“The Good Wife” jumps into the First Amendment fray with free speech-centric episode

If there are two things I enjoy, it is the First Amendment and The Good Wife. Those two pleasures collided this past Sunday night in the eighth episode of the seventh season of the CBS drama.

The Good Wife mixes modern legal issues into its storyline documenting the life of a governor’s wife, making the show a relevant watch for those interested in politics and contemporary legal conflicts. Writers of the show often weave current legal topics into the show, recently exploring topics such as autonomous cars, Anonymous, and the NSA, to name a few.

I began watching The Good Wife during season three at the recommendation of my Mom, a strong and savvy woman in her own right who could fit seamlessly into The Good Wife cast.

This week’s episode, dubbed Restraintwas right down my alley as a media law and First Amendment attorney. Attorney Diane Lockhart, played by Christine Baranski, was tasked with defending the release of a video exposing a doctor’s questionable abortion practices.

Lockhart, although loyal in her liberal and pro-choice beliefs, chose to defend the publication of the secretly recorded video in the name of the First Amendment, free speech, and the marketplace of ideas. To the dismay of her pro-choice clients, Lockhart argued a temporary restraining order forbidding the airing of the video was a prior restraint on speech, citing the U.S. Supreme Court’s fervent stance against this type of censorship including the Pentagon Papers case of New York Times Co. v. United States403 U.S. 713 (1971).

Prior restraints, the restriction of speech prior to publication, are presumptively unconstitutional and are “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). 

My ears perked as one of my favorite shows analyzed legal doctrine close to my heart. Beyond discussing the injunction against publication of the video, Restraint featured other familiar First Amendment legal arguments, including all-party v. one-party consent recording laws (a state-by-state guide can be found here), reasonable expectations of privacy, and court access.

For me, the climax of the episode came when Lockhart’s client explained the non-partisan nature of the First Amendment in the following statement:

“Anyone can defend the sympathetic client with popular beliefs; the real test of the First Amendment is whether we are willing to stand up for people and ideas we hate.”

Amen. This summarizes the core First Amendment principle that robust speech and expression should be permitted absent government restriction regardless of political views. The First Amendment grants the public the ability to be the Fourth Estate, providing transparency as a watchdog of the government and should be blind to the political leanings of the government it seeks to monitor.

To watch The Good Wife episode, visit CBS.com here.

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