The assaults on democratic culture in America come not single spies but in battalions. We focus on the twitterer-in-chief and his crackpot potshots, but the attacks emanate from all three branches of the federal government, as well as from the legislatures, executives, and judiciaries in many of the states. It’s hard to say which of these treacheries does the most harm. The myriad attempts at the state level to discourage or even prevent people from voting form a bold frontal assault on the very basis of representative government. What about the corrupting influence of industry groups that literally—and I do mean literally—write the laws they pay our legislators to pass? Or the eagerness of the courts to pull off their blindfolds and produce rulings that are not neutral but ideological in nature? The last of these seems the most insidious, especially since the workings of the courts, and even those of the Supreme Court, get less focused attention in the media and can be dressed up in abstruse legalities that most of us lack the background and the stamina to follow closely.
But Lincoln Caplan does have the legal knowledge and has spent many years following the courts and especially the Supreme Court. He has written several important pieces about the law for the Scholar, most recently a 2015 article titled “The Embattled First Amendment,” on which his cover story in this issue builds. That article opened with a startling question: “Can free speech wreck the American experiment?” In it, Caplan showed how the Roberts Court has contorted established thinking about the legal role of commercial speech in order to open the doors for companies to claim First Amendment rights that clearly tear at the fabric of democracy. The most egregious of these rulings is the infamous Citizens United case, but the Court continues to support libertarian claims for the free speech rights of companies over the need of consumers and voters for information.
The uses and misuses of the First Amendment have become ever more topical as more of us rely on companies like Facebook and Twitter for news and information. How do we and how will we protect free speech in an environment filled with deliberate lies, many of them tailored to undermine democratic values? How can we protect ourselves from harmful speech? And we must worry not only about foreign and domestic digital terrorists, but also about the social media platforms themselves. Let’s ban Alex Jones and Infowars, but who decides where to stop? Is it okay for these companies to censor speech on their platforms to advance their own commercial interests? Caplan explores these questions and more. He even finds a model for how to think about the thorny problems related to free speech that will loom in our future.
