.: The respondents do not claim a right to them, Mr. Justice White.

Justice Byron R. White: Why would they not have a right to them, they are in the custody of the Court, they were subpoenaed?

Mr. William H. Jeffress, Jr.: We submit that their argument would seem to establish that they would.

They, however, appear to concede that those conversations are confidential.

Justice Byron R. White: (Voice Overlap) why they concede that?

Mr. William H. Jeffress, Jr.: That is correct.

Justice William H. Rehnquist: There is no property at this point or is there because the Congress in effect condemned the originals and under the Act we construed last spring?

Mr. William H. Jeffress, Jr.: But if the Court recalls, the Court did not rule on the actual titles of the tapes, but as the Court will also recall, Mr. Nixon had claimed a title to those tapes.

Unknown Speaker: But issue though, do you not?

Mr. William H. Jeffress, Jr.: We still do.

Justice William H. Rehnquist: If Mr. Nixon did have title to those tapes, Congress is provided just compensation for them in that Act, so he would have no property claim in this case?

Mr. William H. Jeffress, Jr.: No, issue in the case depends on whether he has title to the recordings or not.

As I have said before, if these were wiretap recordings, the same issues would be present or if they were subpoenaed from my custody and they might belong to my brother-in-law or whatever, I do not think that that would control any issue that is presented in this case.

Justice Lewis F. Powell: Mr. Jeffress, who in general were parties to these conversations in addition to the President?

Mr. William H. Jeffress, Jr.: The President and his closest aides would summarize it generally.

The conversations primarily concerned Mr. Nixon and certain members of the Cabinet and certain members of the White House staff.

Justice Lewis F. Powell: Are any parties recorded in these tapes who were not associated with the White House?

Mr. William H. Jeffress, Jr.: There are parties who were recorded on the original recordings that are in Judge Sirica’s custody.

If I recall correctly, there are not any portions that were actually played to the jury that involved such persons.

Justice Lewis F. Powell: Mr. Jeffress, your arguments being recorded on that machine over there, are you suggesting there is any limitation on this Court from releasing the tape of your argument to the media or anyone else?

Mr. William H. Jeffress, Jr.: Well, if the Court please, it is my understanding that the Court does impose certain restrictions on release of the oral arguments --

Justice Lewis F. Powell: That was not my question.

Are you suggesting that there are limitations in our power to release the recording of your argument?

Mr. William H. Jeffress, Jr.: No, I do not think so Your Honor.

Justice Lewis F. Powell: How is this any different from the recordings we are talking about?

Mr. William H. Jeffress, Jr.: The recordings we are talking about are not the property of the Court.

They were obtained by judicial process for a limited purpose from Mr. Nixon.

There are reasons we would submit why Courts do not and should not allow the broadcast of recordings made of judicial proceedings, but at the least, those recordings are the Court’s recordings.

They are recordings that the Court has the absolute power to do with as they please.

Chief Justice Warren E. Burger: We could release them if we decided to do so for playing on the 6:00 news tonight as occurred or 7:00 news whenever it comes on, is that right?

Justice Byron R. White: We are still drawing the distinction between the transcript which is readily available to any attorney and the original tape with all the voice inflections and everything else.

Mr. William H. Jeffress, Jr.: Certainly, Your Honor, we submit that the Court of Appeals decision that the Common Law Right involved a right to copy tape recordings in the custody of the clerk is inconsistent with the uniform recognition by the Courts up to this time that a tape is different from a transcript and I might point out --

Justice Lewis F. Powell: But you do not make that distinction as to your own argument here.

Your argument is being recorded.

That will also be transcribed and there will be a transcript of it after this argument.

Do you still suggest that there is no limitation in our power to release the voice recording with all its inflections and every thing else to the new media for broadcast tonight if they wanted?

Mr. William H. Jeffress, Jr.: But if the Court please --

Justice Lewis F. Powell: You do not?

Mr. William H. Jeffress, Jr.: No, I do not contend that, but if the Court please, where you have wiretapped conversations, where you have privately recorded conversations that are obtained by judicial process, you have a different kind of animal than you have in a recording that a person makes with expectation that it is being made in public discourse with an expectation that it is even being made over television.

It is not unusual for participants in private conversations to speak irreverently.

Justice Thurgood Marshall: Was that not all lost, once they were played in Court?

Mr. William H. Jeffress, Jr.: No, Your Honor, it was not.

Justice Thurgood Marshall: Was it lost to 12 people, the 12 people on the jury heard it?

Mr. William H. Jeffress, Jr.: But we have said Your Honor and contend --

Justice Thurgood Marshall: But you do not think that means anything?

Mr. William H. Jeffress, Jr.: I do not think that it means --

Justice Thurgood Marshall: It is no longer private, is it?

Mr. William H. Jeffress, Jr.: It is no longer private.

The only thing --

Justice Thurgood Marshall: Well, then what are you are arguing, limit it?

Mr. William H. Jeffress, Jr.: We do not argue that there is an interest in confidentiality per se that still maintained as to these things.

We do argue that there is a legitimate interest, an interest of the Court may respect and an interest of the Court should respect in a person whose private conversations are recorded and which contains the same sort of language, the same sort of discourse that would be expected --

Justice Thurgood Marshall: It has all been released to the “public?”

Mr. William H. Jeffress, Jr.: It has been heard by certain members of the public.

It has not been released to every disc jockey, every entertainer for the television networks to be played on television, to be relentlessly --

Justice Thurgood Marshall: Would there be a difference in the Courtroom with 12 people, the Courtroom that held 200 people, would it be more public?

Mr. William H. Jeffress, Jr.: No, I do not believe it would be played in a setting that is its very purpose, the very purpose for which the tape will be produced.

It would be played to do justice in a criminal proceeding.

That is the purpose for which the tape recordings were ordered and produced.

Justice Thurgood Marshall: That is the reason that the respondents want to reproduce it for the public?

Mr. William H. Jeffress, Jr.: They want to have it --

Justice Thurgood Marshall: In a larger public?

Mr. William H. Jeffress, Jr.: Well, they want it to have it in form where it can be played in any manner that they think appropriate.

