NYT writer Tom Edsall: Is the First Amendment obsolete?

January 7, 2021 • 10:45 am

Writer Thomas Edsall is best known for his weekly op-ed in the New York Times, with the latest example below. It’s a long column, and not a bad one at all, even though I disagree with his conclusion that the First Amendment seems obsolete because, in the age of social media, free speech cannot promise “that factual information is guaranteed”.

Note that what is asserted in Edsall’s headline is not that the First Amendment has “wrecked free speech”, but that Trump’s lies have.  The rationale for First-Amendment free speech in America is that it ensures a “free marketplace of ideas,” and, with that in place, the assumption is that truth will Triumph. Now that’s clearly not been so obvious under Trump, because he beleaguers the American public with untruth, and many of them buy it.

Is the wrecking of the benefits of the First Amendment, then, due to the election of a fascist as President, which has nothing to do with the Amendment itself, or to social media, which allows a largely unregulated dissemination of lies? That, too, has nothing to do with the Constitution, because social-media companies like Facebook and Twitter, as private corporations, aren’t required to abide by that Amendment.  And those companies are already engaged in regulating speech in a manner that wouldn’t stand up if they were government agencies. But that hasn’t worked, either. It was social media, after all, that led to the debacle on Capitol Hill yesterday.

Another argument is that we do need to modify the First Amendment: we need to go to the European system in which some “hate speech”, like Holocaust denial and blasphemy, is banned. That doesn’t seem to have worked, either: those countries don’t seem to have less “hate” than America, and at any rate, I don’t see how banning, say Holocaust denial, is useful. In fact, I think it’s harmful, as people have no impetus for learning what the real evidence is for the Holocaust. The benefits of free speech are that you can hear the best arguments of those whose views you oppose. That was suggested by Mill, who also mentioned another benefit: if odious speech is prohibited, you’ll never learn who its exponents are.

At any rate, Edsall’s piece is fair in that he airs both sides in extenso. In fact, most of the airtime goes to those who want to keep the First Amendment intact. Yet at the end he concludes we need more regulation of speech to ensure that the truth will out. But he’s not specific about how this will happen.  I’ll give some quotes from those on different sides of the issue; Edsall has done his homework by interviewing lots of people

Arguments for Modifying the First Amendment (Edsall’s words indented; those of his interviewees further indented):

In making, embracing and disseminating innumerable false statements, Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain.

In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech.

Richard Hasen, at the University of California-Irvine Law School, described some of the more radical reform thinking in an email:

There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.

Hasen argues:

Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.

Of course Trump’s lies were disseminated mostly Twitter, which is free to make its own rules. It can ban some speech, as it did yesterday for Trump (but for only 12 hours), censor it, as it did yesterday by hiding three of Trump’s tweets, or ban some people for speaking, as it threatened to do if Trump persisted. It is up to these companies how they handle speech, and what they decide to censor, but I would still favor them having fairly lax restriction, as close to the First Amendment as possible. After all, there’s no law against people standing up in public and telling injurious lies. Social media can spread lies faster and more widely, but the same goes for truth via counter-speech.

More calls to reform the First Amendment:

Tim Wu, a law professor at Columbia and a contributing opinion writer for The Times, is largely responsible for pushing the current debate onto center stage, with the 2017 publication of his essay, “Is the First Amendment Obsolete?” by the the Knight First Amendment Institute and subsequently in the Michigan Law Review:

“The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today’s,” Wu wrote. The basic presumption then was “that the greatest threat to free speech was direct punishment of speakers by government.” Now, in contrast, he argued, those, including Trump, “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.”

But these aren’t new methods, just ones that can be deployed faster. And, as I said, Twitter, Facebook, and YouTube can counter what they see as undesirable speech via censorship or banning. The problem with that, of course, is whether we trust these companies to do the right thing. I, for one, don’t. They already are biased in how the censor anti-Israeli speech (largely tolerated) and anti-Palestinian speech (often censored as “Islamophobia”). Of course companies can do what they want, but there’s no guarantee that they themselves won’t tilt speech toward their ideological preferences. Note, too, that Laurence Tribe, below, says that every era has argued that “political speech is different from what it was.”

