Tuesday, March 25, 2014

GWorks Reviews: What You See: An NYU Panel Addresses Supreme Court Transparency

But things that are indelicate can sometimes be beautiful.

—The Misses Allen
A Room With a View

Why not be taxonomical about things for just a minute.

There is a conversation about the Supreme Court that revolves around what people—We the People—know (and should know) about the Court. Depending on the This & That of the conversation, you might find yourself talking about (even bemoaning) how little We seem to know about the Court. The conversation might focus on what the Court might do to explain itself or what We might do to understand better what the Court does.

Again depending on the This & That of things, you might find yourself talking about ‘the Court and transparency.’ And in this discussion, it is common enough to focus on cameras in the court. It is the topic on which Senators at Supreme Court Confirmation Hearings so often focus. Why not us?

I am happy to report that there was a public conversation last Friday that went another way.

Supreme Sunshine: Shining a Light on the High Court, Friday 21 March 2014, was presented by the Coalition for Court Transparency, New York University (in Washington, DC) and the Reporters Committee for Freedom of the Press.

Dahlia Lithwick, a Senior Editor at Slate who “writes about the courts and the law,” including covering the Supreme Court, was moderator. Panelists were:

Bruce D. Brown is Executive Director, Reporters Committee for the Freedom of the Press.

William Jay is a Partner at Goodwin Procter, LLP. Mr Jay argues cases before the Supreme Court. He was a judicial clerk for Supreme Court Associate Justice Antonin Scalia, October Term 2004.

Clay Johnson is a Technologist and Presidential Innovation Fellow. His work includes RFP-EZ, “a web-based application...meant to make it easier for small businesses to sell their services to government buyers, and for contracting officers to buy small dollar value services.”

Eric J. Segall is the Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law. He teaches Constitutional law and about the federal courts.

Sonja R. West is Associate Professor of Law at the University of Georgia School of Law. Professor West was a judicial clerk for Supreme Court Associate Justice John Paul Stevens, now retired, October Term 2004. She teaches Constitutional law, media law and about the Supreme Court.

Tuesday, March 18, 2014

Actually: A Supreme Court Free Speech Landmark Turns Fifty

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.