As the Senate lurches toward confirming Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the U.S. Supreme Court, there’s been a lot of speculation about what precedents and laws a conservative 6-3 majority might overturn.
Depending on your point of view, the court could prudently reform or put in jeopardy abortion rights, religious liberty, the Affordable Care Act, social justice and more.
The free press, too, could be in jeopardy. Many protections that journalists enjoy exist thanks to Supreme Court precedents. One sitting justice already has suggested rethinking them. Would Barrett join him?
Probably no senator will ask Barrett about her views on press freedom during upcoming confirmation hearings, and that’s a shame. If the court overturns Roe v. Wade, abortion regulation would devolve to the 50 states. If the court undermines the free press, it undermines democracy.
The nation’s Founders protected the free press in the First Amendment, but that hasn’t prevented elected officials from seeking to regulate, control and even shut down publishers. It took the Supreme Court to stop them.
The court ruled in 1931 that government could not censor publishers before they printed something. That ban on “prior restraint” became a bedrock principle of press freedom.
The court reaffirmed that view in 1971, ruling that the Nixon administration could not stop publication of the Pentagon Papers based only on nebulous “security” concerns. In that decision, Justice Hugo Black supplied one of the most vigorous endorsements of the free press in all of jurisprudence.
“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy,” Black wrote. “The press was to serve the governed, not the governors. The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”
In 1936, the court ruled that government couldn’t impose a tax on newspapers beyond what was levied on everyone else. That didn’t stop elected officials from seeking other ways to tax newspapers out of business. The court smacked those down, too, ruling in 1983 that government couldn’t tax ink and paper to punish the press.
One of the most important precedents for press freedom came in the 1964 case New York Times v. Sullivan. The court established that in order to prove libel or defamation, public officials must show that a publisher lied or acted recklessly printing false information. There needed to be malicious intent. That standard has prevented an unknown number of lawsuits filed by angry elected officials intent on intimidating journalists.
Today, those and other precedents form a legal framework that allows the free press to hold officials accountable and to report news that fuels public discourse and empowers an informed electorate.
Yet Supreme Court precedents are only as strong as the current justices say they are. If a case arrives and a majority decides a precedent is wrong, the court can strike it down.
Would a court with Barrett do that to free press precedents? Maybe. It would make the president happy.
If the Senate confirms Barrett, President Donald Trump will have appointed three of the court’s nine justices. The president takes every opportunity to attack the free press and destroy its credibility. “Fake news,” he tweets. It’s not so far-fetched to believe his three appointees might sympathize with those views, especially after the treatment Brett Kavanaugh, another Trump-appointed justice, received in the press.
Justice Clarence Thomas is on board. Last year he called for reconsideration of New York Times v. Sullivan and its high threshold for public figures to prove libel. He said that decision was judicial “meddling.” It’s surely no coincidence that Trump himself has suggested reforming libel laws after news he didn’t like.
And if that happens, if the Supreme Court decides that the press is too free in America, then all bets are off. The free press that the Founders knew was a crucial check on government would wither.
That’s something a senator really ought to ask Barrett about before the confirmation vote.