CANDIDES AND CASSANDRAS: TECHNOLOGY AND FREE SPEECH ON THE ROBERTS COURT.

Author:Bhagwat, Ashutosh
Position:Symposium: The Roberts Court's First Amendment

ABSTRACT

John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available to the general public, and two years before Apple released the first iPhone. The twelve years of the Roberts Court have thus been a period of constant and radical technological innovation and change, particularly in the areas of mass communication and the media. It is therefore somewhat astonishing how few of the Roberts Court's free speech decisions touch upon new technology and technological change. Indeed, it can be argued that only two cases directly address new technology: Brown v. Entertainment Merchants Association on video games, and Packingham v. North Carolina on social media. Packingham, it should be noted, is the only Roberts Court free speech case directly implicating the Internet. Even if one extends the definition of cases addressing technology (as I do), only four cases, at most, can be said to address technology and free speech.

It seems inevitable that going forward, this is going to change. In particular, recent calls to regulate "fake news" and otherwise impose filtering obligations on search engines and social media companies will inevitably raise important and difficult First Amendment issues. Therefore, this is a good time to consider how the Roberts Court has to date reacted to technology and what that portends for the future. This paper examines the Roberts Court's free speech/technology jurisprudence (as well as touching upon a few earlier cases), with a view to doing just that. The pattern that emerges is a fundamental dichotomy: some Justices are inclined to be Candides, and others to be Cassandras. Candide is the main character of Voltaire's satire Candide, ou l'Optimisme, famous for repeating his teacher, Professor Pangloss 's mantra "all is for the best" in the "best of all possible worlds. " Cassandra was the daughter of King Priam and Queen Hecuba of Troy in Greek mythology, condemned by the god Apollo to accurately prophesize disaster, but never to be believed. While not all justices fit firmly within one or the other camp, the Roberts Court is clearly divided relatively evenly between technology optimists and technology pessimists.

The paper begins by analyzing the key technology/free speech decisions of the Roberts Court, and classifying the current Justices as Candides or Cassandras based on their opinions or votes in those cases. In the remainder of the paper, I offer some thoughts on two obvious questions. First, why is the Court divided between Candides and Cassandras and what qualities explain the divergence (spoiler: it is not simply partisan or political preferences). And second, what does this division portend for the future. As we shall see, my views on the first issue are consistent with, and indeed closely tied to, Greg Magarian's analysis of Managed Speech on the Roberts Court. On the second question, I am modestly (but only modestly) optimistic that the Candides will prevail and that the Court will not respond with fear to new technology. I am, in other words, hopeful that the Court will fend off heavy handed efforts to assert state control over the Internet and social media, despite the obvious threats and concerns associated with that technology. I close by considering some possible regulatory scenarios and how the Court might respond to them.

INTRODUCTION

John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. (1) That was seven years after Google was incorporated, (2) one year before Facebook became available to the general public, (3) and two years before Apple released the first iPhone. (4) The twelve years of the Roberts Court have thus been a period of constant and radical technological innovation and change, particularly in the areas of mass communication and the media. It is therefore somewhat astonishing how few of the Roberts Court's free speech decisions touch upon new technology and technological change. Indeed, it can be argued that only two cases directly address new technology: Brown v. Entertainment Merchants Association on video games, (5) and Packingham v. North Carolina on social media. (6) Packingham, it should be noted, is the only Roberts Court free speech case directly addressing issues specific to the Internet. Even if one expands the definition of cases addressing technology (as I do in this paper), only four cases, at most, can be said to address technology and free speech directly.

It seems inevitable that going forward, this is going to change. In particular, recent calls to regulate "fake news" and otherwise impose filtering obligations on search engine and social media companies will inevitably raise important and difficult First Amendment issues. (7) This is therefore a good time to consider how the Roberts Court has reacted to technology to date, and what that portends for the future. This paper examines the Roberts Court's free speech/technology jurisprudence with a view to doing just that. The pattern that emerges, though admittedly somewhat fuzzy, is a dichotomy: some Justices are inclined to be Candides, and others to be Cassandras. Candide is the main character of Voltaire's satire Candide, ou l'Optimisme, famous for repeating his teacher, Professor Pangloss's mantra "all is for the best" in the "best of all possible worlds." (8) Cassandra was the daughter of King Priam and Queen Hecuba of Troy in Greek mythology, condemned by the god Apollo to accurately prophesize disaster, but never to be believed. (9) While not all justices fit firmly within one or the other camp, the Roberts Court seems divided relatively evenly between technology optimists and technology pessimists.

Part I of this paper begins by summarizing and analyzing the Roberts Court's major free speech/technology cases (and tangentially touches on a few earlier decisions). In Part II, I consider how and why the Justices of the Roberts Court are divided between Candides and Cassandras, including what qualities might explain the divergence (spoiler: it is not only partisan or political leanings). And finally, in Part III I will offer some thoughts on what these divisions portend for the future.

  1. TECHNOLOGY ENTERS THE TEMPLE

    In this Part, I will discuss in some detail the four free speech cases decided by the Supreme Court during Chief Justice Roberts's tenure that touch upon technology. As I noted in the introduction, only two of these cases--Packingham and Brown--deal directly with new technology and its implications for free speech. However, because the other two decisions were at least influenced by or implicate changing technology, they are worth some consideration to reveal patterns. I discuss the cases in reverse chronological order both because the most recent decision in this series, Packingham, is the most enlightening, and because the impact of technology on free speech issues has obviously accelerated in recent years.

    I also should begin with a definitional clarification and some caveats. In the course of analyzing the cases that follow, I am seeking to classify the participating Justices as technology optimists (Candides) or technology pessimists (Cassandras). Of course, with rare exceptions, most cases do not require Justices to explicitly express hopes or fears about technology (though both Brown and Packingham did require just that). Therefore, when clear statements about technology are lacking, I use as my proxy for optimism or pessimism attitudes towards regulation of technology, on the assumption that technology optimists generally think regulation unnecessary and harmful, while pessimists think regulation is needed to fend of the dangers posed by technology. Silicon Valley is, after all, full of libertarians. But this proxy is concededly imperfect, since other factors can also influence attitudes towards regulation. Another source of uncertainty is that not every Justice writes in every case. When a Justice does not write, but rather joins an opinion authored by another Justice (whether a majority opinion or otherwise), I attribute the author's attitudes to the joining Justice. Again, however, this is an imperfect proxy, because other factors (including simply a desire for consensus) might lead a Justice to join an opinion he or she does not fully agree with. In my analysis I do identify situation when I believe these sorts of dynamics might be involved, but there are always uncertainties in analyzing silence.

    Despite these uncertainties and caveats, I do believe there is value in the exercise I am undertaking here. Attitudes towards technology matter, and are likely to matter even more going forward. And given the ages of the Justices (all of whom became adults in the pre-Internet era), substantial variation in how familiar and comfortable they are with technology is inevitable. It may seem odd that these sorts of subterranean attitudes will in all likelihood shape free speech law going forward--but that is hardly the only or even most obvious oddity in modern constitutional law. Regardless, these issues are worth investigation.

    1. Packingham v. North Carolina (2017)

      The most recent and most striking technology/free speech decision of the Roberts Court, which also not coincidentally engaged the Court for the first time with the most important modern technological development affecting free speech--the spread of social media--was the 2017 decision in Packingham v. North Carolina. (10) Packingham involved a challenge to a North Carolina statute that forbade any registered sex offender from accessing "a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages." (11) Packingham, a...

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