Broadcasting television that is the purpose of some of the respondents, others of the respondents say they would like to provide it for home use, for library use for scholarly purposes, but the fact is that once released, the point I was trying to make --

Justice Thurgood Marshall: But my point is, it has already been released?

Mr. William H. Jeffress, Jr.: It is not Your Honor been released in the sense that copies had been provided for these uses.

Now we submit that in these private conversations that are recorded whether wire tap or otherwise, it is one thing.

It is going to be embarrassing to the participants.

It is going to cause them pain for those conversations to be disclosed, for those conversations to be printed in transcripts and disseminated.

Justice Lewis F. Powell: Mr. Jeffress I do know there are some states that televise trial proceedings and probably this had been a televised trial so that the recordings that are at issue here had been broadcast in the course of the trial, would you still be making the argument hereon?

Mr. William H. Jeffress, Jr.: Yes, Your Honor we would and interestingly enough where the, at least the kind of judicial ethics permits the televising Court proceedings, it requires a consent of the witnesses and of the parties and of the counsel, which is essentially a waiver, a decision that, that sort of intrusion of their privacy ought to be made.

Chief Justice Warren E. Burger: But this Court has never had any occasion to decide whether a defendant can refuse or a witness can refuse to appear if the proceeding is broadcast, has it?

Mr. William H. Jeffress, Jr.: No Your Honor, I do not believe it has.

Unknown Speaker: The Estes case was at close at hand?

Mr. William H. Jeffress, Jr.: Estes case will be the closest, but that was a matter of due process to the defendant.

Justice John Paul Stevens: Mr. Jeffress may ask you a question about how to go about deciding this case.

I gather you would agree that in some instances it is appropriate to permit public copying and access to exhibits and others it is not, depending on the impact on the privacy of the witness or the person producing the exhibit.

I think that is implicit in your argument.

If that is true how is the one to decide whether or not to release something like this without hearing it and that then leaves the question should we not have some kind of obligation to defer to the District Court which has heard these materials which we have not heard.

Mr. William H. Jeffress, Jr.: Well, I would like to make two responses to that Mr. Justice Stevens.

First I do not think you interpret my argument correctly when you assume that it is a matter involving the balancing of particular privacy interest in a particular case against whatever needs the public asserts for the materials where an subpoenaed exhibit that is not the property of the Court comes in to the custody of the Court, we submit that the Court should not as a policy matter make those available beyond the issues for which they were subpoenaed.

None of the authorities recognized that the Court has any such power, not the manual for District Court clerks, not any of the common law cases.

The second response that I would like to make to that Mr. Justice Stevens is that in this particular case no District Judge has exercised this discretion even if it is a matter of discretion to make release of the recordings.

Now, as to exhibits, if an exhibit is obtained, the question raises is there a distinction between documentaries and take the exhibits that come into the custody of the Court under a subpoena.

Even if the documentary exhibits --

Justice John Paul Stevens: May I just stop you for a moment?

You say the general rule is that no copying is permitted except in exceptional circumstances because Judge Gesell certainly thought the law was to the contrary?

Mr. William H. Jeffress, Jr.: Judge Gesell found a practice in the District Court of the District of Columbia that exhibits were routinely made available for copying, subject to contrary directions by the trial judge.

As far as we are aware no instance could ever have risen where there, number one anyone had actually copied the tape recorded exhibit or number two anyone had copied any exhibit obtained from a private party over his next --

Justice John Paul Stevens: Is it different for tape recordings and for any other document or pictures or anything like that, should you have a general rule to find all exhibits?

Mr. William H. Jeffress, Jr.: We submit that there are reasons for a distinction, but we do contend that there should be a general rule for all exhibits.

If a party for example under subpoena produces a photograph and there are reasons why that person who has the entire power to control what is done with that photograph except for the subpoena, there are reasons to respect that person's wishes if he should make a request that that document not be provided for showing on television or in newspapers.

Justice Thurgood Marshall: Well if that is true, why do you make a motion to seal the record?

That is the exception, not the rule, is it not correct, sealing the record is exception and not the rule?

Mr. William H. Jeffress, Jr.: Sealing the record is the exception, but --

Justice Thurgood Marshall: Then why do you do that if it is already sealed?

You said it is already sealed, you cannot copy it.

Mr. William H. Jeffress, Jr.: The party could make a request for sealing of the record, but I might point out --

Justice Thurgood Marshall: Do you mean if you are go into the clerk's office and say I want to see the exhibits and said that is a case, they just hand it to you and you are allowed to copy them?

Mr. William H. Jeffress, Jr.: They do not Your Honor.

They do not in most jurisdictions.

There are three rules in fact, actual rules of District Court that prohibit that except to the party’s to the case.

If the Court please, I would like to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well Mr. Jeffress.

Mr. Abrams.

Argument of Floyd Abrams

Mr. Floyd Abrams: Mr. Chief Justice and may it please the Court.

I would like to start by trying to be as clear as I can about precisely what the tapes are that are involved here and the degree to which they have already come into the public domain.

Some of these tapes are subpoenaed by a Special Prosecutor Cox in 1973 and after the Court of Appeals ordered them to be turned over by Mr. Nixon and after Mr. Cox’s dismissal, they were turned over.

Others were subpoenaed by Special Prosecutor Jaworski and after this Court’s ruling in 1974, they were turned over.

Now, with respect to the tapes involved here, we do not deal with any other than those introduced as exhibits in the Mitchell trial.

All were heard in open Court and be overheard not just by the 12 jurors, Mr. Justice Marshall, but everyone in the Court because everyone that came into the Court was provided with earphones so that they could be heard by everyone.

The computation in this case is that something in order of 1,300 individuals heard some or all of the tapes.

So everyone in the Courtroom heard everything that is at issue in this case and all of the tapes had been printed.

As Mr. Nixon’s brief correctly states all of the tapes.

The transcripts of them continue to be available around the country for public reading and reflection.

Unknown Speaker: That is the printed transcripts?

Mr. Floyd Abrams: Yes sir, all the printed transcripts are available.

What has been missing from public is what we came to Court to seek, provided the public not present in Court to hear the tapes that everyone in Court heard.

There is no question here about the ability to reproduce these tapes without destroying the original tape from which they were made.

The clerk of the Court so stated in his affidavit and we have not heard anything contrary from Mr. Nixon nor is there any issue as to Mr. Nixon seeking the return in any sense of these tapes.

