Gagged Lady Liberty THE COURTS

First Amendment rights stop at the courthouse door. Judges decide who will speak, what they can or cannot say, what information will be recorded on court records, even who will provide counsel for the accused. Most importantly, the U.S. Supreme Court interprets the Constitution and Bill of Rights. They ultimately decide what speech is protected.

In The New York Times v. United States1 the Supreme Court ruled 6 to 3 in favor of the First Amendment, preventing the government from concealing from the American people its true objectives in South East Asia. In Pell v. Procunier2 the Supreme Court ruled against the First Amendment in a close 5 to 4 decision, giving the government the power to control communications with prisoners.

When weighing compelling interests against constitutional guarantees, the Supreme Court generally favors the latter. The Court has declared all, or part, of a federal statute unconstitutional about 135 times. The Court has also declared provisions of about 1,200 state laws and constitutions to be unconstitutional. But only a small fraction of appeals are reviewed by the Supreme Court. In recent years, the Court has accepted only 80 to 140 cases from more than 6,000 petitions it receives3. Because the Supreme Court's decisions apply only to the case being decided and do not establish statute law, many lower court decisions infringing on the First Amendment establish precedents that violate the First Amendment. Precedents are established by a handful of citizen jurors in court decisions that would be overturned by a jury of infinitely more learned Justices.

A good example of this limitation in the American justice system is observed in Diaz v. Oakland Tribune4. A California jury awarded Toni Ann Diaz, $250,000 in compensatory damages and $525,000 in punitive damages for emotional distress suffered after a columnist from a local newspaper revealed that Diaz was a transsexual. Diaz was esteemed as the first woman to be elected student body president of the College of Alameda in 1977. A reporter revealed that Diaz was not a woman, but rather, a surgically-altered male. On appeal, the court upheld the trial court's decision, holding that Diaz's sexual identity was a private matter. It sent the case back to the lower court because of a procedural error in instructing the jury on newsworthiness. The case was settled out of court, never reviewed by the Supreme Court.

Can you imagine? A newspaper being punished so harshly because one of its reporters performed his Fourth Estate duties by revealing deception practiced by an elected official? Certainly the revelation was newsworthy. Many of the students who voted for Diaz may have done so because they perceived him to be a woman with a personal understanding of the biologically predisposed problems that affect only women: menstrual cramps during finals week, the threat of becoming pregnant, the need for medical services common only to women, such as breast cancer examinations. Diaz was no more able to experience these events than any other recipient of Y-chromosomes. From bone structure to brain structure, Diaz was a male, merely castrated and cosmetically altered.

The threat of blackmail poses more concerns. If Diaz was so upset with the revelation of his true sexual identity that he suffered "insomnia, nightmares, and memory lapses," wouldn't he be vulnerable to blackmail from a political opponent? The revelation of truth extinguished such a threat.

A rational concern of Diaz's psychological health might also arise from his decision to sexually mutilate himself to accommodate a fantasy of being a woman. Is he psychologically stable enough to serve as student body president?

The most frightening aspect of the case was one of the findings that the jury used in its decision to punish the owners of the Oakland Tribune. They found that the revelation of Diaz's "sex-change-operation" was "highly offensive to a reasonable person of ordinary sensibilities." Never reviewed by the Supreme Court, this case established a prior restraint on publishing facts that the public finds offensive. Incredible.

1 New York Times Co. v. United States, 403 U.S. 713
2 Pell v. Procunier, 417 U.S. 817
3Middleton, K.,R. et al;> The Law Of Public Communication(2003)
4 Diaz v. Oakland Tribune, Inc., 188 Cal. Rptr. 762,(1983)