Stress Test for Free Speech

Social media are destroying the democratic culture that the First Amendment is meant to protect

Illustration by David Herbick
Illustration by David Herbick

The public sphere is the center of free speech in American democracy. Intangible yet indispensable, it’s the forum where speech, building on other speech, sometimes even by assailing it, demonstrates the rewards of open debate, which the First Amendment safeguards as the foundation of public opinion and the basis for self-government. The amendment has always functioned primarily to curb the power of government. It protects individuals against government infringement of elementary rights, such as the right to petition and the freedoms of religion, assembly, and the press, as well as speech.

In the digital age, however, the public sphere is increasingly located on the platforms of social media companies like Facebook and Twitter. Social media, the Supreme Court observed last year, are “the modern public square.” That development puts the First Amendment at an uncertain step removed from protecting the public sphere.

In shielding speech, the amendment above all restricts government from censoring ideas and criticisms it dislikes by banning publications or punishing speakers. Facebook and other social media platforms are private companies, so what they distribute is not bound, or even covered, by the First Amendment, unless that distribution is used in a way that turns it into an extension of government.

Under the First Amendment, the content that users of social media produce is generally protected from the government, but the amendment doesn’t protect that content from the platforms themselves. To the consternation of many users, social media companies can moderate or censor content with impunity from sanction under the amendment, as several companies did in August to curtail content from right-wing conspiracy theorist Alex Jones and Infowars.

How is it possible that the First Amendment applies to the precursors of social media—television, radio, and print—yet not to Facebook and its rivals? Because of the specific provision of the amendment to guarantee press freedom, it both protects and holds accountable those traditional media when they publish or broadcast journalism. Social media platforms aren’t publishers in the way that journalism outlets are, although they make editorial decisions (for instance, about the types of content they give priority to) that are protected by the First Amendment.

The public square of social media is similar to the public sphere envisioned by American free-speech law, yet the differences are profound. Whereas, for instance, “First Amendment law protects speech about public figures more than speech about private individuals,” as legal scholars Margot E. Kaminski and Kate Klonick point out, “Facebook does the opposite.” The Constitution protects speech about public figures to serve democratic self-governance. Facebook protects speech about private individuals to maintain a safe environment for users and to preserve its business. Although the quest for profit often shapes these private rules more than any commitment to free expression, these rules increasingly govern the public sphere.

At its best, Facebook amplifies free expression and contributes to a dynamic democratic culture. But the public square is quickly engulfing the public sphere, with Facebook and other social media unintentionally yet increasingly incinerating the culture on which our form of government depends.

When the United States embraced the concept of Internet freedom a generation ago, it was filled with optimism about the digital future. Congress set the stage for social media companies to try their luck in the marketplace by focusing on sharing information and creating connections and communities, rather than on communicating information they produced. Thanks to Section 230 of the Communications Decency Act of 1996, social media companies are, with some exceptions, immune from legal liability for the speech of their users. The section says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision has been the most important reason why social media have not been held accountable for problematic content.

“Thanks to Section 230,” legal scholar Olivier Sylvain of the Fordham University School of Law has written, “these companies have no legal obligation to block or remove mendacious tweets, fraudulent advertisements, or anticompetitive customer reviews by rivals.” The consequence, he writes, is that in the United States the victims of such content can’t do much about it. (Child pornography, obscene material, and the promotion of prostitution on social media sites are exceptions.)

The result is a digital stew. News and entertainment, opinion, politics, commerce, conspiracy theories, fake news, propaganda, and more are all “content.” When Twitter’s 140-character posts sped up the spread of news and posed a threat to Facebook as a news source, Nicholas Thompson and Fred Vogelstein explained this year in Wired, Facebook fully integrated news into its News Feed. The platform soon surpassed Google (Wired again) “in referring readers to publisher sites” and “effectively owned the news.” Last year, 45 percent of American adults got at least some news from Facebook. Facebook revised the algorithms in its so-called News Feed at the beginning of 2018, so users got more from family and friends and less “public content” from news organizations, merchants, and others. The upshot was that Facebook still owned the news but offered less of it than many news outlets had come to count on for their livelihood.

