Federal appellate judge speaks out on the First Amendment

Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals is considered one of the brightest stars on the bench. He became the youngest federal appellate judge this century when he was appointed to the 9th Circuit, which is based in San Francisco, in 1985 at the age of 35.

After graduating first in his class from UCLA Law School, Kozinski clerked for then-9th Circuit Judge Anthony Kennedy (now a U.S. Supreme Court Justice) and former U.S. Supreme Court Chief Justice Warren Burger.

Kozinski is known for his scholarship, his legal analysis and his accessibility. In an exclusive interview with freedomforum.org, Kozinski offers his insight into a variety of First Amendment issues, including commercial speech, flag-burning, Internet pornography, sexual harassment law and other hot-button issues.

Kozinski’s First Amendment jurisprudence

Eugene Volokh, UCLA law professor and former law clerk to Kozinski, says that the judge’s First Amendment jurisprudence demonstrates a “lucidity in constitutional reasoning.”

“Judge Kozinski has protected speech all across the ideological spectrum regardless of his personal views on the quality of the expression,” he says.

Kozinski’s First Amendment opinions are thoughtful and thought-provoking.

In Duran v. City of Douglas, or “the finger case” as Kozinski calls it, the judge ruled that the First Amendment protected a citizen’s right to direct an obscene hand gesture at the police.

He wrote for the court that “while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.”

Kozinski says “the finger case” stands for an important principle and bristles at the suggestion that the First Amendment might not protect such offensive expression.

“We protect the Nazis in Skokie, (Ill.,)” he says. “Accepting protest is a natural part of living in our society. The police wield a lot of power and should not retaliate against individuals for expressing displeasure towards them. Showing disrespect for a police officer is simply not a reason for being arrested or harassed.”

In Standing Committee of Discipline v. Yagman, Kozinski wrote for the court that controversial civil rights attorney Stephen Yagman’s suspension for his critical comments of a trial judge violated the First Amendment.

Kozinski quoted former U.S. Supreme Court Justice Hugo Black’s eloquent statement in Bridges v. State of California: “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

Kozinski also considers this decision an important statement on the First Amendment. “The whole idea behind the First Amendment is that it protects offensive and even hurtful speech unless the speech presents a clear and present danger,” he says.

“There is a tendency on the part of judges to find speech critical of members of the bench worse or less acceptable than speech critical of others, including other public officials. Judges need to be responsible and bend over backwards to make sure we don’t put ourselves in a position where we are placing ourselves above the law.”

Volokh says that Kozinski “at times has also correctly realized that just because someone claims a free-speech violation does not make it so.”

An example Volokh cites is Kozinski’s dissenting opinion in Yniguez v. Arizonans for Official English, in which a state employee sued the state of Arizona challenging the constitutionality of an English-only rule.

The state of Arizona had passed a constitutional amendment, entitled “English as the Official Language,” requiring government employees to conduct business “in English and no other language.” Maria Yniguez, who handled medical malpractice claims, filed suit against the state, contending the law violated the First Amendment in part because it prevented her from speaking Spanish to claimants who did not speak English.

Kozinski found no First Amendment violation, writing that lawsuits like this give “bureaucrats the right to turn every policy disagreement into a federal lawsuit” and that “the same sort of challenge could be raised by just about every disgruntled government employee.”

“I just did not see the case as a First Amendment case,” Kozinski says. “I saw this case more as an employee not wanting to obey the rules of the job. There is not an employee out there who doesn’t think he or she could do a better job than the boss. They may be right, but they don’t have a constitutional claim.”

Threats to free speech

One of the greatest threats to free speech in Kozinski’s opinion is sexual harassment law, which he warns is a “big area of concern.”

“This is an important issue. It is one thing for a private employer to punish offensive speech in the workplace. But imposing tort liability for harassing speech poses some interesting free-speech issues. Civility is an important value in our society, but government-enforced civility is a speech restriction.”

Kozinski also disagrees with the seemingly endless desire of lawmakers to amend the Constitution to punish flag-burning.

“We should not take amending the Constitution lightly. The flag has obvious important symbolic value, but it is important for us to realize that we ourselves were the children of the Revolution,” he says. “Hopefully not today, tomorrow or anytime in the immediate future, but sometime the flag could stand for something entirely different than the freedom it stands for today; it could stand for government oppression.”

Kozinski also fears that the current congressional push to pass laws restricting pornography on the Internet threatens free speech. “Children should be protected by their parents,” he says. “I think the government should recognize that this is primarily a parental issue. These laws often have unintended consequences of chilling free speech; the government should not be in the business of trying to solve family and personal problems.”

For example, Kozinski says he is “skeptical” of laws that mandate installation of filtering software on computers. The judge expressed his displeasure earlier this year when an official with the Administrative Office of the Courts installed WebSense, a blocking software, on court computers without informing the judges.

“I’m just not sure that we are faced with the crisis that some say we are in this area,” he says.

Commercial speech

In the First Amendment arena, Kozinski is perhaps best known for his ground-breaking law review articles on commercial speech.

First Amendment jurisprudence currently affords less protection to commercial speech than to other types, such as political speech. The U.S. Supreme Court, for example, has stated that commercial speech should be relegated to a “subordinate position in the scale of First Amendment values.”

Kozinski, along with law professor Stuart Banner — his former law clerk, has advocated for a change in how commercial speech is treated by the courts. In two law review articles, “Who’s Afraid of Commercial Speech” and “The Anti-History and Pre-History of Commercial Speech,” Kozinski and Banner argue that there is no logical reason to relegate commercial speech to a lower level of protection.

Kozinski says the impetus for his scholarly interest in commercial speech began seven or eight years ago when he chaired a panel on commercial speech at Cornell University. “I found the subject interesting and really did not understand why commercial speech should be granted less protection,” he says.

His position has begun to garner attention outside of academic circles. In 1996, U.S. Supreme Court Justice Clarence Thomas cited one of Kozinski’s articles when he stated in 44 Liquormart, Inc. v. Rhode Island: “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech. Indeed, some historical materials suggest to the contrary.”

Earlier this summer, some of Kozinski’s colleagues on the 9th Circuit also cited one of his pieces in United Reporting Corp. v. California Highway Patrol, stating: “The current debate centers not on whether commercial speech is a form of expression entitled to constitutional protection, but on the validity of the distinction between commercial and noncommercial speech.”

“I do see people and different courts citing the articles on commercial speech and there does appear to be some movement toward changing the law in this area,” Kozinski says. “However, I think that it would be a little optimistic to say that the law will soon change, though it is a hopeful sign that courts are beginning to notice some of the problems with the commercial speech doctrine.

“The commercial speech area is definitely one of the areas of greatest concern when you’re talking about First Amendment problems. Municipalities often have various unconstitutional restrictions on commercial speech,” he observes.

Kozinski concludes that “the First Amendment is an important right, because it is a right of personal freedom. However, the First Amendment is just one important component of being a free citizen,” he says. “We have many other rights, such as the right to property, which are also crucial.

“To me, the First Amendment stands for the basic principle that the government does not decide what citizens can say, speak, write or read,” Kozinski says. “The First Amendment means that we should allow free human beings to express themselves in the marketplace of ideas and not have the government decide what material is free for public consumption.”

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