Hello! You've Been Referred Here Because You're Wrong About The First Amendment.

Welcome! Someone has referred you to this post because you've said something quite wrong about the First Amendment.

I apologize for this impersonal approach to your mistake. I would prefer to offer you an artisanal response to your wrongness, something that would respect and celebrate the unique ways that you've taken one of the most fundamental aspects of our mutual civic heritage as Americans and shat your ignorance upon it. Unfortunately, there are quite a few of you and only one of me, and I'm busy, and lazy. Also, quite frankly I feel that if I have to explain these things to just one more person, I may go quite mad. I don't mean mad in the vaguely amusing, sympathetic, relatable ways that people expect from me. I mean mad in an uncouth and alarming sense that will likely result in my calamitous misuse of some implement residing in the dark marchlands between tool and weapon, such as an adze.

So. Constrained as we are by this impersonal medium, let's discuss why you are completely wrong.

If you said something like "The First Amendment says 'Congress shall make no law,' and Congress isn't involved here, so it's not a First Amendment issue."

Congratulations! You've read the First Amendment. Even if you've ignored the last century of discourse about it, this raises you above most of the populace, particularly on the Internet.

You're right that the plain language of the First Amendment only limits Congressional power. But you've ignored some American history. Don't worry: you've only ignored a century and a half of it. The Bill of Rights was originally understood to limit the power of the federal government without limiting the states. But in 1868, after some recent unpleasantness, we amended the Constitution to add the Fourteenth Amendment, which includes this language: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." By its own terms, the Fourteenth Amendment forbids the states from infringing certain rights.

But which rights? Well, in the early 20th Century, the United States Supreme Court decided that certain fundamental rights enumerated in the Bill of Rights are included in the concept of liberty identified in the Fourteenth Amendment and therefore protected from infringement by "due process of law." This process — under which the court decided that the Fourteenth Amendment incorporated by reference rights from the Bill of Rights and made them enforceable against the states — is called incorporation, and the notion is called the incorporation doctrine. The Supreme Court has decided that most, but not all, rights from the Bill of Rights are incorporated by the Fourteenth Amendment and therefore protected from infringement by states. The Supreme Court decided — or, to be more accurate, assumed — in a 1925 decision that freedom of speech under the First Amendment is one of the rights enumerated in the Bill of Rights that the states may not infringe because it is incorporated by the due process clause of the Fourteenth Amendment.

Therefore, the First Amendment does apply to actions by states and their political subdivisions (cities, counties, state agencies, etc.), and has for more than ninety years. You're wrong. Please stop being wrong and asking other people to be wrong with you.

If you said something like "the First Amendment only stops the government from censoring you so it doesn't apply to this civil case, which is one individual suing another."

Welcome back! You're still wrong. The First Amendment limits your ability to sue people.

Civil lawsuits employ government power in two ways. First, they are premised on laws passed by legislatures. A defamation lawsuit is a lawsuit based upon a defamation law enacted by a state, which is an action by the state. On occasion, they're based on a nebulous collection of non-statutory precedents called common law, which are nonetheless recognized and enforced by the government through the courts. Second, civil lawsuits employ government power to force you to come to court and force you to pay any resulting judgment against you.

So in 1964, faced with an Alabama defamation judgment against the New York Times for running an advertisement about abuse of civil rights protesters by local officials, the Supreme Court noted that the First Amendment obviously applies to private civil actions that employ state power. "The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised." Because civil lawsuits aimed at speech invoke state power to attack speech, they are limited by the First Amendment. That doesn't mean that all civil lawsuits attacking speech are absolutely barred. It means that First Amendment analysis applies to them, and may or may not provide a defense to them.

If you think about it even a little, this is the only sensible interpretation. Under a contrary interpretation, a state could pass a law saying that private parties could sue you for offending them, or annoying them, or for expressing certain political views the state disfavors. People could then use the coercive power of the courts to sue you based on those laws. Although I admit there is a certain appeal to a regime under which I may ask a judge to compel you to pay my bar tab if you say stupid and ignorant things about the First Amendment, I recognize that it is not consistent with ordered liberty.

So: you're wrong, stop trying to spread wrong like gonorrhea in the Theater Department, try to be right, etc etc etc.