In the first Gilded Age in the United States, the era of industrial capitalism, free speech was of minimal concern, especially to the capitalists themselves. Now in the second Gilded Age, the era of digital or informational capitalism, questions about free speech and how to protect a productive public sphere are inextricable from the largest, and some of the most influential, corporations in the world.

The reach of these social media companies is global, so they must contend with the laws beyond those of the United States. A huge difference exists in how countries govern speech—especially hate speech, which degrades, insults, or threatens people because of their race, religion, gender, and so forth. The First Amendment embraces what Oliver Wendell Holmes Jr. called “freedom for the thought that we hate.” Unless hateful speech is likely to spark violence, the amendment protects it on grounds that the best way to counteract it is to explain why that speech is wrong. In other countries, both developed and developing, because of the hard lessons of their history or divisions among groups, speech that stirs hate is banned and punished even if it doesn’t spark violence.

To comply with laws of countries where they operate, social media companies try to remove hate speech. If the First Amendment applied to these companies as they’re now conceived, they would be prohibited from removing such abusive speech, and that would restrict the size of the audience to which they could appeal.

This difference in the laws is so important because in the developing world, social media use in the past five years has increased by more than 50 percent, to more than half the adult population. In the developed world it has held steady at three-fifths. In both sectors, hate speech is illegal in many countries. Increasingly, social media define and dominate the public sphere around the globe. Among American adults, 68 percent use Facebook and 73 percent use YouTube. Among Americans 18 to 24 years old, those numbers climb to 80 percent and 94 percent, respectively.

In the past few years, the techno-optimism that justified social media’s special legal protection has turned to techno-pessimism. The material that social media offer is often riveting and addictive, but it is increasingly repellent and dangerous. Zeynep Tufekci, an associate professor at the University of North Carolina, compares people’s susceptibility to “glimmers of novelty, messages of affirmation and belonging, and messages of outrage” to the human appetite for “salt, sugar, and fat.” That’s what social media offer, she wrote, “whether it’s a breaking news story, a saccharine animal video, an anti-Semitic meme, or a clever advertisement for razors.”

Social media companies are evangelists for open communication, human connection, and their own part in facilitating both goals, but their business, largely, is brokering ads. As Tufekci explains, “they sell the capacity to precisely target our eyeballs.” They do that by mining data about users to match their interests with information that gets pushed to them, to maximize their time and attention on a site. Because “posts are targeted and delivered privately, screen by screen by screen,” she writes, the “public sphere has been fragmented and submerged.”

In the 20th century, when relatively few people controlled the media, the challenge for a speaker was getting access and opportunity to speak. In the 21st century, most Americans have access to a platform and thus plenty of opportunity. The challenge is for speakers to get listeners to pay attention, to keep their messages from being buried by an avalanche of content, no matter how benign.

It’s much worse when that competing content is malignant. To drown out a viewpoint on social media, bad actors create distraction, disinformation, and demoralization, and they disseminate fake news (including the invention of terrible crimes—called atrocity propaganda), destroy reputations, and regularly make death threats. Some of the most potent attacks happen in the dark, when armies of trolls send private messages so that their targets don’t know who is attacking them.

“All of this,” Tufekci says, “invalidates much of what we think about free speech—conceptually, legally, and ethically. The most effective forms of censorship today involve meddling with trust and attention, not muzzling speech itself.”

In his 2017 essay “Is the First Amendment Obsolete?” Timothy Wu, a professor at Columbia Law School, wrote, “The unfortunate truth is that cheap speech may be used to attack, harass, and silence as much as it is used to illuminate or debate. And the use of speech as a tool to suppress speech is, by its nature, something very challenging for the First Amendment to deal with.”

For the past half-century, the amendment’s overarching purpose has been to protect political speech—speech in the public sphere—because of its essential role in democratic self-government. That protection rests on three assumptions, Wu explains: censorship by the government is the “main threat” to this speech; suppression is an ongoing concern because, on any issue, there are “only a limited number of important speakers”; and listeners “have abundant time and interest to be influenced by publicly presented views.” In the 21st century, each of these assumptions has become outmoded. The First Amendment as now understood—as rules that courts make and have made interpreting free speech—is often beside the point.

