The New York Times‘ former veteran legal Supreme Court reporter Linda Greenhouse has a stimulating post up at The Opinionater site discussing the Supremes’ drift away from viewing “the press” as a distinctive institution in First Amendment cases. Her point of departure is a speech by Justice Samuel Alito suggesting that “the press” owes its protections to the kind of corporate rights established in the Citizens’ United decision:
[T]he press, above all, should have received Citizens United gratefully, Justice Alito suggested, because after all, newspapers are published by corporations. So without protection for corporate speech, consider how the press would have fared, he continued, in such landmark cases as New York Times v. Sullivan, which provided a strong defense against libel suits by public figures, or the Pentagon Papers case, which upheld the right to publish government secrets.
It was an anachronistic, even silly debater’s point. New York Times v. Sullivan, decided in 1964, and the 1971 Pentagon Papers decision (New York Times v. United States) of course predated the Supreme Court’s current infatuation with corporate speech and had nothing to do with the fact that newspaper publishing companies are corporations. It was the media’s role in American society, not organizational format of the publisher’s executive suite, that the justices found worthy of constitutional protection in these and other First Amendment decisions.
On the other hand, says Greenhouse, the traditional free speech prerogatives of “the press” are difficult to define and maintain in the digital age. The case in point she cites is Scotusblog, which has become the most popular and authoritative source of public information on Supreme Court proceedings and decisions–but which does not itself have Supreme Court “press” credentials.
Twenty-seven news organizations have permanent credentials to cover the Supreme Court. Remarkably, Scotusblog is not one of them.
How can this be? We’re back to the definitional problem. The court’s public information office gives a permanent press pass only to reporters who already have credentials from the Senate Press Gallery or the White House (and the White House, in turn, makes Senate press credentials a prerequisite for a White House press pass). Over the years, Scotusblog has inquired about getting Congressional credentials but has been told not to bother even submitting a formal application. Tom Goldstein and his wife, Amy Howe, started Scotusblog as a way of attracting clients to their law practice, and the link between the blog and the law firm was disqualifying under the Senate Press Gallery’s rules.
Turns out Lyle Denniston, Scotusblog’s star reporter, has personal Supreme Court credentials via Boston’s NPR station. But not Scotusblog itself or any of its other writers.
A definition of “the press” that excludes a lot of online content providers is nothing new, and raises familiar problems in law, professional ethics, and a lot of other areas. But to return to Greenhouse’s original point, the haziness of “the press” these days is no excuse for pretending the Fourth Estate means nothing unless it’s harbored in the arms of a corporation.