Fault: It's Yours, But Not ONLY Yours

You are at fault for not educating yourself about how our most fundamental American rights operate. However, you are not the only one at fault. Wrongness is not a zero-sum game. I also blame your teachers, although I sympathize with them. Also, America's press could not do a worse job informing you about the First Amendment if it tried, which frequently I believe it does. If you would like to know more about some of the ways that the American media shares blame for you being wrong, consider these classic media free speech tropes. If you would like to observe some of the ways that the educational system has failed us, attempt conversation with a college student.

I bid you good day.

Last 5 posts by Ken White

Comments

  1. Kaemaril says

    Good article. I wish it would have included the 'Oh yeah? Well, you can't shout "Fire" in a theater!' routine which every single TV commentator seems to have encoded as a rote response in their tiny little minds every time the First Amendment crops up.

    Still, ISTR it's been covered before. But since nobody in the media appeared to listen …

  2. katsai says

    Excellent post Ken. Definitely bookmarking this to show others later. One little quibble though. "They is limited…" It's in the paragraph beginning with "So in 1964". I'll put away my swasticomma and go back to reading and enjoying now.

  3. Babs says

    Sometimes you just have to create the resource you need, eh? Pedant ahoy: a couple edits are needed. 2nd para: "ways that you've taken of" needs a "one". In the para about the 1964 judgment, this near the end: "they is limited by the First Amendment". I hope you can spot the error there. :) You can delete this comment after correcting.

  4. John Thacker says

    It's kind of remarkable how that case, the Supreme Court case saying that donors and members of corporations can be anonymous (NAACP vs. Alabama), and allowing third party funding of lawsuits (Harrison v. NAACP, NAACP v. Button) all involve the NAACP in the 1960s. Good evidence of how when people talk about how government powers can be abused in corner cases, that the abuse happens against the disfavored. Also goes to show exactly how twisted the efforts to stop desegregation were.

    There are a lot of people who hate all those precedents, or at least would like to make exceptions for when they are used against bad guy X (corporations they don't like, Peter Thiel, etc.)

  5. C. S. P. Schofield says

    Because of the 14th Amendment.], "Congress shall make no law" is only relevant when discussing breadth of original intentions. For example; the First says "Congress shall make no law" while the Second says "Shall not be infringed". One could, therefore, argue that the Second amendment was, from the beginning, supposed to apply to all levels of government.

    Of course, in practice, all the Amendments are broadly taken to apply only on those issues that the would-be ruling class permits.

    *spit*

  6. AlanF says

    Somehow, I am not terribly surprised the you would have an adze, and (hopefully) know how to use it properly.

    However, I do not feel that an adze is the proper tool to use as a weapon, mostly because of the angle of the blade. While I can envision it being used after the victim has been subdued, I feel it would be extremely awkward during the initial encounter. Perhaps an axe or even a pick would be more appropriate. I would appreciate your thoughts on this.

  7. jaxkayaker says

    So the theater department has gonorrhea. That means at least they're getting laid. ;)

  8. I Was Anonymous says

    @Lizard and @Kaemaril,

    The missing sections you are looking for are in the "media tropes" link.near the bottom of the article.

  9. MelK says

    > Perhaps an axe or even a pick would be more appropriate. I would appreciate your thoughts on this.

    No… a much better weapon would be a safety razor.

    … think about it.

  10. says

    Do we need something about Federal actors other than Congress, and arm's length entities with public funding? Some people might not understand delegation.

  11. andrews says

    I sort of expected a link to the earlier explanation that the Schenck v. United States, 249 U.S. 47 (1919), decision was a train wreck for the First Amendment. Of course those other WWI cases were embarrassments, too, but none gets the traction that Schenck gets.

  12. Ivan says

    A state action piece might be helpful too, to refer people who say "you calling me an asshole/speaking over me/not listening to me violates my first amendment rights."

  13. Quiet Lurcker says

    I respectfully and vehemently disagree with your assertion that states are barred from passing laws prohibiting speech "…expressing certain political views the state disfavors". Or more correctly, if they are, they are not acting like it.

    These bans are coming into existence by means of the common law. I know of at least two civil cases in which merchants expressed their views through specific action, refusing to provide services or products to homosexual couples. The couples brought suit and in both cases, won.

