The Roberts Court’s Stealth Campaign Against a Free Press

The Roberts Court’s Stealth Campaign Against a Free Press

The Roberts Court’s Stealth Campaign Against a Free Press

Eric with the latest reviews and Reed on the media. 


Friday night I stopped by what is now called the Appel Room at Jazz@Lincoln Center, and by any name, still the most beautiful venue to see an intimate show in New York—or actually anywhere I know—to catch a show of standards by John Pizzarelli’s quartet joined by Jane Monheit. John is most often joined by his terrifically talented wife, Jessica Molaskey, and sometimes by his obviously amazing dad, Bucky Pizzarelli, who is still picking at eighty-eight but did not play Friday night. (His brother Martin did, on base.) Mom and dad were in the audience, though. (What a weird family to get along so well.) Anyway, John has had plenty of opportunity to learn that specific New York cabaret style charm and his story telling had the effect of enhancing the nearly flawless delivery of the Sinatra, Ellington, Gershwin, etc. classics he and Monheit chose. (His “Sir Paul” imitation is also first rate.) Anyway, what can one say? Great music, professionally and occasionally inspired delivery. Monheit was onstage for the entire show and the band was well-rehearsed and tight as well. I did miss Ms. Molaskey. Speaking of Duke, there’s an all Ellington program at Rose Hall this weekend and a wonderful way to end the season.

Last week I mentioned that every show I go to (it sometimes feels like) has either Warren Haynes or G.E. Smith on guitar. Well, this week, on Saturday, I saw a band with Warren Haynes on guitar. Last night (Tuesday) I saw a band with G.E. Smith on guitar. Ok, well Saturday was cheating because it was the same band I saw earlier in the week. The second SummerStage in Central Park show of “Phil Lesh and Friends,” with Haynes, John Scofield, John Medeski and Joe Russo put on by the folks at the Capitol Theater in Port Chester whose amazing roster has really cut down on the shows within walking distance of my apartment, alas. It was a lot like the first one, though the set list was completely different. Last night, also in Central Park, SummerStage had its annual gala where wealthy folks pony up to ignore the great music that people work hard to provide for them. Last night, after the presentation of “The People & Parks Award” and the ensuing speeches, Smith’s band took the stage, looking a great deal like the band Southside Johnny puts together and calls “The Poor Fools,”—or did two weekends ago in Amagansett anyway—except this one had Jon Leventhal on lead guitar, to accompany a great group of (mostly) New York singers and songwriters on various Beatles songs. The lineup featured Jon Batiste, David Broza, Paula Cole, Marshall Crenshaw, Southside Johnny, Willie Nile, Teddy Thompson and Philip Bailey, lead singer of the Earth, Wind & Fire, who really got the rich white folk um, dancing. In case you didn’t know, SummerStage is New York’s largest free performing arts festival, bringing over 100 performances to eighteen parks throughout the five boroughs. Every year we reach more than 300,000 New Yorkers and since its inception in 1986, more than six million people have enjoyed SummerStage and so if the awards ceremony was a bit self-congratulatory, it feels a bit silly to complain, though I wish people would pay more attention to great band and performers they got to see.

Also this being New York, you have a choice this and next week between Open Roads, the Film Society at Lincoln Center’s Italian film festival, and the Israel Film Center’s festival at the Upper West Side JCC (and elsewhere). I have not managed to see any of the films yet, but it’s a great opportunity if you happen to be in the city. (And look, it’s also the Blue Note Jazz Festival, already begun. My goodness, there is too much to be done here.)

Speaking of the JCC, after last night’s show, I went to the Shavuot all-night study-with-cheese cake celebration they put together every year and thought to myself that it’s a weird but often wonderful critical intellectual culture into which I happen to be born and what a shame it is that pretty much only orthodox Jews ever encounter it. Someone, I guess me, should write a book about it.

Now here’s Reed:

The Roberts Court’s Stealth Campaign Against a Free Press
by Reed Richardson

Sometimes, it’s the battles not fought that matter just as much. On Monday, the Supreme Court proved this point once again when it refused to grant certiorari to an appeal from New York Times reporter James Risen, who is facing a Justice Department subpoena to divulge confidential intelligence sources cited in a chapter of his 2006 book “State of War.” By refusing to hear Risen’s case, the Court let stand an ominous Fourth Circuit majority ruling that not only dismissed the very idea of reporter’s privilege, it all but validated a Justice Department lawyer’s outrageous analogy that citing such privilege is the equivalent of receiving drugs from a source and then refusing to testify about it.

This kind of overaggressive stance by the Obama administration when it comes to pursuing leaks and punishing whistleblowers is, sadly, nothing new. But by unceremoniously refusing Risen’s appeal, the Roberts Court shined a brief spotlight on its own, quiet role in undermining First Amendment protections for the press.

There’s no denying that, by refusing the Risen case, SCOTUS missed a long overdue opportunity to revisit one of the most confusing, poorly established decisions related to press freedom in our nation’s history—the 1972 Branzburg v. Hayes case. While that 5–4 ruling forty-two years ago did not find journalists enjoyed special Constitutional privileges when protecting sources, an ambiguous concurrence by Justice Lewis Powell and a strong dissent offered free press advocates something of a backdoor victory.

The implications of this are still being felt. For example, a lower federal court judge’s decision quashed the DOJ subpoena of Risen in 2011 by specifically citing Powell’s concurrence. And during Risen’s appellate hearing one year later, Fourth District Appellate Judge Albert Diaz complained that Branzburg’s precedent was “clear as mud.” Still, SCOTUS chose to punt, leaving US journalism—and investigative, accountability journalism, in particular—exposed to the whims of overzealous prosecutors with little more than a hodgepodge of ineffective state media shield laws for protection.

