Judge Kozinski: The First Amendment Is Dead

free speech rip.jpg

Judge Alex Kozinski came to Temple this afternoon and delivered the Arlin Adams lecture, on “The Late, Great First Amendment.” Typically provocative, Kozinski argued that individuals’ inability to bring effective lawsuits for internet speech renders obsolete existing First Amendment doctrine. In his view, traditional First Amendment doctrine had promoted an informed democratic discourse by maintaining a threat – though remote – of the possibility of recovery for libel, defamation, copyright infringement, trademark infringement, and spreading protected national secrets. By contrast, given the Streisand effect and Wikileaks’ portability and thus immunity, the modern world provides no effective remedies for unprotected speech.

Without liability pressure disciplining the speaking market, Kozinski sketched out a distopian lemons market for speech: untrusted intermediaries, unreported international and national news, and a cacophony of speakers saying little of interest.

I’m running off to class now, so I don’t have time for an extended analysis, but it strikes me that Kozinski’s eulogy for the First Amendment was premature for at least three reasons: (1) the kind of mass media he mourned – protected by a prior restraint doctrine and fattened by classified ads – is the exception and not the norm in our tradition, so any conclusions relying on the Amendment’s relationship to the particular character of the news media seem overdrawn; (2) as my colleague David Post pointed out, there are strong economic reasons for online intermediaries to establish transparent reputations for honesty – that is, technical warranties ought to solve the lemons problem; (3) speech may be governed by law even if plaintiffs can’t effectively enforce available legal rules. Think international law. Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence. If the First Amendment has no downside teeth, it can still create sticky norms.

As I said, a great speech. It featured references to David Lat & the Volokh Conspiracy, among others. But not CoOp. Maybe we ought to be running a hotties contest.

More later (maybe.)

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11 Responses

  1. A.J. Sutter says:

    Your comments (2) and (3) above are based on theoretical considerations rather than what actually is happening. Particularly, reasoning from what “should” happen on the basis of economic theory doesn’t have such a good track record, nor does it seem like the appropriate basis for evaluating Constitutional rights. (I don’t recall that the Constitution incorporates any particular economic theory, other than, for its first 70-odd years, slavery.)

    How do your arguments (2) and (3) help prevent situations like the ones mentioned in the Wikipedia article on the Streisand Effect, for example? And may I point out that the considerations proposed in those arguments didn’t actually work in practice, in those cases.

  2. Frank says:

    I wonder if he’s seen Idiocracy? or Collins’ & Skover’s Death of Discourse?

    I am surprised that a libertarian like Kozinski would take this position, but it strikes me as an excellent philosophical foundation for his Roommates.com opinion. In all his writing I’ve read, I’ve found an exceptionally open and questing mind at work, and this speech sounds like no exception.

  3. Earthman says:

    “You have only those rights you’re willing to enforce!” Jean Luc Picard

    I don’t require an Alex Kozinski to “interpret” or “define” my First Amendment rights.

    This whole archaic, and wholly un-American, business of “Judicial Interpretation” flows from the fact that, in medieval England, the law was written in Latin; the official language of the courts was French, and the “common” English ‘subject’ was illiterate and spoke a colloquial version of “English” unique to the county where he lived.

    A common English ‘subject’ was absolutely lost in an English court. Without his multi-lingual lawyer, he had no idea what was going on. Even his “learned lawyer” was hopelessly subordinate to the judge who controlled the definitions of the words used.

    Prior to 1806, there was no comprehensive dictionary of the English language. Webster, an American, published the first comprehensive dictionary of the “American” language that year, and later, his massive dictionary in 1828.

    United States law is written in plain English; the language of our courts is plain English. People can read and have universal access to Webster’s magnificent works.

    Narcissistic Judges notwithstanding, the supreme law of the land is made up of words that clearly say what they say.

    It is the duty of each American to enforce its words and never allow some cloistered group to pervert it.

  4. Miriam Cherry says:

    “Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence.”


  5. a-rex says:

    So greater freedom of speech killed the first amendment?

    I sense some highly convoluted logic here. “you can’t sew people for their speech, so the 1st am. suffers.”

    Wow. I’m eagerly awaiting more nuggets of wisdom.

  6. a-rex says:

    So greater freedom of speech killed the first amendment?

    I sense some highly convoluted logic here. “you can’t sue people for their speech, so the 1st am. suffers.”

    Wow. I’m eagerly awaiting more nuggets of wisdom.

  7. Mosada says:

    Obviously, Kozinski is not going to go to a church on his speech sermons, after his B J PICs which portrayed a man of the cloth, which some read into matters as a Catholic Priest.

    However, this Cyrus Sanai guy said he wrote a flattering piece on Kozinski some years ago, and it was too flattering, and was rejected by the New Republic Magazine.(most telling, this long obsession of Sanai to promote P R for Kozinski through some gimmicks, games, and tricks)

    So, is the big opus here, that Free Speech is most free when it involves porn ?

    How libertine, doesn’t that fit with Kozinski’s

    so called Libertarian Party Theology ?

    Isn’t Judge Manual Real laughing his ass off, at how Kozinski got his wennie stuck in the net clamps, after the crusade of Kozinski to nail Real, over the wayward woman( in the subprime house)

    To hear all of Kozinksi pious blather in that, proves he is the L A hypocrite of the decade.

    Now, all the PERV judges on the 9th circuit are pandering to come to his defense.

    What a sorry lot of cowards.

    Also, why is Kozinski running around to blabber about death, with Scott, the writer, and Spence in Santa Barbara, is he some P R hound, craving for some attention.

    In the debate with Spence, Kozinski made a fool of himself, pretending to be some boxer, like some clown.(like he gets his rocks off on executions)

    Seems Kozinski has some complusion to make a fool of himself, but if the 9th Circuit craves that, it will continue..

