At the panel, Stone noted that the First Amendment was around for 150 years before it got any attention from the Supreme Court. And that only happened because President Woodrow Wilson, who’d won election by promising to stay out of World War I, did an about-face and entered the war, and then wanted to suppress opposition to it.
From then on Holmes and Brandeis dissented on all Espionage Act convictions. It took until the 1960s for the rest of the court to follow them, but since then, Stone said, “the court has never upheld the conviction of any individual for engaging in speech on the theory that that speech might cause others to engage in illegal conduct.”
We’re at a turning point now, however, with the most conservative court we’ve seen in a century, Stone said. “Given the makeup of this court, and the length of time they’re likely to serve, we can expect revisions in the interpretation of women’s rights, individual rights, sexual freedom, and the definition of obscenity that will transform this nation to much more of what it was like in the 1950s than what it is like today.
“One thing we can do is pass state laws that recognize these rights,” Stone said. But if, say, the court decided to extend constitutional rights to the unborn, even state laws could be limited protection. What they would do is buy time. So what about Johnny Depp and Happy? In a post-panel followup Stone said he’s not familiar with these cases but, “defamation is, by definition, a free speech issue. That’s because the government makes the rules that determine whether someone can sue, and the First Amendment determines whether those rules are constitutional or not.” Happy, however, might be out of luck: “If they’re basically claiming that Happy has constitutional rights, that’s a nonstarter.
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