The First Amendment ISN'T out of control
Rumors of its rampage are greatly exaggerated.
Greg Lukianoff is the president and CEO of the Foundation for Individual Rights and Expression (FIRE), and co-author of The Canceling of the American Mind.
Adam Goldstein is the vice president of strategic initiatives at the Foundation for Individual Rights and Expression (FIRE).
Those of us who defend freedom of speech have unfortunately gotten used to hysterical headlines from the New York Times decrying the problem of the First Amendment.
Some rely on straw man arguments to make their case, such as “Free Speech Is Killing Us” by Andrew Marantz in 2019, but others let the mask slip. Who could forget Ulrich Baer's 2017 article, “What ‘Snowflakes’ Get Right About Free Speech,” which argued that people who agree with him should have more control over speech on campus? (Perhaps the least surprising position a university administrator has ever taken.) Or Lisa Feldman Barrett’s 2017 article, “When Is Speech Violence?,” which argues that speech is violence whenever it’s… stressful? (If anything that’s difficult to talk about is violence, what’s the First Amendment for?)
Professor Wu's recent piece, “The First Amendment Is Out of Control,” was in this troubling tradition of free-speech catastrophizing. He opened the article by arguing that "[n]early any law that has to do with the movement of information can be attacked in the name of the First Amendment."
Well, yeah. Fear of government power over the free flow of information was a big part of the reason why "Congress shall make no law."
Indeed, that's also a big part of why the founders included "the press" in the First Amendment. And by “the press,” they didn't mean institutional journalism (although the First Amendment clearly protects that as well) — they meant the literal biggest information moving technology of the day: the printing press.
Professor Wu proceeds so quickly into criticism of the Supreme Court's decision in Moody v. NetChoice (the case about Texas and Florida laws regulating social media moderation) that you could almost miss that his topics don’t quite line up with the actual case. Perhaps that’s an inevitable side-effect of the limited space of op-eds, but it results in some hand-waving that merits quite a bit of head-scratching.
Professor Wu says the Court presumed “free speech protections apply to a tech company’s ‘curation’ of content, even when that curation involves no human judgment.” But there were humans involved. There’s substantial daylight between the concept of machine-aided curation and curation that involves no human judgment. This feels like another straw man, because the key rationale motivating the Texas law Professor Wu has championed is political bias in content moderation — bias that was, at some stage, introduced by a human being exercising a political judgment.
Professor Wu also observes that governments “have long insisted that certain economic actors serve as common carriers and thus cannot discriminate in the traffic they carry.” True, but despite arguments from Texas and Florida to the contrary, social media websites are not on that list.
In general, natural monopolies or gatekeepers to services might be considered “common carriers” who have a greater obligation to provide equal access to the public. As ubiquitous as the large social media players are, it’s difficult to put them in the same category as, say, a phone company. You can have multiple social media services at the same time, and losing access to one doesn’t really change your ability to access others. Techdirt’s Mike Masnick summarizes Professor Wu’s position well: “The real problem here is that Tim Wu wants to suppress the speech of companies he doesn’t like. And he’s mad that the First Amendment doesn’t allow this.”
Meanwhile, the risk of empowering a government to go after social media sites couldn’t be higher. Professor Wu states that social media regulations like those in Florida and Texas are “legitimate tool[s] with which democratic governments can stand up to private power.” But the power of the government is exactly what the First Amendment is supposed to limit — and for good reason. If we curtail the First Amendment to make it easier for governments to go after private actors, you will come to discover that those governments will not stop at corporations or machines. They’ll go after flesh and blood individuals, too.
As much as Professor Wu worries about a future where machines have First Amendment rights, that’s not what NetChoice is. We’re here because a bunch of rich people who own social media websites have different political beliefs than a bunch of powerful people who run state governments. This isn’t some extraordinary scenario beyond the imagination of the First Amendment meriting a revision of our basic civil rights.
Professor Wu laments that the First Amendment protects “even outright lies” and speech “regardless of its value,” but doesn’t seem to appreciate the risk of empowering the government to decide what speech is true or valuable. As Jacob Sullum observes in Reason, “It is hard to imagine a broader license for government censorship.”
Professor Wu then jumps to First Amendment proponents' concerns about the recent law giving Biden power to potentially not only ban TikTok, but also other companies with even indirect connections to people or entities in “foreign adversary countries.” We think that there is good reason to be concerned about a law that gives the president that much power. But it's also worth noting that the opposition of groups like ours, the Foundation for Individual Rights and Expression, is decidedly more grounded and reasonable than Professor Wu would have you believe.
Yes, we recognize that China poses some potentially grave threats to the private data of TikTok users. But given this potential threat, we were concerned to see that the congressional record offers surprisingly little evidence making the case for concern. (What the public record does have, as FIRE’s amicus brief points out, is many lawmakers saying the TikTok ban was about the platform’s content.) Our position is practical: If the government wants such an extraordinary power, it needs to prove its concerns in public (ideally in the legislative record) and in court. You should expect nothing less from defenders of civil liberties.
Professor Wu concludes his article by talking about potential First Amendment arguments that will be made against the regulation of artificial intelligence, as if not allowing the government to have that power over the development of such a crucial technology is necessarily playing to the interests of corporate America. This is a wild oversimplification.
As Greg testified before Congress several months ago, the most boring and predictable play in the regulatory process is when corporations try to get regulated on their own terms, in order to create a legal environment that is favorable to them and hostile to their upstart competitors. This is the game that we believe the current AI powerhouses are playing in Washington, an argument that Marc Andreessen has also made. As Greg argued then, “we may have some fears about the proliferation of AI. But what those of us who care about civil liberties fear more is a government monopoly on advanced AI. Or, more likely, regulatory capture and a government-empowered oligopoly that privileges a handful of existing players.”
So, no, the First Amendment isn’t going too far. Last week, FIRE Senior Writer and Editor Angel Eduardo and General Counsel Ronnie London noted that while the Roberts court has been generally protective of speech in this last term, it wasn’t a “clean sweep.” The Court upheld the Trademark Office’s refusal to register the mark “TRUMP TOO SMALL” for a line of t-shirts, holding that denials can be content-based, but not viewpoint-based.
The trademark at issue violated rule prohibiting registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” As Ronnie and Angel observed: “If the registering of a trademark is contingent upon whether a public figure or public official agrees with it, it will be no surprise to find marks favorable to that person will be granted registrations and unfavorable ones denied.” Still, the Court affirming that viewpoint-based discrimination is prohibited is helpful.
Those who argue against a strong interpretation of the First Amendment elide the fact that theirs is not merely an abstract argument about the limits of free speech, but an argument for the government to have more power. The founders carefully limited government power (through checks and balances, the separation of powers, and a specifically enumerated Bill of Rights) because they understood human beings’ self-serving biases long before that term was popularized on campus.
The First Amendment is there to limit the harm that can be caused by the prejudices of those who wield power — the power to tell us what we can say, what we can know, and what information can be shared.
The free flow of opinion and information is one of the defining characteristics of an open society, and while it doubtless has costs, giving fallible and powerful government officials too much power over this right poses far graver threats.
SHOT FOR THE ROAD
FIRE members got ask questions about the Supreme Court’s handling of the First Amendment in FIRE’s Monthly Member Webinar, hosted by Legal Director Will Creeley, General Counsel Ronnie London, and Executive Vice President Nico Perrino. The episode is available now for So to Speak subscribers. (Don’t forget, if you want to have your questions answered, you can become a member, too!)
A shorter version of this post first appeared on UnHerd.