    The judiciary is very concerned that this wack job will do grave harm to the entire Federal judiciary.

  8. Sarica says:

    How is the 1st amendment some great late

    torn to shreds piece of the USA Constitution ?

    That is never made lucid as it concerns the internet, and the 9th Circuit clown

    Take how the brew-ha-ha, started with Kozinski,

    He bashed this Sanai fellow(by implication his family), does it on the Internet(sent the letter to site, linked to other stuff), seeks to humilate the guy, gets all his cyber buddies to mock and ridicule the guy.(like some cyber hound pack)

    And, keep in mind, and don’t lose sight of the most important:

    Kozinski did that:

    1) in out of court statements

    2) in the capacity as no judge sitting on any case on the merits.(as it links to matters)

    Kozinski is a big bully, he is now running around because he made a fool of himself.

    If he was even 1/2 a man he would offer to meet

    Sanai in a duel on the UCLA greens, near the student Center, and let the best man stand after the dust settles.

    Barring that, if that is now outlawed, they would agree to meet in the Staple Center in the brut -man contest, and the last man standing is the one on high ground.

    Barring that, the 3rd Circuit will do nada, but who is paying all of the lawyer fees and costs for the 3rd Circuit big corporae law firm, and for Kozinski’s law frim, in L A. Marky the mouth of Los Angelo ?

    Alex, the clown seems to find more ways to grab attention so he can go around to places like Temple, and make his RIP remarks, all when he leaves out the whole thing started when he shot off his flipper lips out of court, not as a judge, but as some clown. Oh, the 3rd Circuit, and Temple both in same area, most curious how he travels to the area, to do his P R.

    Did he pay his own way, or who did, and can any look it up on Judicial disclosure forms ?

    The highest and best use of the 1st amendment is not smut, or the promotion of smut.

    On some of those other matters—Kozinski makes those mince meat, but it would take a book to explain, and I am sure your WWW site had no room for that, now.

    That one black guy from Temple on Fox, he is the best commentator, he does Temple proud

  9. Marvin says:

    It must be wonderful for Kozinski, using the First Amendment, to go around the Nation, to places like Temple Univ, and attack others, all most curiously using something called; The First Amendment(for some Alex exclusive).

    He bemoans unknown whistleblowers.

    Whistleblowers do no have immunity like Federal judges.(in a Chamber/ AKA 9th Circuit offical proceedings).

    However, keep in mind when Kozinski attacks others at a university lecture, he does not do that in any Judge Capacity, Temple is not a court, or an official federal chamber.

    Apparently, Kozinski did not like it when some guy by he name of Sanai, a Beverly Hills lawyer, responded to his out of court statements.

    Also, why does Kozinski want the Government to employ means to silence others, to have no rights under the First Amendment–to speak out.

    His tag line was there is no real First Amendment unless the Government has power to stop the speech of some.

    The Government sure never stopped the lecture of Kozinski at Temple university, near the 3rd Circuit, was that some exception to his latest precept: the First Amendment is DEAD, RIP ?

    Was that DEAD, RIP as to any he points at, using some power ?

    Most curious, at how the usual litnay of P R on Kozinski(by Clerks or U Professors) on how brilliant he is, as so many swallow his rubbish.

    America would be a better place if Kozinski was impeached(by Congress), we could all feel safer that the First Amendment is alive–NOT DEAD.

  10. Elfnois says:

    Now, that the DOJ has moved to have all judges recuse themsleves in the Issac’s case, because of the (alleged) infection or a profusion of smut all over the 9th Circuit offices, that should prove to be interesting.

    This from the WSJ LEGAl blog on


    “Ever wonder what happened to the

    Isaacs( case)? After the mistrial, Isaacs argued that the Constitution’s double jeopardy clause barred his reprosecution, but a new trial judge ruled against him. He appealed to the 9th Circuit. Here’s the latest: The Daily Journal is reporting that federal prosecutors have written to all 50 judges on the 9th U.S. Circuit Court of Appeals, asking them to consider recusing themselves from hearing Isaacs’ appeal. (HT: How Appealing)”

  11. Brian says:

    Why should any judge recuse him/herself, just because the DOJ has some problem with one judge, who is on the Ninth Circuit, does the BUSH DOJ genuinely believe Kozinski has some mind control influence over all 49 of the other Ninth Circuit Judges ?

    It seems rather absurd, why doesn’t the DOJ just get on with addressing the appeal, taken by the kinky Smutty promoter, to expedite matters, to be able to go back to have a full trial,(in federal District Court) so a resolution of this matter can

    be carried out.

    Sometimes, the DOJ looks awfully silly, and, that is not really serving our justice system.

    However, Kozinski in his special Univ lectures, seeking to be provocative, seems to push the envelope, as if he craves attention, and is some narrastic showboat, who is an exibitionist.

    Now, will he write some more essasys on how he

    lost his first amendment protections in the porn wars in his Chambers, with bad wiring, and faulty programming, and bad file protections, and sloppy network configurations, all to pass the buck, but his wife goes: Alex is into funny. She did not seem to be laughing when she was going after that Sanai guy, as if he tapped into their files, as if he was hacking into nuclear secrets at the Pentagon.

    Sanai is no Dr Lee at the Nuclear Lab, for some to play the race card, as if OJ specials will work in Philly.

    If Kozinski was not biased, he sure never acted like it, he is the one who did the recusal, created the appeal, caused the 3rd Circuit review, tied up a lot of peoples time, and resources, and brought great discredit to the 9th Circuit, where he is Chief Judge, but has placed a cloud over his administraion in that area, as well.