There are two main genres of content moderation controversy. In the first, a platform takes down a post. Then there are the inevitable screams of “First Amendment!!” and protests that such infringements on speech are downright un-American. This is followed by others rolling their eyes, exasperated at the need to remind people yet again that the First Amendment only applies to the government and that private companies are free to moderate speech as they see fit, dummies! Eventually the controversy dies down. … Until a platform takes down another high-profile post. Then it’s rinse and repeat.
In the second genre of content moderation controversy, platforms do not take down a high-profile controversial post. The post sits there while commentators and politicians erupt into a furor and lambast the platforms for failing to remove such harmful speech. The First Amendment is then invoked in another way. The speech is obviously protected, say critics, and it would be un-American to suggest otherwise! Don’t you remember that the First Amendment is exceptional and extraordinary in its protection for the thought we hate?
What unites both genres of controversy is the tendency of many of those who participate to invoke the First Amendment as a conversation-ending and self-evident trump card. But these invocations often make two false assumptions about First Amendment law: first, that First Amendment precedents are unambiguous in how they apply; second, that First Amendment rules are set in stone. But neither of these assumptions holds. The First Amendment—in all cases, but especially with respect to new technologies—is anything but clear or fixed. As we will show in this series of blog posts, neither the past nor the future of the First Amendment, nor how it will apply to the internet, are certain. The result is a public debate that rests on an oversimplified understanding of what the First Amendment is and can do.
In this series of blog posts, we aim to complicate the false assumptions that underlie so much of the conversation about the First Amendment in contemporary social media debates. As we will show, the First Amendment is a mess of contradictions and ambiguities. Again and again, First Amendment precedents are invoked as standing for clear and sweeping rules. They become memes representing abstract principles that, as they get repeated, become increasingly divorced from the context in which they were formulated. But in fact, reading these iconic cases more closely—as we will in the series of posts that follow—shows the contingencies and complexities of their holdings. Slightly different facts could easily have led to different outcomes then, and may well lead to different outcomes now.
Even if the cases were clear, the First Amendment has never been fixed. Indeed, the true story of the First Amendment is one of constant change and evolution. Over the past 250 years, both judicial and popular understandings of what freedom of speech means and requires have changed dramatically. It could—very well may be—changing again. Indeed, the assumed fixity of First Amendment law is especially bizarre in a moment where recent changes in the composition of the Supreme Court have put many long-standing precedents in the firing line. Roe v. Wade looks likely to be overturned, the administrative state might fall. So why should we assume that the particular conception of the First Amendment that is reflected in past cases will be preserved unchanged by this Court?
This idea is especially odd in a moment when the particular politics of the First Amendment stand at an unpredictable inflection point. Over the past few years, conservatives—traditionally the champions of corporate speech rights and a market-based approach to the regulation of speech—have become the primary critics of the power that private social media platforms wield over speech. Liberals, meanwhile, in their zeal to do something about disinformation, have become champions of platform power, at least when it gets used to take down what is perceived to be dangerous speech. Against the background of these political realignments, the meaning of the First Amendment, and how it applies to the internet, appears unusually up for grabs.
Showing how contestable the First Amendment precedents actually are, and how they might evolve, is not of mere academic interest. Challenges to state legislation regulating social media are already working their way through lower courts. The only question is when, not if, one of these cases will reach the Supreme Court. The existing precedents will not—cannot—determine what the Court will decide then. What will decide the matter will be the politics of the moment, and the prevailing political and cultural understanding of “freedom of speech.”
The task ahead, therefore, is not simply to try to match old rules to new problems. Instead, it is to recognize the essentially ambiguous and contingent nature of First Amendment law (like all law), and to figure out which among the possible First Amendment futures will best safeguard democratic self-government, and whatever other values we think the First Amendment should protect.
This series of blog posts will not, cannot, do that on its own. But we hope to stir the waters a little bit; to suggest that many questions remain unanswered. The meaning of the First Amendment is still very much open to interpretation—which is both a challenge and an opportunity.
Rereading Herbert v. Lando
Evelyn Douek is an assistant professor of law at Stanford Law School and was a senior research fellow at the Knight First Amendment Institute at Columbia University from 2021-22.
Genevieve Lakier was the Knight Institute's senior visiting research scholar, 2021-2022.