    In both instances the court held that the First Amendment was not a defense, either because actions (in the view of the courts) are not equal to expression, or because the merchants provided a public service.

    Under your reasoning, and assuming that actions do equal speech, the courts had no business ruling as they did.

    Since at least one of those cases has (I believe) been heard and affirmed by an appellate court, we have the phenomenon of (arguably unconstitutional) common law coming into existence.

  14. Sarah says

    I second the need for a "hate speech is not free speech" section. Also can we get on on the concept of a heckler's veto? Certain people should be pleased that they are too far away for me to throw kitchen equipment at them.

  15. tabman says

    It does seem like "Congress shall make no law" even when applied to the States is referring to the legislative branch, not the judicial enforcement of the then-existing common law understanding of freedom of speech in lawsuits, for example. And "abridging the freedom of speech" raises the question, just what WAS the freedom of speech that was understood to exist at the time? Did New York Times broaden that with the public figure and malice principles regarding defamation?

    I don't know; just wondering

  16. M. Kase says

    Any chance that, time and effort permitting, you could write an article listing the established exceptions to free speech and go over what all they cover? It'd be a very helpful supplement to this article and the censorship tropes discussion.

  17. Southern Radical says

    adze

    It's times like these that make me appreciate Chrome's ability to swipe up to web search anything you highlight.

  18. Michael Hawkins says

    Welcome back! You're still wrong. The First Amendment limits your ability to sue people.

    And thank goodness for that.

  19. JTM says

    Some of you wanting more substantial info about first amendment law might find this useful:

    https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2014-10-2.pdf

    (It's 300 pages specifically about the first amendment, and your taxpayer dollars are already contributing to its scholarship and upkeep.)

    ((Also, if you have time and broad constitutional interests, the whole constitution gets the extensive appending that the first amendment section gets. Just search the GPO website.))

  20. says

    @Quiet Lurcker
    Actions sometimes "equal speech" and sometimes don't. It's usually not that hard to tell the difference. Key things to look for are whether the regulation refers to the contents of the speech elements or to the communicative intentions behind them.

    For example, in a recent case involving a cyberbullying statute, the government argued that regulating what people post to online information services doesn't regulate speech because posting is an action. This is laughable, particularly where violations of the statute hinge on whether the post contained private information about a minor and whether you intended to annoy people. Here, the government clearly is trying to prevent particular messages from reaching particular audiences.

    On the other hand, the kind of regulations you are talking about do not contain intent elements and do not care about any purported speech motivations. The government isn't trying to stop anyone from saying anything and is not trying to prevent the communicative aspects of the actions. Here, the alleged communicative aspect exists only in the mind of the actor and the government does not care about and is not trying to regulate it.

    If those kinds of actions were speech, all actions would be speech because every action at least arguably says that the actor believes that action is appropriate in that circumstance. And effectively, that is all that is being argued — "I don't want to do this because I don't want to communicate that this is appropriate to do" could apply to anything and if accepted, would make all requirements into speech requirements.

  21. DJBudSonic says

    So…is it a violation of one's right to free speech if certain postings on a "newspaper" website comments section are deleted, while other postings on the same site, by the same person, are left intact for all to see? Is it all or nothing, or is selective removal a sign of censorship? And is this censorship in any way a violation of one's first amendment rights?

  22. Total says

    and assuming that actions do equal speech

    So, by your logic, I can murder someone and then defend myself on free speech grounds?

    Please.

  23. Max says

    Personally I am getting tired of all this talk about what federal actors can and cannot do, I say let us end the NEA.

  24. says

    @DJBudSonic:

    The United States Constitution limits actions by the government, not by state actors. So, a private website deleting your comments based on their content is not a First Amendment violation. Whether they are "censorship" is a rhetorical argument, not a legal one.

  25. Total says

    So…is it a violation of one's right to free speech if certain postings on a "newspaper" website comments section are deleted, while other postings on the same site, by the same person, are left intact for all to see? Is it all or nothing, or is selective removal a sign of censorship? And is this censorship in any way a violation of one's first amendment rights?

    You don't recognize it, but you're asking two separate questions — as Ken White has pointed out, the first amendment covers government actions, so, no, it's not a First Amendment violation. But the First Amendment is only the American legal manifestation of the right to free speech, so you could certainly argue that what you mention above is a violation of your right to free speech. Just don't expect to get any legal redress for it.

