The Supreme Court’s increasingly bleak view of the news media

WASHINGTON — Last month, in a dissent in a routine libel case, a prominent federal judge hit out at the media.

“Two of the three most influential newspapers (at least historically), The New York Times and The Washington Post, are practically broadsheets of the Democratic Party,” wrote State Court of Appeals Judge Laurence H. Silberman. States for the District of Columbia circuit. “And the news section of the Wall Street Journal is leaning in the same direction.”

“Virtually all television — network and cable — is a Democratic Party trumpet,” he wrote. “Even the government-backed National Public Radio is following suit.”

The dissent endorsed a 2019 opinion by Justice Clarence Thomas calling on the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 decision that made it difficult for officials to win libel suits.

“The New York Times and the court decisions that extended it were political decisions disguised as constitutional law,” Judge Thomas wrote. In a dissent in a criminal case a few months later, he wrote, quoting an earlier opinion, that “the media often seek to ‘titillate rather than educate and inform'”.

No other member of the Supreme Court joined Justice Thomas’s opinion urging him to revisit the landmark 1964 libel ruling, and Justice Silberman’s dissent was widely criticized. J. Michael Luttig, a former federal appeals court judge who was on President George W. Bush’s shortlist of potential Supreme Court nominees, called the dissent shocking and dangerous in an opinion piece that appeared in the Washington Post last month.

But the negative opinions of the media bench may not be outliers. A new study, to be published in The North Carolina Law Review, documents a broader trend at the Supreme Court. The study tracked every reference to the news media in judges’ opinions since 1784 and found “a marked and previously undocumented increase in negative portrayals of the press by the United States Supreme Court.”

The study was not limited to cases involving First Amendment rights. He took into account “all references to the press in its journalistic role, to the exercise of commonly understood press functions or to the right to freedom of the press”. Many of these references were passing comments in decisions on issues as varied as antitrust or criminal law.

“A generation ago, the court actively taught the public that the press was a check on government, a trusted source of accurate coverage, an entity to be specially protected from regulation, and an institution with specific constitutional freedoms,” they said. writes the study’s authors, RonNell. Andersen Jones, professor of law at the University of Utah, and Sonja R. West, professor of law at the University of Georgia. “Today, by contrast, he almost never speaks about the press, press freedom or the functions of the press, and when he does, it is in a drastically less positive way.”

Compare, for example, Judge Hugo Black’s 1971 concurring opinion in the Pentagon Papers case, authorizing publication of a secret history of the Vietnam War, with Judge Anthony M. Kennedy’s 2010 majority opinion in Citizens United campaign finance case.

Judge Black wrote that “The New York Times, The Washington Post, and other newspapers should be commended for serving the purpose which the Founding Fathers saw so clearly”.

“In revealing the workings of government that led to the Vietnam War,” he wrote, “the newspapers nobly did precisely what the Founders hoped and hoped they would do.”

Justice Kennedy, on the other hand, lamented “the decline of print and broadcast media” and the “soundbites, talking points and scripted messages that dominate the 24-hour news cycle”.

There may be many reasons for the change documented in the study beyond a change in judicial attitudes. The news media may have become less reliable and more ideologically biased. It has certainly become more varied and more difficult to define. And it has come under relentless attack from politicians, including former President Donald J. Trump.

“One would expect some change,” Professor Jones said in an interview. “But the consistency and degree of it was quite staggering. On every meaningful measure we could propose, the current tribunal is significantly less positive on press-related issues.

The study found that conservative judges have always been more likely to write negative things about the press. The new development is that liberal justices now have little to say about it.

“The press therefore seems to be suffering the double whammy of compounded negativity from the ideological group in the court that has been historically negative (the conservative judges) and a loss of positivity from the ideological group that has been historically positive (the liberal judges),” the study states, “Ideology is simply no longer predictive of positive treatment.”

Prof Jones said she was struck by one data point in particular: “There hasn’t been a single positive reference to the reliability of the press from a judge in court for more than a month. a decade,” she said.

After examining “more than 8,000 characterizations of the press over 235 years”, the study concluded that “there is not a single indicator that bodes well for the position of the press before the current Court Supreme Court of the United States”.

“The forecast for the treatment of the press in the Supreme Court of the United States,” according to the study, “could be dire.”

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