4 ms·

Heh. You say "literalist reading" is if that's a bad thing! Surely you jest. In my opinion it's the only way to read that document, and on this point we obvi

by gills 16y ago

Heh. You say "literalist reading" is if that's a bad thing! Surely you jest. In my opinion it's the only way to read that document, and on this point we obviously disagree. I will be more clear. In my opinion, freedom of the press is intended to perpetuate the ability of private citizens to monitor actions of government. Freedom of speech protects the right to publish those facts discovered by the press. You may twist that to include intrusion on private parties, or a slippery slope where lawlessness and slander rule, but that is not what I am saying. The foundation of my argument is that proceedings of any court are official actions of government, and therefore information that shall be in the public domain. If you want, you could add the word eventually to the end of that sentence, I don't really care. I'm not talking about beauty contests or "courts of public opinion", I'm only talking about accountability of government. In that context, if the press deems themselves, or their viewers the private citizens, best served by documenting the actions of government with the most sophisticated technologies available, where is the power of the judiciary explicitly enumerated to deny it?

anigbrowl 16y ago
I can't help observing that you go from saying a literalist reading "[is] the only way to read that document" to inferring the purpose and scope of the 1st Amendment in the very next paragraph. Now, it happens that I agree its primary purpose is to guarantee citizens' right to oversee and criticize governors - and like you, I infer that from its context. That can include the overall thrust of the document, its historical context (eg the oft-quoted Federalist Papers), and to some extent the interpretations of it since that time by various parties at the Supreme Court; your choices of context may vary, but we both seem to agree that some purpose was intended for this amendment to exist, and that both purpose and intent are discoverable. I'll move on to your substantive argument in a moment, but you can't champion a literal reading or interpretation of the words as written, while simultaneously applying three separate constraints to 'freedom of the press'. You limited to freedom of publication rather than discovery (and obviated your own argument about the press's right to use the technology of choice in courtrooms); you limited it to factual matters (which would instantly put fictional, speculative, and political opinion outside the scope of the 1st amendment); and you limited to reports on government (so coverage of anything not funded by the taxpayer isn't protected either). Maybe that would actually be a good standard, and balance the need for an informed electorate with individuals' valuable privacy. But your stated opinion about the purpose or meaning of a free press is not found in the constitution. Beyond construing 'the press' as a means of and proxy for 'publishing', courts have interpreted the 1st amendment as its actually written to mean almost anything, short of a direct danger to public safety...a far broader freedom that your own definition would confer. Apart from my natural pedantry :-) I mention all this because I've noticed that when complaints about the scope of judicial power come up, they are often coupled with tendentious comments on the correct manner of interpreting and administering the law. I think this 'strict construction' meme needs to die: the law is not specified as tightly as a programming language and judges are not dispassionate compilers. As you have demonstrated above, even the simplest syllogisms are predicated on implicit assumptions. Instead of a fallacious appeal to authority (strict construction of vague axioms, to say nothing of linguistic ambiguity), we would do better to accept the limitations of formalism and resort to tools like Bayesian inference or economic analysis when they can help us decide between conflicting imperatives. As you say elsewhere, the court doesn't have legislative power to abridge the freedom of the press, since courts aren't legislatures. Correct me if I'm wrong, but I assume your meaning was that since no legislation exists banning cameras from courts, and congress can't pass any for constitutional reasons, judges should not abrogate to themselves such decisions as if they were legislators. Fair enough - but a constitutional constraint on legislative power does not bar the exercise of executive or judicial power - subject to oversight, impeachment or constitutional amendment by Congress. Thus it is within the president's power