Along parallel lines, Sanford Levinson, a law professor at the University of Texas, argued in an email that “today, things are remarkably different” from the environment in the 20th century when much of the body of free speech law was codified: “Speech can be distributed immediately to vast audiences. The ‘market of ideas’ may be increasingly siloed,” Levinson wrote, as “faith in the invisible hand is simply gone. The evidence seems overwhelming that falsehood is just as likely to prevail.”
In that context, Levinson raised the possibility that the United States might emulate post-WWII Germany, which “adopted a strong doctrine of ‘militant democracy,’ ” banning the neo-Nazi and Communist parties (the latter later than the former):
Can/should we really wait until there is a “clear and present danger” to the survival of a democratic system before suppressing speech that is antagonistic to the survival of liberal democracy. Most Americans rejected “militant democracy” in part, I believe, because we were viewed as much too strong to need that kind of doctrine. But I suspect there is more interest in the concept inasmuch as it is clear that we’re far less strong than we imagined.
Lawrence Lessig, a law professor at Harvard, was outspoken in his call for reform of free speech law:
There’s a very particular reason why this more recent change in technology has become so particularly destructive: it is not just the technology, but also the changes in the business model of media that those changes have inspired. The essence is that the business model of advertising added to the editor-free world of the internet, means that it pays for them to make us crazy. Think about the comparison to the processed food industry: they, like the internet platforms, have a business that exploits a human weakness, they profit the more they exploit, the more they exploit, the sicker we are.
All of this means, Lessig wrote by email, that
the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.
Lessig dismissed fears that reforms could result in worsening the situation:
How dangerous is it to “tinker” with the First Amendment? How dangerous is it not to tinker with the doctrine that constitutes the First Amendment given the context has changed so fundamentally?
Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.”
Kennedy described one specific reform her had in mind:
A key distinction in the law now has to do with the state action doctrine. The First Amendment is triggered only when state action censors. The First Amendment protects you from censorship by the state or the United States government. The First Amendment, however, does not similarly protect you from censorship by Facebook or The New York Times. To the contrary, under current law Facebook and The New York Times can assert a First Amendment right to exclude anyone whose opinions they abhor. But just suppose the audience you seek to reach us only reachable via Facebook or The New York Times?
The application of First Amendment protection from censorship by large media companies could be achieved by following the precedent of the court’s abolition of whites-only primaries in the Deep South, Kennedy argued:
Not so long ago, political parties were viewed as “private” and thus outside the reach if the federal constitution. Thus, up until the late 1940s the Democratic Party in certain Deep South states excluded any participation by Blacks in party primaries. The white primary was ended when the courts held that political parties played a governmental function and thus had to conduct themselves according to certain minimal constitutional standards — i.e., allow Blacks to participate.
Wu, Schor and others are not without prominent critics whose various assertions include the idea that attempts to constrain lying through radical change in the interpretation of the First Amendment risk significant damage to a pillar of democracy; that the concerns of Wu and others can be remedied through legislation and don’t require constitutional change; that polarization, not an outdated application of the First Amendment, is the dominant force inflicting damage on the political system.
In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that,
We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.” Tribe added: “to the limited degree those laments were ever warranted, the reason was a persistent misunderstanding of how constitutional law properly operates and needs to evolve.
The core principles underlying the First Amendment, Tribe wrote, “require no genuine revision unless they are formulated in ways so rigid and inflexible that they will predictably become obsolete as technological capacities and limitations change,” adding that
occasions for sweeping revision in something as fundamental to an open society as the First Amendment are invariably dangerous, inviting as they do the infusion of special pleading into the basic architecture of the republic.
In this light, Tribe argued
that the idea of adopting a more European interpretation of the rights of free speech — an interpretation that treats the dangers that uncensored speech can pose for democracy as far more weighty than the dangers of governmentally imposed limitations — holds much greater peril than possibility if one is searching for a more humane and civil universe of public discourse in America.
