The Press as Constitutional Litigator: Shaping First Amendment Doctrine in the United States Supreme Court

Abstract

This dissertation examines the role of the press in constitutional litigation before the United States Supreme Court to shape the First Amendment doctrine that forms the legal environment in which journalists operate. Although the journalism and legal academies produce a significant body of scholarship analyzing First Amendment doctrine generally, and a growing body of work discussing the role of the press in individual cases, relatively little scholarship focuses on the way the press has contributed to the evolution of constitutional doctrine through the litigation process.

This dissertation demonstrates that the Court has consistently ruled in favor of the press's interpretation of the First Amendment on publishing issues such as prior restraints, libel, and privacy. But the press has failed to persuade the Court that the First Amendment protects newsgathering, as in reporters' privilege, cameras in courtrooms, and ride-along cases. While the reasons for these outcomes are many and varied, this dissertation argues that the press itself played a significant, if not necessarily decisive role in the process.

Three cases most clearly illustrate how the development of First Amendment doctrine intersects the evolution of the press as a constitutional litigator. Near v. Minnesota marks the first great Supreme Court victory for the press in a publishing case, as well as the emergence of the press as a force to be reckoned with in constitutional litigation. Forty years later, Branzburg v. Hayes established a disastrous precedent for newsgathering cases, but spurred a press divided by that case to professionalize its litigation efforts. And after another thirty years, Bartnicki v. Vopper implicated both publishing and newsgathering doctrine, testing one against the other, with a positive outcome for today's highly organized media defense bar.

This dissertation focuses on these three cases, using archival research, interviews with some of the principal actors, and traditional legal analysis. It also surveys the evolution of constitutional press law before and between these case studies, with special emphasis on the participation of litigators representing the mainstream press. Finally, it concludes with some observations that can be drawn from this study, including statistical analyses of press participation in First Amendment litigation before the Supreme Court, and recommendations for future research.