U.S. Media’s Legal Standing May Be on ‘Shaky Ground’ Given How U.S. Supreme Court Now Views the Press — Study Co-Author

We know the immediate former United States president’s characterizations of the press. We may have a good idea of U.S. Congress’ as well. But what about the other branch of the U.S. federal government, the U.S. Supreme Court?

RonNell Andersen Jones and Sonja R. West have studied the court’s writings going back to 1784 to understand that.

The professors found that given the court’s recent opinions of the news media, the press’ legal standing may be on “shaky ground,” Jones told the audience at “Free Speech in the 21st Century,” an international freedom-of-speech conference held virtually July 3–4, 2020.

The U.S. Supreme Court building (photo credit: Susan Walsh/AP Photo)

As it is in the executive and legislative branches of the federal government, confidence in the media is also “waning” in the Supreme Court, Jones said.

Jones and West are from the University of Utah and University of Georgia colleges of law, respectively. They divided all references by the court to the press into categories or “frames” of characterization. Then, they coded whether it was depicting that frame positively, negatively, or neutrally, Jones explained while giving a slideshow titled “United States Supreme Court characterizations of the press,” a presentation of the academics’ study. Jones and West mapped their data featuring the most and least friendly justices and their ideology and attitudes toward the press.

The New York Times reports on the Pentagon Papers. (photo credit: Real News Network)

Their mapping also captured positive terminology regarding the press — references like it being a check on the powerful, as a “watchdog,” that creates accountability and helps the public make decisions. The professors’ mapping also showed that the court spoke positively of the press during the media’s “glory days,” when it reported on the Pentagon Papers and there was a view of “heroism within journalism,” Jones said.

While the court is not saying the press is “bad for democracy” — at least not yet — the court is not lauding the media like it once did, Jones said.

Then there was “a wave of constitutional jurisprudence … known as originalism” that conservatives on the court abide by “to this day,” Jones said. But they haven’t abode by that philosophy when it comes to press freedom, Jones said. This means that the court has shown huge recent interest in the intent of the framers in constitutional areas like gun rights or police searches. But, “in these recent time periods where we might expect a lot of reference to the framers, we are not seeing originalist references to the intent of the framers on questions related to the press,” Jones said.

Prof. RonNell Andersen Jones (photo credit: University of Utah)

The court’s support of the press has “decreased” and “starkly so,” Jones said.

When the court speaks in certain “framings” — particularly the “trustworthiness frame” and the “impact-on-people frame” — it spells “bad news for the media,” Jones said.

The press has been framed by the court “as having an impact on people,” Jones said.

In the past, “negative references (by the court) were tempered by neutral ones,” Jones said.

The court isn’t doing such tempering currently for the “impact-on-people frame,” Jones said.

“They used to say some neutral things and some negative things, and now say almost exclusively negative things,” Jones said.

“The benefit of the doubt (from the court), basically, is essentially gone,” Jones said.

Jones noted that in the “glory days” of the press, there was a “much more mixed bag on tone” from the court. While previous courts had a “mix” of tones — “sometimes depicting the press as being unethical, dishonest, or inaccurate, but other times depicting it as being ethical, honest, and accurate” — the courts with William Rehnquist and John Roberts as the chief justices, when they employ this frame, are more exclusively using the negative tone, Jones said.

Prof. Sonja R. West (photo credit: University of Georgia)

“They don’t characterize the press much at all, but when they do speak to us about its trustworthiness, it is in the negative,” Jones said.

Findings from the public opinion pollster Gallup have revealed a “similar downward trend” of a lack of trust in the “institution” of the media, Jones said.

The results “might offer some important insights,” Jones said.

“The trends in this space are quite clear,” Jones said, saying that while some may believe the Supreme Court to be the last savior of the press, “they may find that their hopes are displaced,” Jones said.

Jones and West, each former journalists and Supreme Court clerks, are “bearers of bad news” given what they have learned in their “deep dive,” Jones said.

After taking a question from law professor Jurij Toplak, who moderated Jones’ presentation, Jones said there has been a “more general shift in the way we speak about the press and characterize the press.”

Jones said she was one of a “very small” number of scholars researching media law and press freedom issues. “He-who-won’t-be-named on this panel (former President Donald Trump) shifted all of that,” Jones said, noting he wrought a shift from more of a respect for “democratic institutions” like the press.

Prof. Jurij Toplak (photo credit: Jurij Toplak)

A change in the presidency in November to “somebody who flouted press norms instead of annihilated them” could change the public attitude toward the media, Jones said.

***

Gavin Phillipson of Bristol University asked Jones if Trump’s executive order targeting critical protections for online platforms given under Section 230 of the Communications Decency Act was “playing to his base.” Jones said Trump has been “conveying to his base a particular set of values” and believes he has “victim status.”

“My view is that the president’s Section 230 reform proposals are largely designed to signal to his followers that he feels victimized by certain social media companies and intends to fight back,” Jones said.

She further asked if Trump was “trying to do something symbolic” and “PR theatrics.”

But it unintentionally does something else — the bottom line. “The point,” Jones said, “is it spurs conversations.”

“Free Speech in the 21st Century” featured talks from academics on the subject. (photo credit: Jurij Toplak)

“I have been invited to three conversations in the past month for section 230,” Jones said before saying that she has gotten media calls and invitations to write op-eds on the subject.

The order “skews conversations to force us to talk,” Jones said. “I do think it has created a moment, which is important.”

“Free Speech in the 21st Century” was organized by Alma Mater Europaea and the International Association of International Law. The event overall was also moderated by Toplak, a law professor at AME and University of Maribor in Slovenia.

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