Short Take: Is Free Press At Risk?

An interesting study suggests that the Supreme Court is unimpressed with the fortitude, competence and basic reliability of the media, and has been for the past decade.

“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.

10 thoughts on “Short Take: Is Free Press At Risk?

  1. Hunting Guy

    William J. H. Boetcker.

    “Freedom of press and freedom of speech: What a blessing for a country while in the hands of honest, patriotic men; what a curse if in the hands of designing demagogues.”

  2. Dan

    “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,”

    But surely that problem rests entirely with the Court, right? There’s nothing the press, en masse, could have done to contribute to, much less directly cause, this result? The lack of self-awareness amongst all this hyperventilating really is distressing, if not entirely surprising.

    There are two bright points in this mess. The first, as you mention, is that despite any unease the Court may have with the press, they haven’t shown any appetite for limiting freedom of speech and the press. The second, compared to four years ago, is that it’s completely in the open–everyone watching knows that the press will freely lie to support their preferred narrative. There’s no concern for accuracy at all; it’s always and only about propaganda for whatever they perceive their side to be.

    There was a time, not that long ago, that I’d rebuttably presume that at least the basic facts of a news report were accurate. Even then, I wouldn’t place much confidence in their analysis or inferences, but at least the facts were (I presumed) correct. Not today–if CNN told me the sun would rise in the east tomorrow morning, I’d want verification.

    1. Quino

      Not today–if CNN told me the sun would rise in the east tomorrow morning, I’d want verification.

      If NYTimes can win a Pulitzer for Walter Duranty’s Stalinist propaganda (it was never revoked), you should win one for your above comment.

      If nothing else they remind us of how sane we are when we use them as a baseline.

    2. norahc

      This seems like a natural consequence of the press selling its integrity of reporting accurate facts and replacing it with “truth” and social justice lessons.

      Once you’ve sold your integrity, you can never get it back.

      1. DS

        Really, this is a consequence of the decline in media revenue. Craigslist killed the classified section, which killed the business model of most local newspapers, and the internet in general has killed physical paper sales.

        The result is that the pay for new journalists is shit, even at established papers like NYT & WaPo, and even getting a position often involves unpaid internships. And the kids willing to take those deals tend to be the kids from rich families that can pay their bills anyways. So you end up with new journalists at this brand-name outlets who are there because of who their parents are, not just because of their journalism chops.

        So your big name papers are massively overrepresented by people from upper-class backgrounds with Ivy League degrees. And the culture is thusly shifting in that direction as well. I can’t include links, but The Harvard Crimson has a story published in 2003, titled “Ruined Snow Penis Stimulates Debate”. In this story, a bunch of angry students destroyed a (fairly detailed) giant snow penis, and it interviews the students and professors talking about why this statue offended them.

        What makes that story relevant, is when it happened, because the ones getting offended over snow penises are the same ones now picking the stories that run at these papers.

  3. DaveL

    Honestly, if one of our current justices were to include in a decision some gushing praise about the trustworthiness of the press, I would be seriously worried their cheese had slid off their cracker.

  4. B. McLeod

    The obvious decline of the media to a perpetually unreliable shitshow has apparently not escaped notice at the court. This doesn’t mean that the court won’t recognize first amendment protections. On the other hand, those don’t apply to the punitive Internet campaigns of the Outrage Mob.

  5. KP

    Nah, this is just softening us up for Biden’s expansion of the Supreme Court with a set of judges who will sort this problem out.

  6. John Barleycorn

    The comeback of the Zine scene was inevitable.

    Got room in your garage for a printer?

    The Nine will love it!!!!

    Heck, they might even write you letters….

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