to classify information, conduct certain activities in secret, and even to prevent publication under some circumstances. Where the scope of that power is in dispute, the question is generally justiciable, and judges in turn frequently issue injunctions which limit the power of the press to publish certain information - sometimes on grounds of security, sometimes to facilitate a fair trial. As to your closing question: Article III of the constitution establishes the judiciary, and section 2 of that article extends the judicial Power 'to all cases, in law or equity, arising under this constitution, the laws of the the United states, and Treaties made under their authority" [and going on to describe the boundaries thereof]. This has been understood for a long time to mean the Judicial Branch is competent to supervise its own operations, and not least because the constitution places so few constraints on the membership or operations of the judicial branch, in contrast to the executive and legislative ones. Thus, the question is left to the judiciary itself. The press may assert that its interests or those of the public (which the press, to its great credit, has always found to be identical) are best served by the addition of cameras or by conducting continuous MRI/PET scans of the parties' brainwaves during proceedings; but the decision of that claim is made on the bench. If the press has any argument for why video delivers greater accountability than the almost-instant availability of transcripts and opinions that exists currently, I look forward to hearing it. Now the issue in Grellas' original article (though only implicitly stated) is an ongoing argument about putting cameras in the Supreme Court. This is a good question to ask, because you can already listen to audio recordings of all proceedings (which are most instructive) and since arguments in the supreme court almost never involve defendants or witnesses, but only attorneys presenting short arguments about legal technicalities, justice would probably not be harmed by letting the public see the proceedings. Indeed, since looking at the court requires going to DC and standing in line to get a gallery ticket, most people never get the opportunity to see the Supremes at work - you have a far better chance of seeing the President in person than a Supreme Court justice. Thus, it's argued, TV would make the operation of the judicial branch much more accessible to ordinary Americans. I think they object for 3 reasons. One is a sentimental fondness for judicial mystique among some justices. This is a poor reason, but I'm sentimental enough to admit that and yet share it myself. Two is a more serious worry that every Supreme Court hearing and subsequent delivery of an opinion would be subjected to the 'true crime!!!' video editing treatment. This would arguably undermine the dignity of the judicial process in general, but in particular where highly emotive or grave cases were before the court - can you imagine someone's death penalty appeal being reported with crash zooms and freeze frame closeups of a justice every time one asks a question? Equally, it could be used to mislead: popular stereotypes about the court, both left and right, have little to do with reality. I would hate to see footage of proceedings recycled in support of 'Impeach Justice ____' campaigns on YouTube or the TV. The third reason is the most important. Whereas regular video of Supreme Court proceedings might result in mockery or misuse, the most likely casualty would be bruised egos rather than justice itself. but if they were the norm in the Supreme Court, it would be very difficult to argue that they should be excluded from proceedings in appellate, district, specialty or the various state courts. And that would be bad for the reasons I stated above: basically, civil and criminal proceedings would become the stuff of reality shows (TV producers would love it, since they would have an endless supply of free public domain footage). One might object that this hasn't really happened in congress of state legislatures: my answer is that it actually has to an extent, and that in the meantime the mechanism of representative government acts as a filter for what gets to the floor of the legislature. In court proceedings parties are often there involuntarily, whether at the behest of prosecutors or to answer civil suits. Treating their due process as the raw material of tabloid entertainment would make a wreck of the legal system in short order, to the great detriment of the public. So much as I'd like to be able to watch the Supremes at work rather than just listen to or read transcripts of them, I'm not willing to pay the likely price for my curiosity.