Yet because the meaning of the First Amendment is constantly being contested, it remains at the center of American life. President Trump, who rules by force of personality and wields his clout to command attention, is the primary contestant, testing every aspect of free speech, beginning with the importance of the truth. He governs through Twitter as if it gave him license to conjure up his own reality. His disdain for facts reflects a scorn for the purpose of free speech, which has been to drive out falsehoods and to get as close to the truth as possible as a basis for good government. By July 31 of this year, the Fact Checker department of The Washington Post calculated, President Trump had made 4,229 false or misleading claims since taking office—about 7.6 each day—and his daily rate has been increasing.

His trashing of the news media as “the enemy of the American People” is a crucial part of his agenda, going far beyond the anti-elitist practice of attacking perceived bias. He has undermined the purpose of the institution whose role in reporting facts, disproving falsehoods, and holding the government accountable is anchored in the First Amendment. He has attacked New York Times v. Sullivan, the unanimous 1964 Supreme Court ruling that is the high-water mark of free-speech and free-press law. By making it harder for public officials to win libel suits, the milestone reinforced the role of the American press as a central contributor to debate on public issues.

When on August 15, Trump revoked the security clearance of John O. Brennan, the C.I.A. director under President Obama, he demonstrated how tyrannical is his contempt for free speech. Brennan worked for the C.I.A. for 25 years and since then has been among Trump’s best-informed critics; he called the president’s support for Russia’s Putin “nothing short of treasonous.” Trump stripped the clearance, he said, because Brennan is one of 10 former officials who have “transitioned into highly partisan” people. The president did it because of Brennan’s criticism of him—violating the basic free-speech principle of protecting critics from government censorship.

In blasting the federal courts, the Justice Department, the intelligence agencies, and the Mueller investigation, he has been equally extreme. These targets share a commitment to independence in pursuing goals that overlap with those of free speech: seeking the truth as a foundation of American justice, security, and general welfare, even though truth seekers both in and outside government have often clashed over what the truth is.

The Trump White House has also taken steps to suspend the First Amendment rights of individual citizens. In June 2017, for instance, Trump tweeted, “Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had zero chance winning WH.” A Washington, D.C., journalist and policy expert named Rebecca Buckwalter-Poza replied, “To be fair you didn’t win the WH: Russia won it for you.” After that, the White House blocked her from his Twitter account.

A basic rule of free-speech law is that, in the public sphere, all speech is equal and citizens must make their own judgments about the value of one speaker’s ideas versus another’s. The government has broad authority to say what its policy is—that’s government speech—but it’s prohibited from keeping anyone from expressing a view it doesn’t like. By inviting the public to respond to the president’s tweets and to each other, @realDonaldTrump has turned itself into a designated public forum and made the First Amendment applicable, including the ways in which the White House controls access to the account.

The Knight First Amendment Institute filed a lawsuit in July 2017 on behalf of these plaintiffs against Trump and others at the White House about their use of @realDonaldTrump—and their blocking the plaintiffs from using the account. (I’m the senior editor at the institute.) In May, a federal judge ruled that “the ‘interactive space’ where Twitter users may directly engage with the content of the President’s tweets” are

properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.

In the Trump lawsuit, importantly, the judge’s decision doesn’t apply to Twitter’s control of access to that account or to the company’s control of access to the platform in general, since as a private company it’s not bound by the First Amendment.

But Twitter announced in July that its efforts to reduce fake accounts would amount to a reduction of about six percent of all followers counted on the platform. Tens of millions of such accounts are part of what The New York Times called a “pervasive form of social media fraud,” fake followers sold to hundreds of thousands of actors, authors, models, politicians, and other users, because of “the growing political and commercial value of a widely followed Twitter account.” The move was major news because Twitter had done little about this kind of computational propaganda, or about the spreading of fake news on the platform, or even about the harassment and abuse of users. Unlike other social media companies, it has refused to block Alex Jones and Infowars, although it recently enforced a one-week “timeout.”

Facebook announced this summer that it would expand its rules about the kinds of false information it would remove and begin taking down misinformation that could lead to the physical harm of people. This was at least partly in response to riots that occurred in Sri Lanka after fake news was spread on Facebook. In an interview with Recode, Facebook’s founder and CEO Mark Zuckerberg explained the “core principles” that Facebook was trying to balance: “giving people a voice” and “keeping the community and people safe.” “In this case,” he said, “we feel like our responsibility is to prevent hoaxes from going viral and being widely distributed.”

