In the oral argument for a case involving campaign finance law being heard by the U.S. Supreme Court in March, Chief Justice John Roberts asked one of the attorneys, "I checked the Citizens Clean Elections Commission website this morning, and it said" that this campaign finance law is intended to "level the playing field." That is an unconstitutional purpose under the First Amendment. Government is not allowed to get into the business of trying to level the playing field of free speech, because in practice that would mean censoring some speech. Then Justice Roberts added, "Why isn't that clear statement on your website evidence that" you should lose your case?
Justice Roberts' reference to what he saw on the internet may be a landmark in litigation. The attorney's case, which had been years in preparation, crumbled -- not because of a legal precedent found in a dusty law book, not because of forensic evidence pieced together in a criminal laboratory, not because of a brilliant cross-examination by an experienced lawyer, and not because of impressive briefs written by $600-an-hour attorneys. A quick and easy internet search on the morning of the oral argument provided the smoking gun.
In the past six months, the word "internet" has been used in an astounding 1,699 federal court decisions and many more state court decisions. We might ask, whatever happened to rules of evidence and limiting appellate review to what is actually in the record? This case is evidence of the power of the internet and our changing times. With Chief Justice Roberts and Justice Samuel Alito, considered by some to be the future of the U.S. Supreme Court, increasingly invoking the internet, we can expect many more judges to do likewise. I guess the moral of all this is be careful about what you put on the internet. You never know who is going to read it.
Listen to the radio commentary here: