The First Amendment’s free speech and free press clauses, and the values they stand for, have been the subject of intense controversy in recent years. Events in Charlottesville have reinvigorated old debates about the proper response to hateful speech. President Trump routinely vilifies the news media and constitutional libel law. Critics on the right decry what they describe as a growing culture of close-mindedness on university campuses. Critics on the left decry a “Lochnerian” turn in judicial doctrine, as the courts have come to rely on the First Amendment to limit regulation of economic activity. On the Internet, new threats to political discourse — from “fake news” to increasingly subtle forms of governmental and nongovernmental censorship made possible by digital technologies — appear to be mounting.
Against the background of these formidable challenges, we are excited to announce that the Knight Institute will commission and publish a series of essays that grapple with newly arising or intensifying structural threats to the system of free expression. These threats may be caused by changes in the forms and applications of technology, in the means and economics of communication, in the norms and practices of politics, or in legal doctrine itself. The Emerging Threats papers explore ways to address these threats and thereby preserve features of democracy essential to healthy open societies.
We launch this series today with the publication of a provocative essay by Tim Wu, professor at Columbia Law School and author of The Attention Merchants. In “Is the First Amendment Obsolete?” Wu observes that some of the forces that undermine contemporary political discourse — such as “troll armies,” “flooding,” and propaganda robots that aim to distort or drown out disfavored speech — may be beyond the reach of the First Amendment as traditionally interpreted. To secure the expressive environment against these threats, Wu explores a range of possible responses, including new uses of “accomplice liability” and “captive audience” doctrines under the First Amendment and new laws that would broaden criminal liability for online intimidation of members of the press. We asked two leading legal scholars to reflect on Wu’s arguments. Geoffrey Stone of the University of Chicago Law School identifies historical parallels to the threats Wu spotlights and urges caution, while Rebecca Tushnet of Harvard Law School considers possible extensions of Wu’s ideas in areas such as compelled speech and public education.
In future Emerging Threats essays, authors including Matthew Connelly, Justin Driver, Lina Khan, Kate Klonick, Frederick Schauer, Amanda Shanor, Olivier Sylvain, and Heather Whitney will examine the legal and policy implications of fake news, hostile audiences, privately owned online platforms, government secret-keeping, economic concentration in the media and related sectors, online conduct that harms historically subordinated groups, and other phenomena that are raising profound challenges for the system of free expression. We don’t expect to offer simple or uncontroversial solutions to any of these challenges, but we hope that the series will deepen certain existing First Amendment debates and spark some new ones.
Jameel Jaffer is executive director of the Knight Institute.
David Pozen is a professor of law at Columbia Law School and the Knight Institute’s inaugural senior visiting research scholar.