As the reply brief submitted to this Court last week explicitly disclaimed any effort on his part to get these tapes back from the clerk, page 17 of his reply brief and the league of issues as we see that are before this Court are relatively narrow, but before I reach them, I would like to be very clear as to what Judge Gesell held in his opinion or which the Court of Appeals correctly stated it was as it were affirming.

Judge Gesell’s first opinion only opinion as it was in this case said in so many words that the tape exhibits are in evidence, I am quoting now, and have therefore come into the public domain and the public should have the chance to hear them.

Mr. Nixon’s opposition was denied by Judge Gesell.

Judge Gesell to be sure required us to formulate a plan for distribution of the tapes and a plan which would avoid certain commercialization and the like.

We submitted the plan, it was rejected by Judge Gesell.

Judge Sirica then held a hearing and refused to --

Justice Harry A. Blackmun: Why was he concerned about commercialization if it is open why not commercialize it?

Mr. Floyd Abrams: Mr. Justice Blackmun, I think he was improperly concerned about commercialization after the initial distribution of the tapes.

I think he was quite within the Court's providence to say that in the first instance when the tapes were to be reproduced, that is to say a master tape made and initially distributed to the public, I think it was proper at least we take no quarrel to the proposition, but after that he can properly say that the Court should say that there should be no commercialization.

The only problem that we have in Judge Gesell’s opinion is that he may have inferred, we do not think he did in his first opinion and Mr. Nixon said we did not think he did in his first opinion, he may have inferred that after the tapes were out to the public that there were constitutional limitations which could be placed on a fuse.

In so far as Judge Gesell did believe that, we think he was incorrect.

Justice William H. Rehnquist: Do you have any quarrel with Judge Gesell’s suggestion that whatever plan that you came up with, you had to pay for the time or clerk of the Court and that you could not just turn the Court into an Annex of CBS in order to get the tapes?

Mr. Floyd Abrams: We had no problem with that at all Justice Rehnquist.

Indeed we have now submitted to the Court a plan which would take everything off the Court’s hands under which the National Archives will take full responsibility for the making of the tapes and the distribution of the tape to the public at minimal cost.

We do not need and we do not seek any aid from the Court here at all, save the ability to have these tapes reproduced by the National Archives and then distributed generally to the public.

Justice Byron R. White: Mr. Abrams, how about my question to Jeffress on the parts of the tapes of the original tapes or the parts of the copies of the tapes that were not played to the jury?

Mr. Floyd Abrams: They are not involved here Mr. Justice White.

We have taken the position in this case that all we are seeking are Court exhibits.

Those materials which Judge Sirica received which was not admitted into evidence, we have made no claim for in this case, they have never been made available generally to the public, they were not heard in open Court.

Justice Byron R. White: But they were subpoenaed?

They were lodged in Court and they are still there, are they not?

Mr. Floyd Abrams: They are in Court, but they are not public records.

They are in Judge Sirica’s vault as it were and there under a protective order.

Justice Byron R. White: So are the tapes you are after they are in his vault?

Mr. Floyd Abrams: Yes sir.

Justice Byron R. White: And the question is whether they are public records?

Mr. Floyd Abrams: Yes.

The question of whether they are public records --

Justice Byron R. White: So how do you distinguish between the two, the parts that were played to the jury and the parts that were not?

Mr. Floyd Abrams: Because the parts we seek are Court exhibits.

The parts we seek were played --

Justice Byron R. White: You mean they were admitted, in the evidence?

Mr. Floyd Abrams: They were admitted into evidence.

Justice Byron R. White: Is that all as far as you go on exhibits?

Mr. Floyd Abrams: That is all we are seeking Your Honor, yes.

Justice Byron R. White: Does your theory only go that far?

Mr. Floyd Abrams: Our theory goes this far.

We think the Court of Appeals was correct in saying that as a general matter materials held by the Court are available to the public, as a general matter at least in the context where they are Court exhibits and admitted into evidence.

There is a material to be sure, a grand jury for example, we are told, the material is submitted to a grand jury that is not by any one standard public information and we do not seek any such information.

We do not take the position in this case Mr. Justice White that we are entitled to everything that finds its way to Court in some fashion or another and we accept the proposition of the Court of Appeals that there are situations in which things even when introduced in evidence may not be made publicly available for one reason or another.

Of course if it is introduced --

Justice Byron R. White: What we seal?

Mr. Floyd Abrams: If it is contraband for example.

If it is for example pornographic literature, if it is subject to copyright laws --

Justice Byron R. White: How about the copyright laws?

Suppose it was a copyrighted material that was introduced in the evidence?

Mr. Floyd Abrams: There is a case law which we believe is correctly decided at the lower Court level indicating that copyrighted materials introduced in evidence may not be reprinted certainly without violating the copyright law as to whether they maybe obtained and presumed as Justice Rehnquist’s question earlier, obtained and where one could print as it were and take ones chances that maybe.

We would not even object to a rule and we do not even go so far in this case as to urge a rule which would routinely allow anyone to walk in and get a hold of the copyrighted material in that sense.

Justice Thurgood Marshall: Even at trademark and copyright cases, where even the pleadings are secret and are sealed, even the pleadings?

Mr. Floyd Abrams: Absolutely, and if --

Justice William J. Brennan: What about the question I put to your colleague, this Court may impose limitations on the distributions of the recording of you argument today, eliminate particular purposes and particular groups and deny it through CBS or the news media generally if we want to?

Mr. Floyd Abrams: As you understand it is a delicate question for me Mr. Justice Brennan?

Justice William J. Brennan: Maybe (Voice Overlap) --

Mr. Floyd Abrams: I certainly think that there is a vast distinction between any limitations placed by Courts including this Court on the use of argument or trials or the like then there is --

Justice William J. Brennan: But which way was it cut, we can or cannot?

Mr. Floyd Abrams: You have more authority in my view, under authority such as the Estes case to limit the public dissemination of the tape of this argument then would be the case of an exhibit filed in this Court, which I would urge upon you is more generally available.

Chief Justice Warren E. Burger: You say more authority, you do not -- that does not sound as though you concede we have cleaner, total and final authority, do you?

