CONTINUING THE dissection of the ACLU's Stephen Rohde's critique of the ACLU's Bert Neuborne's inadequate critique of the consequences of the Supreme Court's First Amendment rulings.
That Neuborne may be the first to focus on the order and placement of the terms of the First Amendment is of less importance than that he fails to make the case why there is anything lyrical, musical, or poetic in that order, placement, and structure, or more importantly, that any of this has or will make any difference in how the First Amendment should be interpreted or applied. Neuborne repeatedly argues that it is “tragic” that the Supreme Court has “utterly ignored Madison’s music,” but he does not cite a single decision that would have been decided differently based on the specific order or placement in which the rights in the First Amendment are listed. He does argue that in certain cases the Supreme Court should rely more on the First Amendment instead of the 14th Amendment, but not because of the order and placement in which the rights are listed.
Oh give me a friggin' break. The biggest problem with the language of the friggin' First Amendment is that it is poetically vague and could be used to blow a big enough hole in democracy to kill it. If you think that's not true, well, for People of Color in the United States that has been the status quo for the large majority of years in which The Bill of Rights has been in place and, in fact, many of the years in which the 14th Amendment and other Civil War Amendments have been in place, the Roberts Court killing the Voting Rights Act ending the brief period in which that was not the case.
The First Amendment interpreted to allow privileges to lie to the media being an integral part in the attacks on and throttling of equal rights, equal justice under law. In that the granting of privileges to corporations, including the artificial entity "the press" and to the millionaires and billionaires who own it is as integral a part of it as the dispossessing of those without money, power or otherwise privileged, making their money "speech" effectively gives them a monopoly on "speech" leveraged to swamp the "speech" of those without money. None of these things happens unrelated to the others, some nobody can shout the truth at the top of their lungs and will be swamped by someone telling lies backed by billionaire "speech-money" on TV or the radio or the internet. Look at how the competent medical experts in the Covid epidemic have been thwarted by a dangerously large number of suckers buying into the Republican-fascist lies against the truth of medical science if you want a real life example of what the Supreme Court-ACLU conception of The First Amendment produces.
It is the crisis that this kind of First Amendment use has brought us to outside of the courtrooms and white-collar world of lawyers and judges and "justices" which even someone as invested in that fantasy land as the ACLU's Bert Neuborne has noticed is dangerous. I believe that even some of the ACLU's lawyers who deal with the real consequences of Republican-fascist ascendancy as enabled by the media lying with impunity know it is their own ideological position that has led to that fascist ascendancy and the Court's attack on Voting Rights and equal rights as well as its privileging the filthy rich and their financial interests - something the court has far more reliably done in its history than issue bombshell rulings like Brown v. Board - which has not been the enormous success that it should have been, in no small part due to its "free press" rulings.
Indeed, the book is reduced to little more than imaginative throat-clearing, which never matures into a useful theory of jurisprudence. Would it make any difference if the clauses protecting Free Speech and Free Press were listed before rather than after the Establishment or Free Exercise clauses or after rather than before the Petition clause? Would any specific doctrine of First Amendment law more robustly advance the goals of our democracy if the Court took into consideration the particular order in which the rights are listed in the First Amendment? Neuborne leaves these questions largely unexamined.
It was, obviously, a stupid tactic to try to fix things through the language of The First Amendment on Neuborne's try. The language of it is the source of the problems, it is inspecific and makes no distinction between the right to tell the truth and there being no right to lie. I probably would have told him the problem with that would be that the fascists on the court would do to his argument exactly what his ACLU comrade does, quibble about such stuff so as to empower the worst of us at the expense of the most vulnerable. Doing linguistic gymnastics with "the language of" the Constitution is probably more useful to those who want to do evil with it than those who want to use it for good, especially those who aren't so interested in the truth and honesty as a majority of Supreme Court "justices" could justifiably be suspected of being. I doubt they're any more honest a class than the members of Congress who are something none of the "justices" are, answerable to the further judgement of the voters.
The problem is the poetry of the thing, it is not specific enough in distinguishing between speech which is legitimately protected and that which is not legitimately protected. Lies, libels, slanders, racist slurs, sexist stereotyping, and a wide range of other anti-truth, anti-egalitarian, pro-inequality speech is as allowed in its poetry as the truth, the advocacy of equality, the truth that all People are created equal.
The "even handedness" that gives lies the same protected status as the truth enables it far more than it does the truth because lies can be constructed in any way that the one lying figures it will work best for them, taking advantage of our weaknesses, our evil inclinations, our inegalitarian predispositions and, most of all OUR FINANCIAL SELFISHNESS. It was that financial selfishness that almost led to there being no Bill of Rights as the aristocrats, especially the slave owners among them, had every reason to have the Constitution be silent on such matters. Why, if those were protected someone might, eventually, ask if "All men are created equal," if there is to be "egual justice under law" that certainly wasn't working out for those held in slavery, in wage slavery, deprived of the vote which the founding document required for any government, including its courts, to have any legitimacy. Someone might ask Madison and Jefferson and the others how they could justify keeping slaves in slavery, certainly deprived of free speech and every other freedom enumerated in the Bill of Rights. Something that the Supreme Court has had no problem with for the entire lives of all of the Founders, in fact using the language of the Constitution and the record of those Founders to declare Black People non-persons in so far as that document was concerned, the current court trying to set things back to the period when later courts maintained Jim Crow as slavery-lite.
To be sure, Neuborne levels trenchant criticism against Supreme Court decisions regarding a wide range of issues (including in particular campaign finance reform and voting rights), but he never explains how these specific cases would have been decided differently had the Court considered the order and placement in which the rights in the First Amendment are listed. Neuborne is a lively and engaging writer, but his book promises more than just another critical survey of Supreme Court decisions, and he does not deliver on that promise.
