Professor RonNell Andersen Jones: Depictions of the role that the press plays as a watchdog or the way that it benefits our democracy, those are things that the court was saying much more often, and now it’s saying much less frequently.

Diane Maggipinto: This is 3 in 5, a podcast from the S.J. Quinney College of Law at the University of Utah. Three questions, five minutes, featuring some of our professors talking about their recent published research.

I’m the host, Diane Maggipinto. My guest today

Professor RonNell Andersen Jones: I’m RonNell Andersen Jones, professor of law at the University of Utah, S.J. Quinney College of Law.

Diane Maggipinto: When I read your paper, I noticed that you referenced an article you wrote that was published in 2014, called “What the Supreme Court Thinks of the Press and Why it Matters”.

And I’d love to start there. Can you give us a little capsule of that article and how that was a springboard to the research we’re talking about today?

Professor RonNell Andersen Jones: We in the media law realm, think a lot about what other elected branches of the government think about the press and give very little attention to what the judiciary thinks of the press, which strikes me as backwards.

With all of the recent rhetoric vilifying the media as the “enemy of the people” or “fake news”. There’s been a lot of scholarly conversation about how the elected branches of government characterized the press, but no attention at all is paid to the judiciary, which is surprising given the Supreme Court’s role in actually safeguarding press freedom.

That conventional wisdom is that the court will just continue to be this reliable backstop depicting the press function positively, even if those other branches malign it, but no one has ever actually tested this premise. Our new study really aims to fill that gap with an empirical analysis of the question.

Diane Maggipinto: Your new study titled the U.S. Supreme Court’s Characterizations of the Press: An Empirical Study. Explain the methodology and what you found.

Professor RonNell Andersen Jones: We took on a really massive task of tracking every reference to the press by a U.S. Supreme Court justice in the court’s published opinions all the way back to 1784.

And then we coded all of these references to the press for the presence of common framings and whether the frame was conveyed with a positive or neutral or negative tone. And then we plotted the trends. And this allows us, really, for the first time, to think about the court’s depictions of the press and how they too are changing over time.

And contrary to the conventional wisdom, there has actually been a stark downturn in both the quantity and quality of the courts characterizations of the press. That is, the data show that the justices are now less likely to talk about the press than they were in the past, and that when they do, it’s much more often in a negative light. There are some framings of the press that we discovered that nearly always come from the court packaged in positivity, for example, discussions of what the nation’s founders thought about the value of the press or comments about the press’s role in democracy, but consistently across the board, we see those on the decline.

The court says these things much, much less often than it did a generation or two ago. And conversely, there are some framings that skew much more negative, like commentary on the press’ impact on individuals’ reputation or their privacy interests. And those we see increasing in their negativity. So it’s happening from several directions, but all pointing to the Supreme Court that sort of no longer perceives of the press in the glowing terms that it once did.

We wanted both to think about, how the court speaks at the press, but we also wanted to think about the lenses through which it perceives of the press. And so we ultimately landed on this format that gave us the chance to think about topic areas, the Found Era, the role of the press, the press as communicator, the press as enhancer of democracy, but also to leave open the possibility that any of those frames might be discussed in positive, negative, or neutral ways to let the data guide us rather than us pigeonholing the data. And we got the chance to capture instances in which things that were once said almost exclusively in a positive way are now being said in a negative way and got to capture the fact that certain positive-leaning framings of the press are now disappearing and certain negative leaning depictions of the press are rising in their prominence. Waning in the background are depictions that might have existed in with much more prominence in the past, like depictions of the role that the press plays as a watchdog or the way that it benefits our democracy.

Those are things that the court was saying much more often. And now it’s saying much less frequently.

Diane Maggipinto: Hmm.

Is there anything we can do? Are there any solutions?

Professor RonNell Andersen Jones: Part of what we can do is refocus our energies on discussing the value of press in a society. My coauthor and I are not under any sort of disillusions that the press is always perfect.

In fact, the two of us have been some of the strongest critics, but overall it’s really critically important for a democracy to have a shared sense of value that press freedom matters and that the press function in a society matters. We ought to be, um, celebrating the notion that investigative journalism happens and that there’s an entity that is looking out for, and acting as a watchdog on, our government and looking for shared truths on which we can base our conversations as a society.

And that kind of dialogue about the value of the press and its role in our society strikes me as really important going forward. A Supreme Court that does not think well of the press might not be inclined to protect it legally or constitutionally. Judicial rhetoric about the value of the press has been really key to the protection of the press’s ability to do things, like protect sources and publish without restraint from the government. And if the Supreme court no longer thinks of the press as valuable, it opens the door to some risk that those protections will be diminished.

That’s 3 in 5, from the University of Utah S.J. Quinney College of Law.