The Abstract and Link to My Forthcoming Article: The Vulnerability of the Press, Academic Freedom, and Zealous Advocacy
I'm pre-writing today's post on Sunday because by the time you read this, it will be Yom Kippur, and I'll be atoning for my various sins. Accordingly, I'll keep it short. I have a new article that addresses two related phenomena: (1) Trump's attacks on three categories of nongovernmental institutions that are essential to democracy (media organizations, universities, and law firms); and (2) the ways in which constitutional case law pays lip service to the importance of such institutions but in practice gives them no distinctive protection. I also explain the dual-edged nature of an institution's size: it to some extent can insulate an institution from attack but it also makes an institution more vulnerable because the larger an institution the more it depends on good-faith interactions with the government. The article concludes with some reform proposals.
The article won't be published in final form for nearly a year. Such are the vagaries of law journal publication. But in the meantime, you can read it here. Here's the abstract:
The Supreme Court of the United States has long acknowledged that a free press, academic freedom, and zealous advocacy are essential to democracy and the rule of law. However, Supreme Court case law provides little to no distinctive protection for the actors—journalists, scholars, and lawyers—or institutions—news organizations, universities, and law firms—associated with those activities and values. Yet such actors and institutions are not merely vital to a well-functioning constitutional democracy but also especially vulnerable to government coercion, as illustrated by the second Trump administration’s actions against disfavored news organizations, universities, and law firms. Courts should respond by applying existing constitutional doctrines with a thumb on the scale in favor of these democracy-preserving actors and institutions and suspending or reversing the presumption of regularity when government targets such actors or institutions for adverse action. Doing so would require some delicate judgments (such as who counts as a journalist) but would not be more difficult than drawing other distinctions the Supreme Court has endorsed with respect to First Amendment actors (such as who counts as a “minister” for purposes of the Religion Clauses).
-- Michael C. Dorf