WaPo reports that Justice Alito said this when asked "'where's the line' on what can be posted on the Internet":
"I would be reluctant to support restrictions on what people could say."
Was the questioner (or the Justice) thinking about the AutoAdmit case?
The newest justice, who was protective of speech rights as an appellate judge, added that "some restrictions have been held to be consistent with the First Amendment, but it's very dangerous for the government to restrict speech."
Of course, I agree.
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17 comments:
Ann,
Leave it to the Democratic majority to want to put limits on Free Speech. Whether it is speech codes on campus or the Fairness doctrine. The hate speech from Luckey Old Son is a norm for the modern Democrats, and shutting up Republicans is part and parcel of their repertoire; Hugo Chavez, who shuts down opposition papers and radio stations is what the Democrats want.
If the Democratic partisans here want to prove they are for First Amendment rights, they will follow Volitaire's rule:
"I do not agree with what you say, but I do defend your right to say it."
My instinctive reaction would be that trying to leverage this into the AutoAdmit case seems something of a square peg into a round hole suggestion. Is it really apt to compare Alito's views on whether government can restrict speech (the proscription, to one extent or another, of the First Amendment) to a case where private litigants are (as I understand it) seeking to punish (and perhaps close down) speech? It seems far more likely that he has the Bong Hits 4 Jesus cases in mind.
A serious question: we all make the distinction between governments censoring speech (not allowed under the First Amendment) and private actors (clearly allowed). But Autoadmit is obviously a third case. Here we have a case where private actors are attempting to use the government to censor speech. The libertarian in me comes down squarely and heavily against that.
Consider three scenarios:
1. City Council makes you take a political candidate's sign in your yard down. This is clearly a violation of the First Amendment.
2. Random House will not publish your screed on political philosophy. This is clearly NOT a violation of the First Amendment.
3. People want to use government power to shut down a website or forcibly take property from its owners based on things people said on the website. Because of the involvement of the government, this is a violation of the First Amendment.
Civil judges have the power to enjoin speech or enter judgment in a dollar amount. Either way, if things go far enough, four beefy guys with weapons will arrive at your front door, uninvited.
The processes of law are a good thing. But one ought keep in mind that they all depend on guys in uniform ready to beat the shit out of the recalcitrant.
NTTAWWT!
But Autoadmit is obviously a third case. Here we have a case where private actors are attempting to use the government to censor speech.
Is that accurate? If there is a settlement, that would be between two private parties. If
it went to trial, wouldn't it be decided by a jury (private citizens) assuming of course there is a jury trial?
I'm not a lawyer so I am shooting from the hip on that one based upon my understanding of how civil lawsuits work,
Seven,
So any time a person brings a tort action in court (or for that matter, any civil case), any remedy imposed by the court is in effect the state acting against the defendant ex rel the plaintiff? If that's so, why isn't any verdict imposing damages for libel or slander per se violative of the First Amendment?
Suppose I write a guest column for the Weekly Standard, but they exercise their undisputed right to censor it by excising what I think is a key paragraph of it. Because I'm a complete tool, I don't reserve copyright on the article, but I'm incensed enough to reprint the entire column, including the excised section, on a website I own and operate. The Weekly Standard sues me for copyright violation, seeking damages and an injunction forcing me to remove the content permanently. As I understand your theory, the court couldn't possibly grant the claim for injunctive relief because to do so would be to infringe on my free speech rights - right? And if not, why not? What's the difference between shutting down AutoAdmit because the court agrees that the speech was defamatory and shutting down my server because the court agrees that the article breeches copyright, if the paradigm is that the First Amendment restrains the scope of equitable remedies a court can award private litigants?
HD, how does one enforce a settlement?
See my 10:45.
(BTW, "The Godfather" works this theme beautifully, IMHO.)
Hoosier -- It's the use of the power of the State that's the issue, not who uses it. The jury didn't self-organize. In fact, jury duty is enforced by subpoena, which is the State forcing you to show up and make a decision with 11 others. (I am not against this.) Jurors acting as jurors are not private citizens. Just like a judge shopping at Walgreen's is not acting as a judge.
Simon -- That's really the issue. Is this libel? If it is, it's not protected. But it obviously isn't because no one has told any lies. If I post a photo of you and say you are hot, that cannot be construed as a lie. There is no accounting for taste, even and especially under libel law.
