Previously posted on SSRN.

Abstract

At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue appears to be taking place against a mistaken foundational assumption: that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Despite the First Amendment text specifically referencing it—and despite a Roberts Court trend toward other First Amendment expansiveness—freedom of the press is disappearing from the United States Supreme Court’s lexicon. Although the process has gone largely unnoticed, the concept of a free press has almost entirely vanished at the highest court in the land. Our individually coded dataset, capturing every paragraph mentioning the press written by all 114 Justices in 235-year history of the Court, shows that in the last half-century the Court’s references to the concept of freedom of the press have dramatically declined. They are now lower than at any other moment since the incorporation of the First Amendment. The jurisprudential desertion of this concept is evident in every quantitative and qualitative measure we analyzed. Press freedom was once a commonly adopted frame, with the Court readily acknowledging it, both on its own and as a co-existing First Amendment right alongside the freedom of speech. Justices of the Court once routinely recognized it—not only in cases focused on the media, but also in cases not involving the press. The data reveal that these practices are a thing of the past. Gone are not only the ringing, positive endorsements of freedom of the press—situating it as valuable, important, or central to democracy—but also the bare acknowledgement of it at all. A close investigation of the patterns of individual Justices reveals not only that there are no true advocates of the right on the current Court, but also that most of the current Justices have rarely, if ever, mentioned it in any context. The Article addresses both the possible causes and the troubling consequences of this decline. It explores strong evidence contradicting many of the initially appealing explanations for the trend, examining the ways in which the phenomenon is unlikely to be solely a function of the Court’s smaller press-related docket or reliance on settled law in the area. It also examines data on the interrelationships between ideology and acknowledgement of freedom of the press. The Article highlights the ways in which the disappearance of the press-freedom principle at the Court may impede the newly revived effort to invoke the constitution as a tool for preserving the flow of information on matters of public concern.

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