04 Apr Chief Judge Kozinski on the Death of the First Amendment
Ninth Circuit Chief Judge Alex Kozinski declared in a speech today that the First Amendment is dead. In a keynote speech entitled “The Late, Great First Amendment” given at a Pepperdine Law Review symposium, Kozinski offered a detailed analysis of the consequences of the Internet age for First Amendment jurisprudence. I’m sure that Eugene Volokh, Jack Balkin and other bloggers at the First Amendment conference will have their own take on his speech. But from my perspective, the essence of his speech was that, in a day when Internet speech is not capable of suppression, the ability of the First Amendment to have a moderating effect is now gone. What use does a constitutional limitation have on government restrictions on speech when the government no longer has the ability to control speech?
Kozinski argued that today we live in an age when whistleblowers are unknowable, documents are leaked without consequence, blogger journalists are anonymous and judgment proof, and the mainstream media is in financial peril. Any attempts to restrict speech results in that speech replicated a thousand times over. As such, the First Amendment jurisprudence that we cherish so dearly is now obsolete.
Brandenburg v. Ohio? Dead. Who cares about parades? There once was a time when parades mattered and the government might be predisposed to try to restrict such speech. Not anymore. The days of trying to express ideas through that medium are gone.
New York Times v. Sullivan? Dead. Who cares about libel and slander by the New York Times? Defamation by the mainstream media is the least of our worries. In the Internet age, anonymous bloggers in Turkmenistan are the ones most likely to engage in such conduct, and they are service-proof and judgment-proof.
Campaign finance laws? Dead. Who cares about restrictions on the official campaigns when all the action is on the Internet. The iconic campaign ad of the year has been the Hillary Clinton 1984 Video, a citizen ad which has now been viewed by over 5 million people on YouTube. How can the government hope to regulate that kind of speech?
Cohen v. California? Dead. Who cares about an offensive jacket with the provocative statement “Fuck the Draft”? Everyone can now reach an audience of thousands through anonymous political speech. Even if the government wanted to restrict such speech today, they would be incapable of doing so.
Privacy? Dead. Barbra Streisand may attempt to restrict images on the Internet of her home, but her very effort to do so has led to the proliferation of those images, not the suppression of them.
Whistleblower protection laws? Dead. Who cares about Bob Woodward and other such journalists when the next Deep Throat can just share his information anonymously on the Internet? Wikileaks and a dozen other websites allow anonymous reporting without a journalist as intermediary. Anyone can share valuable information about government conduct, celebrity news, or private misconduct at very little risk. And any attempt to suppress that information will only guarantee its exponential multiplication.
Kozinski clearly was alarmed by what the Internet has wrought. But he saved his strongest criticism for the potential impact that the new media will have on the old media. The New York Times currently has sixty staff in Iraq covering the Iraq war. But what happens to news outlets when bloggers make it financially unsustainable to send reporters to such far-flung places? Even today, a dozen regional newspapers are no longer sending reporters on campaign buses to cover the major presidential candidates. It is simply not cost effective to do so, and hence they are getting the news the same way everyone else is. The result is more voices, but less quality.
Kozinski concluded by saying that we may disagree about whether this new world is better or worse, but there is no question that it is different. The First Amendment presumes that the government has the motive and the means to suppress speech. That no longer holds true today. We live in an age of the late, great First Amendment.
I would like to see Judge Kozinski’s remarks if they are posted online, because if this is an accurate portrayal of them they are very surprising coming from a federal judge of his stature.
What use does a constitutional limitation have on government restrictions on speech when the government no longer has the ability to control speech?
I wonder what someone sitting behind the Great Firewall would say of that statement? Or bloggers being put in jail in the Middle East for criticizing their governments? When Burma wanted to shut down the monks’ protest, one of their tactics, beyond denying foreign journalists entrance into their country, was also to shut off the internet. So many governments around the world still control speech, despite gains in technology. And some companies, like Yahoo and Google, are quite willing to comply with these controls to gain access to foreign markets.
There may be work-arounds to get beyond government control, but then there always have been even in the age of the printing press and the radio. There are still many places in the world where it is dangerous to speak your mind whether on the internet or elsewhere. And that’s the continued relevance of the First Amendment.
In the Internet age, anonymous bloggers in Turkmenistan are the ones most likely to engage in such conduct, and they are service-proof and judgment-proof.