More:

Miguel Schor, a professor at Drake University Law School, elaborated Wu’s arguments in a December 2020 paper, “Trumpism and the Continuing Challenges to Three Political-Constitutionalist Orthodoxies.”

New information technologies, Schor writes,

are the most worrisome of the exogenous shocks facing democracies because they undermine the advantages that democracies once enjoyed over authoritarianism.

Democracies, Schor continued, “have muddled through profound crises in the past, but they were able to count on a functioning marketplace of ideas” that gave the public the opportunity to weigh competing arguments, policies, candidates and political parties, and to weed out lies and false claims. That marketplace, however, has become corrupted by “information technologies” that “facilitate the transmission of false information while destroying the economic model that once sustained news reporting.” Now, false information “spreads virally via social networks as they lack the guardrails that print media employs to check the flow of information.”

It seems to me that this “corrupt marketplace” still gives people the opportunity for counterspeech and weeding out false claims. And if the fault is “information technologies”, then what’s the solution? The technologies are here to stay, and who wants to give Zuckerberg the ultimate power over what speech should be aired?

And what happens at colleges where students, though they can’t exercise direct censorship, can still create bannings and deplatformings, and silence those who oppose them. This has created a rigid ideology in which Critical Theory gains ascendancy and no dissent is brooked. This purported attempt to eliminate “hate speech” has resulted in gutting the free discourse that is the heart of our universities.

Should we adopt the European system? (which of course means modifying the First Amendment). Nobody in the article seems to favor this.

Here’s what Erwin Chemerinsky (dean of UC Berkeley’s law school) has to say:

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.

Indeed; blasphemy—the criticism of religion—can still be punished in parts of Australia, as well as in Austria, Canada, Finland, Ireland, Poland, South Africa, Spain, and other countries in the West, not to mention the many Muslim countries. Granted, Western countries don’t often prosecute blasphemy, or don’t have explicit “blasphemy laws” (but can penalize criticism of religion), but the point is that if religion got into power, it could censor its critics. And I think laws banning Holocaust denialism or pro-Nazi sentiments are either counterproductive or haven’t worked. Remember too that many, many people see criticism of religion as “hate speech.” The First Amendment, however, says it’s okay. It is okay, and the ability to criticize religion is vital in dispelling a pernicious influence on society.

The problem is with advertising, capitalism, or the print media, not the social media. Some of those interviewed blamed the proliferation of lies to the failure of mainstream media (MSM) to be responsible enough to do objective reporting or on new “advertising models”. A few quotes:

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.

Well, this seems to apply more to the Internet than the mainstream media—have you looked at HuffPost lately, though?—but it doesn’t make a lot of sense.  What does it mean to say that advertisers “profit the more the exploit, the sicker we are.” This seems to be a problem of all advertising, not just the Internet. And, at any rate, the fix for this has nothing to do with regulating non-advertising speech. Deceptive advertising is not protected by the First Amendment anyway, so what should we do: keep advertisers from “exploiting” us? Good luck with that?

A different argument from Jack Balkin, a law professor at Yale:

Balkin continued:

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.

We also lack reliable sources of national news. But again, as Balkin notes, this has nothing to do with the First Amendment. It may be part of the problem, but what is the cure?

When you look at the views of First Amendment scholars I’ve admired, like Geoff Stone here at Chicago or Lawrence Tribe at Harvard, they don’t see changing the First Amendment to counter whatever problems exist—though Stone notes that, as is true with any amendment, interpretations of the courts may change over the years. These scholars, and several others, favor keeping the First as it is. Curious, then, that though the weight of cogent argument is in favor of keeping the Constitution as it is, Edsall feels otherwise (see his conclusion below):

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 (my emphasis):

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. [JAC: I’d add “social media companies” to “government”]

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.

The problem is exacerbated because “regulating social media” runs exactly the same risks as “allowing government regulation of speech”, but the regulators are corporations rather than the government. If Twitter is now most people’s source of news and information, then Twitter is in fact more powerful than the government, and their own biases pose a danger to free discourse.

Laurence Tribe, a constitutional scholar at Harvard, agrees with Stone, and doesn’t think we should go to the European 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.