If that were all, it would be disappointing. But it’s worse. In the midst of paying lip service to the “music” and “poetry” of the First Amendment, Neuborne executes a disturbing “bait and switch” by turning his book into an argument in favor of less First Amendment protection and more government regulation of free speech.
In the pantheon of landmark First Amendment decisions,[It's more like a pandaemonium] few are as important as New York Times v. Sullivan (and its progeny), in which the US Supreme Court in 1964 decided that in defamation cases brought by government officials (and later public figures) the First Amendment requires that a plaintiff not only prove that the defendant published a false statement, but also that the defendant was motivated by “actual malice,” i.e., the defendant actually knew the statement was false or published it in reckless disregard of the truth.
Speaking for a unanimous Court, Justice William Brennan wrote that
we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
According to Kenneth A. Paulson, president and CEO of the First Amendment Center at the Newseum in Washington, DC, and dean of the College of Mass Communication at Middle Tennessee State University, Sullivan “changed American journalism. It set the stage for the boom in investigative reporting in the decades to follow and truly invigorated the watchdog role of the press.” As Anna Stolley Persky wrote in the ABA Journal, “Columbia University law professor David Pozen, who specializes in constitutional and national security issues, says that Sullivan and other cases from that era are ‘seen as valorizing an aggressive form of journalism and promoting the idea that courts are the institutional safeguards of that kind of journalism.’”
I will start by noting that Kenneth A. Paulson, William Brennan and Stephen Rohde seem to favor the press being "aggressive," uninhibited, robust, and wide-open," "vehement, caustic, and sometimes unpleasantly sharp," BUT NOTICE THEY DO NOT SEEM TO VALUE THEM BEING CAREFUL TO TELL THE TRUTH. In fact, the line of cases that Rohde holds up as wonderful GIVE PERMISSION TO AN "AGRESSIVE . . . SHARP" MEDIA TO LIE AND PUTS THE OBLIGATION TO HOLD THEM TO TELLING THE TRUTH TO THOSE THEY LIE ABOUT!
That is what these idiot lawyers and "justices" think will produce good and aid The People in being able to govern the country through their voting for representatives who are as free to lie, even freer if they lie in their official capacity, and these meatheads figure that is going to end up well. Well, the history of the country since the Sullivan Decision and the freest press in the history of the world has not produced anything good, it has produced a country in which a dangerously large number of suckers for media carried lies got us Trump and the Republican-fascists in governorships, in control of legislatures, etc.
That is what William Brennan sitting on the insanely and ahistorically held to be sacrosanct Supreme Court figured allowing the media to lie with effective impunity would not lead to. If he thought it would lead to what it has led to even as he wrote the decision, that would definitively discredit him in the eyes of any any decent, wide-awake lover of equality and democracy. Any rational person would hold him to be a short sighted fool, not someone whose ersatz wisdom should be held up as supportive of a point. Anyone who knew the first thing about who has held power for the majority of the history of the United States would know it is not We The People, as a unified body of equals but those who have money and the least morals, slave owners, white supremacists, segregationists - who had the power to keep Black People and others in a perpetual state of subjugation even as they are certainly as much a part of We The People as the upper-class, lily-white members of the Supreme Court up till Lyndon Johnson integrated it after the decision was made.
Things may have been bad before when unamplified voices, ink on paper were what spread racism, sexism, hatred of minorities, anti-egalitarian, anti-democratic, immoral lies, with the coming of electronic and mass communications, concentrated and owned by millionaires and billionaires, things have become far worse. When means of manipulating the actions and attention of millions of people as is done regularly on Facebook, Twitter, Youtube, when those algorithms can be manipulated by a concerted effort as idiotically lauded by the fans of the amusing "Santorum" campaign (as if that wouldn't be harnessed by Santorum's side who had the money to really do it right) things have far surpassed the imaginations of a William Brennan and the other idiots on the Warren Court who couldn't imagine where this was going back in 1964 but no one today has that excuse, we have seen the more than half a century of where America has gone under the period of lies privileged by the First Amendment.
The idea that there is a right to lie is so obviously wrong and malignant that it must have taken a monumental act of willful stupidity and ignorance to create one. The idea that it is the responsibility of those lied about BY THE PROFESSIONAL MEDIA WHO SHOULD HAVE AN OBLIGATION TO CHECK THE TRUTH OF WHAT THEY PUBLISH was as obviously stupid. The Supreme Court or a lower court could have found against the New York Times for irresponsibly carrying false information and awarded court costs to the victim of those lies without serous damage to the corporation.
Instead the "bombshell" addicted Warren Court decided to do what has produced the rule of lies and the full and not unlikely success of the destruction of equality and democracy in the United States. The ACLU has been one of the most aggressive enablers of the liars, the manipulators, the friend of the powerful, Republican money backed white supremacists, the fascists, the Nazis who may have in the early post-WWII years seemed like a less than dangerous fringe at one time but who are certainly not that now. Of course, to Black People, People of Color, those groups and their followers were never as little a danger as they were to affluent, white-collar lawyers and judges and "justices," they killed People of Color, they whipped up people who killed them. No doubt such people have the dubious virtues listed by the fans of lies above, "aggressive," uninhibited, robust, and wide-open," "vehement, caustic, and sometimes unpleasantly sharp," . . . One gets the feeling that if it were members of the Supreme Court, lower court judges, the lawyer class who were the primary targets of their "aggressive, uninhibited, robust, wide-open. . . " speech and so actions, those guys might have seen it differently. Most of the members of the media, too.
Note: I should have included what the "free press" under the regime of absolutism has done to the rights and lives of Women but these things get to be long and I promise to get back to that soon. Especially the pro-pornographer rulings.
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