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Tuesday, January 10, 2012

Not a Free Press Court

The New York Times recently published the results of a study showing that the Roberts Court "is hearing fewer First Amendment cases and is ruling in favor of free speech at a lower rate than any of the courts led by the three previous chief justices." The conclusion that the Roberts Court is not a "free speech" court is provocative because it runs contrary to a prevailing scholarly impression, based no doubt on cases like Citizens United, Snyder v. Phelps, and U.S. v. Stevens, that the Roberts Court "is exceptionally supportive of free speech."

Although that impression may prevail with regard to speech cases (but see Erwin Chemerinsky's article, Not a Free Speech Court), media law scholars certainly have a different impression with regard to press cases. Although the Supreme Court heard oral arguments today in a very important media case, FCC v. Fox Television Stations, the impression among media law scholars is that the Court in the last decade or so has not been taking "press" cases at the same rate it did in, say, the early 1990s or before. Given that the last ten years has been a period of tremendous change and upheaval for the mass media, the dearth of Supreme Court "press" cases during this time (if such dearth exists) is particularly striking, The New York Times article prompted me to see if I could provide some quick and dirty evidence for the existence of the dearth.

To do so, I examined the 2011 edition of a leading Mass Media Law casebook with which I'm intimately familiar to see how many Supreme Court cases decided in 2000 or later had been added to the book, either as principal cases or merely as note cases. My assumption was that any major press case, and likely even any tangential press case, decided by the Supreme Court in the last 10-12 years would find its way into the book in one form or another. Here's what I found, for what it is worth. Since 2000, the following four Supreme Court cases were added to the media law canon as principal cases: Bartnicki v. Vopper (2001); Doe v. Reed (2010); National Archives and Records Admin. .v Favish (2004); and Playboy Ent. Group, Inc. v. U.S. (2000). Note that only one of these cases was added after 2005, though these principal cases are likely to be joined in this year's supplement by the forthcoming FCC v. Fox Television Stations (expected 2012) and by Brown v. Entertainment Merchants Ass'n (2011); and perhaps by Reichle v. Howard (expected 2012) and the Stolen Valor Act case (expected 2012). With regard to note cases, some of which have only attenuated relevance to media actors, the following Supreme Court cases were added to the casebook since 2000: Ashcroft v. ACLU I (2002); Ashcroft v. ACLU II (2004) ; Boumediene v. Bush (2008); Citizens United v. FEC (2010); Dept. of Interior v. Klamath Water Users Protective Ass'n (2001); Eldred v. Ashcroft (2003); Garcetti v. Ceballos (2006); Hamdan v. Rumsefled (2006); Hamdi v. Rumsfeld (2004); McConnell v. FEC (2003); M.K.B. v. Warden (2004); New York Times v. Tasini (2001); Presley v. Georgia (2010); Rasul v. Bush (2004); Reno v. Condon (2000); Snyder v. Phelps (2011); U.S. v. Stevens (2010); Tory v. Cochran (2005); and U.S. v. Williams (2008). What does one make of this data? Standing alone, not much. First, the data is useless unless one trusts the subjective judgments of the casebook authors as to the significance or relevance of the selected Supreme Court cases to the media. Moreover, without a way to compare the number of "major" press cases decided in the last 10 years to the number decided before, it is hard to say for sure that the Supreme Court is deciding fewer press cases than it did in the past. Even if one could say this for sure, the decline in the number of Supreme Court cases involving the institutional press is no doubt partly attributable to the fact that the institutional press has fewer economic resources to devote to litigation in today's highly competitive media environment. Despite that, it does seem there is some basis--at least enough to spur further research--for concluding that the Supreme Court today is not addressing many press cases. For my own part, assembling the small list of potentially relevant Supreme Court press cases decided since 2005 makes me want to dig into the individual cases to discover what role the Roberts Court envisions for the institutional press. As I will detail in a future blog post, the Roberts Court gave more than a glimpse of that role in dicta in the Citizens United case, though whether the arguments it made there have broader significance for the press remains to be seen.


Posted by Lyrissa Lidsky on January 10, 2012 at 04:11 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink


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Very instructive post Lyrissa. My sense is that this Court is actually not very interested in speech issues unless they involve commerce in some way, and with respect to sellers' interest they've been (in the main) very protective. Whether this much expands freedom of expression generally is of course another story.

Posted by: Tamara Piety | Jan 13, 2012 12:28:18 PM

Nice post, Lyrissa! I look forward, needless to say, to your thoughts on the institutional press and the Press Clause, and hope readers will check out Sonja West's Awakening the Press Clause piece as well.

Posted by: Paul Horwitz | Jan 10, 2012 9:05:25 PM

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