Agreed. And after all this (I’m not leaving out much criticism of First-Amendment free speech), Edsall still quotes Hannah Arendt as if Edsall thinks that that Amendment still poses a problem:

In 1967, Arendt published “Truth and Politics” in The New Yorker:

The result of a consistent and total substitution of lies for factual truth is not that the lies will now be accepted as truth, and the truth defamed as lies, but that the sense by which we take our bearings in the real world — and the category of truth vs. falsehood is among the mental means to this end — is being destroyed. . .

Totalitarianism required first blurring and then erasing the line between falsehood and truth, as Arendt famously put it:

In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true ….

Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow.

And here’s Arendt in “Truth and Politics” again, sounding like she is talking about contemporary politics:

Freedom of opinion is a farce unless factual information is guaranteed and the facts themselves are not in dispute.

America in 2021 is a very different time and a very different place from the totalitarian regimes of the 20th Century, but we should still listen to what Arendt is saying and heed her warning.

Her warning is that the proliferation of lies doesn’t drive out truth so much as make people cynical about truth; it’s a reiteration of the ideology of Big Brother in Nineteen Eighty-Four.  But how do we “guarantee factual information?” I don’t see how we can do that unless someone becomes the arbiter of fact. And we know that what is seen as “fact” depends on who’s in charge. Trump, for instance, saw climate change as fake rather than fact.  And of course in science facts are provisional, as they should be.

It would be nice if Edsall would have told us exactly how we’re supposed to pay attention to Arendt. How do we heed her warning? The only recourse I see is allowing someone to determine what the facts is (like Steve Miller’s “detective down in Texas”).

54 thoughts on “NYT writer Tom Edsall: Is the First Amendment obsolete?

      1. I know it turns you on when I drop a Latin phrase, or name-check a 2nd century CE Roman poet, D-Mac. Admit it. 🙂

          1. Old Ken here isn’t above a little Latiny showing off. Like the legal version of 007: “Shaken-up-us non stirredum”

            We’ve all been guilty of that…

            D.A., J.D.
            NYC
            😉

    1. TNG episodes

      Who Watches The Watchers (episode)

      Story and production

      Filming at Vasquez Rocks

      The title of this episode is taken directly from the Latin phrase, “Quis custodiet ipsos custodes?”, first used by the poet Juvenal, a 1st/2nd century Roman satirist. Juvenal also provided the title of “Bread and Circuses”.

      1. Human rights commissions have caused a lot of confusion. Legally you are correct but practically there have been problems.

          1. Human rights commissions were established to help people fight discrimination in the areas of housing , rentals and employment. Over time they have morphed into a catchall of any sort of complaint, often involving free speech concerns seen as anti female, anti gay , anti muslim . It can be expensive to defend yourself and some of the HRC rules do have a star chamber feel to them. When people mention Canada as being anti free speech they usually refer to some ruling by a provincial HRC. If you have the money you have to go to a real court and get the HRC decision thrown out. So, legally you are correct . You have free speech protection under the constitution. Practically you can be attacked at the provincial HRC. A bit old now but you can look up a couple of Alberta cases, Stephen Boissoin and Darren Lund or Ezra Levant and SYED SOHARWARDY.
            Not speech but recently the anti trans clown in BC that wanted his balls waxed. The woman in question should not have been put through that crap.

            I agree with this from Syed’ s letter in the Globe 2008 ,still online:

            ‘Having no previous experience with any human rights commission, I was unaware of the ongoing debate about whether such commissions should have narrower or broader mandates, or of the doubts many Canadians have about whether such commissions are the right venue in which to argue questions about hate speech.

            Subsequent discussions with several Muslim leaders, and more particularly with some of my Christian and Jewish friends, have led me to conclude that my complaint was beyond what I now believe should be the mandate of such a commission. I now am of the view that this matter should have been handled in the court of public opinion.

            I believe his decision was irresponsible and was intended to cause strife, but I now appreciate that it may not fall outside the limits of free speech.’

            dm

            1. However the human rights commissions also reject things without ever having to go to court. This idea that there is a panic of constant frivolous lawsuits oppressing the citizens is completely false. It is extremely difficult to get a hate speech accusation taken into the courts. One is the hand wringing over the gender pronouns where people felt if you used the wrong one you’d be fined. Not at all true – it had to be proven as something done as part of a long list of discrimination. I don’t see any evidence of the abuse of the human rights commission or the courts.

