Digital Commons Network^™

Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West

Scholarly Works

A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

Favoring The Press, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …

Press Exceptionalism, Sonja R. West

Scholarly Works

Thanks to advances in mass communication technology, it is now easier and cheaper for all of us to share information with each other. This new ability allows us to act in ways that often seem “press-like.” We might, for example, tweet a warning to our friends about a traffic jam or blog about an upcoming election. Armed with nothing more than a smart phone or a laptop, each of us can share information about matters of public interest to a potentially broad audience in a timely manner — thus engaging in the very activities that were once considered the exclusive …

The Stealth Press Clause, Sonja R. West

Scholarly Works

In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we …

First Amendment Neighbors, Sonja R. West

Scholarly Works

An abdication of the Press Clause reflects the most basic of analytical errors: It treats the text of the Press Clause as redundant and ignores the specialized functions that the Framers meant for the Press Clause to play. Failing to give the Press Clause constitutional recognition by declaring it too difficult to interpret or by dismissing it as "mere surplusage" is utterly at odds with our constitutional traditions. The Religion Clauses provide an example on how to give the text of the Press Clause true meaning.

In interpreting the Religion Clauses, the Supreme Court has taken a different attitude than …

The Monster In The Courtroom, Sonja R. West

Scholarly Works

It is well known that Supreme Court Justices are not fans of cameras — specifically, video cameras. Despite continued pressure from the press, Congress, and the public to allow cameras into oral arguments, the Justices have steadfastly refused.

The policy arguments for allowing cameras in the courtroom focus on cameras as a means to increased transparency of judicial work. Yet these arguments tend to gloss over a significant point about the Court — it is not secretive. The Court allows several avenues of access to its oral arguments including the presence of the public and the press in the audience, …