Elena Kagan Predicted Why We Would Hate the Media

On the old television show House, the plot always revolved around the same theme. A patient would arrive at the hospital. Everyone would be confused about what was causing the patient’s problem, then a diagnosis by Dr. Gregory House would explain the mystery. The patient’s vertigo wasn’t caused by a concussion, but by a rare cancer that quietly had been spreading for decades.

A similar dynamic can be seen in President Trump’s new battle with the media. The president removed White House access from CNN, Politico, and MSNOW. These three outlets (and the rest of the legacy media) threw a tantrum. Yet, as was so often the case in House, the problem is much deeper and has been metastasizing much longer than we thought. 

A main reason why we hate the media so much, and the reason they have earned that ire, is rooted in New York Times vs. Sullivan, the 1964 Supreme Court decision that held that media companies cannot be found guilty for anything they report unless there is evidence of “actual malice” on their part. In 1993, a University of Chicago law professor named Elena Kagan wrote an academic article for the Chicago Law Review that perceptively examined the reality of the new post-Sullivan press freedom:

Is it possible that Sullivan bears some responsibility for a change in the way the press views itself and its conduct—a change that the general public might describe as increased press arrogance? It is wise to be wary about attributing too much cultural impact to a Supreme Court decision; yet it is hard to believe that those most directly affected by a decision like Sullivan are in no way changed by it. At the most basic level, judicial declarations of unaccountability can go to the head. It is hardly unthinkable that increased legal protection may lead to a greater sense of entitlement and self-importance (which in turn may manifest itself in questionable conduct). But the effects of Sullivan on the press’s conception of itself may go yet deeper. Just as the Court treats the story of Sullivan as an archetype, so too may the press: the heroic role of the Times in that case helps to define and inform self-understanding. This mythical image may at times serve as model, but it also may blind the press to numerous less attractive aspects of its role and performance. Thus, the self-image of the press becomes semi-delusional, and journalists cease to ask the questions of themselves which they ask of other powerful actors in society. Today’s press engages in far less examination of journalistic standards and their relation to legal rules. Rather than asking whether some kinds of accountability may in the long term benefit journalism, the press reflexively asserts constitutional insulation from any and all norms of conduct.