Study Shows Increasing U.S. Supreme Court Skepticism of the Press
Published May 2021
Despite avowed threats to media freedom in recent years, the U.S. Supreme Court and lower courts have showed general fealty to the landmark New York Times v. Sullivan decision by the U.S. Supreme Court that set the modern standard for defamation law and understanding of the First Amendment. In short, First Amendment law has not substantially changed in the last few years, despite the expressed desires of some.
But a new study scheduled to be published in the North Carolina Law Review does show an apparent decline in the U.S. Supreme Court’s view of the press. The study examined all of the official decisional documents issued by the court from its origin in 1798 until July 2020, and concluded that “[t]he vilification of the press by the political branches—a focus of significant concern in recent years—is matched by a marked and previously undocumented uptick in negative depictions of the press by the U.S. Supreme Court.”
The study, by First Amendment scholars RonNell Andersen Jones of the University of Utah and Sonja R. West of the University of Georgia, examined all majority, concurring and dissenting opinions issued by the court, as well as dissents from denial of review (denial of certiorari) and statements issued on recusal decisions and stay applications. The researchers included such documents from all of the court’s cases, not just those that involved media parties or issues. Within these documents, the researchers looked for any discussion of the press, and characterized each mention.
The study found that there were scant mentions of the press until the 1930s, and reached a high in the 1970s. In the recent decade in the study, the 2010s, the rate was roughly what it was in the ‘30s. This is partially the result of the Court hearing—and thus acting on—fewer cases in recent years that it did through most of the 20th century, as well as a burst of free speech and press decisions in the ‘70s. “[A]s a practical matter,” the researchers conclude, “the Court today is erasing the work of the press from its public discourse.”
But in the reduced mentions of the press, the authors observe that later mentions cast the media in a more negative light than previously. “Not only is the Court talking about the press much less often than it once did,” they write, “when it does talk about the press, it is now more likely to do so in a negative, rather than a positive, manner.”
For example, in concurring with the Court’s unsigned, unanimous opinion in 1971 that the government could not stop The New York Times and other newspapers from publishing the Pentagon Papers, an official history of the Vietnam War, Justice Hugo Black justified the ruling on the basis that “the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.” But in the 2010 Citizens United case—in which the Court held that limits on corporations’ independent spending on election campaigns violated the First Amendment—the majority opinion by Justice Anthony Kennedy noted “the advent of the Internet and the decline of print and broadcast media,” and bemoaned “[s]peakers [who] have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle.”
Based on their results, the authors conclude that “our findings make clear that any assumption that the Court is poised to be the branch that defends the press against disparagement is misplaced. Instead, these sharply negative tone trends suggest that the judicial road ahead for the American press will be bumpy.” This remains to be seen, since the Supreme Court has not accepted a case directly involving application of the First Amendment to the news media in many years. But it also shows why many First Amendment lawyers are wary of such a case ever being presented to the nation’s highest court.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.