Mr. Floyd Abrams: Your Honor I do not deny for the moment that you have complete authority to do that.

In giving an answer to Mr. Justice Brennan’s question, what I was attempting to urge was that it would give me a lot of constitutional qualms if you were to limit the accessibility to Court exhibits in this very courthouse.

I could not deny that you could do it, but it would seem to be inconsistent with many years of American practice.

Chief Justice Warren E. Burger: I am talking about perhaps because you get them before they got here?

Mr. Floyd Abrams: Yes, and if other Courts were to do the same thing I would make the same argument today.

Justice William H. Rehnquist: I am not sure how my brother Brennan reacts to your answer to his question, but it seems to me a perfectly good answer, exactly the opposite to which you gave could be made that an exhibit furnished by a third party and simply drawn into Court by judicial process, perhaps ought to have more protection from dissemination than the proceedings of a public body that are pursuant to rule and that do not involve any unwilling participation by a third party?

Mr. Floyd Abrams: Justice Rehnquist, I cannot be put into position of disagreeing that the constitutional arguments for limiting dissemination of the arguments here are very weak.

I think that there is a strong constitutional case to be made for having a public disclosure as is possible of this very proceeding.

I take it the reason that it is not made available are the kinds of reason that regarded to Estes case, the possibility of inhibiting counsel affecting the dignity of the Court proceedings.

Our position is you can inhibit an exhibit, but there is nothing in what is involved in this case which is analogous.

Justice William H. Rehnquist: Why do you get to a constitutional question?

Is it not both cases basically are housekeeping question of what a particular Court is going to do with material that happens to be physically in its possession?

Mr. Floyd Abrams: The housekeeping matter Justice Rehnquist, it does seem to us to have long standing roots that the Court of Appeals said that as a general matter Court copies maybe made of things held in Court subject to exception and subject to abuse, but that as a general proposition Court records are available to be inspected by the public and copied by the public.

Unknown Speaker: Would you go so far as to say that the constitution requires this Court to maintain that taping process or whatever?

Mr. Floyd Abrams: If the taping of this proceeding Your Honor?

No, I would not your Honor.

It seems to me that --

Unknown Speaker: So we could do away with it and not violate the constitution?

Mr. Floyd Abrams: I think so Your Honor.

Justice Byron R. White: Do you claim a constitutional right to get these tapes?

Mr. Floyd Abrams: We do make a constitutional argument Mr. Justice White.

We do argue that in pursuant to the Cox Broadcasting case or at least pursuant to the same theory of the Cox Broadcasting case which has not in this case that there is a lot more --

Justice Byron R. White: Cox did not hold that?

Mr. Floyd Abrams: I am sorry?

Justice Byron R. White: Cox did not go that far?

Mr. Floyd Abrams: No sir it did not and I do not need to suggest that it did.

It is our position in this case that if Cox is correctly read as I do we are saying that the advantage to the public and the wide spread dissemination of information even as offensive as a name of a rape victim and that the privacy interest in the father of a rape victim can be overcome and must be overcome because the information is contained in a Court record.

But by parity of reasoning in this case, Court exhibits introduced in evidence, not to say these Court exhibits introduced in evidence, should be made public.

Unknown Speaker: Well, short of a constitutional argument, what are your arguing?

Mr. Floyd Abrams: Short of a constitutional argument we argue as to the Court of Appeals that there is a long standing common law practice and right to make copies of Court documents and to make copies of Court exhibits that this right is not an absolute right, that it has exceptions to it that none of the potential exceptions to it ought to be applied in this case and indeed there is a very significant argument to be made in favor of release of these tapes.

I would put it this way, Justice White.

We think that even if the Court of Appeals had adopted an opposite test, the presumption against release of information such as this instead of one placing the burden on Mr. Nixon, we think we could meet that test in this case.

We think in this case, there is such a public interest and there is such a pubic utility in having these tapes made available that even if the presumption were against us, we could meet it.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Mr. Williams.

Argument of Edward Bennett Williams

Mr. Edward Bennett Williams: Mr. Chief Justice and may it please the Court.

I think it would be useful if I spent just a couple of minutes if the Court please, identifying what I conceive to be the non issues in this case which have been raised as questions in the Courts below in the tortuous journey of this case over three years to this courtroom.

First of all, the peg to which Judge Sirica latched his memorandum and order is now moot.

There are no more prospective defendants, no more prospective trials, and therefore, no more prospective prejudice.

Secondly, we are not here contending that in every single instance, there is a right to inspect and copy and distribute every exhibit that goes into a courtroom in the trial of a case.

We recognize that in the exercise of discretion of the trial judge, there may be instances where he will deny that right where there are property rights involved, where there are illegal wiretaps which are offered in evidence, where in a wiretapping criminal case, for example or where there is a contraband offered as part of the prosecution's case in a criminal trial.

Unknown Speaker: Do you think in other words, it is pretty much in the trial judge’s discretion?

Mr. Edward Bennett Williams: I think there is an exercise of discretion here for the trial judge, Mr. Justice Stewart.

We are not here assailing the traditional rules of Court which preclude access and distribution of the tape recordings of trials or indeed of appellate arguments.

We are not here making that assault.

Unknown Speaker: Mr. Williams, would it be a valid reason for a trial judge to deny the right to copy if he felt that the material would be embarrassing to a witness and might discourage future prospective witnesses from wanting to come forward and testify in trials?

Mr. Edward Bennett Williams: I do not think Your Honor that embarrassment per se would be a legitimate reason for denial of access.

Indeed I think that is what petitioner’s position is reduced to.

Unknown Speaker: How about photographs of someone hurt in an automobile accident, a particularly unattractive photograph, something like that?

Mr. Edward Bennett Williams: I think that would be within the discretion of the Court.

Unknown Speaker: Would it be a permissible reason to deny on the ground of embarrassment to the witness?

Mr. Edward Bennett Williams: If there were a proprietary right and if --

Unknown Speaker: No proprietary right.

Just pure embarrassment?

Mr. Edward Bennett Williams: I do not think embarrassment per se would be sufficient.

Unknown Speaker: Whatever be the position?

Mr. Edward Bennett Williams: And I say this with no meanness of spirit, but I think that is what petitioner’s argument is reduced to.