But in a July 19 column titled “What Stays on Facebook and What Goes? The Social Network Cannot Answer,” the Times’s Farhad Manjoo pointed out that, in free-speech terms, the company was trying, and failing, to resolve the tension between being a private, profit-seeking platform on which billions of people had private pages and, in the United States and scores of other countries, functioning as the public sphere. None of the major social media platforms have regulated online abuses well.

Wu, the Columbia professor, has written, “Today, we are witnessing efforts to destroy the reputations of real people for political purposes, to tip elections, and to influence foreign policy. It is hard to resist the conclusion that the law must be enlisted to fight such scourges.”

A major project is underway to address some of these problems in the public sphere. Olivier Sylvain of Fordham has proposed revising Section 230 so that it no longer provides all but blanket immunity to social media companies “on the basis of implausible assumptions about their neutrality or passivity” and instead holds them “to account for their users’ content and their own designs on user data.” Some prominent scholars support this reform, but it’s controversial. One view is that upstart Internet ventures have become behemoths of business, and the immunity they received as a broad subsidy two decades ago no longer makes sense. A counterview is that scaling back the immunity would lead platforms to censor rebellious speech, like that of political minorities, since silencing speech often muzzles resistance.

Privacy is essential to free speech for exploring unpopular ideas, discussing them anonymously without fear of harassment, or choosing beliefs and defining a self without coercion. Legal scholars Jack M. Balkin of Yale Law School and Jonathan Zittrain of Harvard Law School have suggested that the government impose duties on companies like Facebook and Google to protect the privacy of users by requiring them, in Balkin’s words, “to act in ways that do not harm the interests of the people whose information they collect, analyze, use, sell, and distribute.” The idea is that these huge online businesses “with the trappings of fiduciaries” should have “legal obligations to be truthworthy.”

The security of American democracy is a primary concern in this conversation. In a July speech, Director of National Intelligence Dan Coats said the warnings about Russian and other cyberattacks were at the level of warnings of terror attacks before 9/11. Coats said soon after, “Russians are looking for every opportunity, regardless of party, regardless of whether or not it applies to the election, to continue their pervasive efforts to undermine our fundamental values.”

Senator Mark Warner, the Democrat from Virginia who is vice chair of the Senate intelligence committee, recently issued a policy paper with proposals for regulating social media and technology companies. His first proposal is to understand “the capacity for communications technologies to promote disinformation that undermines trust in our institutions, democracy, free press, and markets.” The idea of Russian meddling is generations old, but “what is new,” he writes, “is the advent of social media tools with the power to magnify—and target—propaganda and fake news on a scale that was unimaginable back in the days of the Berlin Wall.”

“You cannot run a democratic system unless you have a well-informed public, or a public prepared to defer to well-informed elites,” says Larry Kramer, a constitutional law expert. “And we are now rapidly heading toward neither. Without one or the other, our constitutional system and our liberal democracy will end, perhaps not imminently, but over time.” The heart of any solution, in his view, must be to make it difficult for “the really awful information” to reach consumers. He thinks antitrust law may provide a partial solution, breaking down the concentration of power in the media giants, perhaps even splitting the social media function from the presentation of news.

A First Amendment view going back about a century to Justices Holmes and Louis D. Brandeis would support this fight. It regards free speech as an essential instrument of democracy and the test of speech’s health as the vitality of American governance. Vincent A. Blasi, a Columbia Law School professor and the dean of First Amendment scholars, writes in a forthcoming essay that Holmes saw the freedom of speech as “a force for collective adaptation,” a social good. Brandeis saw it as a civic good: “He valued the freedom of speech mainly for its function of broadening public understanding” and strengthening public discussion. “Those who won our independence,” Brandeis wrote, believed that “public discussion is a political duty, and that this should be a fundamental principle of the American government.”

