RONNELL ANDERSEN JONES & SONJA R. WEST
Backward-looking, history-and-tradition analysis is gaining greater prominence at the U.S. Supreme Court. While the Court has not yet explicitly applied its history-and-tradition framework to press freedom questions, the methodology’s dominance across other areas, coupled with some urgent concerns about the scope of newsgatherer protections and some Justices’ interest in reconsidering long-established precedent, suggest that this application could be imminent. In anticipation of that moment, we set out to empirically map the Court’s engagement with the history and tradition of press freedom in its rhetoric over time. Our goals were to explore, both quantitatively and qualitatively, how the Court’s Justices have discussed historical and traditional views on press freedom and whether the intensified history-and-tradition analysis that now dominates the Roberts Court’s constitutional decisions is mirrored in its discussions of the press. What we found was deeply counterintuitive. The trend data show that while the Court once routinely commented on the Founders’ support for the press and the nation’s long history of press freedom, these references are now waning. That is, even as history-and-tradition analysis has proliferated in the Roberts Court’s recent decisions, references to these concepts in mentions of the press have plummeted. This paradox suggests that the Roberts Court may be discarding its longstanding positive historical narrative of press freedom just as it is elevating history and tradition as tools of constitutional interpretation.