Tribe concluded his email citing his speech at the First Annual Conference of the Electronic Freedom Foundation on Computers, Freedom and Privacy in San Francisco in March 1991, “The Constitution in Cyberspace”:
If we should ever abandon the Constitution’s protections for the distinctively and universally human, it won’t be because robotics or genetic engineering or computer science have led us to deeper truths but, rather, because they have seduced us into more profound confusions. Science and technology open options, create possibilities, suggest incompatibilities, generate threats. They do not alter what is “right” or what is “wrong.” The fact that those notions are elusive and subject to endless debate need not make them totally contingent upon contemporary technology.
Jack Balkin, a law professor at Yale, takes a different tack. In an email, he makes a detailed case that the source of the problems cited by Wu and others is not the First Amendment but the interaction of digital business practices, political polarization and the decline of trusted sources of information, especially newspapers.
“Our problems grow out of business models of private companies that are key governors of speech,” Balkin wrote, arguing that these problems can be addressed by “a series of antitrust, competition, consumer protection, privacy and telecommunications law reforms.”
The problem of propaganda that Tim Wu has identified is not new to the digital age, nor is the problem of speech that exacerbates polarization. In the United States, at least, both problems were created and fostered by predigital media.
Instead, Balkin contended:
The central problem we face today is not too much protection for free speech but the lack of new trustworthy and trusted intermediate institutions for knowledge production and dissemination. Without these institutions, the digital public sphere does not serve democracy very well.
A strong and vigorous political system, in Balkin’s view,
has always required more than mere formal freedoms of speech. It has required institutions like journalism, educational institutions, scientific institutions, libraries, and archives. Law can help foster a healthy public sphere by giving the right incentives for these kinds of institutions to develop. Right now, journalism in the United States is dying a slow death, and many parts of the United States are news deserts — they lack reliable sources of local news. The First Amendment is not to blame for these developments, and cutting back on First Amendment protections will not save journalism. Nevertheless, when key institutions of knowledge production and dissemination are decimated, demagogues and propagandists thrive.
Erwin Chemerinsky, dean of the law school at Berkeley, responded to my inquiry by email, noting that the “internet and social media have benefits and drawbacks with regard to speech.”
On the plus side, he wrote,
the internet and social media have democratized the ability to reach a large audience. It used to be that to do so took owning a newspaper or having a broadcast license. Now anyone with a smartphone or access to a library can do so. The internet provides immediate access to infinite knowledge and information.
On the negative side, Chemerinsky noted that:
It is easy to spread false information. Deep fakes are a huge potential problem. People can be targeted and harassed or worse. The internet and social media have caused the failure of many local papers. Who will be there to do the investigative reporting, especially at the local level? It is so easy now for people to get the information that reinforces their views, fostering polarization.
Despite these drawbacks, Chemerinsky wrote that he is
very skeptical of claims that this makes the traditional First Amendment obsolete or that there needs to be a major change in First Amendment jurisprudence. I see all of the problems posed by the internet and social media, but don’t see a better alternative. Certainly, greater government control is worse. As for the European approach, I am skeptical that it has proven any better at balancing the competing considerations. For example, the European bans on hate speech have not decreased hate and often have been used against political messages or mild speech that a prosecutor doesn’t like.
Geoffrey Stone, a professor at the University of Chicago Law School, voiced his strong support for First Amendment law while acknowledging that Wu and others have raised legitimate questions. In an email, Stone wrote:
I begin with a very strong commitment to current First Amendment doctrine. I think it has taken us a long time to get to where we are, and the current approach has stood us — and our democracy — in very good stead. In my view, the single greatest danger of allowing government regulation of speech is that those in power will manipulate their authority to silence their critics and to solidify their authority. One need only to consider what the Trump administration would have done if it had had this power. In my view, nothing is more dangerous to a democracy that allowing those in authority to decide what ideas can and cannot be expressed.
Having said that, Stone continued,
I recognize that changes in the structure of public discourse can create other dangers that can undermine both public discourse and democracy. But there should be a strong presumption against giving government the power to manipulate public discourse.
The challenge, Stone continued,
is whether there is a way to regulate social media in a way that will retain its extraordinary capacity to enable individual citizens to communicate freely in a way that was never before possible, while at the same time limiting the increasingly evident risks of abuse, manipulation and distortion.
In an email, Nathaniel Persily, a law professor at Stanford, declared flatly that “The First Amendment is not obsolete.” Instead, he argued, “the universe of speech ‘issues’ and speech ‘regulators’ has expanded.”