  26. PonyAdvocate says

    @Mr. White

    I have tried to be brief.

    I don't think Justice Brennan's decision in Sullivan says what you say it says. And if generations of lawyers, judges, and law professors also say that Sullivan means what you say it means, they, too, could be mistaken.

    First, your quotation of the sentence beginning "The test is not the form in which state power has been applied …" is, in the opinion itself, surrounded with some context that you omitted. For example, there is a reference to "Alabama Code, Tit. 7, §§ 908-917". I could not find what this part of Alabama's laws said at the time, but I assume it concerns libel. I think the omitted context makes it, at the least, ambiguous about whether the "state power" in question is legislative or judicial. If the phrase refers to legislative power only, then the sentence does not support your assertion that defamation actions between private parties are subject to First Amendment scrutiny simply because courts are government institutions.

    More importantly, this sentence appears (to me, at least) almost to be a throwaway line in the opinion. I have always understood the import of Sullivan to be about the high bar ("actual malice" and all that) that public officials must jump over in order to bring a defamation action over commentary about their public actions; the opinion is shot through with comments about this, and little, if anything, more about defamation actions between strictly private parties. The first sentence of section III of Justice Brennan's opinion seems to me to be what the case is about: "We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct." The commentaries I consulted about the case interpret Justice Brennan's opinion more or less the same way.

  27. says

    @PonyAdvocate:

    I'm familiar with the argument that Sullivan got it wrong or that subsequent courts expanded it beyond its scope without grounds.

    There are two responses.

    First, it's exceptionally clear that American courts now treat private lawsuits attacking speech as triggering First Amendment analysis, and have for decades. You can argue that two generations of judges were wrong, but you can't credibly argue that this point is ambiguous or open to interpretation. These points are meant to refute people arguing, descriptively, that American law doesn't treat private lawsuits as triggering First Amendment analysis. That's a false statement of modern law.

    To the extent you're making an argument about what the law ought to be, as a matter of policy or constitutional interpretation, I disagree. A regime in which the state can't punish you directly for your speech, but can pass laws allowing fellow citizens to punish you, does not allow free speech. If the state can pass a law allowing me to sue you for disagreeing with me here, and First Amendment analysis does not restrain them, then your speech is not free from state interference.

    (With respect to your view that Sullivan was not clearly relying on the theory that using the courts is itself an act triggering state action, it's certainly not explicit, but many people read it as implicit in the language based on precedent already suggesting that use of the courts involves inherent state action.)

  28. Docrailgun says

    But, but, but… don't you know (insert Sovereign Citizen garbage here)? If a Free (whatever) on the Land doesn't accept the authority of the illegal government, they can't sue me! It's illegal for a government to do something to me even though I don't accept those laws that might protect me from that government!
    I read a book once and some websites, so I know I'm right!

  29. Anthony says

    Also needed: a section on limits on private parties responses to speech by others. As I understand it (ianal), some non-state employers can't fire you for some speech, but I'd love to see some expansion of that. Also, there's a deprivation of civil rights tort that can be applied to non-state actors, so violently responding to someone else's speech is illegal, but where are the boundaries of that?

  30. PonyAdvocate says

    @ Mr. While

    You can argue that two generations of judges were wrong, but you can't credibly argue that this point is ambiguous or open to interpretation.

    I did not say, nor did I intend to say, that this is not the current state of jurisprudence. I said that two generations of judges are wrong — more precisely, I said, or at least meant to say, that two generations of judges are not unambiguously right — about what the current state of jurisprudence should be, if they rely solely on the small fragment of the Sullivan opinion you quoted and its context. That the jurisprudence is what it is more likely is due to the current jurisprudence being more to the taste of judges than it is due to a reliance solely on the text of the opinion.

    To the extent you're making an argument about what the law ought to be …

    I said nothing whatsoever about what the law ought to be, at least in a prescriptive sense. I tried to read Justice Brennan's opinion with an open mind, and tried to understand the plain meaning of the text. I noted ambiguities that are being read in a (very particular) way to support the current jurisprudence, and noted further that they can just as validly be read differently.

    A regime in which the state can't punish you directly for your speech, but can pass laws allowing fellow citizens to punish you, does not allow free speech.