The Supreme Court under Chief Justice John G. Roberts Jr. has a very different set of priorities from those that Holmes and Brandeis had in mind. Rather than embracing American democracy, and the rights of society as a whole, its most far-reaching decisions about free speech have struck down regulation, particularly economic regulation, on the principle that the First Amendment’s goal is to protect the individual (even if that is a company) with more speech and less regulation of it. This trend is especially troubling as the legal challenges of the digital age loom larger.

In last term’s most important ruling, Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court held 5-4 that unions of government employees can’t require those who don’t join the unions to pay fees for representing them in negotiations about wages and benefits and in other business matters. Justice Samuel A. Alito Jr. wrote for the Court,

Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.

It was clearly wrong to require a nonunion member to subsidize a political candidate whose platform he rejects. Alito led the Court to take a large step further and conclude that the principle applied as well to support for contract negotiations and similar matters. In a state with severe budget problems, Alito contended, a union’s proposals about employment depend on its priorities about taxes and other public policies: “To suggest that speech on such matters is not of great public concern—or that it is not directed at the ‘public square …’—is to deny reality.”

The majority overturned a decades-old precedent affecting thousands of union contracts covering millions of employees in 22 states.

Justice Elena Kagan wrote in a dissent:

The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

She went on,

Today is not the first time the Court has wielded the First Amendment in such an aggressive way. … And it threatens not to be the last. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.

She was alluding to the Roberts Court’s increasing protection for commercial speech. As I explained in the Spring 2015 issue of the Scholar (see “The Embattled First Amendment”), the Court in 1976 ruled for the first time that commercial speech had enough importance to come under the First Amendment’s coverage, but with less protection because of its lesser political and social value. As legal scholars Robert Post and Amanda Shanor wrote, the Court “explicitly created commercial speech doctrine to protect the rights of listeners rather than the autonomy of speakers.

For the past decade, however, corporations have used the idea of commercial speech as a basis for sweeping claims about what the First Amendment entitles them to as speakers, and they have persuaded courts to strike down a broad range of well-founded regulations, from health warnings on cigarette packs to bans against pharmacies’ sale of prescription data for marketing.

These claims have been described by legal scholar Leslie Kendrick and others as “First Amendment opportunism.” A remarkable example is a 2013 decision by the U.S. Court of Appeals for the District of Columbia Circuit, called National Association of Manufacturers v. National Labor Relations Board. In a longtime practice, the board required private employers to post their employees’ rights at work for such matters as the right to join a union or to discuss their wages with other workers. The association challenged the requirement on grounds that it violated the free-speech rights of employers by compelling them to speak. The D.C. Circuit agreed.

The court relied on West Virginia State Board of Education v. Barnette, an inspiring 1943 ruling in which the Supreme Court held that students who were Jehovah’s Witnesses could not be required to recite the Pledge of Allegiance in public schools. In his opinion for the Court, Justice Robert H. Jackson wrote that enforcing their rights represented an embrace of “individual freedom of mind” over “officially disciplined uniformity for which history indicates a disappointing and disastrous end.” The opinion of the D.C. Circuit said, astonishingly, that it could not see a difference between Barnette and the manufacturers’ case.

Kendrick: “Let us pause at the D.C. Circuit’s assertion that requiring employers to post accurate information about the laws governing the employment relationship cannot be distinguished from requiring schoolchildren to recite the Pledge of Allegiance.” They are “eminently distinguishable” because “the realm of commerce generally is different from the realm of politics at issue in Barnette.”

She concludes that the victory of the National Association of Manufacturers showed “how wide and robust the First Amendment’s operation has become,” covering speech that would have stirred Holmes to a tart dissent and Brandeis to question the notion underlying the expansion.

Never mind that this piece of opportunism contradicted major justifications for free speech: if the goal is to contribute to the search for truth, then requiring employers to provide accurate information supports that; if the goal is to promote individual autonomy, then the profit-making purpose of commerce should be analyzed on its own terms and not confused with promoting private citizens’ autonomy; and if the goal is to contribute to democratic self-government, then providing accurate information fosters that end.

Free-speech law is often treated as a body of immutable principles articulated in the First Amendment, available for all when their rights have been violated. In reality, that body of law is a set of mutable propositions argued about and applied by judges in ways that reflect contradictory views on political and legal values and, in the end, reflect the balance of power on the Supreme Court.

