Wednesday, July 15, 2009

Sen. Franken vs. Judge Sotomayor on the Internet and the First Amendment

Kudos to Senator Al Franken for bringing up the importance of the Internet and First Amendment today in his questions to Judge Sotomayor in her Senate confirmation hearings.

Franken asked Sotomayor if she agreed with the importance of keeping "the Internet the Internet" - or free, as it has been.

Sotomayor replied that she recognizes the crucial importance of the Internet in our society - but that the Supreme Court's role is to rule on the basis of Congressional law.

Franken pressed her, pointing out the importance of the First Amendment, as a part of the Constitution in effect superior to what Congress may do. (He could have also said, but, after all, only an Amendment to the Constitution can change the First Amendment - not a law enacted by Congress.)

Sotomayor replied that the First Amendment is not necessarily superior to "property rights" and other compelling interests.

I think Franken has the right of this. He might have further replied, if he had more time, that the Supreme Court has to follow the First Amendment, regardless of what Congress does.

Unfortunately, this is not what the Supreme Court has consistently done. The Supreme Court wisely struck down the Communications Decency Act in the late 1990s, but supported the FCC's censure of WBAI Radio in the late 1970s.

As I've indicated in my discussions of Sotomayor and the Doninger case, I'm concerned about her support - or lack of - of the First Amendment. Her response to Franken was not very reassuring.

She has comported herself very well at the hearings, however, and will likely be confirmed.

It's good to know that the First Amendment will at least have Senator Al Franken on its - and our - side.

See also The Flouting of the First Amendment.
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