Sunday, July 01, 2007

George Will Condemns Excessive Litigation . . . By the Wrong People, That Is

In the post immediately below, I wrote about the weird and, I think, fallacious notion that allowing corporate price-fixing will somehow reduce the complexities of antitrust law and make the world a little less litigious. Now, in today's WaPo, George Will makes a similarly flawed argument in regard to the Joseph Frederick case.

Frederick, you'll recall, was the Juneau student who got in trouble for hoisting a "Bong Hits 4 Jesus" banner at a school assembly. Will cheers this week's Supreme Court decision, which held that the school administrators did not violate Frederick's free speech rights when they punished him for his banner.

There are arguments to be made on both sides. But there's no logic behind Will's claim that the problem behind the Frederick case lies in the fact that expanding human rights leads to "proliferation of litigation." Here's how Will summarizes the point, in his typical scolding tone:
Somewhere, a teenager with an abnormal interest in the court and a normal zest for mischief might be thinking: Cool idea, Justice Stevens--I'll create a banner to test whether banning "Wine Sips 4 Jesus" would infringe my religious freedom. Endless distinctions can--actually, must--be drawn once a subject becomes a matter of constitutional litigation.
Apparently Will believes that one of society's big problems is the fact that the courts are clogged with countless unnecessary freedom-of-speech cases being brought by pushy teenagers.

But how would Will combat this terrible trend? I suppose it is true that litigation over the limits of free speech could be eliminated if the concept of free speech were abandoned altogether. A judge would simply say, "Free speech? What is this free speech you speak of?" before throwing out the complaint and heading out to the golf course for the afternoon.

But I don't really imagine that this is what George Will has in mind. In fact, it's easy to prove that Will can be a zealous defender of litigation on behalf of free speech, as long as the right sort of plaintiff is involved. Just three days ago, Will wrote a column celebrating a successful lawsuit over free speech rights brought by a "right-to-life" group.

You don't suppose Will's wildly disparate attitudes toward these two lawsuits have anything to do with the nature of the views whose expression is being challenged, do you?

Look, it's obvious that virtually every right granted under the Constitution will have some logical and legal limits. Those limits are defined primarily through litigation. Shifting how a right is defined--for example, narrowing freedom of speech to exclude a high school student's banner, or broadening it to include an advocacy ad by an anti-abortion group--doesn't necessarily increase or decrease the amount of litigation you can expect. It just changes the specific focus of that litigation.

I doubt that Will is actually confused about this. He's simply using a disingenuous argument about excessive litigation in order to defend a judicial outcome he happens to like.

There's an old saw that contains more than a little truth: When someone involved in a financial dispute claims, "It's not about the money," you can be sure it's all about the money. In much the same way, when a conservative claims he's not concerned about the outcome in a court case but just wants to streamline the process, you can be sure it's all about the outcome.

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