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.
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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.
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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.”
