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TimS comments on Schelling fences on slippery slopes - Less Wrong
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Comments (189)
That is a patently false statement.
And thus the slippery slope becomes a teflon cliff.
One is criminal and the other is civil? One is a dispute between two (equal under the law) individuals in front of a (supposedly) impartial judge and the other is the state versus an individual? Quite a lot of difference really.
This distinction breaks down very quickly. Consider Hustler v. Falwell, which limited the scope of civil remedies because enforcement of those remedies violated freedom of speech.
Or, more recently, Phelps v. Snyder, where the Court overturned a jury verdict for intentional infliction of emotional distress based on Fred Phelps's First Amendment protected funeral protest.
Limiting the scope of a civil remedy is somewhat removed from the distinctions between civil and criminal, no?
No. If you really believe the public/private distinction is solid, then the First Amendment has nothing to do with private (i.e. civil) disputes. So Hustler should have come out the other way.
In general, American law has really struggled with the public/private distinction. I would say this is because the distinction is not rigorously meaningful - although I doubt most judges would frame it quite that way.
Regardless of the framing, American law recognizes that the situation of "two equal individuals before an impartial judge" includes the fact that the judge is an arm of government, exercising government power. What that means in practice is less clear.
Compare Shelley v. Kraemer ("That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment is a proposition which has long been established by decisions of this Court.") with Schiavo v. Schiavo (holding that a state judge ordering the removal of a feeding tube is not state action).