These days, as professors RonNell Andersen Jones and Sonja West have documented, the U.S. Supreme Court rarely turns its attention directly to press freedom and rarely thinks out loud about the impact its rulings will have on journalists. But questions important to the rights of reporters still routinely lurk beneath the surface of the court’s decisions, as its most recent term, which featured a remarkable roster of free speech controversies, starkly underlines. This year saw important victories and dangerous close calls for press freedom — along with cryptic developments whose significance will have to be hashed out in lower courts in cases to come.
In one measure of the court’s active docket, the Reporters Committee for Freedom of the Press filed or joined friend-of-the-court briefs in no fewer than five merits cases argued before the justices this term. Across those filings, we addressed issues as diverse as a sovereign immunity question with consequences for journalists seeking government records in Puerto Rico; a pair of high-profile controversies about online speech, Gonzalez v. Google and Twitter v. Taamneh; the scope of the First Amendment’s exception for true threats; and the rights of reporters documenting illegal crossings at the southern border. (We’ve covered this work as it unfolded in the Reporters Committee’s weekly newsletter, The Nuance, but zooming out makes the full picture clearer.)
In some areas, the press gained important ground. The Court’s decision in Counterman v. Colorado, which tightened the law around prosecuting threatening statements, will make it more difficult for public officials to bring meritless harassment allegations against journalists for their newsgathering — as Arizona state Sen. Wendy Rogers did when a reporter for the Arizona Capitol Times attempted to investigate whether Rogers actually lived in the legislative district she represents. Together, Twitter v. Taamneh and United States v. Hansen made clear that the justices will interpret aiding-and-abetting liability narrowly when First Amendment interests are at stake, a principle that shields news organizations from the charge that truthful coverage of newsworthy unlawful activity might make it easier for someone, somewhere to commit a crime.
We were gratified to see counsel and the Supreme Court engage with our work en route to those results. In Taamneh, as the Court considered the reach of the aiding-and-abetting provisions of the Anti-Terrorism Act, Justice Brett Kavanaugh pressed Taamneh’s counsel on a question we raised in a joint brief with several other civil liberties groups: whether his position would have put news organizations in legal jeopardy for interviewing Osama Bin Laden. In Hansen, Justice Ketanji Brown Jackson’s dissent cited our brief in flagging similar risks that journalists covering unlawful immigration had faced. (The majority reached a practical outcome similar to Justice Jackson’s by reading the law at issue narrowly, to avoid the constitutional difficulties it might have raised.) And in Counterman, counsel pointed to our submission during oral argument for examples of the valuable newsgathering that could be chilled by an overbroad conception of “true threats.” In each case, we’re glad we could ensure press freedom concerns entered into the deliberations.
Other outcomes were more equivocal. Gonzalez, the Court’s first opportunity to interpret the scope of Section 230 of the Communications Decency Act, could have had tectonic consequences for speech online — and as the Reporters Committee and the Media Law Resource Center warned in a friend-of-the-court brief, narrowing the statute’s protections for online intermediaries would sharpen the incentive platforms face to take down news content that might give rise to litigation risk. We breathed a sigh of relief when the justices dodged the issue entirely. Still, efforts to chip away at Section 230’s protections won’t end with this case, and the result in Gonzalez provides little clarity on the positions the justices will strike out if the question returns to them again.
Then there was 303 Creative v. Elenis, the Supreme Court’s end-of-term decision at the intersection of compelled speech and public accommodations law. The Reporters Committee didn’t file a brief in that case, and Justice Neil Gorsuch’s cryptic opinion has already touched off intense disagreement about the decision’s scope — which could be anything from a ticket good for one ride only to a major shift in the law of compelled speech. (Ronald K.L. Collins of First Amendment News recently canvassed those divergent reactions.) What will 303 Creative mean, if anything, for newspapers like the Arkansas Times that object to being forced to take a position on boycotts of Israel? For social media firms that states like Texas and Florida hope to require to distribute viewpoints the platforms object to? (When that issue cropped up on the Court’s emergency docket, Justice Gorsuch joined a dissent by Justice Samuel Alito that would have denied the social media firms interim relief.) On each front, we don’t have an answer yet.
Nor is there a clear throughline in the cases the Supreme Court chose to hear or the results reached last term — no unified bloc driving the justices’ decisionmaking on free speech issues toward a legible end. (The opinion in Taamneh was unanimous; 303 Creative split the Court along conventional partisan lines, Counterman along unconventional ones, with Hansen falling somewhere in between.) It’s hard to predict, in that light, what next year at the Supreme Court will bring, except to say that the justices are hardly losing interest in the First Amendment. Already, the Court has resolved to hear a pair of cases addressing public officials who block their constituents on social media, while a host of important petitions are waiting in the wings — asking the justices to weigh platform regulation, retaliatory arrests, criminal defamation laws, and more.
What those cases will bring is anyone’s guess. But just as we did last term, the Reporters Committee will be working to ensure the justices hear — and reckon with — the impact their decisions could have on a free press.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.