“More than any other modern Court,” scholars Lee Epstein, Andrew D. Martin, and Kevin Quinn wrote in June, after analyzing 2,967 votes cast by justices voting in 338 free-speech cases over 65 Supreme Court terms from 1953 to 2017, “the Roberts Court has trained its sights on speech promoting conservative values.” In the Janus case, the conservative cause was attacking unions. The liberal cause was supporting them. Why have today’s justices seemed to reverse the Warren Court (1953–69) pattern of liberals’ supporting speech and conservatives’ supporting regulation? Because of “the increase in conservative expression cases”: on the Warren, Burger, and Rehnquist courts, the justices picked by Republican presidents and by Democratic presidents supported conservative and liberal free-speech cases in close to the same percentages; “only the Roberts Court’s Ds and Rs are statistically different.” Here, the Rs have supported conservative expression in 67.9 percent of the cases and liberal expression in only 23.8 percent. The Ds have supported conservative expression in 42.4 percent of the cases and liberal expression in 47.4 percent.

Citizens United, the 2010 landmark decision, is the prime example of a conservative expression case. The Court ruled that the government may not ban so-called independent spending by corporations and other organizations in elections because, as Justice Anthony M. Kennedy wrote, “the Government lacks the power to ban corporations from speaking.” In 2014, in McCutcheon v. FEC, which applied Citizens United to strike down a long-time limit on the total amount a person can contribute to federal candidates in a two-year election cycle, Justice Stephen G. Breyer wrote in his dissent that the First Amendment “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”

The heart of the current conservative-liberal disagreement about free speech is about its role in American life. Is it a right of individuals (including corporations) and thus fundamentally about liberty—a shield for speakers so that, except in rare instances when they can be gagged or censored, they must be permitted to have their say in society? Or is it a right of American society and fundamentally a bulwark of democracy, a shield for speakers because they are also serving the needs of listeners to sort out bad ideas from good in the marketplace of ideas and to create consensus about what matters most to the nation?

To the Court’s conservative majority, which has advanced the interests of big business more than any Court since the 1930s, free speech is about the individual rather than society, the speaker rather than the listener, and liberty rather than democracy. These choices are having deep and damaging consequences. The Court’s libertarian and antiregulatory bent, expanding the economic activity that the First Amendment covers, is shrinking what democracy can govern. The colossal mess that social media are helping to make of democracy requires the opposite, that the government have the reach to defend itself against them and steer them to serve rather than to undermine its interests, or fail.

In 2004, Yale Law School’s Balkin wrote,

The populist nature of freedom of speech, its creativity, its interactivity, its importance for community and self-formation, all suggest that a theory of freedom of speech centered around government and democratic deliberation about public issues is far too limited. … If free speech is about democracy, it is about democracy in the widest possible sense, not merely at the level of governance, or at the level of deliberation, but at the level of culture.

The digital age, he contended with prescience, requires a change in the focus of free-speech theory from a concern with protecting democratic process and deliberation to “a larger concern with protecting and promoting a democratic culture.”

Balkin was right that the rise of digital technologies would upend free-speech thinking, but his focus on democratic culture provides a reminder that the law of free speech has always rested on judgments about the needs of the society the law is supposed to serve—in effect, on the democratic practices that shape society’s values.

Now those practices are global. In a forthcoming book, The Free Speech Century, which “commemorates the hundredth anniversary of the Supreme Court’s first decisions interpreting the First Amendment’s guarantee that ‘Congress shall make nolaw … abridging the freedom of speech, or of the press,’ ” co-editor Lee C. Bollinger, president of Columbia University, writes that “the increasing interdependence of the modern world, shaped in large part by the internet itself, is bringing globalization to the doorstep of the First Amendment.”

The outcome, he believes, is the close of a period when the United States interacted with other countries through our government. Now, “[m]ore and more we will have to conceive of the First Amendment as protecting the rights of American citizens themselves to interact with the larger world because that will be the only way we can resolve what are increasingly problems that transcend political borders.”

The global scale of this frame is daunting. It’s hard to imagine how the American legal system will account for the many conflicting and potentially engulfing global forces affecting the First Amendment. But a different sort of problem about free speech and democratic culture can be used as a way to illuminate thinking on the subject. The problem is free speech on campus. The thinking is that of Robert Post, a colleague of Balkin’s at Yale Law School.

