Joel Jacobsen

In my former life as a first amendment lawyer (well, as a low-level associate who glommed onto as much first amendment work as I could sniff out) I would, at least once a week, read these words or an excerpt from them:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

(You can follow that link to the new Google legal website, which would make me feel sick at heart if I were a manager of a certain division of either Reed Elsevier or Thomson Reuters.)

That was from New York Times v. Sullivan, a disguised civil rights case that dramatically altered state libel laws in a way impossible to justify from the text of the first amendment.  (And I speak from the point of view of a first amendment near-absolutist: Black's and Goldberg's positions had the significant advantage of intellectual coherence.)

It took 21 years before a member of the court pointed out the obvious: that uninhibited, robust, and wide-open debate, not to mention vehement, caustic, and sometimes unpleasantly sharp attacks are not restricted by libel laws that require the plaintiff to prove falsity--unless they're also false.

That long string of adjectives in Brennan's majority opinion (Brennan was a master of 19th century sentimental prose) was just one long euphemism for "false." He meant that we had a profound national commitment to the principle that debate on public issues contains false statements.

The underlying theory, as Justice Byron White finally explained, was that "[t]he press must therefore be privileged to spread false information... in order to encourage the full flow of the truth, which otherwise might be withheld."

I was reminded of the baroque elaborateness of judicial euphemisms when I read today's opinion from U.S. District Judge A. Richard Caputo.  (I cannot encounter an initial initial without remember Edward Abbey.)  (F. Scott Fitzgerald excluded, of course.  I mean, if your first names were Francis, Scott and Key, which would you choose?) 

Judge Caputo, as you might have heard, ruled that the gangster judges of Luzerne County were absolutely immune from liability for any action they took while serving as judges, no matter how crooked.  You can find a copy of the opinion here (it's "order 1"). 

Why should judges be immune from civil suit for their dishonest derelictions of duty?  You guessed it: so judges won't be discouraged from fulfilling their duties honestly. "'[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions without apprehension of personal consequences to himself.'"

"His own convictions," as we know (see post 400 and post 390 and post 389), meant disregarding the law, hurting children in their moments of extreme vulnerability, while lining the judge's pockets with kickbacks and bribes.  So what Judge Caputo was saying--backed up, I should emphasize, by the unanimous opinion of all nine justices of the Supreme Court--is that "a judicial officer, in exercising the authority vested in him, shall be free to disregard the law, hurt children and line his own pockets without apprehension of personal consequences to himself."

I don't think Caputo's ruling was "wrong," legally speaking.  It was only morally wrong.  But it was morally wrong for the same reason the gangster judges' actions were morally wrong: because it put the selfish interest of judges above society's interest in justice and honesty.