Newsgathering, Autonomy, and the Special-Rights Apocrypha: Supreme Court and Media Litigant Conceptions of Press Freedom

Erik Ugland, Marquette University

Abstract

This Article addresses the validity of several long-standing assumptions about the Supreme Court’s free-press jurisprudence and about the arguments made by the media litigants in those cases. It analyzes more than three decades of court opinions and litigant briefs and finds, among other things, no support for the abiding accusation that the media litigants have claimed an elite or preferred constitutional position, or that they have sought judicial recognition of a framework of special rights. The litigants did make distinctions between speech and press, and between the press and public, but they linked their claims to an egalitarian conception of the press in which the distinctions among communicators were rooted in function not identity. The Court, meanwhile, has frequently mischaracterized the nature of special rights by attaching that label to anything that benefits the press, irrespective of how “press” is defined. The Court has also exacerbated misconceptions about the litigants’ claims by suggesting that they would require the abandonment of long-standing neutrality principles or the application of exotic theories. In many cases in which the Court rejected the litigants’ claims, however, the litigants were making logical extrapolations from the Court’s earlier rulings—often relying on core principles that the Court refused to revisit.