Not a Free Press Court?
Lidsky, Lyrissa Barnett, Brigham Young University Law Review
The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking.1 On the other hand, cable news is prospering, mobile devices such as iPads and smart phones are "adding to people's news consumption,"2 and many "new media" outlets appear to be thriving.3 Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media.4 The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two rulings in FCC v. Fox Television Stations,5 both of which avoided the looming First Amendment issue they contained, and the only decision involving "new media" is Brown v. Entertainment Merchants Ass'n.6 Media lawyers, therefore, are still trying to gain insight into how the Roberts Court envisions the role of the institutional press and whether existing constitutional protections for the press might be eroded or strengthened in coming terms.
This essay, taking its cue from Erwin Chemerinsky's recent lecture, Not a Free Speech Court,7 attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, a number of patterns emerge from the Roberts Court's First Amendment decisions thus far, some which appear to be good for the media and some less positive. The good news is that the Roberts Court appears committed to protecting unpopular speech,8 limiting the spread of "medium-specific" First Amendment doctrines to new media,9 and broadly defining speech of public concern.10 The bad news, at least for broadcasters, is that the Roberts Court is not yet ready to free them from the FCCs content-based regulatory oversight,11 and the worst news for all media is that the Court appears to see the "Fourth Estate" as little more than a self-serving slogan bandied about by media corporations. 12
II. PROTECTING UNPOPULAR SPEECH
The media can take heart from the strength of the Roberts Court's commitment to protecting unpopular speech, though famed First Amendment attorney Floyd Abrams is waxing hyperbolic when he asserts that "no prior Supreme Court has been as protective as [the Roberts Court]"13 in protecting unpopular speech. Abrams bases his assertion, no doubt, on decisions like Snyder v. Phelps}* which upheld the rights of the Westboro Baptist Church to protest at military funerals despite the pain inflicted on military families,15 and United States v. Stevens ,16 which struck down a federal statute making it a crime to distribute videos depicting the illegal killing, wounding, or torture of animals.17 Both Snyder(TM) and Stevens affirm that the government may not suppress distasteful speech, even when most citizens find it morally reprehensible and it offers little social value.
Though Stevens might be chalked up to Congress's sloppy drafting, the Court in United States v. Alvarez reaffirmed that the First Amendment protects even "speech we detest."19 Alvarez struck down a federal statute making it a crime for a person to falsely claim that she received a military decoration or medal authorized by Congress.20 Though the Alvarez Court was divided,21 the decision affirmed that the government lacks the power to censor lies - even lies that offend patriotic values - absent a showing of significant harm.22 Although most would hope that the media do not need protection for outright lies, the Court's decision is a comforting signal that the Roberts Court will protect unpopular speakers, regardless of their ideology.
III. NO EXTENSION OF "MEDIUM-SPECIFIC" REGULATION
The principle that the government may not regulate speech because it offends many, or even most, citizens may be especially beneficial to "new media. …