It is that an alleged conspirator has the right not to be embarrassed by the sound of his inculpatory words solely because he was President when they were uttered.

I think that is the reduction of the petitioner’s argument in this case.

Justice Byron R. White: Mr. Williams, the Court of Appeals said that a normal practice is that Court exhibits are returned to their source when a case is over.

Well, these cases are over.

Suppose the exhibits had been returned and then you wanted to get them?

Mr. Edward Bennett Williams: I think our position is Mr. Justice White, we are not engaging in any debate about title.

We are saying that while they are in the custody of the Court, we have the right to inspect and copy and they are in the custody of the Court and I think had they been returned, we would be on a different footing.

Justice Byron R. White: Yes, but the Court of Appeals made its judgment when the cases were still going on and it said, normally, the exhibits are returned when the cases are over.

Well, the case is over, they have not been returned?

Mr. Edward Bennett Williams: They have not been returned Your Honor because I understand that the manual for the clerks of court which has been promulgated out of a judicial conference mandates that records of this kind, be kept for a period of 10 years.

They are in the custody of the Court.

They have not been returned and our position is quite narrow.

It is that while they are in the custody of the Court, we have a time honored traditional Common Law right to inspect those documents and to copy them and make such distribution.

Justice Byron R. White: Well, common Law for the Federal Courts?

Mr. Edward Bennett Williams: It is a Common Law right in the District of Columbia and it has been recognized for 100 years.

Justice Byron R. White: Federal Common Law --

Mr. Edward Bennett Williams: Yes sir.

Justice William H. Rehnquist: In response to Justice Stevens’s question Mr. Williams, you referred to Mr. Nixon’s right to claim embarrassment.

Do you think he has the right to assert similar claims or contentions on behalf of people whose voices might be heard on the tapes?

Mr. Edward Bennett Williams: I think he has not, Your Honor and fortunately the person’s whose voices were heard on the tapes were all parties defendant in the case below, captioned US v. Mitchell et. al. in which petition for certiorari was denied in this Court last spring.

There are exceptions to that.

There are two advisers to the President who are not parties defendant to that case whose names appear in those tapes and whose voices are heard on those tapes.

They have not seen fit to register objection or claim embarrassment.

I suggest if that is a concern that can easily be handled at the time that the method for distribution is promulgated in the federal register.

They should be given an opportunity to come in and assert what Mr. Justice Stevens pointed out a few moments ago, their right not to be embarrassed or their right if they will --

Justice John Paul Stevens: Why should they be given that right?

You say that is an insufficient basis for an objection anyway?

Mr. Edward Bennett Williams: I think it is an insufficient.

Justice John Paul Stevens: Then why bother with --

Mr. Edward Bennett Williams: There are a lot of rights which are asserted with an insufficient basis such as petitioner’s right in this very Court in my opinion.

Chief Justice Warren E. Burger: Mr. Williams, suppose you have a celebrated criminal case, kidnapping, rape, murder, something of that kind and one of the elements of evidence introduced into trial are statements made which in the aggregate amount to a confession by the defendant or one of the defendants at some point, at least at a point where the Court admits them in evidence and he makes -- these statements that are all in record now in the trial, not subpoenaed in the ordinary sense, but produced by the prosecution.

Now --

Mr. Edward Bennett Williams: Extrajudicial statements, Mr. Chief Justice?

Chief Justice Warren E. Burger: That is made outside of Court, perhaps at the time when he was in custody or perhaps not, but anyway, they are received in evidence.

They are on the record with the tape recording of the trial and in the written transcript.

Now, then the jury acquits the defendant and the conclusion then, efforts are made as are made here to produce them for broadcasting, for tape recording to juxtapose the admissions, the confession against the jury’s verdict.

Do you think that would be subject to being broadcast or used?

Mr. Edward Bennett Williams: I think so Your Honor for these reasons.

Just as the written transcript of the trial would be available for publication by newspapers, periodicals and publishers if they chose to use the transcript and we are familiar with many instances where transcripts have been used as basis for books.

Chief Justice Warren E. Burger: You do not see any difference from the voice and the printed work?

Mr. Edward Bennett Williams: I do see a difference, Mr. Chief Justice.

I think a fortiori the argument obtains that they should be released if they are oral as distinguished from visual exhibits for these reasons.

If you look at the written transcripts of the exhibits which are in question here, you will see that they are laced with the expression “uh-uh.”

Now, uh-uh can be aha or it can be uh-uh or it can be uhu and each of those has a separate and distinct meaning and I think when representations are being made with respect to oral conversations held, extrajudicially, the very best representation of those oral conversations is not in a written document, but in an oral transcript.

So I say Mr. Chief Justice that the argument is a fortiori when we are dealing with conversations.

Chief Justice Warren E. Burger: Now, suppose after that, after the jury acquits this person, the judge, as some judges have been known to do, excoriates the jury, a matter in which as we know in the Code of Professional Conduct is discouraged if not forbidden, would the members of the jury have any basis for stopping the broadcasting of the judge’s denunciation?

Mr. Edward Bennett Williams: I think they would have no more basis for stopping the broadcasting Your Honor than for stopping the publication.

We are all familiar with the news stories that have been written in the recent years about judges remonstrating with juries for their verdicts.

I say once again Your Honor that the same rights should obtain with respect to reproduction of that orally.

Of course, we have as you know Mr. Chief Justice rules throughout our federal system which foreclose the right of access to the tape recordings of the trial proceedings in all of our Courts and that applies also to our Appellate Courts.

Chief Justice Warren E. Burger: What if after then in this hypothetical case, the Court having denounced and excoriated the jury, which has found the defendant not guilty and thereby discharging them, the Court then proceeds to denounce and excoriate the defendant himself.

You would say then too that is available for broadcasting?

Mr. Edward Bennett Williams: Yes, we have all had that experience Mr. Chief Justice and I think it is a part of a proceeding.

It may be an unfortunate part of the proceeding.

It becomes part of the Court record.

It is in the written transcript, and therefore, in the public domain and I suggest also absent the rule which forecloses access to the oral transcript of a trial proceeding that there should be a right also to broadcast such a --

Justice Byron R. White: What about the validity of that rule against access to the oral recording?

