“The Gloss of History”: A Historical Analysis of U.S. Supreme Court Justices’ Framing of First Amendment Press Rights to Cover and Access Court Proceedings

Abstract

Originalism explores the intentions for, or understandings of, constitutional rights held by drafters of the Constitution or founders of the United States. This qualitative historical analysis evaluates the accuracy and adequacy of U.S. Supreme Court justices’ citations of founders’ intentions for, or understandings of, free press rights in opinions addressing journalists’ rights to cover and access court proceedings. Our research found that justices some times have accurately and adequately cited founders’ writings. Yet, justices too often have cited court opinions and other documents from the 1800s or 1900s to support their assertions about original intentions for or understandings of freedom of speech or of the press and First Amendment values. When referencing writings by founders, justices sometimes provided inadequate context. Such practices have harmed the accuracy of legal and historical records. To improve accuracy in future opinions, justices need to stop citing sections of previous opinions that lack accurate citation, adequate citation, or proper context.