WASHINGTON – Last month in a dissent in a routine libel case, a prominent federal judge hit the news media.
“Two of the three most influential newspapers (at least historically), the New York Times and the Washington Post, are practically broad sheets of the Democratic Party,” he wrote Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. “And the Wall Street Journal news section goes in the same direction.”
“Almost all television – network and cable – is a trumpet of the Democratic Party,” he wrote. “Even the government-sponsored National Public Radio follows suit.”
The dissent confirmed a 2019 statement from Justice Clarence Thomas asking the Supreme Court to reconsider New York Times versus Sullivan, the landmark 1964 ruling that made it difficult for officials to win libel suits.
“The New York Times and the court decisions that expand it were policy-driven decisions disguised as constitutional law,” wrote Judge Thomas. in the a dissent in a criminal case a few months later he wrote quoting an earlier opinionthat “the media often tries to” tickle “rather than educate and inform”. “
No other member of the Supreme Court followed Judge Thomas’ position in asking him to reconsider the 1964 fundamental libel ruling, and Judge Silberman’s objection was widely criticized. J. Michael Luttig, a former federal appellate judge who was on President George W. Bush’s short list of potential candidates for the Supreme Court, described the dissent as shocking and dangerous at the same time Opinion paper in the Washington Post Last month.
But the negative views from the news media bank may not be outliers. A new study, published in The North Carolina Law Review, documents a broader trend in the Supreme Court. The study tracked every reference to the news media in judges’ opinions since 1784 and found “a marked and previously undocumented increase in negative pressures by the US Supreme Court”.
The study was not limited to cases involving initial adjustment rights. It took into account “all references to the press in its journalistic role, to the exercise of generally understandable press functions or to the right to freedom of the press”. Many of these references were commented on in decisions on subjects as diverse as antitrust or criminal law.
“A generation ago the court actively taught the public that the press was a government scrutiny, a trusted source of accurate reporting, an institution to be protected from regulation, and an institution with specific constitutional freedoms,” the study’s authors write. RonNell Andersen Jones, a law professor at the University of Utah, and Sonja R. West, a law professor at the University of Georgia. “In contrast, it almost never speaks of the press, freedom of the press or press functions, and when it does, it is mostly less positive.”
Compare, for example, those of Justice Hugo Black consensus opinion 1971 in the Pentagon Papers case, which enabled the publication of a secret history of the Vietnam War with Justice Anthony M. Kennedys Majority opinion in 2010 in the Citizens United case campaign funding.
Justice Black wrote, “The New York Times, Washington Post, and other newspapers should be commended for the purpose the Founding Fathers so clearly saw.”
“In exposing the functioning of the government that led to the Vietnam War,” he wrote, “the newspapers did exactly what the founders hoped and trusted they would do.”
In contrast, Justice Kennedy lamented the “decline of the print and broadcast media” and the “sound bites, talking points and scripted messages that dominate the 24-hour news cycle”.
There may be many reasons for the shift documented in the study beyond a change in attitudes in the judiciary. The news media may have become less trustworthy and more ideologically distorted. It has certainly become more diverse and more difficult to define. And it has been the subject of relentless attacks from politicians, particularly former President Donald J. Trump.
“A shift could be expected,” Professor Jones said in an interview. “But the consistency and degree were pretty amazing. In relation to any reasonable action we could take, the current court is far less positive on press issues. “
The study found that conservative judges were always more likely to write negative things about the press. The new development is that liberal judges now have little good things to say about it.
“The press therefore seems to see the double mess of compound negativity from the ideological group at court that was historically negative (the conservative judges) and a loss of positivity from the ideological group that was historically positive (the liberal) judges ) “, Says the study. “The ideology simply no longer predicts positive treatment.”
Professor Jones said she was particularly affected by one data point: “In more than a decade, there has not been a single positive indication of the trustworthiness of the press by a judiciary in court,” she said.
After examining “more than 8,000 characterizations of the press over 235 years”, the study concluded that “there is not a single indicator that speaks well of the press position before the current US Supreme Court”.
“The prognosis for the treatment of the press at the US Supreme Court,” said the study, “could be terrible.”