iMuch ink has been spilled over the potential ramifications of now-Justice Brett Kavanaugh's appointment to the U.S. Supreme Court across a broad range of issues—from executive power and reproductive rights to redistricting and gun control. That commentary has included multiple examinations of his likely impact on the wide spectrum of recurring First Amendment questions that have come before the Court in recent years. The same exercise was undertaken just last year prior to the appointment of Justice Neil Gorsuch.
Those analyses have no doubt been helpful to lawyers practicing in the field that has come generally to be known as "media law"—that bundle of content and information-gathering issues that preoccupy lawyers representing news media entities and the journalists they employ, like prior restraints, defamation, invasion of privacy, reporter's privilege, access to information, and the like. They are, however, of somewhat limited utility, in significant part because the Court has so infrequently addressed such issues in the last 25 years. With that reality in mind, it is worth taking stock of what we really know (and don't know) about how media law cases are likely to fare before this "new" Supreme Court. Below are a half-dozen, somewhat random observations:
The sample size is not statistically significant. Since John Roberts became Chief Justice in 2005, the Supreme Court has not decided a single "media law" case as that term is defined in the preceding paragraph. And, although those Justices that have left the Court in the last dozen years had each participated in several such cases, the "holdovers," like the Chief Justice himself, have decided very few. Thus, despite its well-deserved reputation as a "First Amendment" Court, the holdover Justices that have served on it have no real track record that can be used to predict how they might vote in future media law cases. Indeed, of the nine justices who participated in the Court's last media law decision—Bartnicki v. Vopper in 2001—only three (Justices Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer) remain. Those three each joined a different opinion in Bartnicki itself—Justice Ginsburg joined Justice John Paul Stevens' opinion for the Court embracing the media's First Amendment argument, Justice Breyer wrote a concurring opinion articulating a more modest First Amendment right, and Justice Thomas joined Chief Justice William Rehnquist's dissenting opinion rejecting the proffered right entirely.
Much ado about nothing? The first sentence of the preceding paragraph bears emphasis for an additional reason—at least for the moment, the Court has largely gotten out of the business of deciding media law cases at all. Despite multiple opportunities both before and after its decision in Bartnicki, that case remains the sole media law case the Supreme Court has decided on its merits since the early 1990s. In the interim, the Court has turned away multiple opportunities to resolve circuit conflicts and otherwise address important, undecided media law issues, including most significantly the constitutional bona fides of the reporter's privilege in cases brought by journalists from Judith Miller and Matt Cooper to James Risen. In contrast, from 1964—when the Court decided New York Times v. Sullivan—through 1991, when it decided both Masson v. New Yorker Magazine and Cohen v. Cowles Media, there was rarely a term in which the Justices did not render decisions in multiple media law cases.
The last two departures are perhaps the most significant. Although the other Justices who have left the Court since Bartnicki each had a significant impact on its media law jurisprudence (for example, Chief Justice Rehnquist wrote the Court's opinions in a host of cases, including Milkovich v. Lorain Journal and Hustler Magazine v. Falwell, as did Justice Stevens in cases like Bartnicki and Bose v. Consumers Union), Justices Antonin Scalia and Anthony Kennedy formed, in many ways, its jurisprudential counterweights. Justice Kennedy championed a broad, traditional view of First Amendment rights in which even false speech about matters of public concern enjoys extremely broad constitutional protection and the categories of unprotected speech are both few and narrowly cabined. With increasing frequency, his robust vision of the First Amendment carried over to media law cases, from his vote to join the majority in Bartnicki to his narrow opinion for the Court in Masson, in which he both set aside the more strident anti-media aspects of Judge Alex Kozinski's opinion for the U.S. Court of Appeals for the Ninth Circuit and articulated a constitutional basis for the common law doctrines of substantial truth and defamatory meaning. For his part, although Justice Scalia shared many of Justice Kennedy's views about limiting and confining the categories of unprotected speech, that enthusiasm did not often carry over to cases involving the press. Indeed, with few exceptions (most notably his vote joining in Chief Justice Rehnquist's opinion for the Court in Falwell) Justice Scalia consistently voted against First Amendment claims asserted by media litigants, including in Bartnicki, Milkovich, Cohen, Masson, and Harte Hanks Communications v. Connaughton. And, of course, Justice Scalia famously and frequently cited New York Times v. Sullivan as the best example he could provide of a Supreme Court case wrongly decided by what he described as "activist judges."
