Originally published on SSRN.

Abstract

The erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of the President’s and legislators’ characterizations of the news media, one branch of government has
received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This Article presents the findings of the first comprehensive empirical examination of the Court’s depictions of the press. We tracked every reference to the press by a U.S. Supreme Court Justice in the Court’s opinions since 1784. We coded these references to the press (broadly defined by the Justices themselves) for the presence of common frames and whether the frame was conveyed with a positive, negative, or neutral tone. The results of our study reveal troubling trends at the Court with widespread implications for any discussion of contemporary press freedom. We find that there has been a stark deterioration in both the quantity and quality of the Court’s depictions of the press across a variety of measures. Our data show that the Justices are now less likely to talk about the press than they were in the past, and that, when they do, it is more often in a negative light. At this decisive moment, when we have seen the risks of executive and legislative branch attacks on the press, our study finds that the U.S. Supreme Court is not pushing back. It also illuminates the press-characterizing behaviors of the most and least press friendly Justices of all time and of the Justices currently on the bench, providing insights into patterns that might be expected in the years to come.

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