Recent judicial decisions, including the Supreme Court’s refusal yesterday to hear the cases of two reporters facing jail, Judith Miller of the New York Times and Matthew Cooper of Time magazine, suggest a new hostility, one fueled by skepticism about the very value of the institutional press, the New York Times says. “We’re seeing outright contempt for an independent press in a free society,” said Jane Kirtley, who teaches media ethics and law at the University of Minnesota. “The fact that courts have no appreciation for this is new, is troubling, and you cannot overestimate the impact it will have over time.”
Court reluctance to grant reporters special rights may reflect a dissatisfaction by politicians and the public about the role the news media have come to play, the Times says. The press has increasingly found itself a target of politically charged attacks, particularly from conservatives, who view the mainstream media as liberal and out of touch with the concerns of many Americans. “We’re in an era of great judicial skepticism regarding the reliability and professionalism of the media generally,” said Rodney A. Smolla, dean of the University of Richmond School of Law, “and that atmosphere, I think, makes courts reluctant to recognize any special First Amendment protection.” Kirtley said the legal turning point came in a 2003 ruling by fedeal appellate judge Richard Posner in Chicago. He wrote that lower courts had often misread and failed to follow the holding of the 1972 Supreme Court case of Branzburg v. Hayes that rejected First Amendment protection for reporters facing grand jury subpoenas.