Mr. Edward Bennett Williams: I think it is a good and salutary rule at the Trial Court level, Mr. Justice White because I think the search for truth is difficult enough.

Look at the fragility of human powers of perception, the fragility of their powers of recollection, the fragility of their powers of expression and then introduce their veracity, it is difficult enough without putting them on stage and having them conscious to the fact that every word that they utter in the courtroom is being recorded.

I think that would be an inhibiting factor.

Justice Byron R. White: If Mr. Nixon had been a witness in this case and had objected to having his testimony recorded and then broadcast, you would say that if the Court exceeded his request and forbade publication, you would accept that?

Mr. Edward Bennett Williams: There is such a rule existing now Mr. Chief Justice so you would not have to make that argument,

Justice Byron R. White: I know but --

Mr. Edward Bennett Williams: But I think that if there were not such a rule and he said I do not want to be recorded, I think he would lose that.

Just as if he said I do not want to have my words taken down on the transcript.

I think he would lose that because I think the Court would say, quite properly, that we want to have a check on the accuracy of the Court reporter, but we need --

Justice Byron R. White: But if the Court said Mr. Nixon, you do not need to make that request because we have a Court rule that we do not turn loose any of our oral recordings of our trials, you accept that?

Mr. Edward Bennett Williams: That is what I think the Court would say Mr. Justice White.

Justice Byron R. White: And you would accept that?

Mr. Edward Bennett Williams: If I were counsel for Mr. Nixon, would I --?

Justice Byron R. White: No, if you were counsel for the broadcasters who would like to take the oral transcript and broadcast it, the oral recording and broadcast it?

Mr. Edward Bennett Williams: I would accept that for the reasons that I have --

Justice Byron R. White: Just the essence of it?

Mr. Edward Bennett Williams: Well, I have answered that I think.

I have answered that because I believe there is a different rule that obtains at the trial level than from that which obtains at the appellate level.

Justice William J. Brennan: What is the rule at the appellate level?

Mr. Edward Bennett Williams: At the appellate level, my understanding is Mr. Justice Brennan, that we many not have access to the oral arguments of this Court or any Circuit Court across the land.

I do not think that is a salutary rule.

I think it is the wrong rule sir, but I am realistic enough to recognize that if I made that contention and lost, I would have nowhere to go.[Laughter]

Chief Justice Warren E. Burger: You might, suppose the Congress enacted a statute saying that all such records of arguments here be made public under the Freedom of Information Act, we of course might have further recourse to say then the recordings will not be made, is that so?

Mr. Edward Bennett Williams: You could certainly do that, yes sir.

Justice William J. Brennan: Well, Mr. Williams you say you have nowhere to go, what would be your argument that we could not put limitations on this?

Mr. Edward Bennett Williams: I would argue if I were put into that position, which I am not fortunately today as I said at the outset of this argument, I am not here assailing that rule or any rule covering that subject, but I certainly would argue that the transcript of my argument here today is a public record of a judicial proceeding and that the public should have access to my oral argument and if they have access to it, there is a concomitant right to copy and the concomitant right to copy gets constitutional dignity in my view.

Chief Justice Warren E. Burger: By copy, you do mean the precise oral --

Mr. Edward Bennett Williams: I do Mr. Chief Justice, yes.

Justice Harry A. Blackmun: (Voice Overlap) to be solved with your several inflections on --

Mr. Edward Bennett Williams: Thank you very much Mr. Justice Blackmun.

Justice Lewis F. Powell: May I add to this parade of horrible examples by putting one more to you?

Let us assume that instead of having this case, we had a case in which there was a domestic litigation between let us better say, a very high official in government and a wife internationally known.

Let us assume further that you had tapes of various lurid indiscretions, would you be making the same arguments for the availability of those?

Mr. Edward Bennett Williams: I think, Mr. Justice Powell that in the exercise of the Court’s discretion, it might refuse access to those if they were pornographic in nature and I curb that out as an exception.

I think there are certain things where there are rights of privacy, where there are rights of privilege for example, Mr. Justice White talked about the tapes that were not offered in evidence, they were privileged so we cannot claim those.

They are presumptively privileged under the opinion of this Court in 1974.

Justice Lewis F. Powell: May I come back to my example, where would the privilege be as between the parties to this divorce litigation?

Mr. Edward Bennett Williams: I would not say there was a privilege, Mr. Justice Powell.

If the Court in the exercise of its discretion believed that the testimony which had been taken in Court constituted pornographic material, I think it might exercise its discretion to foreclose.

Justice Lewis F. Powell: But only if the Court concluded that the recordings and the testimony constituted pornographic material?

Mr. Edward Bennett Williams: I think there are other situations where it could exercise its discretion, Mr. Justice Powell to foreclose the right of distributing broadcast material.

Chief Justice Warren E. Burger: You mean the super embarrassment of the parties?

Mr. Edward Bennett Williams: I think in cases, to delineate them specifically, I would think in cases where the prosecution offered illegally obtained wiretapped material to prove a case against a wiretap where it offered hardcore pornographic material to prove that the defendant --

Chief Justice Warren E. Burger: That is not really what Mr. Justice Powell is asking you about though.

He was asking you about material that is actually admitted in evidence?

Mr. Edward Bennett Williams: It is admitted in evidence and from the question that he propounded, I assumed he was talking about materials that were pornographic in nature.

Justice Thurgood Marshall: In a public trial?

Mr. Edward Bennett Williams: In a public trial and I suggest to the Court that in that instance, the trial judge should exercise his discretion to not inhibit access to it because it is in a public trial.

It would have been printed unless he excluded the press.

Justice Thurgood Marshall: The reporters who heard it could not print it?

Mr. Edward Bennett Williams: Well, I did not say that.

Justice Thurgood Marshall: You said a public trial?

Mr. Edward Bennett Williams: I said he could print it, Mr. Justice Marshall. I think they can print it.

If I were the trial judge, I would not put that inhibiting rule regardless of the embarrassment that flowed, but it is a consideration that the trial judge might take in the exercise of his discretion, and all that we are saying here --

Justice William J. Brennan: How is the recording laced with expletives?

Mr. Edward Bennett Williams: Well, these are not laced with expletives and we contend that there is a right to inspect and copy them.

