I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.Unfortunately, the dissent contains some gratuitous red-baiting of the plaintiffs. Judge Jacobs laments "that the majority opinion (44 pages of typescript) will only feed the plaintiffs' fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island." Judge Jacobs calls the publication of the plaintiffs "illiterate piffle," which may well be right but is a completely inappropriate judgment to make in a free speech/free press case. If Jacobs is right on the merits, then it shouldn't matter whether the College Voice is the work of H.L. Mencken, Che Guevara or Edmund Burke (assuming any of them were alive).
. . .
[T]his is not a case that should occupy the mind of a person who has anything consequential to do. In a nutshell, the editors of the College Voice student newspaper used it as a campaign flyer to promote the self-styled radicals of the “Student Union” party in a long-ago student election, and the college president, finding that the partisan use of student-activity funds made a mockery of the election rules, directed that the election be re-run. The gist of the complaint is that the editors' speech was chilled, which is deemed to be a bad thing.
This is a case about nothing. Injunctive relief from the school's election rules is now moot (if it was ever viable); and plaintiffs' counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.
Of course, on the main issue, Judge Jacobs does seem to have a point. A jury trial in this case does sound like an incredible waste of everybody's time. Indeed, it's a wonder that any country that doesn't already have a jury system would adopt one, but there was the NY Times yesterday pointing out its pending adoption in Japan (in criminal cases). The Times piece explains that Japanese cultural norms make disagreements among jurors unlikely. Indeed, even discussion appears difficult. That ought to cut down on jury deliberation time, so if Japan ends up with the decade-long delays we sometimes have between contested event and jury trial (in our civil cases), at least they'll be able to reach a verdict quickly.