    The conclusion one must unavoidably derive from such an assertion is that NO defamation action can withstand First Amendment scrutiny. Is speech that exactly duplicates another's speech similarly protected, rendering no copyright action able to withstand First Amendment scrutiny? Is the publication on a billboard of vital state secrets that one innocently acquired (say, by finding some lost papers lying in the street) protected? What if, instead of publishing them, one clandestinely discloses such innocently acquired secrets to the enemy?

    it's certainly not explicit, but many people read it as implicit …

    Exactly. It's not explicit, and many people may read it implicitly one way, while others may take a different implicit meaning. Such confusion is the penalty of relying on readers to derive their own meanings from ambiguous texts.

  31. says

    I said that two generations of judges are wrong

    Which you are free to do. I just don't view the question as presented in a discussion of what the law unambiguously is, for purposes of what rights courts currently recognize and enforce.

    I said nothing whatsoever about what the law ought to be, at least in a prescriptive sense.

    That was the subject at hand.

    The conclusion one must unavoidably derive from such an assertion is that NO defamation action can withstand First Amendment scrutiny.

    No, that's a completely misunderstanding of the situation and First Amendment law, and for that matter the entire nature of the American legal system, to a breathtaking degree.

    Applying the First Amendment to private actions doesn't mean private actions are automatically barred. It means that private actions are subjected to First Amendment analysis and must meet First Amendment standards. So, for instance, the minute you sue me for defamation, I can't just say "First Amendment" and win. However, I can invoke the First Amendment to defend myself with doctrines developed under it — for instance, that truth is an absolute defense, and that pure statements of opinion that can't be taken as implying fact are not subject to defamation actions. The First Amendment isn't an on/off switch, it's a series of standards to be met. It's like the difference between saying "if this property is subject to zoning law it means that I can never build anything there" and saying "this property is subject to zoning law, so I will have to look up what I am allowed to build under current law." Or, for instance, saying that an accused criminal has constitutional rights doesn't mean that you have to let them free immediately, it means that their prosecution must follow rules.

  32. cpast says

    Anthony says:

    Also, there's a deprivation of civil rights tort that can be applied to non-state actors, so violently responding to someone else's speech is illegal, but where are the boundaries of that?

    Violently responding to someone else's anything is normally illegal (there are only a handful of "anythings" for which it's not). You aren't allowed to punch someone because they said something you didn't like, but you also aren't allowed to punch someone because they cut in front of you in line, or because they looked at you funny, or because you woke up in a punching mood.

  33. AH says

    good article, but I do think it should be expanded to cover the "FIRE!" case and the freedom of me to censor my own publication.

    By my estimation people get these two things wrong so often, it would double the usefulness.

  34. Total says

    Violently responding to someone else's anything is normally illegal

    But, wait, someone up thread said that action is speech! So I can't punch someone as an act of protected speech?

  35. PonyAdvocate says

    @ Mr. White

    I'm afraid you have misunderstood most of what I said. And I think it's unhelpful to muddy the waters with analogies that are inapt, or even inapplicable. Let's keep focused on the First Amendment, and not bring in zoning laws and provisions of the Bill of Rights applicable to criminal law, at least for now.

    The subject under discussion is how the First Amendment, as interpreted by Justice Brennan's opinion in Sullivan, applies to defamation claims between private parties. If I understand your position correctly, it often is this: because courts are government institutions, they are prohibited by the First Amendment from interfering with the freedom of speech. Since defamation is speech, the adjudication of defamation claims is regulation of speech. The First Amendment therefore prohibits the courts from involving themselves in defamation claims. To support this position, you quote Justice Brennan's opinion: "The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised." In other words, any government action with regard to a defamation claim between private parties is forbidden by the First Amendment. You yourself say in one of your follow-up comments that "using the courts is itself an act triggering state action", which I take to mean that you think a court adjudicating a defamation claim violates the First Amendment. I think this is a wild claim, as well as a counter-factual one. From what you often say, you seem to think that if courts adjudicate defamation claims, the right to free speech will vanish instantly.

    I have said "often", because at other times, your claims about the issue are somewhat more nuanced. In your initial post, for example, you admit "That doesn't mean that all civil lawsuits attacking speech are absolutely barred."

