I just posted a response for Uncle DaveO, but forgot to add a name. I saw it briefly, I am quite sure, after I checked to see it had gone through properly. I then noticed that I had not added a name. Minutes later, it was gone (but the thread had not moved up the page). Either I am losing my mind, or "the system ate it," or some clone really is a pain in the ass. Here is a shorter version of what I wrote:

Uncle Dave: Sorry it took me a while, but I checked on how private litigants can raise First Amendment issues between themselves. It turns out that the lawyers in NYT v. Sullivan argued exactly as you did, as follows (your words): "While such a lawsuit must be brought through the courts (a branch of government in the broad sense), the courts are merely referees, not parties to the controversy, and the First Amendment does not prevent the courts from acting to apply anti-defamation rules and sanctions."   

The Court ruled that the courts CAN be prevented from acting to apply anti-defamation rules between private litigants to the extent the rules, as applied, punish or prevent speech that should be Constitutionally guaranteed:

"Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, . . . The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised."

---

It was posted without a name, so it was deleted. That's the way things work here. If you contact me, I'll reinstate deleted messages and paste them into a named message - but you've already posted the text of the deleted message here.
-Joe Offer-