The Rhetoric of Judicial Critique: From Judicial Restraint to the Virtual Bill of Rights

Professor Michael Gerhardt traces the rhetoric employed by national leaders and commentators over the past century to describe popular conceptions of the judicial function. In particular, Professor Gerhardt examines the evolution of the terminology used in popular and political rhetoric, revealing their inconsistent application to political ideologies through time. Professor Gerhardt argues that such shifts in usage correspond with transfers of power between the political authorities controlling the central interests at stake in constitutional adjudication. Professor Gerhardt applies the shortcomings of traditional political rhetoric to the issues surrounding technological advancements, concluding that the proper treatment of technology by the Supreme Court in the twenty-first century will require recognition of the complex consequences posed by these advances

Liberal Visions of the Freedom of the Press

Liberals have long regarded the First Amendment\u27s freedom of the press guarantee as their special plaything.\u27 For most of this century, liberals have dominated the scholarship and the doctrinal debate on the freedom of the press. They have often urged the federal courts to establish the press as a fourth institution outside the Government as an additional check on the three official branches. Liberal judges have ensured virtual autonomy for the print media through the cumulative effect of their rulings to immunize the press from damages for the publication of falsehoods about public figures unless the publication was done knowingly, recklessly, or with actual malice; to bar public access to newspapers; and to treat prior restraints of publications as presumptively unconstitutional. At the same time, the courts have not barred liberal lawmakers from regulating broadcasters to promote fairness and to prevent chaos in public debate on the airwaves. The liberal approach to the freedom of the press, however, seemingly stands on the brink of dismantlement. The present Supreme Court has an activist outlook of\u27the most virulent and blinding sort under which the dominating conservative Justices selective[ly] enforce[] .. .rights generally supporting state power and eroding libertarian values. \u27 Indeed, no one currently on the Court is a staunch defender of an autonomous press, and the Court has already made some minor changes to, or at least refused to extend, the freedom of the press doctrine. Meanwhile, polls indicate that the popularity of the press is plummeting, and liberals have taken a beating from the left and the right\u27 that has cost them considerable political and judicial power. Sensing that, for the time being, liberals may still dominate the playing field of the First Amendment, three liberal law professors- Dean Lee Bollinger of the University of Michigan Law School, Professor Lucas Powe of the University of Texas Law School, and Professor Rodney Smolla of the Marshall-Wythe School of Law at the College of William and Mary-have stepped into the breach to offer solutions to the dilemma of defending the freedom of the press in an age in which neither liberals nor the press is popular and in which the courts are overwhelmingly unreceptive to liberal values. In Images of a Free Press Bollinger suggests that this dilemma is illusory, while Powe in The Fourth Estate and the Constitution argues for the elimination of almost any governmental regulation of the print media. Smolla in Free Speech in an Open Society ° contends that, properly understood, the First Amendment guarantees virtually absolute freedom of speech and of the press and should serve as a model for the rest of the world to follow