    Now, I would say that a simpler and more accurate way of viewing the matter is this: a court's adjudication of a defamation claim between private parties is not regulation of speech; rather, it is a routine function of government that regulates disputes between private parties, and keeps such disputes from getting out of hand: it provides a forum where a dispute wherein one private person wishes to regulate the speech of another can be resolved in a civilized manner, using words and rules rather than knives and guns. The First Amendment need not be considered in the matter at all. As you have seen, introducing First Amendment analysis where it's not necessary leads to all sorts of needless confusion and disputation.

    I do not dispute what you say the current state of jurisprudence on this matter is. My comments are intended as a critique of the fragment from Justice Brennan's opinion that you quoted, and how it has been incorporated into that jurisprudence.

  36. Encinal says

    @Ken White

    United States Constitution limits actions by the government, not by state actors.

    @cpast

    but you also aren't allowed to punch someone because they cut in front of you in line

    But what if my religion says that one is to punch those who cut in line? You're violating my religious freedom!

  37. Bob says

    Pony, why do you keep putting words in ken's mouth? He keeps saying that the courts are required to consider the first amendment when hearing defamation claims. And you keep accusing him of saying that courts are forbidden from hearing defamation claims because of the first amendment.

    I think Ken was right in his initial suspicion that you are arguing over what you think the law ought to be, and not what the law is.

    I can only assume this all goes back to your failed attempts to seek an injunction against Ken for his pony-related slander.

  38. Dan A says

    "But, wait, someone up thread said that action is speech! So I can't punch someone as an act of protected speech?"

    No, you can not punch someone as an act of protected speech. You can, however, slap them across the face with a wad of $100 dollar bills since Buckley v. Valeo declared that money is speech.

  39. says

    @PonyAdvocate
    "Now, I would say that a simpler and more accurate way of viewing the matter is this: a court's adjudication of a defamation claim between private parties is not regulation of speech[.] … [I]ntroducing First Amendment analysis where it's not necessary leads to all sorts of needless confusion and disputation."

    Except that's totally inaccurate. It is just 100% utterly wrong. Whether it's defamation, right of publicity, or any other case where a private civil matter involves content-based restrictions on speech, the court does do a First Amendment analysis (as well as due process and similar Constitutional protections) and the law may be subject to strict scrutiny.

    And it is necessary. Otherwise, the government could Constitutionally punish any speech it didn't like by simply empowering anyone offended by the speech to use a private civil action to punish the speaker.

    Your position is simply wrong. In fact, it's precisely the type of error this post was intended to correct in those who make it. So in that sense, you've shown that the post failed.

  40. says

    What about Bivens?
    Didn't that come about because SCOTUS essentially decided that USC 1983 did NOT apply to the Federal Government, since it only mentioned state and local specifically?
    If the NPS violates your rights, as they did mine, you have to prove the right to sue, just the individual agent. Not the Federal Government directly.

  41. PonyAdvocate says

    @Mr. White and other respondents

    I want to make clear first that I have not (at least I hope I have not) denied what the current state of the jurisprudence on this matter is. And I have not expressed an opinion (at least I don't think I have) on what I think the jurisprudence ought to be, although I admit to saying that I think the specific sentence under discussion in Justice Brennan's Sullivan decision, and the jurisprudence Mr. White says is based on it, lead to conclusions that seem to me to be silly, i.e., that because a defamation claim must be adjudicated by a court, and a court is a government institution, this must necessarily trigger a First Amendment analysis. It seems to me that this makes it logically unavoidable to conclude that a court thereby becomes a party to the defamation claim, an actual participant in the dispute, rather than an impartial referee in the dispute.

    But it occurs to me that there is a way of thinking about this issue that makes better jurisprudential sense. Defamation law is instantiated in statute, and, I suppose, in the common law. It is certainly the responsibility of a court to determine the constitutionality of defamation law, such as whether it passes First Amendment muster. Assuming it does, it also is the responsibility of a court to determine if a claimant actually has an actionable claim under that law. Hence, for example, if a defamation law allowed Roe to make a claim against Doe because Doe called Roe stupid for Roe's intention to vote for Clinton, the law does not pass First Amendment muster, and Roe has no claim. If the law does not allow such a defamation claim, then Roe has no claim because the law does not allow such a claim. Note that there is no First Amendment interference here in the court's role as an adjudicator: rather, the First Amendment protections are applicable because the court evaluates how they apply to the governing law, and how valid law applies to the claim itself.