              1. ‘ This idea that there is a panic of constant frivolous lawsuits oppressing the citizens ”
                Who said this?
                Do you understand we are basically in agreement with your original comment that Canada does not have a great free speech or anti blasphemy problem?. So why do so many people believe this?. When I ask for examples they always seem to come from HRC complaints.

                And here we can see the problem. A court decision against free speech in Canada.
                People will quote something about this

                https://www.albertalawreview.com/index.php/ALR/article/view/52/52

                The good news , the relevant section for the conviction was almost immediately repealed. People don’t know about the repeal.

                In case you are arguing because you think I support any of these people , I don’t.
                I will let someone more eloquent express my opinion
                From the article

                There is a simple and ironic fact that cannot be overlooked in all of this: If Whatcott is on a hate campaign, Saskatchewan’s hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials and broadened his public exposure. Had no complaint been made about Whatcott’s flyers in 2001 and 2002, they would have faded into obscurity and Whatcott likely would not have received national media coverage. At this stage it is entirely likely that Whatcott will be elevated to the status of folk-hero by those who share his prejudices. Instead of facing a legal prosecution lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. After all, it is best not to silence bigots by the application of force; let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.

  1. The implication of Lessig’s argument and the Arendt quote is that the problem is not speech per se,
    but contra-factual speech. Here, our problem is that so much of public discourse is conditioned by the
    advertising industry. Turn on commercial radio, and you will hear a flood of baseless claims for quack
    medications, copper-infused amulets to ward off disease and reverse ageing, books and services that will make you rich quick, and assorted other hustles; the station-breaks themselves are not simple announcements of frequency and call letters, but loud Trumpetings of exaggerated self-congratulation; and some programs (like “Coast to Coast”) actually specialize in ghosts, angels, past lives, extra-terrestrial visitors, alien abductions, telepathy, and similar hoaxes. [And then there are the religious broadcasters, about which nothing more need be said.] On TV, even where factual information is
    mandated—such as about side-effects of pharmaceuticals—the producers of advertisements surround that information with visual cues designed to distract the viewer from it.

    In short, how do we deal with political discourse that emerges from this entire culture of broadcast
    bullshit? One possibility that comes to mind is tightening the criminal code, or enlarging the permitted range of civil litigation, in regard to fraud. For example, why couldn’t the civil code be changed to enlarge the standing status required to bring suit against perpetrators of provable fraud? This
    would open plenty of politicians (from The Donald on down) to litigation. Something tells me that the advertising industry—already almost as powerful as in Kornbluth and Pohl’s prophetic novel “The Space Merchants”—would be able shoot down any proposals of this kind in short order.

        1. Don’t fool yourself–more kids are ‘paying attention’ to what is happening, and doing AT LEAST as much about it as the kids in the ’60s did.

      1. Starting with the young is always a good idea.

        Our kids need a solid grounding in facts. Our kids need a solid grounding in critical thinking skills, with special training in detecting manipulation and fallacies.

        And, if the First Amendment isn’t going to lead to separate systems of facts and fallacies dividing the public, our kids need to feel comfortable with disagreement. Diversity isn’t just good because it teaches us to be tolerant of other views and ways of thinking; it’s good because criticism is good. When directed at ideas instead of individuals, it’s healthy.

        I like to imagine a world where right-wing conspiracy theorists and left-wing woke-extremists regularly break group discussions to wonder “well, this is all fine and good, but shouldn’t we recruit more people on the other side to come over and take a look at it? Sort of pick at it a bit? I’m really not comfortable otherwise, you know.”

        Start it in school.

        1. Agreed. Two things have stuck with me over the years. Decades ago we had a unit in school on manipulative advertising (why that enticing woman leaning on a fender sells cars). And we had a brief workshop in my daughter’s daycare covering Thomas Gordon’s Parent Effectiveness Training (say “I hate messes,” not “you are a slob”). These things should be taught from an early age.

