Tim Wu’s remarkable essay raises profound questions about the future of free expression in a world of ever-changing technology. Wu identifies a number of potentially serious threats to our capacity to maintain the robust public discourse that is essential to a well-functioning democracy. Before offering a few thoughts on those challenges, though, let me first take issue with the central question raised in the essay: “Is the First Amendment Obsolete?”

In raising this question, and arguing that in large part the First Amendment—as currently understood—is, in fact, “obsolete,” Wu misses a fundamental reality. The issues he rightly identifies in his essay are critical to our democratic future only because the First Amendment, as interpreted and applied by the Supreme Court, has been extraordinarily successful at constraining the primary evil at which the First Amendment was directed—government censorship of unwelcome ideas and criticism.

If the Supreme Court had not done such a good job of enforcing the central meaning of the First Amendment, then all of the issues that concern Wu would be largely unimportant. If, as was once the case, government could constitutionally imprison anyone whose ideas it sought to suppress, then none of the issues that concern Wu would matter all that much. These issues are critical only because the First Amendment has, on balance, been remarkably successful in constraining the fundamental evil at which it was directed. It is important to give credit where credit is due!

None of that is to suggest, however, that the concerns that Wu raises are not deeply troubling. They do, indeed, pose serious threats to the future functioning of our democracy. There are at least two ways in which the First Amendment might be relevant to these issues. First, the First Amendment might be interpreted in such a way as to forbid some of these activities. Second, the First Amendment might be interpreted in such a way as to allow government to forbid some of these activities.

The primary constraint on the first approach is, as Wu notes, the state action doctrine. Most of the concerns he raises involve speech by private actors—for example, those who flood the marketplace of ideas with “fake” news or who threaten those who express views they want to stifle. Under well-settled principles of constitutional interpretation, the actions of those individuals, even if they act in concert with one another, do not constitute state action and thus do not trigger the First Amendment.

There have been occasional instances, however, in which the Court has played rather fast-and-loose with the state action doctrine in order to bring essentially private action within the sphere of constitutional law. This was so, for example, in cases like Shelley v. Kraemer and Marsh v. Alabama, and it is at least possible that the Court would once again move in that direction in the face of what it might perceive as profound private threats to our system of free expression. For example, one could imagine the Court holding that extraordinary powerful internet sites, like Facebook, Twitter, and Google, are so powerful that they are in effect government action and must therefore be deemed the equivalent of public forums. Marsh, which dealt with company towns, might be a good jumping off point for such an analysis.

The more likely expansion in the scope of First Amendment restrictions, as Wu notes, is in the realm of government speech. This is still a relatively novel concept in First Amendment jurisprudence, and recognition that the government is permitted to express points of view does not imply that government has unlimited authority to exercise its power to speak when doing so violates the Constitution. For example, if a state government, in which all three branches are controlled by the same political party, authorizes the expenditure of public funds to support the election of only Republican Party candidates, that would surely violate the First Amendment. Some government speech, in other words, is itself unconstitutional.

The more difficult question, as Wu observes, is whether the government’s use of public resources to advocate a particular political position can ever go so far as to violate the First Amendment. The World War I example poses a useful illustration of the problem. The challenge, of course, is figuring out when too much is too much. A similar issue arises when the government encourages private speakers to advance a particular partisan or political position. The Supreme Court has not yet begun to grapple with these questions, but as Wu notes they might well come before the Court in the future, and one can imagine situations in which the Court would in fact hold that such conduct violates the First Amendment, although the line-drawing issues would be daunting.

The second way in which the First Amendment might be relevant to the concerns described by Wu is by permitting greater government regulation of the marketplace of ideas. That is, the government might attempt to address some of these concerns by legislation or regulation, and the Supreme Court might then interpret the First Amendment in a way that permits such intervention, even though the intervention itself raises potentially serious First Amendment questions.

It is worth recalling that there was a time in our history when technological advances in the communications market caused similar angst. This occurred with the advent of radio, when citizens feared that, in light of the small number of available frequencies, a handful of wealthy individuals could take control of those frequencies and thus dominate public discourse. Faced with that concern, Congress created the Federal Radio Commission in 1926 and then the Federal Communications Commission in 1934 and gave them the authority to regulate radio in “the public interest, convenience, or necessity.”

Under the authority of this legislation, the FCC licensed those who could use radio (and later television) frequencies, and in 1946 it adopted the Fairness Doctrine, which required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that was fair and balanced. Although such a regulation of newspapers would clearly have violated the First Amendment, the Supreme Court in Red Lion Broadcasting Co. v. FCC held that the Fairness Doctrine was consistent with the First Amendment, in part because of the distinctive power wielded by these means of communication. One can imagine a scenario in which similar legislation might someday be enacted and upheld with respect to such internet sites as Facebook, Twitter, and Google in order to address some of the challenges described by Wu.

Other issues identified by Wu, like threats and mass harassment designed to deter people from expressing their views on the internet, might also be addressed by legislation, although that would require careful analysis of how to define precisely what speech should be forbidden. Although this problem is certainly magnified on the internet, it is worth noting that it has always existed in society. Individuals who take positions that offend others in their community have always been vulnerable to condemnation by others, and such personal condemnation by neighbors, friends, employers, and co-workers might be far more daunting than mass condemnation by strangers, especially once people get used to such behavior. And, yet, we lived with it.

One of the most vexing issues concerns the proliferation of intentionally false information on the Internet. On the one hand, it seems easy to say that government should have the authority to punish intentionally false statements that are designed to mislead others. Although the Supreme Court has rejected the idea that intentionally false statements are automatically unprotected by the First Amendment, and that such speech can be restricted only if it can be shown to cause significant harm—as would be true, for example, with defamation, perjury, and fraud —one might readily argue that widespread lies that are intended to distort public discourse rise to that level of harm. Even if that is so, however, there may be good reasons not to make such speech actionable. After all, putting the power to prosecute such statements in the hands of public officials is a recipe for potential disaster, because those officials will likely prosecute only those false statements that harm their own positions.

In the end, of course, the primary response to most of the dangers identified by Wu must rest in the people themselves. The First Amendment assumes the existence of a populace that is reasonably educated, thoughtful, responsible, and intelligent. Most of the dangers Wu identifies can be addressed by the people themselves, if they take the time to understand the contemporary distortions in the marketplace of ideas and figure out how to compensate for them.

This has, of course, always been true. If citizens are too lazy, too ignorant, and too indifferent to learn how to cope with these risks of distortion, then democracy is doomed anyway. If we rely on the people themselves to figure out whether or not to go to war, whom to elect as president, and whether to support candidates who want tax reform, health care reform, or environmental reform, then surely they can figure out how to deal with distortions in the marketplace of ideas—once those distortions are brought to their attention. Right?

© 2017, Geoffrey R. Stone.

 

Cite as: Geoffrey R. Stone, Reflections on Whether the First Amendment Is Obsolete, 17-01.a Knight First Amend. Inst. (Nov. 1, 2017), https://knightcolumbia.org/content/reflections-whether-first-amendment-obsolete [https://perma.cc/4HLK-TB8T].