In honor of Constitution Day (September 17, 2011), the Law Library of Congress was pleased to host Dahlia Lithwick speaking on the topic of “The Supreme Court and Free Speech.” The event was held on Friday, September 16, 2011, at 4 p.m. in the Madison Hall at the Library of Congress James Madison Memorial Building.
Lithwick’s entertaining and insightful lecture explored the implications of the U.S. Supreme Court’s conflicts over free speech issues and how the press and the public contribute to the Court’s divisiveness. She explored how the Court’s notions of privacy are starting to affect not only the way the Court thinks about the world, but also how it applies First Amendment doctrine. According to Lithwick, there is a split at the Supreme Court right now, but not the 5-4 split one would assume. This divide between the Justices comes down to “what is speech and how do we think about speech?” Her speech explored a fascinating conflict between Justice Scalia and Justices Thomas, Alito and Breyer over the intersection between speech, new technology, and the media.
As Lithwick explained, the Supreme Court has an incredibly complicated relationship with the press and the public. The Supreme Court is very protective about how its message gets out – much more so than the other branches of the government. The Court restricts the Supreme Court press corps to a handful of people, whom it relies upon to get the word out and describe what happens at the Court. This creates a tension between the Court and the press in general.
The Supreme Court is unlikely to embrace new technologies any time soon, according to Lithwick. She also noted that the Court is proud to say that they move slowly, as evidenced by the stone turtles on the outside of the court building. Lithwick joked that the biggest technological advance this past year was the frozen yogurt machine that Justice Kagan introduced into the cafeteria.
To explore the Court’s relationship with free speech, Lithwick discussed cases over the last two years that she thinks reflect a growing anxiety and ambivalence about media, technology, and privacy. In United States v. Stevens, the Court held that the right to free speech protected animal violence videos that Congress had attempted to ban. Lithwick emphasized Alito’s dissent, in which he expressed the view that these videos were different – coarsening, cruel, and spoke to a lack of humanity. Lithwick thinks this is a benchmark of where he will go over the next two years. Lithwick also spoke about Hollingsworth v. Perry and Doe v. Reed. In both cases, she emphasized her impression that Justices Thomas and Alito identify with the victims of hateful and assaultive speech.
Lithwick also mentioned Justice Breyer’s appearance on the George Stephanopoulos show where he explained that the burning of a Koran by a priest in Florida leading to reprisal violence could change his view on First Amendment rights. Breyer cites the Oliver Wendell Holmes statement about shouting “fire” in a crowded theater but went further to say that the Internet has turned the whole world into a crowded theater.
Lithwick said that the Supreme Court’s most recent term was a blockbuster one for discussions about free speech. She examined both Snyder v. Phelps and Brown v. Entertainment Merchants Association. In Snyder, the Supreme Court held that hateful protests at military funerals were protected under the right to free speech. However, Lithwick pointed to the dissenting opinion of Justice Alito, as well as the concurring opinion of Justice Breyer. To her, Alito’s dissent classified the protests as a verbal assault, much as he did in his earlier opinion in the Stevens case. Breyer expressed concern that the Court did not examine either the television broadcasting or the Internet postings personally assailing the Snyders, and Lithwick thinks Breyer is looking down the tunnel at how television and the Internet may change everything.
In Brown v. Entertainment Merchants Association, the Supreme Court upheld a federal appeals court decision to throw out California’s ban on the sale or rental of violent video games to minors. Lithwick emphasized the dissents: Justice Thomas saw it as a privacy issue; Justice Breyer examined the studies and data that the defendants did not put into evidence that show that violent video game are different and do make children violent, which continued the thread of Breyer thinking that new media is different. Along this train of thought, Lithwick calls attention to Breyer’s thinking on two events from the past year: Americans being killed in Pakistan in reprisal for the Florida pastor burning the Koran, and evidence that the Norway shooter spent thousands of hours playing violent video games.
Lithwick suggests that three of the Supreme Court justices may be identifying with the victims of speech as a result of the interaction they had with the press during their confirmation hearings, which can sometimes be traumatic, or during “gotcha” moments by the press. Currently, she sees a thread of First Amendment anxiety that is starting to weave itself through the last two years by three or four justices, which might affect First Amendment doctrine itself. Lithwick’s view, however, is that the more the Court opens up to the press, the easier the relationship between the Justices and the press might become. Right now, cameras are not allowed in the courtroom. In Lithwick’s opinion, if cameras were allowed in the courtroom, people could see nine people who work harder than anyone they’ve ever met.
Going forward, she makes a plea to think more carefully: on the Court’s part, about how to allow the press to access the court in healthy ways; and on citizens’ part, about respectful and yet rigorous ways to engage with the Court.
Update: The event video was added below.