Alex Kozinski, Defamation, Federal Judges, Free Speech, Media and Journalism, Technology

Did Blogging Kill the First Amendment?

Our buddy, the Honorable Alex Kozinski, is on a roll. On Monday, the chief judge of the U.S. Court of Appeals for the Ninth Circuit benchslapped a pair of wealthy, persistently annoying and mildly famous identical twins.

The same day, he gave a lecture at San Francisco’s Golden Gate University School of Law, where he declared the Internet has killed the First Amendment, or at least made it an anachronism. Heavy stuff.

More on what the judge said about the web’s effect on unsuppressable free speech, journalism and scumbag bloggers, after the jump.

According to the Legal Pad blog:

[Kozinski] argued that technology has rendered the First Amendment obsolete. As incidents ranging from Wikileaks disclosures to Barbra Streisand’s house have demonstrated, it’s no longer possible for the government or individuals to suppress speech in an age of distributed self-publishing via blogs and social networks.

“How do you sue a blogger who may be anonymous, or may be posting from Uzbekistan?” Kozinski asked. “And assuming you somehow get service of process and prove that he acted with malice, so what? How do you collect a judgment against a guy whose principal assets are an iMac and a genuine autographed poster of ZZ Top?”

In libel cases, the risk that publicity over a lawsuit will be as embarrassing as the original malicious statement is not new. But Judge Kozinski said the problem is no longer government censorship. It’s the general inability to suppress speech at all, even when it might be appropriate.

“Uber-free” speech doesn’t only facilitate social change, as in Iran two summers ago. It also gives crazies and — perhaps more significantly — big jerks enough visibility and influence to damage the ability of more “trustworthy voices” [FN1] to function and distribute content. In this video from the presentation, he gives an example about a blogger’s allegations of your “loathsome illness.”

“When speech is not suppressable, the careful First Amendment balance is destroyed,” he said. “We now live in a world where the lowest common denominator — the judgment of the most irresponsible, callous, insensitive or malicious speaker — governs what we see and read.”

Kozinski told attendees, “It ain’t your lawyers, babe,” who will eventually find a way to separate the wheat from the chaff. He explained what a lot of people already know: the courts will always lag behind technology.

From the Law Technology News:

“I have good faith in the ingenuity of people to solve problems — but I am not sure how it will be done. Don’t count on the courts. We are good for many things and we try to keep up with technology and understand it, but things move so quickly. Technology can change in a year or two. In a sense, we are helpless to provide any help.”

The whole thing kind of makes my brain hurt. Too much free speech? This is not what First Amendment advocates usually freak out about. Besides, you don’t need to look hard to find examples of people’s First Amendment rights still being restricted.

I can’t help hoping Kozinski’s language is a bit strong, but then I think about all the humiliating things that end up online, sometimes end up in court, and stay online forever. (For example: Star Wars Kid; naked pictures of judges.)

So, are Judge Kozinski’s concerns exaggerated? Or did bloggers kill the newspaper star and then destroy his reputation?

[FN1] See, e.g., www.abovethelaw.com.


Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at cdanzig@gmail.com. You can read more of his work at chrisdanzig.com.

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