At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, 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. Yet despite the First Amendment text specifically referencing it and the Roberts Court’s claims of First Amendment expansiveness, freedom of the press is quietly disappearing from the Court’s lexicon.
Our individually coded dataset, capturing every paragraph mentioning the press written by all 114 Justices in the 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 on its own and as a coexisting First Amendment right alongside the freedom of speech. Indeed, Justices routinely recognized this right in cases not involving the press. The data reveal that this practice is a thing of the past. Gone are not only the ringing, positive endorsements that situated freedom of the press as valuable, important, or central to democracy but also the bare acknowledgements of the right at all. A close investigation of individual Justice’s patterns, moreover, reveals that there are no true advocates of the right on the current Court and that most of the current Justices have rarely, if ever, mentioned it in any context.
This 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 decreasing press-related docket or its reliance on settled law in the area. It also explores data on the interrelationships between ideology and acknowledgement of freedom of the press. The disappearance of the principle of press freedom 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.