    The question, to me, is whether a court conducts a First Amendment analysis, or it is itself subject to First Amendment analysis. This is a subtle point, but the law and jurisprudence are rife with such subtleties; such subtleties are useful because they allow us to reach conclusions that we want to reach, without compelling us also to reach conclusions that are not at all ones we want to reach. We need to reach the right conclusions; it's just as important that we reach them for the right reasons.

  42. Cactus says

    @PonyAdvocate

    such subtleties are useful because they allow us to reach conclusions that we want to reach, without compelling us also to reach conclusions that are not at all ones we want to reach

    Said every single politician in history, especially those who say "That wasn't supposed to happen" once different people want different conclusions.

    We don't use this approach because it's the "most efficient" way to decide what's acceptable and what isn't, we use it because it always ends up less terrible than those who decide their arbitrary line is better than anyone elses.

    Singapore is a great example of why we have our system this way. Nobody gets punished by the state for their speech, rather they're personally sued by the prime minister. Guess who wins. Guess who always wins.

  43. Gaelen says

    Pony Advocate,

    If the hypothetical defamation statute could be applied to censor speech that was protected by the first amendment, but also applied to non protected speech, what should a court do? You seem to imply (if not outright state) that the whole law must be tossed. Either way your asking the court to judge the constitutionality of a speech restricting statute by analyzing whether the first amendment protects the speech in question (or presumably whether the law would cover any hypothetical protected speech).

    Serious question, are you in favor of getting rid of As Applied constitutional challenges for every area of law or just the first amendment?

  44. O.W. Holmes says

    I feel confident disagreeing with two generations of judges. Only three generations of judges would be enough to convince me.

  45. says

    But it occurs to me that there is a way of thinking about this issue that makes better jurisprudential sense. Defamation law is instantiated in statute, and, I suppose, in the common law. It is certainly the responsibility of a court to determine the constitutionality of defamation law, such as whether it passes First Amendment muster. Assuming it does, it also is the responsibility of a court to determine if a claimant actually has an actionable claim under that law. Hence, for example, if a defamation law allowed Roe to make a claim against Doe because Doe called Roe stupid for Roe's intention to vote for Clinton, the law does not pass First Amendment muster, and Roe has no claim. If the law does not allow such a defamation claim, then Roe has no claim because the law does not allow such a claim. Note that there is no First Amendment interference here in the court's role as an adjudicator: rather, the First Amendment protections are applicable because the court evaluates how they apply to the governing law, and how valid law applies to the claim itself.

    But this is exactly what I was saying the whole time, just more clearly and in fewer words.

    The question, to me, is whether a court conducts a First Amendment analysis, or it is itself subject to First Amendment analysis. This is a subtle point, but the law and jurisprudence are rife with such subtleties; such subtleties are useful because they allow us to reach conclusions that we want to reach, without compelling us also to reach conclusions that are not at all ones we want to reach. We need to reach the right conclusions; it's just as important that we reach them for the right reasons.

    This doesn't make any sense and the conversation is concluded from my perspective.

  46. MS says

    @PonyAdvocate

    "The question, to me, is whether a court conducts a First Amendment analysis, or it is itself subject to First Amendment analysis."

    What's the difference? You said that subtle differences are important; they certainly can be, but that tells me nothing about whether this particular one is important. Ken's post was specifically addressed to those who claim that First Amendment analysis has no place in determining whether a private individual has the right to sue another. Those people are incorrect. As far as I can tell, they remain incorrect whether "a court conducts a First Amendment analysis" or a court "is itself subject to First Amendment analysis". The distinction you are drawing only serves to muddle the issue.

    Also, to the extent I understand them, I don't think there actually is a difference between the two. A court faced with a defamation claim has an obligation to apply the First Amendment to the claim to determine whether a damages award would violate the First Amendment. So the court is conducting a First Amendment analysis. If it applies that caselaw incorrectly, or fails to apply it at all, that court's order can be subject to appeal on that basis. So the court's order is itself subject to First Amendment analysis.