  2. The problem with criminalizing hate speech is that we do not know who all the censors will be. If states can regulate and define “hate speech” then the difference in allowable speech will be quite different in NY and Alabama. NY will define JK Rowlings remarks about transwomen as hate speech towards transwomen. Alabama will define pro abortion remarks to be hate speech towards fetuses.

    All the “I support free speech but” people need to realize that their political enemies will sometimes get to define “but”.

    1. Yes, it’s quite astonishing how the proponents of limiting speech always assume the arbiters will be on their side.

      1. It’s been doubly astonishing to hear progressives call for limiting free speech at a time when Trump and Barr would have been doing the enforcement.

  3. It just occurred to me that if DT owned Twitter, or both Twitter and FB, there would be no check on him whatsoever. Rupert Murdock owns Fox News and is both aligned with the GOP and unscrupulous. Just think of the state of affairs if RM owned Twitter and FB as well. Laws against monopoly have been enforced rather weakly in recent years. Who’s to say this could not happen.

  4. Lessig has the right diagnosis, and Balkin has the right solution.

    Lessig:

    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.

    In the old newspaper and radio days, the media company had to produce the content. That made it expensive, too expensive to just throw everything in to a newspaper or radio channel and let customers pick what they want. In the internet age, we consumers make the content.

    A bonus pile of evil results from the instant data-gathering and fast analysis of our clicks, allowing Facebook (to take a prime perpetrator) to guide us to emotionally exciting stuff. Whether we love or hat it, that stuff that will keep us clicking, and therefore keep advertisers happy. Of course newspapers had this too: see the tabloids. But they had the cost problem that I mentioned above. Nobody wants to buy a telephone-book-sized tabloid and pay for it.

    Balkin:

    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.

    Exactly. We could incentivize knowledge production, just as we do with the National Science Foundation handing out research grants. The NSF doesn’t keep non-mainstream scientists (or “scientists”) from doing their work. But it does yield a bonus of really good scientific research.

    It is possible to set up a panel of judges and rules of judgment to yield a relatively fair distribution of support. Have the panel track the success of various journalists and outlets at persuading others, especially others of different political persuasion, to take them seriously. Taken-seriously can be measured by citations, for example. And “different political persuasion” can be measured by doing a principal components analysis on the writings and the citations of the writers by political figures.

  5. I’ll concede Edsall this: the issue of free speech and large, quasi-monopolistic platforms like Twitter and Facebook seems particularly nettlesome — perhaps even vexed. But then this homey don’t do social media, so maybe I’m simply insufficiently familiar with it to have thought the issue through.

    The two proposed solutions I’m familiar with are either to treat such platforms as “publishers” (and thus subject to the same exposure for libel) or to treat them the equivalent of public fora, essentially a digital public square The first would severely curtail speech (for the same reason that publishing houses put out a limited number of volumes, vetted and re-vetted by teams of libel lawyers); the second would turn social media into a free-speech Wild West, a potentially hostile environment where many, quite understandably, would just as soon avoid treading aboard their home computers or smart phones.

    1. They are already acting as publishers. When, for reasons other than law, they delete posts, prohibit re-posts, and add comments to posts (which is content the provider is creating), they are performing editorial functions. Twitter has already potentially made itself liable to being sued for labeling vaccine information false (and by implication indicating what information is true). (Who at Twitter makes those decisions? Not a medical staff.)

  6. One can’t say one believes in democracy, and believe that citizens’ speech should be restricted. If people are competent to vote, they are competent to say what they think. From many articles where the author wrings their hands about what’s been, being, or might be said, my impression is that those authors don’t really trust people, at least to the extent of doing what the author wants.

      1. While I certainly sympathize with this sentiment – which I take as tongue in cheek – because humans often seem woefully idiotic (myself included) the trouble is, if “people” are not competent, then who is? (Perhaps cats?) Who decides who is competent? It’s the same problem as with regulating speech. I’ve never met (nor heard of) a person wise enough to tell me what to say or how to think, or to proscribe what I may say or what beliefs I may espouse…and I don’t expect to meet one.

