In this Essay, Professor Tushnet argues against the common perception that rulings favoring First Amendment claims by a conservative Supreme Court are surprising. The Court's decisions result from doctrinal concerns-particularly the desire of some Justices for clear rules that reduce judicial discretion-and, more importantly, from the Court's desire to satisfy the interests of an important constituency, the respectable media. Those media disseminate the Court's decisions to the wider public, and the Court can ensure a favorable public image by satisfying the media's interests. Professor Tushnet indicates how this broad argument must be qualified to distinguish between the print and broadcast media and between the editorial and commercial interests of the respectable media. Because the Court's interests converge with the interests of the respectable media, he concludes, First Amendment decisions favoring the respectable media should not be surprising.
The Supreme Court and Its First Amendment Constituency,
44 Hastings L.J. 881
Available at: https://repository.uchastings.edu/hastings_law_journal/vol44/iss4/6