Credit: Mark Fischer / photo on flickr
A terrible Supreme Court decision yesterday probably hasn't gotten the attention it really deserves. That's likely because the decision wasn't made by the justices but rather by a group of journalists who have the power to decide who gets credentials to cover Congress (which in turn helps determine who gets credentials to cover the Supreme Court). The Standing Committee of Correspondents of the Senate Press Gallery, at the same time as the Supreme Court was announcing new rulings, declared that SCOTUSBlog, one of the best resources to keep track of and understand the intricacies of the rulings of our highest court, did not qualify for media credentials.
Thousands turn to SCOTUSBlog for their explanations of Supreme Court decisions. The site's publisher, Tom Goldstein, noted in his response to the committee's decision that 10,000 people were watching their liveblog of yesterday's decisions at the same time that the committee was denying the press credentials.
And the main reason the committee denied credentials for SCOTUSBlog is also the main reason why people turn to the site: It has lawyers who have argued before the court writing for them. The committee argued that SCOTUSBlog lacks editorial independence because Goldstein is both the publisher of the site and "lobbies the government" as a lawyer. It's a decision that fails to grasp how the Internet has changed how the public can avoid certain gatekeepers (or perhaps just vainly hopes to hold back the tide). Experts no longer need to be filtered through journalists in order to communicate to the public, and there are times where this can be an improvement, such as dealing with some very complicated Supreme Court decisions. Eugene Volokh at the Volokh Conpsiracy (hosted at The Washington Post, which has an employee on the Standing Committee of Correspondents), criticized the choice for these reasons:
By making it possible for anyone to communicate to the world at large, the Internet makes feasible (among other things) reporting and analysis by experts in the field — not just reporters who often lack the experts' experience, education, or specialization, and not just by large mainstream media organizations that understandably lack a commitment to truly deep coverage of a particular issue. If you're interested in the latest decisions about computer crime law, you are no longer limited in reading what reporters who know little about computer crime law have to say about it; you can also come to this blog and read Orin Kerr, the leading American expert on computer crime law. If you're interested in breaking news stories about appellate decisions, you can read appellate lawyer Howard Bashman's posts on How Appealing. If you're interested in linguistics stories in the news, you can read the linguistics professors at Language Log. If you're interested in the Supreme Court, you can read the unparalleled resources put together by SCOTUSblog, which was founded by Tom Goldstein, one of the nation's leading Supreme Court litigators. And you can read these items without the filtering, oversimplification, and distortion that usually happen when nonexpert journalists write about technical issues — and that often happen even when the best, most knowledgeable nonexpert journalists write about such issues. Of course, you can still choose to read nonexpert journalists' stories on the subject, precisely because you value the filtering and simplification that the nonexpert journalists provide; often, that's what one wants, especially on subjects in which one has only modest interest. But sometimes, you want to go straight to someone who has decades of professional experience actually working on what he's writing about.
And of course, the 24/7 news cycle results in infamous mistakes. Everybody remembers the contradictory reports of the outcome of the Supreme Court's ruling on the constitutionality of Obamacare mandates with Fox and CNN both getting it wrong. Does anybody remember that White House staff were watching SCOTUSBlog's live feed to get the right information?
What I find most amusing—or perhaps galling (I am often amused by things that are galling)—about the committee's decision is how it treats traditional news outlets as though they aren't huge businesses that also frequently lobby the government. Media is probably the only industry in the world where a huge chunk of its own employees simply cannot grasp that they are part of a business. Does every journalist turn in his or her credentials when a free press issue comes before the court? Don't be silly. Newspapers cover lawsuits even where the newspaper itself is a party. They simply are transparent with readers that they have a connection with the case. SCOTUSblog also indicates when a lawyer with the site has a connection with any case they're covering. It's up to the readers to decide how much weight to give that knowledge when reading the blog's analysis of a case. The same is true for traditional media outlets. Maybe that's what's scary for some journalists; that even knowing of potential biases at SCOTUSblog, some readers still see them as having better command of the information.
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