        1. Yes, let’s face it, there are people (or persons, if that is preferred), who think that everything would just be so much better if everyone else listened to them, did what they told them, and acted the way they want. To them it is stupid and dangerous to let people exercise their own free choices, whether politically, socially, or economically.

          1. “To them it is stupid and dangerous to let people exercise their own free choices, whether politically, socially, or economically.”

            Like storming the capitol, looting, rioting? Or vote those into power who lead and encourage it?

            1. Well, how would you identify them before the fact, and say that these people will not have political rights? As for after the fact, that is why we have criminal laws.

              1. “Well, how would you identify them before the fact, and say that these people will not have political rights?”

                FB, Twitter -they brag about it there.

    1. Blasphemy laws disappeared and hate speech laws appeared. One is religious fundamentalism, the latter part of secular fundamentalism.

  7. I think Lessig’s point is important and I think we do need to have a conversation about how to keep the ‘marketplace of ideas’ going strong when hidden algorithms are deciding what you see and hear and the internet makes the ‘get paid for sensationalist lies’ phenomenon so direct, immediate, and profitable. Sure, past generations had that problem with print media too. But not to the same scale.

    I don’t think the solution is content censorship though. I think it’s greater transparency on information sources combined with possibly some regulation on how people and corporations can profit from it. I suspect that if the local idiot’s right-wing conspiracy youtube channel didn’t rake in money for clicks, there would be far fewer right-wing conspiracy channels. Lastly, and possibly the hardest change to make of all, the public needs to become more sophisticated consumers of media. You could probably get by with believing most of what was said on TV when there were 4 networks and maybe a major paper or two per city. Now, not so much.

    Lies have always been a problem; but spreading them has never been so cheap. That’s the modern problem that our old approaches don’t grapple with well.

  8. I find myself aligned with Erwin Chemerinsky, at least based on this article.

    The First Amendment issue seems to me to be a red herring. It is more about preventing government from outlawing opinions it disagrees with. That sounds good to me. The European approach to disallow supposed hate speech is misguided because it can be used to outlaw certain opinions via its control over what is considered hate. It also seems like the solution is out of proportion to the problem. We aren’t going to stop racism, for example, by outlawing racist speech. That’s outlawing the symptom only. Leave the First Amendment alone, please.

    As I’ve often said in comments here, the problem is the distribution of ideas, not the ideas themselves. Modern media and business allows “cheap speech”, thereby providing a weapon that can be misused and abused. Modern technology gives us many more ways to use speech dangerously, going far beyond the classic yelling of “Fire!” in a crowded theater. It’s not a matter of what is expressed but the context in which it is expressed and the power of the megaphone used to express it. The fact that hate speech is often involved in these misuses is misleading. In the wrong context, an innocuous or helpful expression can become a dangerous weapon, just like “Fire!”

    This article is refreshing in that it shows that this problem is being discussed by some in sophisticated ways. I’m hopeful we’ll come upon a workable solution. We need much more of this instead of the ubiquitous calls for banning hate speech or weakening the First Amendment.

  9. I don’t care what the excuse is; *don’t scr#w around with the Constitution*. Censorship is a far greater danger than any lies, no matter how well broadcast.

  10. I read this one already, boss. And I wasn’t impressed by it.
    I never miss his column but usually Edsel has more insight and manages to say it in less than several thousand words.

    To our friends above talking about teaching kids better analytic skills in schools: YES. TOTALLY. That is the very best improvement of the system I can think of – censoring media is leaving it too late and is unworkable anyway. They COULD teach some type of “media awareness” (could be taught with civics) rather than diversity/equity/how America is a slave state/ 1619 etc.

    And yes I’m old enough to think civics should be taught in schools for a better society. Just as soon as you get those damn kids off my LAWN!

    D.A., J.D.
    NYC
    https://whyevolutionistrue.com/2020/06/10/photos-of-readers-93/

  11. I’m sure this has been said in this thread, over and over (I haven’t read the comments), the 1A doesn’t and was intended to “guarantee factual information”. As you noted.

    This seems quite obvious to me.

    Every call for censorship runs up against the “Decider” question and I have yet to hear an answer to it that makes any sense unless one desires to live in a Stalinist totalitarian dictatorship.

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