Regarding your example, first of all, I'd be interested to see what the elements of defamation are. My guess is that one of them is lying, just like with libel.
Second of all, I don't believe that you don't have a copyright just because you don't explicitly reserve it. I'm doing some trademark work right now, and I now know that you still have all the rights to a trademark without explicitly reserving it. What you don't have is federal jurisdiction and some automatic protections.
Third of all, your Weekly Standard scenario is a contracts issue, not a free speech issue. I have had exactly what you said happen to me, on a smaller scale. I wrote some stuff and sold it to a publisher. They published it after making editorial changes. Sucks for me. I still have the stuff. It is the contract we signed, not the First Amendment, which determines whether or not I can publish my work somewhere else as well.
Seven, ok I see your point. Thanks.
It's odd that Justice Alito's comment has gotten so much attention. I can easily see any of the other justices saying exactly the same thing. But cynics will note that the other justice might have said the same thing, but they would have meant something different.
At bottom, I think all of this attention reflects the now quite pervasive perception that the results of constitutional litigation at the SCOTUS level haven't been dictated or controlled by text or precedent, or really any other objective factors. Whether that perception is accurate is another matter. But it has certainly led many people to view constitutional litigation as just politics as usual by another name.
In all events, to say, as Alito apparently did, that "some restrictions have been held to be consistent with the First Amendment" is to acknowledge that First Amendment values inevitably end up being balanced against competing values. One of the competing values that has traditionally been thought to warrant that sort of balancing is protection of reputation -- thus, common law defamation claims are still around, even if a lot of defamation litigation has been semi-constitutionalized (the need for balancing and accomodation of competing values works both ways, of course). As for the pending cases on the Court's docket that implicate First Amendment values, far and away the most significant one is the Wisconsin Right to Life case. There's a lot of speculation on the web that Alito (and CJ Roberts) will side with the dissenters in McConnell v. FEC, and that McCain-Feingold will take a real hit as a result. We'll know if a week or two.
I hope he is, in fact, thinking of that abomination known as McCain-Feingold.
The most interesting aspect of Alito's commment is this part:
" ... it's very dangerous for the government to restrict speech."
He's not talking about danger in the sense that our free speech rights are endangered. He's talking about the danger to the government.
He understands what always happens if a government gets into the business of restricting speech.
The people will rise up and kill that government.
It's dangerous, Alito warns.
So don't do it.
Smart guy that Sam.
Mike wrote: "I hope he is, in fact, thinking of that abomination known as McCain-Feingold."
Wow, isn't that a nice thought! Or how about the so called Fairness Doctrine? Otherwise known as we cannot compete so let's legislate a handicap bill.
Trey
I suppose what Alito is saying is that Democracy is for sale. As long as he is a strong believer in the First Amendment and the right of people to speak and right, then any sum of money to attain that goal is just as worthy. Since money equates to free speech, then those with the most money can peddle their speech to any politician willing to listen? Am I wrong?
Ever since BUCKLEY v. VALEO, the common man has been effectively pushed out of pursuing any influence in politics. Sure, you can say that if you have enough money, then you can gain access, but ever since the horror that is McCain/Feingold, this problem only shifted from direct contributories to the now favorable 524's.
But any mention of free speech with respect to the government limiting it cannot be discussed properly without BUCKLEY v. VALEO being a foundational premise for how the politics of speech have been shaped by it to what we see today and I have never heard any of the justices make reference to BUCKLEY v. VALEO with respect to speech vs. campaign finance or politics in general.
If people want to use government power to curtail speech, then wave BUCKLEY v. VALEO in their face, see how far it gets you. Of course the government restricts speech. It does it all the time, it does it in legislation, it does it in the tax codes, it does it with respect to loopholes in the law for those that can pay for them. Afterall, money = speech and if the government is going to curtail it, then maybe you can write a fat enough check to get your exemption.
BUCKLEY v. VALEO needs to be repealed and buried. This ruling has been the monkey on the back of every citizen in this country. If you stop equating money to speech, then we can actually go back to using real words instead of dollar signs to get our points across, whether you have billions of dollars or whether you have 1 dollar. Think about it.
After the case on the right to say "Bong hists for Jesus," will come one on the right to take bong hits for Jesus.
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