What the Supreme Court Thinks of the Press and Why It Matters

Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging. This Essay explores this trend, setting forth evidence of the Court’s changing view of the media—from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the more skeptical, tepid, or derogatory portrayals in recent years. It considers possible causes of this change in rhetoric and then explores the potential First Amendment consequences of the change. The Essay argues that there is a very real risk that these trends could lead to the impoverishment of a wider array of First Amendment rights. Because the jurisprudential pattern has long suggested that general speakers and press speakers rise and fall together, wider First Amendment values that have been enhanced in U.S. Supreme Court cases brought by the positively characterized media could be diminished as the Court’s view of the media diminishes. The downward trend in press characterizations may therefore be cause for broader concern about the vitality and stability of First Amendment rights