The First Amendment was written in the 18th century with the noble and vitally important goal of ensuring robust political debate and a free press. For much of American history, First Amendment cases involving speech typically concerned political dissenters, religious outcasts, intrepid journalists and others whose ability to express their views was threatened by a powerful and sometimes overbearing state. The First Amendment was a tool that helped the underdog.
But sometime in this century the judiciary lost the plot. Judges have transmuted a constitutional provision meant to protect unpopular opinion into an all-purpose tool of legislative nullification that now mostly protects corporate interests. Nearly any law that has to do with the movement of information can be attacked in the name of the First Amendment.
Monday’s Supreme Court decision in the two NetChoice cases greatly adds to the problem. The cases concern two state laws, one in Florida and one in Texas, that limit the ability of social media platforms to remove or moderate content. (Both laws were enacted in response to the perceived censorship of political conservatives.) While the Supreme Court remanded both cases to lower courts for further factual development, the court nonetheless went out of its way to state that the millions of algorithmic decisions made every day by social media platforms are protected by the First Amendment. It did so by blithely assuming that those algorithmic decisions are equivalent to the expressive decisions made by human editors at newspapers.
Even if one has concerns about the wisdom and questionable constitutionality of the Florida and Texas laws (as I do), the breadth of the court’s reasoning should serve as a wake-up call. The judiciary needs to realize that the First Amendment is spinning out of control. It is beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.
How did we get here? The reach of the First Amendment started to expand in the 1960s and ’70s, when the Supreme Court issued a series of rulings that held that the First Amendment concerned not just political and religious speech but also other forms of expression (such as sexual content) and commercial communication (such as advertisements). These initial changes to the scope of the First Amendment were reasonable.
Over the past decade or two, however, liberal as well as conservative judges and justices have extended the First Amendment to protect nearly anything that can be called “speech,” regardless of its value or whether the speaker is a human or a corporation. It has come to protect corporate donations to political campaigns (Citizens United v. Federal Election Commission in 2010), the buying and tracking of data (Sorrell v. IMS Health in 2011), even outright lies (United States v. Alvarez in 2012). As a result, it has become harder for the government to protect its citizens.
Consider national security. Among the most important areas of statecraft is defending against foreign espionage and the waging of informational warfare. For this reason, the United States has long barred other nations (and indeed foreign citizens) from controlling American broadcasters or news organizations. Yet First Amendment advocates have argued that by forcing TikTok to find a non-Chinese owner, as legislation signed by President Biden in April does, the federal government is violating the Constitution. Indeed, TikTok sued the government in May on just those grounds. If TikTok wins, it will be a victory for any foreign nation that seeks to manipulate and surveil U.S. citizens in the name of a tech company’s right to free speech.
Likewise, in the name of protecting free speech, courts have also made it difficult for lawmakers to protect people’s privacy and repeatedly struck down efforts to protect children. For example, Vermont passed a law to prevent pharmacies from selling prescriber data in 2007, but the Supreme Court struck it down in 2011, presuming that the sale of data is a form of speech. And last summer, after California passed a law to prevent social media companies from tracking and extracting data from children, a federal court blocked it, arguing, in effect, that the surveillance of children is also a form of speech protected by the First Amendment.
The reasoning in the decision in the NetChoice cases marks a new threat to a core function of the state. By presuming that free speech protections apply to a tech company’s “curation” of content, even when that curation involves no human judgment, the Supreme Court weakens the ability of the government to regulate so-called common carriers like railroads and airlines — a traditional state function since medieval times.
Governments have long insisted that certain economic actors serve as common carriers and thus cannot discriminate in the traffic they carry. In the information age that has led to internet regulation, including the Florida and Texas laws at issue in the NetChoice decision. Such regulation is not always perfect, to be sure, but it represents a legitimate tool with which democratic governments can stand up to private power.
The next phase in this struggle will presumably concern the regulation of artificial intelligence. I fear that the First Amendment will be extended to protect machine speech — at considerable human cost.
In our era, the power of private actors has grown to rival that of nation-states. Most powerful are the Big Tech platforms, which in their cocoon-like encompassing of humanity have grown to control commerce and speech in ways that would make totalitarian states jealous. In a democracy, the people ought to have the right to react to and control such private power, as long as it does not trample on the rights of individuals.
But thanks to the Supreme Court, the First Amendment has become a barrier to the government’s ability to do that. Free speech rights have been hijacked to suppress the sovereignty of humans in favor of the power of companies and machines. As Justice Robert Jackson put it in 1949, “if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
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