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November 29, 2012 3:37 PM Where Does One Meet “The Press?”

By Ed Kilgore

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.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • c u n d gulag on November 29, 2012 4:10 PM:

    Well, since, what, 5-6 corporations own most of the MSM outlets, why wouldn't the SCOTUS look at it that way?

    EVERY FECKIN' REPORTER they run across works for one!

    Until we break up those MSM monopolies, Republican Teddy Roosevelt-like, and make them MOISMM - Multiply-Owned Independent Main Stream Media, we can't expect any change.

    And now, the FEC and the FCC look like they're about to hand LA's and Chicago's biggest newspapers to Raper Murderoch.

  • Memekiller on November 29, 2012 4:12 PM:

    So, if I read this right, SCOTUS is redefining the Fourth Estate as "Corporation" rather than "The Press." But what of bloggers in their underwear? Or our founders pamphlets they distributed? Is the First Amendment inherently for the nonfiction author risking his life Somalia, or his publisher?

    What the Internet has done has opened up speech to people OTHER THAN corporations, which I think is what they really fear. Are Digby and Atrios corporations? Is the SCOTUS blog, for that matter?

    Yet, their contribution to the national dialogue has been far healthier than the WSJ Editorial Board and FOX News. The MORE corporate the press, the LESS beneficial to democracy, it seems to me. The more corporate news organizations become, the more control they've had over shaping editorial decisions on behalf of the company rather than to inform.

  • Memekiller on November 29, 2012 4:20 PM:

    The more I think about this rationale, the more I find it to be completely backwards. All the people granted credentials write for corporations. So to include the alternative forms of journalism like blogging, they shift the right to corporations? Goldstein's blog is now considered legitimate because they've decided the conflict of interest between his blog and his law business should be ignored? Are we to assume that an intern for a Supreme Court Justice who is more knowledgeable and less conflicted monetarily is not deserving? My speech on a personal blog isn't protected until I post it on Examiner, where a corporation gets to determine the guidelines?

  • Ron Byers on November 29, 2012 4:29 PM:

    Shorter Sam Alito, "corporations are super dooper people, my friends. They are entitled to rights not available to regular people." That is the kind of happy horse sh*t we have come to expect from the Roberts court.

  • Ron Byers on November 29, 2012 4:48 PM:

    If Blue Girl was to incorporate one of her political blogs would she be entitled to press credentials under Alito's theory?

  • Josef K on November 29, 2012 4:54 PM:

    I believe it Justice Scalia got into trouble a few years back when he had his security detail confiscate and erase a reporter's tape recorder after an event. Perhaps I'm missing some details, but that's what I recall.

    So much for respect for the press.

  • Memekiller on November 29, 2012 5:01 PM:

    This is the real kicker: "Change may just possibly be in the wind, however. Last year, Scotusblog came under the wing of Bloomberg, a properly credentialed if nontraditional news organization that is now the site’s official sponsor."

    SCOTUSblog can now qualify for press credentials because it is affiliated with a corporation!

    Thank you, Citizen's United.

  • emjayay on November 29, 2012 6:16 PM:

    Corporations are people, my friend. And some people are more equal than others.

  • paul on November 29, 2012 7:24 PM:

    As a PR move, Alito's shift is brilliant. If the right to freedom of the press goes away, except as it is exercised by corporate persons, all kinds of protections go away.

    All he has to do is confiscate all the copies of the first amendment currently in circulation.

  • Rick on November 29, 2012 9:17 PM:

    Nit to pick: Boston actually has two stations that carry NPR programming (WBUR and WGBH). More importantly, though, can we please stop referring to public radio stations as "NPR Stations"? This leads to the widely-held but erroneous belief that NPR is a network like CBS or NBC, and that NPR HQ in DC has some say-so over what local "affiliates" do. That's not the case at all -- in fact, the local stations actually control NPR's board. Plus there's much more to public radio than NPR -- there's PRI, APM, and now PRX. Bottom line: "a Boston public radio station" would be much more accurate and less misleading.

  • square1 on November 29, 2012 10:54 PM:

    Actually, Alito is in many ways correct. Most journalists have a completely perverse -- and Constitutionally a-historical -- understanding of the press.

    America's Founders never intended "the press" to describe a class of (often corporate) professionals who have special privileges. "Press," like "speech," was intended to describe something that people were free to do. And, again, not special people with shiny credentials. The First Amendment was intended to protect all Americans.

    Sadly, most journalists have become drunk on the perceived power that their credentials provide. The very principles of free speech and free press are completely undermined when the government has the power to decide who shall be worthy to exercise first amendment rights.

  • mudwall jackson on November 29, 2012 11:09 PM:

    two different arguments are being mixed here. alito's nonsensical argument is one matter. the problem of credentialing has nothing to do with it but rather everything to so with an archaic view of the publishing world. it ain't the corporation that matters but rather the medium. institutions such as the supreme court, the white house and the senate are conservative creatures that haven't quite caught up with the 21st century, in part by design. credentialing keeps the riff raff out of the establishment club.

    my guess is alito still believes this is the 20th century and mrs pynchon (or her equivalent) publishes the local newspaper.

  • Crissa on November 29, 2012 11:24 PM:

    Actually, Rick, nearly all TV stations operate like that: The local station buys programs from the network, and airs them.

    Pretty much only Clear Channel actually operates a large number of local stations. In TV very few local stations have network operating them.