Opinio Juris

Ninth Circuit Chief Judge Alex Kozinski declared in a speech today that the First Amendment is dead. In a keynote speech entitled “The Late, Great First Amendment” given at a Pepperdine Law Review symposium, Kozinski offered a detailed analysis of the consequences of the Internet age for First Amendment jurisprudence. I’m sure that Eugene Volokh, Jack Balkin and other bloggers at the First Amendment conference will have their own take on his speech. But from my perspective, the essence of his speech was that, in a day when Internet speech is not capable of suppression, the ability of the First Amendment to have a moderating effect is now gone. What use does a constitutional limitation have on government restrictions on speech when the government no longer has the ability to control speech?

Kozinski argued that today we live in an age when whistleblowers are unknowable, documents are leaked without consequence, blogger journalists are anonymous and judgment proof, and the mainstream media is in financial peril. Any attempts to restrict speech results in that speech replicated a thousand times over. As such, the First Amendment jurisprudence that we cherish so dearly is now obsolete.

Brandenburg v. Ohio? Dead. Who cares about parades? There once was a time when parades mattered and the government might be predisposed to try to restrict such speech. Not anymore. The days of trying to express ideas through that medium are gone.

New York Times v. Sullivan? Dead. Who cares about libel and slander by the New York Times? Defamation by the mainstream media is the least of our worries. In the Internet age, anonymous bloggers in Turkmenistan are the ones most likely to engage in such conduct, and they are service-proof and judgment-proof.

Campaign finance laws? Dead. Who cares about restrictions on the official campaigns when all the action is on the Internet. The iconic campaign ad of the year has been the Hillary Clinton 1984 Video, a citizen ad which has now been viewed by over 5 million people on YouTube. How can the government hope to regulate that kind of speech?

Cohen v. California? Dead. Who cares about an offensive jacket with the provocative statement “Fuck the Draft”? Everyone can now reach an audience of thousands through anonymous political speech. Even if the government wanted to restrict such speech today, they would be incapable of doing so.

Privacy? Dead. Barbra Streisand may attempt to restrict images on the Internet of her home, but her very effort to do so has led to the proliferation of those images, not the suppression of them.

Whistleblower protection laws? Dead. Who cares about Bob Woodward and other such journalists when the next Deep Throat can just share his information anonymously on the Internet? Wikileaks and a dozen other websites allow anonymous reporting without a journalist as intermediary. Anyone can share valuable information about government conduct, celebrity news, or private misconduct at very little risk. And any attempt to suppress that information will only guarantee its exponential multiplication.

Kozinski clearly was alarmed by what the Internet has wrought. But he saved his strongest criticism for the potential impact that the new media will have on the old media. The New York Times currently has sixty staff in Iraq covering the Iraq war. But what happens to news outlets when bloggers make it financially unsustainable to send reporters to such far-flung places? Even today, a dozen regional newspapers are no longer sending reporters on campaign buses to cover the major presidential candidates. It is simply not cost effective to do so, and hence they are getting the news the same way everyone else is. The result is more voices, but less quality.

Kozinski concluded by saying that we may disagree about whether this new world is better or worse, but there is no question that it is different. The First Amendment presumes that the government has the motive and the means to suppress speech. That no longer holds true today. We live in an age of the late, great First Amendment.

Here is a key excerpt from pages 36-39 of the March 2003 "Torture" Memorandum:

Section 2340 defines the act of torture as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control....

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ...: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

Congress's use of the phrase "severe pain" elsewhere in the U. S. Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

If there was one principal complaint about the torture memos, it would be about statutory construction. When critics ridicule the memos for equating torture with organ failure, they are doing so because they disagree with how the statute was interpreted.

So let's look at the use of statutory construction in defining torture, and especially the phrase "severe pain." It is worth noting that the memo relied on only two rules of statutory construction to define "severe pain." First it focused on plain meaning and cited dictionary definitions. Second, it used the rule of in pari materia, which says that when a statute is ambiguous its meaning may be determined in light of other statutes on the same subject. Much of the criticism has been on the misuse of the second rule, arguing that a statute about health benefits is not on the same subject as a statute about torture.

But little has been said of other rules of statutory construction that were ignored. I think it would be worthwhile to open up discussion and identify other rules of statutory construction that could (and arguably should) have been used in the torture analysis. Legislative intent is one obvious rule of construction. Avoidance of an unconstitutional interpretation is another. The Charming Betsy doctrine that would require the statute to be read consistent with international law is yet another. A fourth might be judicial interpretations (at home and abroad) of the Convention Against Torture. Previous interpretations of the statute would be a fifth. The rule of ejusdem generis is a sixth, which would have led to an interpretation of "severe" that could apply to both physical and mental pain. Are there others that come readily to mind? For example, is there any room to argue for Chevron deference or other rules of statutory construction?