Post argues that in classrooms on campus, no free speech exists in the sense of contributing to public discourse or political discussion. Speech on campus doesn’t serve the purpose of self-government; it serves that of education. Last fall, a student told Post at a Q&A at Yale that this notion was nuts. Post responded, in effect, that if the student was right, then Post wouldn’t be able to assign reading in his class on constitutional law, give grades in the course, or make a judgment about whether his students met the criteria for graduating and becoming lawyers. But if Post was right, he could do all of those things because, as a professor in the academy, he was empowered to decide whose speech has academic value and whose doesn’t, and whose has more value than others.

Post writes in The Free Speech Century, “When students express themselves in a classroom, they are not acting as sovereign agents of self-government. They are acting as students who are tasked with learning from their instructors. The plain implication is that their speech may be regulated in ways that facilitate their education.”

Professors lack freedom of speech, too, when teaching and doing research. Post teaches constitutional law, but he can’t teach auto mechanics: he’s credentialed and employed to do the former, not the latter. If he inaccurately teaches about free speech or other legal ideas, he may be judged not competent to teach and might lose his privilege to do so. He has academic freedom in how he teaches, but that is determined by what’s necessary to fulfill the university’s educational mission, not by the First Amendment. As for research, it occurs in disciplines that are “grounded on the premise that some ideas are better than others; disciplinary communities claim the prerogative to discriminate between competent and incompetent work.”

Why, Post asks, do people complain that universities are denying First Amendment rights? Because the educational purpose of a speech by a visitor to the campus is often not clear. Outside speakers usually “appear almost as strangers to the essential missions of the university.” It’s a small step “to the conclusion that outside speakers should be regarded as participants in public discourse and therefore accorded full First Amendment rights.” But universities aren’t necessarily public forums, so everything that happens in them “must be justified by reference to the university’s twin missions of research and education”—including “the scope and bounds of the proper regulation of the speech of outside speakers.”

The First Amendment applies to public universities as government institutions—again, it protects individuals from infringements by government—yet they must also check the communications of students and faculty as private universities do, to fulfill the missions of teaching and research.

For Post, the challenge of distinguishing between the imperatives of academic freedom and freedom of speech is important on its own terms. But it’s also an illustration of the crucial aspect of free speech framed by the digital age: in Post’s view, the First Amendment applies only to what he calls public discourse—speech in the public sphere that helps shape public opinion as a basis for self-government. The First Amendment doesn’t apply to many kinds of speech—among them, true threats, incitement to lawless action, fighting words, solicitation to commit a crime, blackmail, perjury, obscenity, child pornography, and defamation.

More to the point, it’s an illustration of how a tumultuous debate—about free speech on campus—has, misleadingly, made the rhetoric of freedom of speech inescapable. As a result, Post writes, “many have contended that First Amendment protections ought to be applied to ‘speech as such’ rather than to public discourse”—that is, to all speech:

This tendency derives from a failure to understand the purposive nature of First Amendment rights. Because communication inheres in all aspects of life, this failure poses a great threat to the classic First Amendment tradition.

To preserve that tradition, which the nation is revisiting in the run-up to 2019 and the celebration of the free-speech century, it won’t be enough to recognize its general importance, as President Franklin D. Roosevelt famously did in his State of the Union Address in 1941 before the United States entered World War II: “In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression—everywhere in the world.”

It will also be necessary to think about the First Amendment with the kind of austere, muscular analysis that Post used for free speech on campus—what free speech is for and what it’s not for, when it’s relevant and when it’s not, and how the law should function. The fierce, sometimes overwhelming threats that the digital era poses to American democracy will continue to spill out far beyond the law, roiling culture and society. But legal thinking, at its best, is an essential tool in the effort to arrive at a new equilibrium. Where it’s obsolete, off balance, or in the case of the Supreme Court at times, myopic and misguided, it must evolve to help solve the dire problems of American democracy.

Permission required for reprinting, reproducing, or other uses.

Lincoln Caplan, a senior research scholar at Yale Law School, teaches writing there and in Yale’s English Department. He is the author of six books about legal affairs and is a member of the Scholar's editorial board.


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