by gills 16y ago

anigbrowl 16y ago

I can't help observing that you go from saying a literalist reading "[is] the only way to read that document" to inferring the purpose and scope of the 1st Amendment in the very next paragraph. Now, it happens that I agree its primary purpose is to guarantee citizens' right to oversee and criticize governors - and like you, I infer that from its context. That can include the overall thrust of the document, its historical context (eg the oft-quoted Federalist Papers), and to some extent the interpretations of it since that time by various parties at the Supreme Court; your choices of context may vary, but we both seem to agree that some purpose was intended for this amendment to exist, and that both purpose and intent are discoverable. I'll move on to your substantive argument in a moment, but you can't champion a literal reading or interpretation of the words as written, while simultaneously applying three separate constraints to 'freedom of the press'. You limited to freedom of publication rather than discovery (and obviated your own argument about the press's right to use the technology of choice in courtrooms); you limited it to factual matters (which would instantly put fictional, speculative, and political opinion outside the scope of the 1st amendment); and you limited to reports on government (so coverage of anything not funded by the taxpayer isn't protected either). Maybe that would actually be a good standard, and balance the need for an informed electorate with individuals' valuable privacy. But your stated opinion about the purpose or meaning of a free press is not found in the constitution. Beyond construing 'the press' as a means of and proxy for 'publishing', courts have interpreted the 1st amendment as its actually written to mean almost anything, short of a direct danger to public safety...a far broader freedom that your own definition would confer. Apart from my natural pedantry :-) I mention all this because I've noticed that when complaints about the scope of judicial power come up, they are often coupled with tendentious comments on the correct manner of interpreting and administering the law. I think this 'strict construction' meme needs to die: the law is not specified as tightly as a programming language and judges are not dispassionate compilers. As you have demonstrated above, even the simplest syllogisms are predicated on implicit assumptions. Instead of a fallacious appeal to authority (strict construction of vague axioms, to say nothing of linguistic ambiguity), we would do better to accept the limitations of formalism and resort to tools like Bayesian inference or economic analysis when they can help us decide between conflicting imperatives. As you say elsewhere, the court doesn't have legislative power to abridge the freedom of the press, since courts aren't legislatures. Correct me if I'm wrong, but I assume your meaning was that since no legislation exists banning cameras from courts, and congress can't pass any for constitutional reasons, judges should not abrogate to themselves such decisions as if they were legislators. Fair enough - but a constitutional constraint on legislative power does not bar the exercise of executive or judicial power - subject to oversight, impeachment or constitutional amendment by Congress. Thus it is within the president's power to classify information, conduct certain activities in secret, and even to prevent publication under some circumstances. Where the scope of that power is in dispute, the question is generally justiciable, and judges in turn frequently issue injunctions which limit the power of the press to publish certain information - sometimes on grounds of security, sometimes to facilitate a fair trial. As to your closing question: Article III of the constitution establishes the judiciary, and section 2 of that article extends the judicial Power 'to all cases, in law or equity, arising under this constitution, the laws of the the United states, and Treaties made under their authority" [and going on to describe the boundaries thereof]. This has been understood for a long time to mean the Judicial Branch is competent to supervise its own operations, and not least because the constitution places so few constraints on the membership or operations of the judicial branch, in contrast to the executive and legislative ones. Thus, the question is left to the judiciary itself. The press may assert that its interests or those of the public (which the press, to its great credit, has always found to be identical) are best served by the addition of cameras or by conducting continuous MRI/PET scans of the parties' brainwaves during proceedings; but the decision of that claim is made on the bench. If the press has any argument for why video delivers greater accountability than the almost-instant availability of transcripts and opinions that exists currently, I look forward to hearing it. Now the issue in Grellas' original article (though only implicitly stated) is an ongoing argument about putting cameras in the Supreme Court. This is a good question to ask, because you can already listen to audio recordings of all proceedings (which are most instructive) and since arguments in the supreme court almost never involve defendants or witnesses, but only attorneys presenting short arguments about legal technicalities, justice would probably not be harmed by letting the public see the proceedings. Indeed, since looking at the court requires going to DC and standing in line to get a gallery ticket, most people never get the opportunity to see the Supremes at work - you have a far better chance of seeing the President in person than a Supreme Court justice. Thus, it's argued, TV would make the operation of the judicial branch much more accessible to ordinary Americans. I think they object for 3 reasons. One is a sentimental fondness for judicial mystique among some justices. This is a poor reason, but I'm sentimental enough to admit that and yet share it myself. Two is a more serious worry that every Supreme Court hearing and subsequent delivery of an opinion would be subjected to the 'true crime!!!' video editing treatment. This would arguably undermine the dignity of the judicial process in general, but in particular where highly emotive or grave cases were before the court - can you imagine someone's death penalty appeal being reported with crash zooms and freeze frame closeups of a justice every time one asks a question? Equally, it could be used to mislead: popular stereotypes about the court, both left and right, have little to do with reality. I would hate to see footage of proceedings recycled in support of 'Impeach Justice ____' campaigns on YouTube or the TV. The third reason is the most important. Whereas regular video of Supreme Court proceedings might result in mockery or misuse, the most likely casualty would be bruised egos rather than justice itself. but if they were the norm in the Supreme Court, it would be very difficult to argue that they should be excluded from proceedings in appellate, district, specialty or the various state courts. And that would be bad for the reasons I stated above: basically, civil and criminal proceedings would become the stuff of reality shows (TV producers would love it, since they would have an endless supply of free public domain footage). One might object that this hasn't really happened in congress of state legislatures: my answer is that it actually has to an extent, and that in the meantime the mechanism of representative government acts as a filter for what gets to the floor of the legislature. In court proceedings parties are often there involuntarily, whether at the behest of prosecutors or to answer civil suits. Treating their due process as the raw material of tabloid entertainment would make a wreck of the legal system in short order, to the great detriment of the public. So much as I'd like to be able to watch the Supremes at work rather than just listen to or read transcripts of them, I'm not willing to pay the likely price for my curiosity.