The Supreme Court and the press: Identifying ‘heroes and villains’ of press freedom throughout history
Press freedom may be at risk of disappearing, according to two law professors who recently conducted an extensive study about the Supreme Court justices’ attitudes toward freedom of the press.
Professors RonNell Anderson Jones and Sonja R. West discussed their study during a Zoom conversation on Oct. 17 hosted by The Media School’s Center for International Media Law and Policy Studies and the Barbara Restle Press Freedom Project. CIMLAPS director and associate professor Anthony Fargo moderated the discussion.
Jones is the Teitelbaum Chair in Law at the University of Utah and an affiliated fellow at the Yale Law School Information Society Project. She is a former law clerk for Judge William A. Fletcher of the Ninth Circuit Court of Appeals and United States Supreme Court Justice Sandra Day O’Connor.
West is the Brumby Distinguished Professor in First Amendment Law at the University of Georgia School of Law. She is a former law clerk for Judge Dorothy W. Nelson of the Ninth Circuit Court of Appeals and United States Supreme Court Justice John Paul Stevens.
Both Jones and West have written extensively about the intersection of the law and the press and have been published in top law journals. Their current study looked at the attitudes of both individual justices and the Supreme Court as a whole toward press freedom.
This study came about as Jones and West took notice of the more negative rhetoric surrounding the press that seemed to become more prevalent during Donald Trump’s candidacy and presidency.
Jones and West said they were interested in whether the Supreme Court’s characterization of the press and freedom of the press were also changing.
To study this question, Jones and West analyzed every reference to the press in Supreme Court decisions throughout the entire history of the Supreme Court, which ended up being around 9,000 different references.
Each of these 9,000 references were coded with at least one of eight press-related frames, which included categories such as freedom of the press as a constitutional right, the effect of the press on individuals, the press as a means of communicating information and the press as a tool of government accountability. Each of these characterizations of the press was also coded as having a positive, negative or neutral tone.
Jones and West wanted to consider both how frequently each Supreme Court justice talked about the press and whether the tone of each reference was positive, negative or neutral.
Through this categorization, their study identified some clear “heroes and villains” of advocating for press freedom.
The three heroes are Justices Hugo Black, William Douglas and William Brennan. In particular, Justices Black and Douglas talked about the press with the most frequency and the most positivity.
The high point of press freedom in Supreme Court jurisprudence was in the 1960s and ’70s, an era that saw events such as the Pentagon Papers and the New York Times v. Sullivan case. The Sullivan case was a unanimous decision authored by Justice Brennan that held that public officials have a limited ability to sue for defamation.
The villain of press freedom is Justice Byron White, a contemporary of the heroes.
“Justice White talked about the press in a negative tone all the time and took the opportunity to do so with some frequency,” Jones said.
Modern justices tend to talk about freedom of the press less frequently and less positively than their predecessors, according to the study. In fact, the Roberts Court-era numbers are returning to numbers just as low or lower than before the Court initially recognized press freedom as a right, West said.
Historically, justices used to say “freedom of speech and of the press,” but now “they simply say freedom of speech, and then they stop,” Jones said. Supreme Court justices no longer talk about the press as the “democracy-enhancing, important fourth estate.”
“We were trying to capture this much more ambiguous thing, which was how the court was talking to the public about the press and the role of the press,” West said. “That characterization is really what we have seen just plummet.”
One potential explanation for this difference is that the Supreme Court is becoming more right-wing than in the past. However, Jones and West found that ideology did not account for this more negative attitude toward press freedom.
“Ideology doesn’t make for a perfectly neat explainer,” Jones said. “It is not the case that the court has simply moved to the right and with that has come a sort of downward opinion of the press and therefore a disappearance of the concept of freedom of the press. The court’s current liberal justices are also not doing much to keep the concept alive and vibrant.”
For example, their study showed that liberal Justice Sonia Sotomayor has never made a positive reference to the press in all her years on the court. She has served on the Supreme Court since 2009.
Another possible explanation is that the Supreme Court is talking about the press more negatively than before because the Court is mirroring the general public and losing trust in the media. This idea is one West said they were interested in looking further into.
“Thinking about all of those moving parts is what makes the trust project so complicated because we’re seeing declines, but we’re also seeing a shifting media landscape and the court itself is an institution that is losing trust,” Jones said. “It’s a very curious dynamic to be tracking the lack of the court’s trust in the press while the public’s trust in the court is itself declining.”