    As a separate matter, even if you were right about Brennan being misinterpreted, I doubt it would matter at this point. Current defamation law does not solely rely on Sullivan, it also relies on the entire body of caselaw that has followed and built upon that case. If you were to convince every member of the Supreme Court that you were right, they wouldn't simply say "Oh well, I guess we have to toss that case and everything that goes with it". They would ask themselves whether your version of Brennan's opinion was actually correct or not. Even if they found that it was, and that all of the subsequent caselaw was wrongly decided, they would still need to determine whether stare decisis warrants against tossing it out. So the current body of First Amendment/Defamation law may still be good law even if you are right about Sullivan.

  47. Southern Radical says

    @cactus

    Have there been examples of presidents resorting to the courts to get satisfaction in cases of defamation? A cursory Google search didn't turn up any.

    But that leads me to wonder if that's because of constitutional considerations about the abuse of power and free speech, etc., or possibly just because in our culture a powerful person who has had their feelings hurt is considered a sign of weakness.

  48. PonyAdvocate says

    @ Mr. White

    But this is exactly what I was saying the whole time, just more clearly and in fewer words.

    I apologize for taking so long to understand. And thank you for your patience, and for your gracious remark.

    … the conversation is concluded from my perspective.

    Ditto.

  49. a2plusb2 says

    Left out of the blog entry is that most (all?) state constitutions have the same rights declared in them. So in most cases 'First Amendment' protections applied to what the states did even before the 14th Amendment. Take the case to state court citing that paragraph of the State Constitution.

  50. says

    The purpose of this post is to address specific false descriptive statements about the current state of First Amendment law, not to police bad arguments, stupid rhetoric, failure to point out additional facts, etc.

    So, "hate speech is not free speech" might qualify, but "fire in a crowded theater" probably doesn't.

  51. Elliot says

    "Left out of the blog entry is that most (all?) state constitutions have the same rights declared in them. So in most cases 'First Amendment' protections applied to what the states did even before the 14th Amendment. "

    Yes, but a state court's decision interpreting the state's constitution's free-speech clause is not reviewable by the U.S. Supreme Court (or any federal court). As was pointed out above, state courts in the South were not too friendly to the NAACP's freedom of speech during the 1960s (hence the absurd libel judgment which was reversed in NY Times v. Sullivan).

  52. uhhlive says

    @OrderoftheQuaff
    I look forward to the very long and detailed chapter on the third amendment.

  53. Richard Gadsden says

    My favourite wrong interpretation is that defamation laws should be unconstitutional because lies are speech and they are a restriction on the freedom to lie.

  54. James says

    If the owners/management of the few major internet search engines used by Americans
    decide to censor searches about Jews and things Jewish that fit criteria indicating they are likely to be anti-Semitic in nature by the individual doing the search, or the probable results from the search; are they free to do so, i.e. censor, in so far as they are owned by private people or entities; or does the Federal government have an interest in protecting the searcher from censorship including the right to search for whatever; as well as the accessing of the logical results of the search terms so employed, though they may be such as to be viewed by the ADL or other organized agents of Jewish interests,as anti-Semitic;
    and thus restrain the efforts of for instance google.com should it decide it's self interest lie with such censorship of material which would likely be deemed to be "anti-Semitic" by such agencies as the ADL, and searches that would likely result in presentation of such anti-Semitic-deemed material? [Sorry for the long sentence; I hope the question is clear enough.]

  55. capnkrunch says

    @James

    IANAL, but I'm pretty sure Google can do (and does) whatever they want with their search results. There is no special "search provider" class of business that places additional restrictions of search engine behavior.

  56. John Beattie says

    Good post. I kind of wish you'd addressed some of the arguments from the other side, though. Like, "Criticizing what I said violates freedom of speech!" and "Your website has to publish my manifesto or you're violating my rights!"

  57. DoctorX says

    Need to vent.

    Yet another "Argument on the Internet" I have dealt with someone who claimed that Obama and Hillary Clinton will seek a Supreme Court Justice to reverse the decision on campaign finance . . . blah . . . blah . . . apocalypse . . . the first amendment will not apply to corporations.

    Since news organizations are listed as "corporations" THEN THE FIRST AMENDMENT WILL NOT APPLY TO THE PRESS CORPORATIONS!!!1!!ELEVENTY

    CENSORSHIP!!

    Thank you. I needed that.

    –J.D.