The passivity is noteworthy because the Roberts Court has gained a reputation for deliberately inviting and then accepting key cases on legal grounds that it deems unresolved. This careful picking and choosing of landmark cases has left the Court’s overall track record of overturning precedent deceptively low, but the upshot of its radical nature is unmistakable. (Also of note in the Risen case: Chief Justice Roberts is assigned as the Fourth Circuit advisory judge, which means he would have played a key role in the Court’s decision to either grant—or deny—certiorari to Risen’s appeal.) Indeed, though Justices Scalia and Ginsburg rarely come down on the same side of a SCOTUS decision, both have publicly said that the Roberts Court is guilty of “judicial activism.”

Even one of the court’s most objective, long-time observers, Linda Greenhouse, who covers SCOTUS for The New York Times, agrees. Recently, she wrote a scathing op-ed cataloguing the Roberts Court’s radical approach to jurisprudence. Whether eviscerating workers’ rights while empowering the reach of corporations or rolling back civil rights protections while emboldening religious interventionism in public policy, the five-justice conservative bloc on the Court is, according to Greenhouse, “driving it into dangerous territory.”

“The problem is not only that the court is too often divided but that it’s too often simply wrong: wrong in the battles it picks, wrong in setting an agenda that mimics a Republican Party platform, wrong in refusing to give the political system breathing room to make fundamental choices of self-governance.”

To be fair, SCOTUS refuses to hear hundreds of cases each year, so attaching motives to one particular case of inaction like Risen’s can be a tricky proposition. It is also true that, since 2005, the Court has, in general, taken up very few cases that deal directly with the media. One of these involved the FCC suing NBC over Bono saying “fucking brilliant” on air at the Golden Globes—not exactly the Pentagon Papers. What’s more, even in those few cases, the implications of the Court’s rulings have been studiously narrow.

Compare that to the Roberts Court’s broader fascination with free speech cases—dozens of them in the past nine years—and the cause of the free press looks like a First Amendment stepchild. Indeed, the Court’s “blind spot” toward the press is very real and very harmful argued attorney Theodore Boutros Jr. in a Wall Street Journal column last week:

“[T]he Supreme Court has repeatedly spurned cases brought by journalists over the last decade, while it has simultaneously issued a powerful string of decisions protecting the First Amendment rights of just about everyone else. Most famously, in Citizens United v. FEC (2010), the court struck down campaign finance laws banning corporate independent expenditures. ‘Speech,’ the court said, ‘is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.’ In ‘a republic where the people are sovereign,’ the court emphasized, ‘the ability of the citizenry to make informed choices…is essential.’"

Perhaps nothing else exemplifies the Roberts Court’s antipathy toward the media better than its disingenuous Citizens United decision. As University of Florida law professor Lyrissa Barnett Lidsky points out in her in-depth analysis “Not a Free Press Court?” the conservative bloc of the Roberts Court is deeply suspicious, if not hostile to, the idea of the media as the “Fourth Estate.” And the intellectual heart of this anti-press stance, she explains, is cleverly buried in the majority’s argument in Citizens United, like a legal landmine waiting to be triggered.

In effect, the Court’s decision in that case plays one First Amendment freedom off of the other, tearing down the notion of special Constitutional privileges for a free press in order to build a phony construct of more equitable free speech (even though these new free speech privileges didn’t accrue to people but to wealthy corporations). In something of a tragic, anti-democratic two-for-one, the Court’s right-wing majority managed to both further expose our political system to the corrupting influence of money while simultaneously undermining the press’s ability to hold elected officials accountable and root out said influence. Journalism is just another form of speech, in other words, just another product to consume. Consequently, our government doesn’t owe it any more deference than the cheap junk being sold on the shelves of a big box store. As Lidsky writes:

“[T]he Court, however, apparently sees no relevant differences between media corporations like NBC and non-media corporations like Wal-Mart: both peddle their wares to the public motivated solely by profit. Indeed, at times the Court's descriptions of the media seem to go beyond skeptical to antagonistic. Though Citizens United is not a press case, it certainly gives little cause for hope to those who argue that the First Amendment gives distinctive rights to the media under the Press Clause.”

The unmistakable conclusion, then, is that the Roberts Court hasn’t felt compelled to take action on Constitutional questions about the press because it’s perfectly happy with the status quo. Lower court decisions that side with an Obama Justice Department more than willing to employ aggressive legal tactics to stanch leaks and intimidate reporters suits the conservative majority on SCOTUS just fine. As does a feckless Congress unwilling to conduct real oversight of our surveillance state and unable to pass anything more than a symbolic version of a federal media shield law.

But Constitutional protections for a free press mustn’t be held so cheaply that they rely solely upon vague promises from a supposedly repentant Attorney General. Administrations change, after all, and once they do, Justice Department guidelines are no longer worth the paper they’re printed on.

That said, it will probably take a change in administrations before we can restore the Constitutional respect due to the press. Indeed, journalism likely dodged a bullet this week based on the current ideological posture of SCOTUS. Had it accepted Risen’s appeal, the conservative majority might well have triggered its Citizens United’s tripwire, forever cementing Branzburg’s tarnished legacy and the Obama administration’s anti-whistleblower mindset. And while I have little faith that the next occupant of the White House—even a Democratic one—will drastically roll back its adversarial approach to the media, I also know that until the 5–4 votes on the Roberts Court start going the other way, ensuring a free press that can hold the powerful to account without interference from the government won’t happen.

Contact me directly at [email protected]. I’m on Twitter here—@reedfrich.

Editor's note: To contact Eric Alterman, use this form.

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