WASHINGTON — Last month, in a dissent in a routine libel case, a prominent federal judge lashed out at the news media.
“Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets,” wrote Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. “And the news section of The Wall Street Journal leans in the same direction.”
“Nearly all television — network and cable — is a Democratic Party trumpet,” he wrote. “Even the government-supported National Public Radio follows along.”
The dissent endorsed a 2019 opinion from Justice Clarence Thomas calling for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling that made it hard for public officials to win libel suits.
“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote. In a dissent in a criminal case a few months later, he wrote, quoting a previous opinion, that “the media often seeks ‘to titillate rather than to educate and inform.’”
No other member of the Supreme Court joined Justice Thomas’s opinion urging it to revisit the foundational 1964 libel decision, and Judge Silberman’s dissent was widely criticized. J. Michael Luttig, a former federal appeals court judge who was on President George W. Bush’s short list of potential Supreme Court nominees, called the dissent shocking and dangerous in an opinion essay in The Washington Post last month.
But the negative views from the bench of the news media may not be outliers. A new study, to be published in The North Carolina Law Review, documents a broader trend at the Supreme Court. The study tracked every reference to the news media in the justices’ opinions since 1784 and found “a marked and previously undocumented uptick in negative depictions of the press by the U.S. Supreme Court.”
The study was not limited to cases concerning First Amendment rights. It took account of “all references to the press in its journalistic role, to the performance of commonly understood press functions or to the right of press freedom.” Many of these references were in passing comments in decisions on matters as varied as antitrust or criminal law.
“A generation ago, the court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation and an institution with specific constitutional freedoms,” wrote the study’s authors, RonNell Andersen Jones, a law professor at the University of Utah, and Sonja R. West, a law professor at the University of Georgia. “Today, in contrast, it almost never speaks of the press, press freedom or press functions, and when it does, it is in an overwhelmingly less positive manner.”
Compare, for instance, Justice Hugo Black’s concurring opinion in 1971 in the Pentagon Papers case, allowing publication of a secret history of the Vietnam War, with Justice Anthony M. Kennedy’s majority opinion in 2010 in the Citizens United campaign finance case.
Justice Black wrote that “The New York Times, The Washington Post and other newspapers should be commended for serving the purpose that the founding fathers saw so clearly.”
“In revealing the workings of government that led to the Vietnam War,” he wrote, “the newspapers nobly did precisely that which the founders hoped and trusted they would do.”
Justice Kennedy, by contrast, lamented “the decline of 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 judicial attitudes. The news media may have become less trustworthy and more ideologically skewed. It has certainly become more various and harder to define. And it has been the subject of relentless attack from politicians, notably former President Donald J. Trump.
“Some shift might be expected,” Professor Jones said in an interview. “But the uniformity and degree of it was pretty staggering. On every meaningful measure we could come up with, the current court is significantly less positive about press-related matters.”
The study found that conservative justices have always been more apt to write negative things about the press. The new development is that liberal justices now have little good to say about it.
“The press, therefore, seems to be experiencing the double whammy of compounded negativity from the ideological group at the court that has been historically negative (the conservative justices) and a loss of positivity from the ideological group that has been historically positive (the liberal justices),” the study said. “Ideology is simply no longer predictive of positive treatment.”
Professor Jones said she was struck by one data point in particular: “There hasn’t been a single positive reference to the trustworthiness of the press from any justice on the court in more than a decade,” she said.
After examining “more than 8,000 characterizations of the press over the course of 235 years,” the study concluded that “there is not a single indicator that bodes well for the press’s position before the current U.S. Supreme Court.”
“The forecast for press treatment at the U.S. Supreme Court,” the study said, “may be dire.”