William & Mary Law Review


President Trump’s daily tweets attacking the media have led many observers to express concern about the state of the press in our nation. Trump has called the press “the ... enemy of the [American] people,” encouraged a climate of hatred toward journalists at his rallies, refused to condemn Saudi Arabia for the brutal killing of reporter Jamal Khashoggi, and accused the media of writing “fake news.” The public’s trust in the institutional press has simultaneously diminished. Combined with the continuing economic challenges journalists face, the press is certainly facing some difficult times.

Nevertheless, things are not as dire as they seem, and it is because the courts have continued to embrace the largely pressprotective interpretation of the First Amendment that arose in another time of crisis in the 1960s and 1970s. In New York Times Co. v. Sullivan and New York Times Co. v. United States (Pentagon Papers), the Supreme Court provided meaningful protection for the press in a time of great crisis and doctrinal uncertainty. Occurring during the civil rights movement and the Vietnam War, respectively, these cases represent the high point of constitutional protection for the press. These landmark decisions continue to provide meaningful protection for the press today. In both of these cases, the press faced fundamental threats to its role in checking government power and informing our democracy, and in both of these high-stakes cases, the press emerged victorious.

Over time, however, these decisions have provided less protection than they may have initially appeared to provide. In the case of Sullivan, the scope of this protection has been narrowed, while the prosecution of Julian Assange threatens to unravel the state of “benign indeterminancy” that resulted from the Pentagon Papers opinion. Although the news from the courts these days is still largely good for the press, we should be cautious about expecting the courts to be the press’s savior. Specifically, the courts have not aggressively protected the rights of journalists to gather information; in addition, court decisions favorable to the press appear to do very little to stem the public’s growing mistrust of the media. It is also far from certain that today’s Supreme Court would be as sympathetic to the role of the press as the Court was in the 1960s and early 1970s.

Part I will discuss defamation law with a focus on the Court’s decision in New York Times Co. v. Sullivan. This decision “constitutionalized” the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication. The decision has since provided an essential foundation for press freedom for over fifty years. At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, speakers potentially face years of distracting and expensive litigation, even if they ultimately prevail.

Part II turns to protections for the publication of national security secrets. In United States v. New York Times Co. (Pentagon Papers), the Court held that the executive branch could not prevent the press from publishing a damning study of the United States’s involvement in the Vietnam War. But this decision does not provide immunity for defamation or the publication or collection of national security secrets and leaves journalists—as well as their sources—exposed to civil and criminal liability.

Part III examines the Court’s failure to recognize constitutional protection for newsgathering activities. Although the Court has held that the First Amendment provides a broad right of access to criminal proceedings, this right belongs to the public and not the press. Furthermore, this decision stands as something of an anomaly in the Court’s right of access jurisprudence. One reason— although not the only one—for the Court’s reluctance to recognize a more extensive right of access is its unwillingness to give the right to the entire public as well as its inability to define the “press” in a meaningful way. With the enormous changes in our media environment in the last two decades, it seems highly unlikely that the Court will use the Press Clause to provide expansive rights of access.

Despite all of President Trump’s attacks and the public’s growing distrust of the press, the fourth branch continues to play an important role in checking government power and informing our democracy. It is less clear, however, whether the press will be able to continue to rely on the courts to provide these constitutional protections for this important work.