The Law of the First Amendment

By Steve Thorpe Legal News The First Amendment to the U.S. Constitution has grown stronger and its effects more pervasive as the result of decades of court decisions. A recent panel of scholars--with some dissent -- said they believe that is a positive trend. Former Michigan Supreme Court Chief Justice Marilyn Kelly moderated the Wayne Law Review roundtable event "The Law of the First Amendment" on March 20 at Wayne State University Law School. The gathering honored Distinguished Professor Robert Sedler's work on First Amendment law. Participants included Judge Avern Cohn of the U.S. Court for the Eastern District of Michigan; Professor Kevin Saunders, chair in Constitutional Law at Michigan State University College of Law; and Wayne Law Professor Christopher Lund, whose work is on freedom of religion and religious rights. Twenty years ago Sedler wrote an article about the divergent approaches between academia and litigation on the Law of the First Amendment. He re-examines the topic in a new article called "The Law of the First Amendment: A Revisit Twenty-one Years Later," to be published in the Wayne Law Review. Sedler talked about how the strength of the First Amendment has grown over time. "We talk about the guarantees of freedom of speech, the press and assembly and petition together as freedom of expression," he said. "We give more constitutional protection to freedom of expression than is provided in the constitutions of other democratic nations or under international human rights norms. In our system, the value of freedom of expression prevails over other democratic values such as equality or privacy." These rights have become so identified with the United States that they help define who we are. Judge Cohn looked back on his decades of First Amendment cases and stressed that a judge's personal outlook and beliefs must play a role in deciding those cases. "As I think about those cases, and the fact that there were competing considerations, and I held one way and another judge might have held another way, I tried to figure out precisely why I did what I did," Cohn said. "I recently ran across a passage in Jeffrey Toobin's book, 'The Oath,' which describes a series of relationships between President Obama and the Supreme Court and he quotes Obama as saying, and this is a little broad, 'What matters on the Supreme Court is that 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective of how the world works and the depth and breadth of one's empathy. In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.' " Professor Saunders was the only panelist who argued for greater limitations on the power of the First Amendment. In his book "Saving Our Children from the First Amendment," Saunders asserts that freedom of expression can be harmful to children, making it more likely that they will be the perpetrators or victims of violence. He points to more than 30 studies that demonstrate the effect repetitive exposure to violent video games has on the judgment centers of the brain. "For the majority (of courts), dogma trumps science," he said. "Dogma holds that expression can never harm anyone, so science has to be wrong. But when science conflicts with dogma, science will eventually win out." Professor Lund observed that the First Amendment cases produce lopsided decisions on the Supreme Court. "A surprising number of free speech cases, even recent ones, were unanimous or decided by a large majority," he said. "Justices may not agree on an opinion or on a framework or upon a theory, even on a value or a fixed set of values, but they agree, generally speaking, on enough to decide these cases." Published: Mon, Apr 1, 2013

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