IS THE FIRST AMENDMENT OBSOLETE?

Author:Wu, Tim
 
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The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today's. With respect to any given issue, speech was scarce, and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce--rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of "troll armies," the fabrication of news, or "flooding" tactics. This Essay identifies the core assumptions that proceeded from the founding era of First Amendment jurisprudence, argues that many of those assumptions no longer hold, and details the new techniques of speech control that are used by governmental and nongovernmental actors to censor and degrade speech. It concludes by arguing that protection of free speech may now depend on law enforcement recognizing its role in the protection of the American speech environment.

TABLE OF CONTENTS INTRODUCTION I. CORE ASSUMPTIONS OF THE POLITICAL FIRST AMENDMENT II. ATTENTIONAL SCARCITY AND THE ECONOMICS OF FILTER BUBBLES III. A NEW GENERATION OF SPEECH CONTROLS A. A Diminished Reliance on Direct Censorship B. Troll Armies, Atrocity Propaganda, and Fake News C. Reverse Censorship, Flooding, and Propaganda Robots IV. PROTECTING THE CHANNELS OF SPEECH A. Internet Platforms and Media Norms B. First Amendment Duties of Action C. Judicial Enforcement of the First Amendment CONCLUSION. INTRODUCTION

The First Amendment was a dead letter for much of American history. Unfortunately, there is reason to fear it is entering a new period of political irrelevance. We live in a golden age of efforts by governments and other actors to control speech, discredit and harass the press, and manipulate public debate. Yet as the expressive environment deteriorates, the First Amendment has been confined to a narrow and frequently irrelevant role. Hence the question--when it comes to political speech in the twenty-first century, is the First Amendment obsolete?

The most important change in the expressive environment can be boiled down to one idea: it is no longer speech itself that is scarce, but the attention of listeners. Emerging threats to public discourse take advantage of this change. As Zeynep Tufekci puts it, "[c]ensorship during the internet era does not operate under the same logic [as] it did during the heyday of print or even broadcast television." (1) Instead of targeting speakers directly, it targets listeners or undermines speakers indirectly. More precisely, the emergent techniques of speech control depend on new punishments, like the unleashing of "troll armies" to abuse critics, the fabrication of news, and "flooding" tactics that distort or drown out other speech through the payment of fake commentators or the deployment of propaganda robots. (2) Powerful actors, both public and private, have adopted speech itself as a weapon for controlling speech, yielding challenges for which the First Amendment is unprepared.

The First Amendment first came to life in the early twentieth century, when the main threat to the nation's political speech environment was state suppression of dissidents. Since its activation, the First Amendment has presupposed an information-poor world, and it focuses near-exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster.

But today, speakers are more like moths: their supply is apparently endless, and they tend to congregate on brightly lit matters of public controversy. The fundamental challenge comes not from cheap speech itself, but that its cheapness makes it easier to weaponize as a tool of speech control. The unfortunate truth is that speech may be used to attack, harass, and silence as much as it is used to enlighten. And the use of speech as a tool to suppress speech is, by its nature, challenging for the First Amendment to deal with-especially if it is taken as being in the business of protecting speech, no matter what the form. As it stands, the First Amendment seems to be waiting for a pamphleteer to be arrested before it will recognize a problem. Even worse, it may be used to try and block efforts to deal with some of the problems described here.

It may sound odd to say that the First Amendment is growing obsolete when the Supreme Court has an active First Amendment docket and there remain plenty of First Amendment cases in litigation. So that I am not misunderstood, I emphasize that the First Amendment's core protection of the press and political speakers against government suppression is hardly useless or undesirable. (3) With the important exception of cases related to campaign Finance, (4) however, the landmark free speech decisions of the last few decades have centered not on political speech but on economic privileges, like the right to resell patient data (5) or the right to register offensive trademarks. (6) If we accept that protection of political speech is a core function of the First Amendment, many of the recent cases are not merely at the periphery of this project but arguably on another continent. (7) The apparent flurry of First Amendment activity masks the fact that the Amendment has become increasingly irrelevant in its area of historic concern: the coercive control of political speech.

The protection of a healthy speech environment in our times demands a rethinking of what it means to protect the channels of political speech in the internet age. It is clear that part of the answer lies outside of the legal system--it has instead to do with the norms, ethics, and practices of the private speech platforms. Suffice it to say that the major and minor internet platforms by which the public's attention is actually reached have proved vulnerable to manipulation, distortion and corruption by malicious actors and those acting in bad faith. The rise of troll harassment campaigns, the Russian manipulation of Facebook, and the deployment of propaganda bots are just a few of the examples. The question of how internet platforms might do better represents an ongoing discussion of great importance to this question.

But the legal system need not sit on the sidelines, and I believe an important part of the answer lies with law enforcement. We need recognize the role and, indeed, the duty of those who enforce the laws to uphold the First Amendment by defending the principal channels of online speech from obstruction and attack, whether by fraud, deception, or harassment of speakers. While the recognition of constitutional duties is less common in American constitutional law, the Court has, since the civil rights era, recognized that law enforcement has a duty to protect speakers from private efforts to silence them. (8) In our times that translates into civil and criminal protection of the integrity of public debate--through law enforcement, both criminal and civil, against those who practice fraud; deception, including the impersonation of humans; and violation of campaign finance and other laws designed to protect the electoral process. As discussed below, (9) there has already been some prosecution of those who violently threaten journalists, and special counsel Robert Mueller has indicted Russian hackers targeting the American electoral practice. But law enforcement can and should do more.

In addition, the judicially enforced First Amendment itself can and should adapt in important ways. It need, for one thing, be tolerant of the efforts undertaken to punish fraud and deception online. But it might also be proactive: the time is right to explore the importance of accomplice liability under the First Amendment. That is, we might ask when the state or political leaders may be held constitutionally responsible for encouraging private parties to punish critics. If public officials direct, encourage, fund, or covertly command attacks on their critics by private mobs or foreign powers, the First Amendment should be implicated.

These explorations should not distract from the main point of this Essay, which is to demonstrate that a range of speech-control techniques have arisen from which the First Amendment, at present, provides little or no protection. In the pages that follow, this Essay first identifies the core assumptions that proceeded from the founding era of First Amendment jurisprudence. It then argues that many of those assumptions no longer hold, and it details the new techniques of speech control that are used by governmental and non governmental actors to censor and degrade speech. The Essay concludes with ideas about what might be done.

  1. CORE ASSUMPTIONS OF THE POLITICAL FIRST AMENDMENT

    As scholars and historians know well, but the public is sometimes surprised to learn, the First Amendment sat dormant for much of American history, despite its absolute language ("Congress shall make no law....") and its placement in the Bill of Rights. (10) It is an American tradition in the sense that the Super Bowl is an American tradition--one that is relatively new, even if it has come to be defining. To understand the basic paradigm by which the law provides protection, we therefore look not to the Constitution's founding era but to the First Amendment's founding era.

    As the story goes, the First Amendment remained inert well into the 1920s. The trigger that gave it life was the federal government's extensive speech-control program during the First World War. The program was composed of two parts. First, following the passage of new Espionage and Sedition Acts, (11) men and women voicing opposition to the war were charged with crimes directly related to their speech. Eugene Debs, the...

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