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Kozinski: First Amendment is Dead

It was quite a week for 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski. First he punched a hole in the seemingly impermeable immunity given Web site operators under Section 230 of the Communication Decency Act, authoring Thursday's opinion in Fair Housing Council v. that found no bar under Section 230 to a fair housing claim. Then, in a speech Friday at a Pepperdine University symposium, he pronounced the First Amendment to be dead. Pepperdine Law Professor Roger P. Alford attended the speech, and in a post at the blog Opinio Juris, he reports that Kozinski offered a detailed analysis of how the Internet age has silenced First Amendment jurisprudence. Alford writes:

"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."

Among the First Amendment milestones Kozinski declared dead were Brandenburg v. Ohio (parades are no longer a critical medium for expression), New York Times v. Sullivan (what do libel laws matter when anonymous bloggers are service-proof and judgment-proof), and Cohen v. California (who cares about an offensive jacket when anyone can reach an audience of thousands). "The First Amendment presumes that the government has the motive and the means to suppress speech," Alford writes in summing up Kozinski's conclusion. "That no longer holds true today. We live in an age of the late, great First Amendment."

Posted by Robert J. Ambrogi on April 7, 2008 at 07:05 PM | Permalink | Comments (2)


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