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February 27th, 2017

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When the First Amendment is the wrong weapon

Noah Feldman

By Noah Feldman Bloomberg View

Published Oct. 7, 2016

When the First Amendment is the wrong weapon

It's easy to bemoan the Gawker-Hulk Hogan settlement and condemn the Florida courts for not throwing out the verdict. But there's a deeper point that matters more and shouldn't be lost: The First Amendment and its values can be thwarted and distorted by private actors with extremely deep pockets.

Much as we rightly celebrate our free-speech tradition, it isn't designed to withstand vast economic disparities. Indeed, the First Amendment value of government neutrality with respect to speech can sometimes function as an invitation for the richest private speakers to drown out others who may even be fairly rich themselves.

In the Gawker case, the First Amendment fell short because the judicial interpretation of it remains incomplete. Had Hulk Hogan sued Gawker for libel, he wouldn't have gone far -- because the First Amendment has been interpreted by the Supreme Court to protect the media from libel suits by public figures unless the falsehoods are disseminated with disregard for whether they were true, or with knowledge they were false. But because Hogan sued for infringement on his privacy under Florida law, the state courts were able to avoid applying the First Amendment principles that have developed in the context of libel law.

There is every reason to believe that, eventually, the Florida Supreme Court or the U.S. Supreme Court would have gotten the law right and decided the case for Gawker. But in real life, a media entity that has declared bankruptcy and been acquired by new owners has good reason to settle outstanding conflicts rather than taking the risk of disastrous, greater losses.

The truth is that there's no certain way to avoid such a result under the First Amendment. Judge-made law has to evolve on a case-by-case basis. It would be nice if there were more statutes to block suits like Hogan's, but even such pro-free-speech laws can't cover every foreseeable scenario.

Ultimately, the First Amendment, like other parts of the Constitution, can be enforced only by ordinary judicial processes. Those processes take time and money -- and they necessarily carry the risk of defeat. That's why the threat of libel suits remains powerful even when those lawsuits are almost certainly doomed to failure, as we saw recently when the American Bar Association balked at publishing a report that criticized Donald Trump for being a libel bully.

When all parties enter the courts with roughly similar resources, the legal process is usually sufficient to vindicate First Amendment values. Hulk Hogan and Gawker might actually have been roughly equal. But when Peter Thiel's vastly greater resources came into the picture, it became much harder for Gawker to be confident that it would prevail and prevail quickly.

Resource disparities are the bane of the legal system, of course. In criminal cases, the system constantly struggles with the relative resources allocated to public prosecutors and public defenders. The occasional rich defendant, however, enjoys an obvious, O.J. Simpson-style advantage over even the best-funded prosecutors.

A similar result can be observed when it comes to campaign finance. It could be argued, of course, that expenditure of money in campaigns has no relation to free speech, but 40 years ago, the Supreme Court chose a different path. Since the landmark 1976 decision of Buckley v. Valeo, the courts have treated campaign finance as interwoven with free speech.

In that paradigm, opponents' free-speech competition for votes is inevitably joined with their competition for money to buy airtime to affect those votes. The free market in ideas, which Justice Oliver Wendell Holmes intended as a metaphor, becomes something closer to a literal market in which expenditures can influence outcomes.

The First Amendment can't do anything about this, because it is neutral by design.

The First Amendment is at its most effective at protecting speech from government action. It's much less effective when private parties go to war using it as a shield or a weapon. That shouldn't necessarily make us love the First Amendment any less. But we should recognize its limitations.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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