Predictions about the impact of "new" Justices are of dubious value. History has shown that predictions about newly appointed Justices' votes in media law cases, based on either their past judicial performance or the identity and party affiliation of the President who appointed them are worth very little. While that historical lesson may be less relevant than it once was in this era when Presidents vet prospective nominees at least as much for their ideological purity as their legal acumen, it remains the case that neither party affiliation nor prior opinions tells us very much about how a Justice is likely to vote in a media law case, even given the current occupant of the White House. Thus, although the fact that both Justices Gorsuch (e.g., Bustos v. A&E Television) and Kavanaugh (e.g., Abbas v. Foreign Policy Group) have authored very useful opinions for their respective Courts of Appeals in media law cases is of some comfort (not to mention that then-Judge Kavanaugh voiced apparently enthusiastic support for a common law-based reporter’s privilege in the never decided appeal of journalist Toni Locy's contempt citation in the Hatfill v. DOJ case), they may well have done so because they felt constrained by then-existing Supreme Court precedent, constraints by which they are of course no longer bound. Tea-leaf reading of that sort would also have to take into account such further evidence that party or general ideological affiliation is of limited predictive value as the fact that, before either of them became judges, both Chief Justice Roberts and Justice Kagan expressed varies degrees of skepticism about Sullivan itself.
We are dealing with a moving target. History also teaches another important lesson—i.e., Justices change over time, so predictions about their voting proclivities on a given issue, even if accurate today, may not hold true tomorrow. In their early years on the Court, for example, Chief Justice Warren Burger and Justice Harry Blackmun not only appeared to take no issue with Sullivan, they actually joined Justice William Brennan's plurality opinion in Rosenbloom v. Metromedia, applying the actual malice standard to speech about all matters of public concern, Three years later, however, they both had second thoughts and rejected that position in separate opinions in Gertz v. Robert Welch. From there, the Chief Justice became increasingly hostile to Sullivan itself, even advocating for its reconsideration in internal communications with his colleagues, while Justice Blackmun similarly moved away from favoring the press in such cases for several years until he switched gears yet again, ending his tenure with a series of media-friendly opinions (written largely for himself or in dissent) in cases like Cohen and Connaughton. By the same token, Justice Kennedy himself—despite authoring some promising decisions for the Ninth Circuit when he served there (e.g., Koch v,. Goldway)—began his Supreme Court tenure with a series of votes against media litigants in such cases before he evolved to become the First Amendment champion he is now generally considered to have been.
Discretion may be the better part of valor (or maybe not). So, where does this leave a lawyer who needs to decide whether to seek Supreme Court review in a media law case? Given the predictive uncertainty, there is ample room for legitimate differences of opinion about that. On the one hand, it would be reasonable to conclude that, in the near term at least, decisions as to whether to seek Supreme Court review in a media law case ought to be a function of the factors that have traditionally governed such decisions—e.g., is there a real circuit split or other characteristic of the decision below that might realistically entice the Court to take the case, what will be the likely impact for the client, in the current litigation as well as in future cases, of letting the lower court decision go unchallenged, etc.? In other words, one could reasonably determine that there is no particularly persuasive reason to avoid the Supreme Court if there is a realistic prospect it might take the case, a strong argument that the lower court got it wrong, and a significant benefit to the client in prevailing in that forum (as opposed to suffering the consequences of the lower court’s ruling either by prolonging ongoing litigation, instigating a negotiated settlement, or paying an adverse judgment).
On the other hand, there is also a reasonable argument that, unless the above-referenced risk/benefit analysis tips decisively in favor of seeking Supreme Court review (because, for example, the client will otherwise be on the wrong end of a bet-the-company or otherwise catastrophic judgment), the better course is to forego for now the opportunity when it presents itself and give this "new" Court a chance to find its voice and publicly unveil it. That was the course that two media litigants independently took shortly after Justice Sandra Day O'Connor replaced Justice Potter Stewart in 1981 and the Court granted review in two cases in which those defendants had prevailed in the Sixth Circuit—Street v. NBC and Wilson v. Scripps Howard Broadcasting. The Street case addressed the recurring question of who qualifies as a limited-purpose public figure (a concept that the Supreme Court had applied relatively narrowly in a series of cases including Gertz, Hutchinson v. Proxmire, Time Inc. v. Firestone, and Wolston v. Reader's Digest). The Wilson case raised the then-undecided but vitally important question of whether a private figure plaintiff bears the burden of proving falsity in a defamation case. Despite their respective victories in the U.S. Court of Appeals for the Sixth Circuit, given the uncertainty surrounding how Justice O'Connor might vote, both media defendants opted to settle the cases rather than let the Supreme Court decide them.
The Justices have not adjudicated the question of whether a particular plaintiff is a public figure since Street and one can reasonably argue that, absent further Supreme Court guidance, media defendants have done just fine when litigating that issue in the lower courts, a track record that might not have been the same had there been an adverse decision in Street. And, as every media lawyer knows, five years after Wilson, the Court in fact decided the issue raised in that case in the media’s favor by a 5-4 vote in Philadelphia Newspapers v. Hepps. The author of the Court's opinion was Justice O'Connor who, the Justices' internal papers reveal, had initially voted against the newspaper defendant, then belatedly changed her mind. She was rewarded for doing so by Justice Brennan (the senior Justice in the majority), who assigned the majority opinion to her. Whether the same result would have obtained in Wilson is, of course, an unanswerable question, but one can certainly speculate that those five additional terms between it and Hepps helped Justice O'Connor find her voice.