The inchoate fear of anonymous bloggers always has struck me as bizarre (not the least of which, because I am “anonymous” here). There are lots of reasons to be anonymous and writers have been using anonymity throughout history to great effect. Sometimes it can be purely fanciful, see Mark Twain; sometimes it’s just used to divorce the writer from the subject matter, see Publius and the Federalist Papers; and sometimes it can be because your life depends on it, see the nom de guerre and the French Resistance.
If someone is using anonymity as a shield for bad faith conduct then a subpoena to an ISP will clear identity up quickly. If we’re worried about bloggers in Turkmenistan that means we need to start strengthening international norms on speech and privacy. Again, First Amendment jurisprudence is still relevant but maybe we need to start exporting it.
Campaign finance laws? Dead. Who cares about restrictions on the official campaigns when all the action is on the Internet. The iconic campaign ad of the year has been the Hillary Clinton 1984 Video, a citizen ad which has now been viewed by over 5 million people on YouTube. How can the government hope to regulate that kind of speech?
But citizen participation in the democratic process is a good thing, isn’t it? That just means campaign finance laws have to change to meet new realities, not that they’re dead.
Privacy? Dead. Barbra Streisand may attempt to restrict images on the Internet of her home, but her very effort to do so has led to the proliferation of those images, not the suppression of them.
I don’t really shed too many tears for Ms. Streisand. She sought celebrity and with its riches comes a loss of privacy. I am much more worried about the invasion of privacy by the Government in the interest of “national security” than I am by some paparazzi. And the former is still within Judge Kozinski’s control.
But privacy is a social construct and certainly the internet is changing it. I don’t really understand why people want to post embarrassing pictures from their Friday nights on MySpace or Facebook, but then I’m not really sure that means the downfall of civilization either.
But he saved his strongest criticism for the potential impact that the new media will have on the old media. The New York Times currently has sixty staff in Iraq covering the Iraq war. But what happens to news outlets when bloggers make it financially unsustainable to send reporters to such far-flung places? Even today, a dozen regional newspapers are no longer sending reporters on campaign buses to cover the major presidential candidates.
Thank God for the last sentence, otherwise we’d have a dozen more reporters reporting on the Rev. Wright controversy, Hillary’s tax returns, and John McCain’s bar-b-que recipes.
No one blogger is going to compete with a news organization’s global reach and thus there is always going to be a market for a thing like the New York Times. But now there will be places like Global Voices to supplement international stories.
New and old media are at their best when they work together. TPM could break the US Attorney’s scandal because they could take chances on following a seemingly “dead-end” lead. Scott Horton could run with one aspect of that story, the Don Seigelman case, on Harper’s. Then 60 Minutes can pick up the story and give it national coverage with the resources that it has. That’s a very cool process.
There is also still a very big market for good investigative reporting that challenges the Government. The Abu Ghraib story was broke by the New Yorker and 60 Minutes, extraordinary rendition and CIA black sites by the Washington Post, the NSA scandal by the New York Times. People are hungry for those stories and they are still going to sell copy.
But when bloggers get annoyed at the media is when they start trying to establish a consensus that excludes critical or differing viewpoints often on the most superficial and uninformed bases (or outright complicit in furthering government misconduct like Judy Miller). If the media is losing revenue to these voices, they should start thinking about how to incorporate those competing voices into their companies. That’s how the market is supposed to work.
The First Amendment presumes that the government has the motive and the means to suppress speech. That no longer holds true today.
Color me a skeptic.
His remarks will be published in the Pepperdine Law Review in the coming months. I will let you know when they are available.
Roger Alford
What non liquet said.
The New York Times currently has sixty staff in Iraq covering the Iraq war. But what happens to news outlets when bloggers make it financially unsustainable to send reporters to such far-flung places?
What good have those 60 NYT staff in Iraq done us? Did they help stop the war from happening? Have they brought us any closer to ending it? I’ll wait for the day when we have no NYTimes staff in Iraq trading support for access and helping sell wars of choice to the public.
It is reckless to call a foundational written guarantee of liberty ‘dead’ merely because that liberty appears to be strong at the moment (and Non liquet aptly questions the powerlessness of government). The United States will be gruesome when the First Amendment dies.
Good times do not always endure, just as hardship does not always endure. But while either is here, we are tempted to believe the condition is permanent.
We would be wise to take pains to ensure that liberty endures through all circumstances. This requires continual and robust exercise of the limits on government, lest the limits atrophy and die indeed.