by Mitch Kokai
Senior Political Analyst, John Locke Foundation
National Review has filed a petition for a Writ of Certiorari with the United States Supreme Court requesting that in its forthcoming term it take up Mann v. National Review, the nation’s most-pressing case for First Amendment rights which now has accumulated lower-court issues that, unless refuted, will have a massive impact on free speech. A number of entities and individuals, seeing (and fearing) the constitutional consequences of the case, filed amicus curiae briefs in support of NR’s petition.
One brief, filed on behalf of 21 U.S. Senators, is critical of the D.C. Court of Appeals’ decision to allow the case – and therefore policy arguments about pressing, controversial, and passionate issues – to be heard by a jury. The ramification, legal and constitutional, are serious:
“Left uncorrected, it will erode the freedom of political speech that lies at the foundation of our constitutional order. By allowing juries to punish subjective statements of political or scientific opinion as defamatory statements of fact, the decision below will shut down crucial debates on matters of public concern. And the chilling effect of this judicial heckler’s veto will be especially pernicious because it will be felt in the nation’s capital, where much of the nation’s political debate is centered and where that debate is translated into public policy in the halls of Congress and the Executive Branch. The result will be forum shopping and politically motivated litigation that will stifle the marketplace of ideas upon which deliberative democracy depends.”
The brief’s core argument is that vigorous debate is essential to the formation of public policy, and the form of that debate — and the extent to just what is “vigorous” — is constitutionally protected, a matter lost upon the D.C. Appeals Court.