Justice John Paul Stevens: Mr. Williams and broadcast?

Justice William J. Brennan: Expletives and all?

Mr. Edward Bennett Williams: I do not think that we can get constitutionally in to what use is made of those records once they are released because we run into countervailing First Amendment considerations and we are now dealing in a question of taste rather than law.

Justice William H. Rehnquist: You are not going to try to plead this decree then as a defense to whatever use or any suits that might arise out your subsequent use of the material, this is just a question whether you get access not to your total right to use it for whatever purpose you see fit?

Mr. Edward Bennett Williams: It is a question Mr. Justice Rehnquist of access, copying and distribution and whoever distributes has to take the full risk of distribution and whatever actions may be brought by any aggrieved parties.

Justice John Paul Stevens: Mr. Williams, do you adhere to your answer that you gave me earlier that embarrassment is never a valid reason for denying access?

Mr. Edward Bennett Williams: I think it should not be.

Justice John Paul Stevens: Never a reason unless it is pornographic, you know, that is a pretty severe, it has to go pretty far to get something pornographic?

Mr. Edward Bennett Williams: Well, I think it is what we are talking about here is material which are part of very -- when I use the term hardcore pornography, I am using really a description of material which is contraband, namely the very possession of it.

Justice John Paul Stevens: You would limit to even balance embarrassment against other considerations.

You would simply say embarrassment of a witness or a third party is never a valid objection?

Mr. Edward Bennett Williams: Because I think whatever embarrassment there may have been has already taken place in the public trial and by the publication of the materials.

Justice John Paul Stevens: You do not think that there would be additional embarrassment by the difference between the different kinds of “uh-uhs” that you described.[Laughter]

After all, you whole position is there is a material difference between reading and hearing.

Like material prints in the terms of embarrassment as well as public interest?

Mr. Edward Bennett Williams: I think so.

I think that embarrassment per se is not a sufficient basis for the denial of a Common Law right and the concomitant constitutional right that flows from inspection.

Chief Justice Warren E. Burger: Does your position not in parts assume something of this nature that if the courtroom holds 130 people and 130 are entitled to hear everything that goes on as they are, but that means there is some constitutional right of 13 million people to hear it by way of the reproduction of the recording, is that right?

Mr. Edward Bennett Williams: I think Mr. Chief Justice that there is a difference between extrajudicial recordings that are offered as exhibits in a trial and the transcript of the judicial proceedings per se and I have said that we are not again saying the rule which inhibits the transcription of judicial proceedings because there are countervailing considerations, the inhibitions that witnesses feel when they are taking for oral recordings.

I think there is a difference, but we are dealing solely here Mr. Chief Justice with extrajudicial recordings that were made exhibits in the Court below that were played to the jury, that were played to all of the persons who were in the courtroom that were visually transcribed, reproduced, sold as books, sold in the form of periodicals and magazine pieces across the world, that is what we are dealing with here.

Chief Justice Warren E. Burger: Let me then return to Mr. Justice Powell’s hypothetical and you have a divorce proceeding between two internationally prominent people known all over the world and the man is a prominent political or other prominent public figure, and we reverse the rules that sometimes apparently occur and we have the husband suing the wife for divorce on the grounds of misconduct with respect to her visits to some gentleman’s establishment, gentleman’s apartment and unknown to her, all of the conversations were recorded by this third party, ungallant as that might be, and the husband finds out about it and subpoenas them.

Now, you have the subpoenaed material brought into the courtroom going one step beyond your response to Mr. Justice Powell’s just now, and now that is available too for all the networks?

Mr. Edward Bennett Williams: It is offered before the jury and since (Voice Overlap) as described by Your Honor presumably it is offered to a packed courtroom and presumably it is published by the press and by the periodicals covering the trial so that at the moment that the recording is played, it is in the public domain.

The facts are in the public domain and it is now out as it were.

Now, we have the question as to whether or not a member of the public can get access to the exhibit in the form of an oral transcript then we contend yes, that there is a right, a Common Law right to get access and then a concomitant constitutional right to reproduce after getting access to that record and I think the Court cannot concern itself at that time with what use is made, what the user would have to take his risks there and after, whatever they may be for actions that might be brought against him by an aggrieved party who would contend that he has a right as Mr. Justice Stevens has pointed out, a right not to be embarrassed.

I do not know of any Common Law Right not to be embarrassed by ones own inculpatory words and I think that finally is the position that petitioner is urging before this Court today.

Chief Justice Warren E. Burger: Well, the gentlemen whose conversations I am mentioning is not inculpated in any way, he is just somewhat guilty, but a third party bystander so far as the trial is concerned, his voice and his conversations are --

Mr. Edward Bennett Williams: Mr. Chief Justice, I am constrained to say that sounds like a male show from the street mark that he is not guilty.

Chief Justice Warren E. Burger: He is not charged with anything.

Mr. Edward Bennett Williams: I thought one of the in precepts criminus with the adultery and if he is, I think that --

Chief Justice Warren E. Burger: The third party whose conversations are being produced in litigation between a husband and a wife.

Mr. Edward Bennett Williams: But then I guess I have to quarrel Mr. Chief Justice with your premise that he has no guilt because I have to put him in equal guilt with the defendant wife and I would have to once again say that he has no right not to be embarrassed by the sound of his inculpatory words if that is what was transcribed.

Chief Justice Warren E. Burger: Well, then unless – I do not like to prolong this unduly, but [Laughter] let us change this and it is the husband, the trial having been concluded and the matter having been terminated, it was the husband who does not want to further embarrass himself or his wife or anyone?

Mr. Edward Bennett Williams: Well, I suppose he had an option not to bring the case on those grounds.

Chief Justice Warren E. Burger: A a little late in my hypothetical?

Mr. Edward Bennett Williams: A little late, but I think that he has no standing having brought the case and having offered the evidence in a public trial having subpoenaed the transcript of the inculpatory words evidencing inculpatory conduct, now to claim that he will be embarrassed if it is further reproduced after it has been offered in open Court in a judicial proceeding.

Justice Byron R. White: (Voice Overlap) The defense you are plugging for would I suppose cover that situation where the words, the voices, or whatever is said is not inculpatory at all?

Mr. Edward Bennett Williams: I think so of course.

