The First Amendment on $5,000 a Day
One of the questions to come out of the case of Judge Roy Moore of Alabama and his failed fight for the Ten Commandments has to do with respect for our rule of law. What is the responsibility of an individual or institution to obey a lawful court order while it is appealing what it feels is an adverse ruling? The answer goes to the very heart of the system of deference which defines our civil society.
The chief justice of Alabama has been involved in what will go down as a famous First Amendment test, whether a court ought to be allowed to display a copy of the most famous of all laws, the Ten Commandments. Though the chief justice of Alabama was seeking to appeal an order
to take down a display of the Decalogue he had caused to be set up in his courthouse, a federal court warned that, if he didn't take it down, it might fine him $5,000 a day, even while the appeal was in process.
It turns out that $5,000 a day is the exact amount of the fine that was once used against another famous defendant in a First Amendment case, the New York Times, which is Judge Moore's most strident critic. The Times was threatened with its $5,000-a-day fine if it failed to obey a court order in New Jersey to disgorge the name of one of its news sources that the state felt it needed to solve a murder case.
The Times went ahead and defied the court. It could be the newspaper felt it was above the law. Or that it didn't have to obey court orders it thought unjust. Or that a lower court order could be disobeyed while an appeal is underway. Or it could be that, like Judge Moore, an important principle was at stake. Or maybe it was just that to the Times, $5,000 was chickenfeed. In any event, the Times defied the court while it pressed its appeal, which it won. Its fines were returned.
No doubt the Times had on its side the argument that had it obeyed the court order, the harm to it would have been irreparable, as it would be impossible to return to secrecy the name of a source disclosed (though the name could have been secreted with a judge, pending appeal). But certainly no irreparable harm was done to the Republic by continuing to display the Ten Commandments in the Alabama courthouse while the case was appealed.
We'd have preferred the Supreme Court to have given a hearing to Judge Moore's central claim — that it was reasonable under the First Amendment for a court to display the Ten Commandments, because the Decalogue illustrated "the moral foundation of law" in America. But the Supreme Court took a powder last week. Judge Moore was gracious in defeat, telling the federal district judge he would not interfere with the removal of the monument. It may be that, unlike the Times, Judge Moore couldn't afford risking the $5,000 a day it seems to require to defy a court in a First Amendment case — or he places a greater priority on the rule of law.
