Opinio Juris

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.

Please join us for a reception at the ASIL to celebrate our new partnership with Oxford University Press. The wine and cheese reception will be held from 4:30 to 6:30 p.m. on Thursday, April 10. Information about the reception is available here. We are very excited about our partnership with OUP, the details of which we will provide you in the coming days.