Justice Byron R. White: So that really is not the point here.

Mr. Edward Bennett Williams: I do not think it is.

I think embarrassment is really not the point.

Justice Byron R. White: But you would say that the publication might be extremely embarrassing, but it might not be inculpatory in the sense of being criminal or indicating any guilt.

It is just embracing and your principle would cover --

Mr. Edward Bennett Williams: I believe it would Mr. Justice White.

Chief Justice Warren E. Burger: Very well, Mr. Williams.

Mr. Jeffress, do you have anything further?

Rebuttal of William H. Jeffress, Jr.

Mr. William H. Jeffress, Jr.: If the Court please, to say that the injury that is involved here is one of the embarrassment, or one of mental anguish, does not it seems to me demean the importance of the injury that will be suffered.

We have plenty of instances in the law where precisely such an injury is protected against.

Certainly in the law of privacy, certainly in the statutes in some states and Court rules that provide for sealing the record in juvenile proceedings.

That is what is involved in those cases, preventing call it embarrassment, call it mental anguish, but the second thing is that we need to recognize that tapes are different from transcripts.

The transcripts of course have already been disclosed.

But tapes are susceptible to uses that are far more offensive to the people whose voices are captured on the tapes than are transcripts and as we have tried to point out, the Court, it is one thing to produce the tapes pursuant to a subpoena for use in a criminal trial, but the effect of holding that there is a Common Law right of the public to obtain copies of those items that are submitted pursuant to subpoena is in essence to say that the effect of a subpoena is not just to require production to the Court and the parties, but the effect of a subpoena is to require production.

Justice Thurgood Marshall: Why was it that the Court did not restrict the tapes in Court and allowed them to be played rather than to transcript?

Mr. William H. Jeffress, Jr.: That is a necessary --

Justice Thurgood Marshall: Getting back to my original discussion with you then not only the transcript was released from privacy, but also the voices were released from privacy, correct?

Mr. William H. Jeffress, Jr.: Yes, Your Honor, the Court felt that that was an incident of a public trial that ought to be done.

The trial is over.

Justice Thurgood Marshall: Could he not have ruled that you did not need, you should be satisfied with the transcript, but the Court said you needed both, did the Court not say that?

Mr. William H. Jeffress, Jr.: I am not aware of any order in which he said that there was a constitutional or other reason --

Justice Thurgood Marshall: Well, the Court did say that these could be played to the audience and everybody in that courtroom.

Mr. William H. Jeffress, Jr.: Yes, he did and he provided --

Justice Thurgood Marshall: They made it to that extent public?

Mr. William H. Jeffress, Jr.: That is correct Mr. Justice Marshall, but he did not rule at that time that while the tapes were going to be played in the courtroom and the trial was going to be conducted as publicly as a trial can possibly be, that once that trial was over, there was any right of the public, any interest in the public in obtaining copies of those tapes to do with them whatever the public pleased.

Now, I would like to mention one other thing as for the manual for District Court clerks.

It has been our position and we think this is supported by the Common Law cases, the cases that established the Common Law Right, that the Common Law Right is applicable to materials that are the property of the Court.

It said that the manual for District Court clerks provides that in cases of great historical importance, that exhibits are to be retained by the clerk or to become a part of the clerk’s permanent records, but the quotation that is relied on by Judge Gesell by the Court of Appeals and by the respondents is not the correct provision of the manual for District Court clerks.

The manual in fact recognizes that the clerk should not dispose of documentary exhibits not physically filed with a case that is in the Court jacket and not claimed by parties to the case, that is item number 10 in Chapter 13.

In the comment to that, it says that case exhibits impounded by the Court or voluntarily submitted as evidence normally remain the property of parties to the case.

So the manual does not stand for the proposition that these are part of the traditional Court records that are subject to the Common Law right of inspection.

As we have said, there is nothing in the purpose of a subpoena.

There is nothing in the function of a Court that justifies the Court in so treating them.

Justice William H. Rehnquist: But does not the Act that we had before us last spring effect at least the property claim that your client might otherwise assert?

Mr. William H. Jeffress, Jr.: I believe the claim does affect any property right that he might assert, but as I have tried to say, there is no question here of title to the tapes.

No argument that we make depends on the title.

Justice William H. Rehnquist: Are you distinguishing between property and title?

Mr. William H. Jeffress, Jr.: One thing is clear, Mr. Justice Rehnquist, no I am not distinguishing between property and title, but I am saying that one thing that is clear is that the tapes are not the property of the Court.

The tapes are in the custody of the Court for a limited purpose.

Now, whether it is the government of the United States through GSA or Congress that should decide whether to make these public or whether it is Mr. Nixon himself that should decide whether to make these public, the fact remains that it is not the Court which has the tapes only for a limited purpose and there is not Common Law principle which would apply regardless of ownership and say that these sort of exhibits must be supplied to the broadcasters and record companies.

Chief Justice Warren E. Burger: Have these tapes now been delivered to the GSA pursuant to the opinions of sometime ago last year?

Mr. William H. Jeffress, Jr.: Mr. Chief Justice, I must confess that I do not know whether the underlying original recordings have been delivered.

The Court copies certainly have not.

Chief Justice Warren E. Burger: Assuming for a moment that they were in the possession of GSA and not of the clerk, would the GSA be a necessary party to any effort to reproduce them?

Mr. William H. Jeffress, Jr.: Well, I certainly think that the Court could not grant effective relief if GSA were not a necessary party, but as the Court is aware and as explained in our reply brief, the GSA originally took the position that no tapes subject to that Act would be copied and provided to the media and the public.

That has gone back and forth between GSA and Congress in the course of changing and resubmitting regulations and the current regulations though still not final, appear to or may at least leave that decision dependent on the decision of this Court in this case.

Justice William H. Rehnquist: In other words, we are talking not just about a housekeeping policy, the Court or GSA is going to make its decision dependent on what the housekeeping policy of the clerks’ office of the District of Columbia is?

Mr. William H. Jeffress, Jr.: Odd as that may seem, Mr. Justice Rehnquist, that appears to be what is in the latest proposed regulations submitted by GSA to Congress.

It is provided that the distribution or dissemination of the tapes will depend on the whatever the ultimate relief granted in this case.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.