Debating Free Speech and the First Amendment

Thomas Edsall has a round-up today of the debate raging in US legal and academic circles about the First Amendment. On the one side are people who say the amendment is obsolete, because government censorship is no longer the biggest threat to our public debate; on the other those who say public debate has always been difficult, dangerous, and tricky to manage, and government interference remains a dire threat. Lawrence Lessing:

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.

Of course a lot of this is driven by fear of Trump and his bodyguard of lies. Tim Wu:

the president creates an entire attentional ecosystem that revolves around him, what he and his close allies do, and the reactions to it — centered on Twitter, but then spreading onward through affiliated sites, Facebook & Twitter filters. It has dovetailed with the existing cable news and talk radio ecosystems to form a kind of seamless whole, a system separate from the conventional idea of discourse, debate, or even fact.

And from the "don't tinker with the amendment" side, Lawrence Tribe:

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. . . . 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.

I am, as my readers know, skeptical of almost any argument that says we face entirely new problems. My favorite judge, Learned Hand, worried all the time about the pernicious effects of radio, which he thought enabled the rise of Fascism. Newspapers used to be plenty bad; yellow journalism helped to give us the Spanish-American War,  and whipped up the Red Scare in a panic that led to massacres of black Americans in Oklahoma and Arkansas.

But that doesn't mean there isn't a problem; nobody wants a repeat of the Red Scare, and the rise of Fascism was one of the worst events in human history.

The problem with imposing limits on freedom of speech is that this involves trusting somebody to impose those limits. Who do you trust? The Supreme Court? The Trump Administration? Congress? 

There are certainly ideas out there that I think are both false and dangerous; right now the most prominent is that Biden stole the election. Most of my friends agree with me about this, and so to the Times, the Post, ABC and CNN. So surely we get to censor the people who disagree with us?

Or do we? I would be willing to bet that if you polled Americans about what ideas they think are so dangerous that they should be censored, you would find that millions of us think the most vital ideas are those that are most bitterly contested. I bet millions would like to censor unqualified praise of capitalism, while millions of others would like to censor all talk of socialism. The same would hold for gun rights, the existence of God, climate change, vaccines, raising animals for food, homosexuality, spanking children, and on and on. I am deadly serious about this. We have already seen in academic circles talk of "climate change denial" as an offense on par with Holocaust denial, and several American states have tried to ban reporting on the horrors of factory farming. (Which the courts have overturned on First Amendment grounds.) Remember that most Americans don't have particularly strong views about politics, but they all do have very strong views about something.

You may be thinking that there is some mechanism by which we could sort out the truly factual from the matters of opinion, but, again, who would do it? There is nobody Americans trust to do that, and nobody I trust to do it. We have seen with Facebook that in fact gatekeeper institutions respond to political pressure, tweaking algorithms to avoid offending whoever has the loudest soapbox.

I think our politics are bad because we are bitterly divided about important questions and do not agree at all about even how to think about those questions: nationalism, race, sexuality, religion, immigration. There are other problems whose existence is widely acknowledged – economic inequality, the education of poor children – which fester, I think, because we do not know how to solve them. And then there is the bad incentive built into our two-party system, which leads politicians to attack whatever the other party is doing, even if they defended it the year before. Republicans in particular have focused much of their energy on sabotaging whatever Democrats want to do, even if it means making the government work worse for everyone.

I think fighting about internet speech is almost beside the point; when people are as divided as Americans are now, they will find ways to shout at each other about it.