“A generation ago, the court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation and an institution with specific constitutional freedoms,” wrote the study’s authors, RonNell Andersen Jones, a law professor at the University of Utah, and Sonja R. West, a law professor at the University of Georgia. “Today, in contrast, it almost never speaks of the press, press freedom or press functions, and when it does, it is in an overwhelmingly less positive manner.”
Recently, D.C. Circuit Judge Laurence Silberman let loose a bizarre rant in a dissent that was widely criticized.
“Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets,” wrote Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. “And the news section of The Wall Street Journal leans in the same direction.”
Whether you agree with Judge Silberman or not, such a flagrant display of partisanship was shockingly self-indulgent, even for a dissent. But the fact that the Supreme Court, as a whole, hasn’t had much nice to say about the media in a long time goes well beyond Judge Silberman’s intemperate comments.
“Some shift might be expected,” Professor Jones said in an interview. “But the uniformity and degree of it was pretty staggering. On every meaningful measure we could come up with, the current court is significantly less positive about press-related matters.”
Is this because of the dreaded conservative majority the media keeps telling us about, who will reverse every decision revered by the left any moment now?
The study found that conservative justices have always been more apt to write negative things about the press. The new development is that liberal justices now have little good to say about it.
“The press, therefore, seems to be experiencing the double whammy of compounded negativity from the ideological group at the court that has been historically negative (the conservative justices) and a loss of positivity from the ideological group that has been historically positive (the liberal justices),” the study said. “Ideology is simply no longer predictive of positive treatment.”
How is this possible, the unduly passionate might wonder? Could it be, one might reply, that the justices might have their policy preferences, their perspectives, but they are still of the view that facts, accuracy and reason are preferable to “moral clarity,” the phrase that so many journalists have embraced as an excuse to only tell the side of the story, the detail, that lead a reader to the conclusion that they believe to be correct?
The concern is that the Court, which was very protective of the media’s legitimacy in defying authority as demonstrated in the Pentagon Papers case and New York Times v. Sullivan, might be less inclined to protect the press if they’re indistinguishable from partisans.
Professor Jones said she was struck by one data point in particular: “There hasn’t been a single positive reference to the trustworthiness of the press from any justice on the court in more than a decade,” she said.
After examining “more than 8,000 characterizations of the press over the course of 235 years,” the study concluded that “there is not a single indicator that bodes well for the press’s position before the current U.S. Supreme Court.”
“The forecast for press treatment at the U.S. Supreme Court,” the study said, “may be dire.”
Whether the Court, despite its misgivings about the integrity of the media, would sacrifice the First Amendment’s protection of a free press is unclear, but we’re not quite at a place where the Court, Justice Thomas notwithstanding, is ready to jettison constitutional rights even when they’re not used as well as one might hope.
That said, this is hardly a ringing endorsement, even from the so-called “liberal wing” of the Court for the media’s forfeiture of principle to deceive the public into only knowing what it decides they deserve to know. Some of us, at least, would much prefer to learn the facts and draw our own conclusions, rather than be fed the deeply valuable views of 23-year-old humanities majors and a few unduly passionate believers in the cause.