The Dangers of Press Clause Dicta

Abstract

The United States Supreme Court has engaged in an unusual pattern of excessive dicta in cases involving the press. Indeed, a close examination of such cases reveals that it is one of the most consistent, defining characteristics of the U.S. Supreme Court’s media law jurisprudence in the last half century. The Court’s opinions in cases involving the media, while almost uniformly reaching conclusions based on other grounds, regularly include language about the constitutional or democratic character, duty, value, or role of the press — language that could be, but ultimately is not, significant to the constitutional conclusion reached. Although scholars have long debated the ways in which the Court could or should be convinced to adopt a substantive position giving the First Amendment’s Press Clause constitutional teeth, this Essay steps back from the substantive debates to discuss the ramifications of a dicta-driven Press Clause dialogue. It investigates the ways in which the Court’s loose language in this area has detracted from careful doctrinal development in media law and has created organizational and operational confusion of constitutional consequence. It argues that, separate and apart from the substantive drawbacks that might accompany the Court’s failure to commit to a media-protecting Press Clause position, there are other large-scale, structural consequences that accompany the practice of such dicta-heavy constitutional imprecision and that these consequences ought to be seen as disconcerting. It discusses both the overarching jurisprudential and constitutional risks produced when the use of dicta predominates the Court’s analysis of any issue and the ways in which these risks are amplified and compounded in the area of press freedoms, where expressive liberties are at stake and the threat of chilling communicative behavior is pronounced.

Keywords: media, press, First Amendment, dicta, Supreme Court, newspapers, reporters, Press Clause