Raise your hand if you’re feeling harassed and threatened.
Me, too. The media, especially the electronic media, can be a force for nasty, brutish accusations sometimes, and you could not be faulted if—after a morning on Twitter or Facebook, you opted to lock your doors, buy a gun, and hide the kids in the pantry.
The idea that the Internet opens us to unique new forms of bullying and harassment is neither new nor shocking, and the courts have wrestled with the question of when publishing someone’s information becomes harassment. The power of online media to both target someone and to incite harassment is surely without precedent. But the idea that any and all information or opinion disseminated by the new media equals bullying is quite different.
This argument has moved to the front burner in recent weeks partly because several major campaign donors have begun to complain that President Obama is targeting and harassing Mitt Romney’s donors and raising the specter of an “Enemies List,” presidential “terrorism,” and reprisals that have come about as a result of news stories about them. The not-so-hidden agenda, when donors claim that they are being outed, boycotted, and targeted by the media, is simple: It’s part of a long campaign to avoid ever having to disclose information about themselves in the first place. For years, claims that the Internet facilitates the targeting and bullying of proponents of political speech have been raised in the courts in an effort to ensure that elections can not only be bought and sold, but that this can and should be done in perfect secrecy.
As Richard Hasen pointed out last week, these claims that big donors are being “harassed” and “intimidated” by media scrutiny comes at precisely the same moment that a handful of conservative thinkers started accusing Obama (apparently by way of his thuggish henchman otherwise known as legal scholar and writer Jeffrey Rosen) of “harassing” and “intimidating” the Supreme Court itself. Evidently the president’s suggestion last April that the court not overturn healthcare reform, coupled with Professor Rosen’s observation that there would be consequences were the court to do so, now rises to the level of intimidation and threats, perhaps even fomenting popular revolt. Presumably the news of the Supreme Court’s sagging poll numbers in the New York Times similarly represents a veiled threat aimed at the court by a liberal paper.
In other words, what was once known as “journalism” is now a sparking open fuse of danger. As Hasen explained, “The right is now trying to elide the distinction between holding people and organizations accountable for the actions they take and the concept of harassment and intimidation.”
It’s hard to know what to make of all this. For one thing, when individuals make genuinely threatening claims about the courts—including Newt Gingrich’s comments about subpoenaing judges who come to unpopular conclusions or shutting down an entire federal appeals court—few on the political right accused him of harassment or intimidation. It’s strange to imagine that John Roberts would be more threatened by the observations of a George Washington University law professor than by claims that the next president plans to curtail the jurisdiction of Article III courts.*
Putting aside the blame and accusations on either side, the more important question is whether the justices themselves really do feel victimized, harassed, and threatened by newspaper reports of their conduct, special scrutiny of their extracurricular activities, and the reporting of it in the national media. Because it appears that when enough justices believe that they themselves are being assailed and personally threatened by the press, the impact can come to affect legal doctrine. RonNell Andersen Jones, a professor at Brigham Young University Law School, has done a great deal of thinking about the gap between the court’s idealized view of the press as a vital corrective on government and the reality of their treatment of the media.* In an upcoming law review article, she argues that the justices of the U.S. Supreme Court, in their role as articulators of legal doctrine in judicial opinions, hold overwhelmingly positive views of the press. But those same justices hold overwhelmingly negative views of how the press covers them. She tells me that the court’s own decisions suggest that the argument that strong criticism represents a threat to judicial integrity does not stand. “The court's opinions in the last 50 years have extolled the virtues of a free press and repeatedly highlighted the ways in which unfettered reporting and robust media commentary facilitate democratic values. If we line up the statements that the court itself has made—celebrating this uninhibited, wide-open, and robust reporting about matters of public interest—it is inconceivable that the justices could view mere commentary about important court cases, even if deeply critical, as being ‘intimidation.’”
That said, there can be a disjunction between that idealized notion of the fourth estate and the justices’ personal experience of criticism. As I have argued before, particularly for some of the newer justices, the belief that they are—both as part of their confirmation process and thereafter as they sit on the bench—subject to unreasonable public targeting and campaigns to discredit them, can have serious implications that impact all of us.
When, in May 2010, the Supreme Court announced that, as the result of a security assessment, the public would no longer be permitted to enter the court building through its iconic bronze doors, it was a tangible sign that the justices believed they were not as safe as they used to be. In a dissent from that decision, Justice Stephen Breyer reminded his colleagues: “To many members of the public, this court's main entrance and front steps are not only a means to, but also a metaphor for, access to the court itself."
Yet in one opinion after another we have seen various justices expressing real wariness over information disseminated on the Internet. In 2010, the justices issued an unprecedented unsigned opinion turning off the TV cameras poised to broadcast the California gay marriage hearings. Their objections to the cameras were tethered to arguments that anti-gay-rights witnesses would be harassed and suffer retaliation if their testimony were broadcast. These witnesses were expert witnesses whose names and views are readily available online. But the court opted to protect them out of a concern that gay rights supporters would punish them.
That same year, Thomas wrote worriedly in a case over whether Washington state residents who signed a different anti-gay rights ballot petition could keep their names secret because they faced the possibility of bullying and reprisals. Thomas wrote in a dissent that “the state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed. [T]he advent of the Internet’ enables rapid dissemination of the information needed’ to threaten or harass every referendum signer.” Justice Samuel Alito, although he sided with the majority, expressed similar anxieties at oral argument and offered a concurrence to that effect. Justice Stephen Breyer has similarly worried about the ways the Internet increases the possibility that words may become violence. Much of this same logic about publicity and harassment logic undergirded Thomas’ objections to the disclosure requirements he announced in Citizens United.
All of which begins to suggest that Justice Antonin Scalia may be in the court’s minority when he argues—as he did in the Washington state ballot case—that “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.” Scalia concluded these thoughts with the observation that “this does not resemble the Home of the Brave.”
The nine current justices are sufficiently isolated from the rough and tumble of political life that some must experience criticism, journalistic scrutiny, and Internet threats in ways that most politicians learn to slough off. If I am right that several of the justices really might be experiencing the current public conversation about the court and its decisions as threatening, and even potentially violent, it almost doesn’t matter what the writer or speaker intended. The end result may simply be less speech for all of us.