The Press as Interest Group: Mainstream Media in the United States Supreme Court

This study explores the influence that news media organizations exert on the United States Supreme Court as parties and amici curiae. The study found, inter alia, that the media succeed more often than not, although by a relatively small margin, with far greater success in content-related than in newsgathering cases. Media organizations have been more successful as parties than as amici, and more successful against state and local government entities than against the federal government

Two Wrongs Mock a Right: Overcoming the Cohen Maledicta That Bar First Amendment Protection for Newsgathering

In Cohen v. Cowles Media Co., Justice Byron R. White wrote that the First Amendment offers no protection from the enforcement of generally applicable laws against newsgatherers and that First Amendment protection applies only to information that has been lawfully acquired. This Article shows that these doctrines are not only false, but have already done serious damage to First Amendment interests. It surveys lower court decisions from around the country to demonstrate the doctrines\u27 pernicious influence, then it evaluates alternative solutions to the problem. The article concludes that the most effective, if least likely, solution would be a rule that tracks the New York Times Co. v. Sullivan actual malice standard, redefined as bad faith or outrageous behavior when applied to newsgathering torts. This article examines these doctrines with a view toward exposing their role in obstructing the natural evolution of a constitutional rule that ensures First Amendment values are taken into account when tort liability for reporters\u27 conduct in gathering news is alleged. Part II discusses what little the Supreme Court has already told us about First Amendment protection for newsgathering and places that in the context of other press clause jurisprudence, including New York Times Co. v. Sullivan and Hustler Magazine, Inc. v. Falwell. Part III examines the Cohen case in detail, dissecting and debunking the two major doctrines that now effectively deprive newsgathering of constitutional protection. Part IV reviews the damage those flawed doctrines have already done in trial and appellate courts around the country. And Part V discusses alternative approaches toward a new constitutional rule that might evolve, indeed that might have already evolved, in the absence of the Cohen maledicta. This article concludes that, although the First Amendment confers no immunity upon the press to violate laws of general applicability or to commit tortious or unlawful acts in pursuit of the news, neither do such violations relieve the courts of responsibility to consider the First Amendment values at stake, weigh them against the other societal values represented by the laws in question, and, where appropriate, adjust those laws to accommodate any higher values they may find

The Colonel\u27s Finest Campaign: Robert R. McCormick and Near v. Minnesota

Media corporations and their professional and trade associations, as well as organizations such as Reporters Committee for Freedom of the Press and the American Civil Liberties Union, regularly monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. But that was not always the case. While media companies have always lobbied and litigated in support of their business interests-antitrust, copyright, postal rates, taxes-litigation by the institutional press to create or avoid doctrinal precedent under the First Amendment began only in the late 1920s. Once the United States Supreme Court recognized the incorporation of the First Amendment through the Due Process Clause of the Fourteenth Amendment to protect the rights of the press from abridgment by state law, the way was clear for the press to engage in strategic litigation to support the collection and reporting of news. But it was not until Col. Robert R. McCormick of the Chicago Tribune took charge of the historic case of Near v. Minnesota that the institutional press mobilized to take advantage of the opportunity the Court provided. Through extensive use of the Tribune Archives and its day-to-day coverage of the Near case, this Article shows how McCormick\u27s personal and financial commitment to freedom of the press in general, and the Near case in particular, ultimately persuaded the institutional press to pursue doctrinal litigation not only in their narrow commercial interests but also in pursuit of their most fundamental rights to gather and publish the news

Closing the Barn Door after the Genie Is out of the Bag: Recognizing a Futility Principle in First Amendment

This article argues for a simple proposition: the First Amendment imposes a presumption against the suppression of speech when suppression would be futile. Suppression is futile when the speech is available to the same audience through some other medium or at some other place. The government can overcome this presumption of futility only when it asserts an important interest that is unrelated to the content of the speech in question, and only when the suppression directly advances that interest. In Part I, the article explores the role that this unarticulated futility principle has played in Supreme Court and other decisions concerning the suppression of core political speech by prior restraint, denial of access, and subsequent punishment. In addition, Part I demonstrates how that principle has often, though not always, been disregarded by the Court in cases involving the regulatory suppression of commercial speech. In Part II, the article more fully articulates the rule developed by the case law and justifies its wider application by reference to the values it supports. Finally, in Part III, the article applies the rule to actual situations involving computer-assisted communications technology, an integral part of the convergent communications environment that will soon be upon us

Who Owns the \u27First Rough Draft of History\u27? Reconsidering Copyright in News

Who Owns the ‘First Rough Draft of History’? suggests the withdrawal of copyright protection from hard-news journalism as a mechanism for “rescuing” the news from the inexorable downward spiral in quality and diversity caused by excessive media concentration. Although copyright represents just one of the factors contributing to the “commodification” of news today, it is a significant factor, and one with a long, unsavory relationship with censorship and monopoly. The article asserts that newspapers’ quest for copyright protection was an early step onto a slippery slope toward a property-based, rather than service-based ethos, and that removing protection may mark a first and at least symbolic step back from the abyss. It argues that copyright protection should be replaced by a highly circumscribed variant of the misappropriation tort, coupled with authorial rights of attribution and integrity. It is doubtful that any of these proposed changes would prompt the media conglomerates to jettison otherwise profitable news operations, but, where they do, the resultant spin-offs may be more strongly committed to quality journalism. Fine-tuning the copyright law with respect to news might also restore among executives and working journalists alike some sense of public service obligation. And diluting the industry’s news-as-property attitude might even make a favorable impression on the increasingly disillusioned audience. Perhaps, someday, the public will come to own what former Washington Post publisher Philip Graham called the “first rough draft of history.