Alex Kozinski came to Golden Gate University School of Law on Monday to praise the First Amendment — and to bury it.
Appearing as part of the school's Distinguished IP Speaker series, the Ninth Circuit's chief judge argued that technology has rendered the First Amendment obsolete. As incidents ranging from Wikileaks disclosures to Barbra Streisand's house have demonstrated, it's no longer possible for the government or individuals to suppress speech in an age of distributed self-publishing via blogs and social networks.
"How do you sue a blogger who may be anonymous, or may be posting from Uzbekistan?" Kozinski asked. "And assuming you somehow get service of process and prove that he acted with malice, so what? How do you collect a judgment against a guy whose principal assets are an iMac and a genuine autographed poster of ZZ Top?" (See a video clip of Kozinski making his point here and Monica Bay's report on the lecture here.)
As Kozinski sees it, "The First Amendment was crafted to deal with dangers that, as a practical matter, no longer exist." That's mostly a good thing, he said, but not always.
The First Amendment as interpreted by the courts struck a careful balance, heavily favoring speech but also weighing it against other values. "When speech is not suppressable, the careful First Amendment balance is destroyed," he said. "We now live in a world where the lowest common denominator -- the judgment of the most irresponsible, callous, insensitive or malicious speaker -- governs what we see and read."
So what's the solution? Like any judge worth his salt, Kozinski urged that we look at the evidence -- bloggers should back up their claims with primary source evidence if they're to be believed, he suggested.
But the solution won't come from the courts or the First Amendment. "The great First Amendment," he said "is now gone as a moderating force" on public discourse.