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Despite Threat of Legal Action, Court Tapes Are Selling Briskly

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WASHINGTON--A new audiotape collection of oral arguments in 23 landmark cases before the U.S. Supreme Court, promoted as a teaching tool for schools, is selling briskly despite the threat of legal action from the Justices.

The High Court is considering "legal remedies'' against the book-and-tape package because of an admission by one of its editors that he violated a signed agreement with the National Archives not to reproduce the tapes for sale.

The Court has recorded its oral arguments since 1955 and deposits the recordings in the archives for use by researchers and the public. But the Justices, who do not allow cameras or outside recording devices in their courtroom, apparently object to the widespread dissemination of the recorded arguments.

"The Court has had this mystique of secrecy for a long time, but they have never explained why they object to public access to their proceedings,'' said Peter Irons, a lawyer and professor of political science at the University of California at San Diego, who is at the center of the controversy over the tape collection.

Mr. Irons is the co-editor, with Stephanie Guitton, of May It Please the Court ..., the 375-page book and six-cassette collection of oral arguments in such cases as Roe v. Wade, which legalized abortion; Abington School District v. Schempp, which banished prayers from the public schools; and Miranda v. Arizona, which established a criminal defendant's right to a lawyer.

The boxed set is available in bookstores for $75 from the nonprofit publisher New Press, which initially produced 20,000 copies of the set but has now received orders for 50,000.

Lunchtime Visits to Court

In an interview here last week near the Supreme Court building, Mr. Irons recalled how he used to stroll over to the Court to hear oral arguments when he worked for the United Auto Workers union in the early 1960's.

"It was my hobby on my lunch hour or in the early afternoon,'' he said.

At U.C.-San Diego, he is the founding director of the Earl Warren Bill of Rights Project, which develops innovative curriculum materials on constitutional issues for high school and college students.

The tapes of the oral arguments would make an excellent teaching tool about the High Court and the important issues that come before it, Mr. Irons believed.

A few years ago, he began making tapes of significant cases from the recordings at the National Archives. But in order to do so, he had to sign an agreement to use the tapes "for private research and teaching purposes only'' and not to "reproduce or allow to be reproduced for any purposes any portion of such audiotape.''

The restriction was placed on the tapes more than a decade ago at the urging of then-Chief Justice Warren E. Burger after CBS News broadcast a portion of the taped oral arguments from the Pentagon Papers case, Mr. Irons said.

Mr. Irons said he signed the statement knowing he intended to violate it by publishing his book-and-tape package. But he believes the restrictions violate the First Amendment's guarantees of free speech and freedom of the press.

The tapes, he argues, are government documents in the public domain. They are not copyrighted and they do not reveal any secret proceeding of the Court, such as the Justices' private conferences, he pointed out.

Mixed Signals

The Court itself has provided mixed signals about the project in the last two years as Mr. Irons edited the tapes. The Supreme Court's marshal requested that he end the project and persuaded the archives to stop making the tapes available for dubbing. While the decision was too late to affect Mr. Irons's project, researchers now must pay $60 per argument for copies.

But in 1991, the administrative assistant to Chief Justice William H. Rehnquist sent Mr. Irons a letter applauding the project.

"I know they will contribute to educators' and the public's understanding of the Court's role and the function of oral argument,'' Robb M. Jones, the Court aide, wrote of the tapes.

Last month, Toni House, the Court's public-information officer, issued a statement that said, "In light of this clear violation of Professor Irons' contractual commitments, the Court is considering what legal remedies may be appropriate.''

The Court has said nothing further on the matter since then, but the Justices may consider the issue when they return to work at the end of this month for the conference that precedes the Oct. 4 opening of the new term, a court spokesman said.

Mr. Irons, a former draft resister who admits to having a penchant for challenging authority, said he expects one of three things to happen: The Court will drop the matter and it will blow over, the Court will issue a statement rebuking the project, or the Court or the archives will file a breach-of-contract suit.

"But there are serious problems with that,'' he said. "The alleged contract operates solely as a prior restraint.''

The Voice of Thurgood Marshall

As for the tapes themselves, the editors have trimmed each hourlong argument down to about 20 minutes, eliminating portions that may be too technical for most listeners while adding some helpful narration to put the dialogue into context.

The collection includes severalmajor education cases since the 1950's. Listeners can hear Thurgood Marshall, then a lawyer with the NAACP Legal Defense and Educational Fund, argue for the rights of black children to attend the Little Rock, Ark., public schools in the 1958 arguments in Cooper v. Aaron.

In a case 10 years later, then-Associate Justice Marshall has some tough questions for the school-district lawyers in Tinker v. Des Moines School District, which upheld the right of students to wear armbands to protest the Vietnam War.

Other education cases in the collection include Edwards v. Aguillard, which struck down Louisiana's law requiring balanced treatment of creationism; Wisconsin v. Yoder, which allowed Amish children to be exempted from compulsory-education laws; and San Antonio v. Rodriguez, in which the Court refused to strike down funding disparities between school districts.

Mr. Irons said he selected several education cases because "a lot of the important political and constitutional issues in our society relate to schools.''

Justices Are 'Really Human'

But cases from other areas of law may prove just as interesting in the classroom.

Margo Bergen, a history teacher at Samuel Gompers Secondary School in San Diego, was one of several teachers able to test the tapes of some cases after attending a seminar with Mr. Irons two years ago.

Ms. Bergen has used the oral arguments from Roe v. Wade and the Pentagon Papers case, New York Times v. United States, in her history classes the past two years.

"My students liked finding out what really goes on in the Supreme Court,'' she said. "To really hear the actual voices was very valuable.''

She added that the students were surprised to hear laughter erupt in the courtroom during one argument.

"It just made everything so human,'' she said. "My kids like finding out that people in history are really human.''

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