Noah Feldman, Columnist

When the First Amendment Is the Wrong Weapon

The law is really good at restraining government's overreach. Not so good in civil disputes.

November 4, 2016 at 12:30 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

The Constitution didn't help Gawker fight back.
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It’s easy to bemoan the Gawker-Hulk Hogan settlement and condemn the Florida courts for not throwing out the verdict. But there’s a deeper point that matters more and shouldn’t be lost: The First Amendment and its values can be thwarted and distorted by private actors with extremely deep pockets.

Much as we rightly celebrate our free-speech tradition, it isn’t designed to withstand vast economic disparities. Indeed, the First Amendment value of government neutrality with respect to speech can sometimes function as an invitation for the richest private speakers to drown out others who may even be fairly rich themselves.