Dahlia Lithwick, the keynote speaker at the 104th annual conference of the American Association of Law Librarians (AALL), explained why the Justices of the Supreme Court are conflicted about free speech issues. It goes back to their confirmation hearings, which tend to be brutal and vicious. This gives them a jaundiced view of both the press and the public. Lithwick, a journalist who covers the Supreme Court, then examined six recent free speech cases.
1. The media (and technology) can turn speech into assault. It’s no longer a situation of worrying only about yelling “Fire” in a crowded space, something not considered to be free speech. Today, whispers in one place, amplified by the internet, can have drastic consequences in other places, even if the Supreme Court thinks it’s free speech. One example: A book burning in Florida (the book being the Koran) resulted in deaths of Americans in Pakistan.
2. Technology transforms private speech into public speech. Nothing is off the record anymore. When a Justice gives a speech or shows up at a venue, that event is recorded and becomes public on websites. Some justices haven’t grasped this and don’t appreciate the attention.
3. Assaultive speech is not speech. Here her example is the violent video games, which she thinks should not be considered free speech, particularly because they require interactivity. She also asked us to think about Phelps v Snyder, where pfc Snyder’s father was viciously attacked in an epic ode published on the internet, but that was not considered by the Court. The Court did rule that the Phelps family demonstrating at military funerals was a form of protected speech.
Lithwick made an excellent case for new technologies being way ahead of the law (not that I find that a particularly new phenomenon — it’s been that way for years). She also pointed out that many of the Court’s decisions about protected free speech are not in line with how the general public thinks. She suggested it is not an accident that those most concerned about civility are those who endured the most uncivil confirmation hearings.
Her final point: When it comes to free speech and technology, the Court needs to change. She certainly wowed the AALL crowd, delivering a well-crafted, intelligent, witty, and thought-provoking talk with nary a PowerPoint slide in sight!