Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law School. This is a response to Tim Wu's essay "Is the First Amendment Obsolete?"
Tim Wu’s challenging essay explores what has gone wrong with First Amendment law in recent decades—how it has become detached from key threats to the freedom of speech, and in fact has been twisted to support some of those threats. I am highly sympathetic to his arguments, so I will offer a few riffs on them, including some suggestions for integrating them more closely with existing First Amendment doctrines and forms of argument.
The pro-corporate, anti-regulatory thrust of much modern First Amendment doctrine is an example of what Jack Balkin has called “ideological drift,” but I also see in Wu’s essay elements of “naming, blaming, and claiming” — that is to say, identifying phenomena in the world and then arguing that they have normative weight, and specifically that they are legal problems rather than social or moral problems.1 Reframing government speech as something that ought to be limited by the First Amendment, because of its potential effects on private speech, is a key example. The deliberate destruction of public discourse by state and non-state actors has not previously been one of the dangers we think of the First Amendment as addressing, at least not at this scale, though we can find some analogies in the past, for example in Southern officials’ attempts to use defamation law to suppress reporting on the civil rights movement. Because Southern officials used the law itself as their weapon of disruption, changing First Amendment doctrine to preclude such claims was sufficient to beat back the threat. As Wu persuasively explains, however, the use of troll armies and information flooding can’t be fought with the same tools that protected the New York Times in the 1960s.
Furthermore, as Wu observes, “the use of speech as a tool to suppress speech is, by its nature, something very challenging for the First Amendment to deal with.” We’ve seen speech-versus-speech arguments before, in fields from copyright to pornography to campaign finance, but in general there has been an identifiable government intervention that could be challenged or defended as promoting some speech to the detriment of other speech. In copyright, for example, the government grants authors rights in some speech, and they can use those rights in court to suppress other speech. Yet today’s flooding and trolling doesn’t bother with invoking government processes. Pamphleteers are buried in the crowd, not arrested.
Wu argues that, rather than responding to these new threats to political speech and democratic governance, First Amendment jurisprudence has been off on a “frolic and detour” of its own, expanding the domain of commercial speech and threatening the scope of economic regulations — a new Lochnerism. Instead, he wants the jurisprudence to focus on newly salient threats to robust public debate, which he suggests would lead to more attention to structural components of “speech environments,” as well as to listeners’ interests. These are not new ideas, even if there are new reasons that they are important; they’ve appeared in defenses (and critiques) of copyright law, as well as in justifications for limited but significant protection for truthful commercial speech and for the constitutionality of campaign finance laws. Balkin presciently argued that, in the Internet age, structural and regulatory issues would be more important for the robustness of free speech than traditional areas of First Amendment interest such as libel.2 Wu’s contribution is to urge that these new issues should themselves be understood as First Amendment concerns. Whether it’s possible to overcome the strong negative rights bias of American constitutional law is a larger question.
One fruitful avenue of comparison to existing First Amendment doctrines might come from the law of mandated disclosures, a subset of the law of compelled speech. There is a robust debate over when (and even whether) mandatory disclosures of various risks or facts help consumers. One significant aspect of this debate involves the problem of “information overload.” As Wu says, attention is inherently limited. Audiences generally take in only a small number of key messages from any given communication; this can also be true of any given communicative encounter, no matter how many different people are participating. Courts recognize that one of the relevant considerations in evaluating the constitutionality of a mandatory disclosure is the effect it will have on other messages the speaker wants to communicate. Government drowning out of other discourse by flooding the environment could therefore be seen as a variant of an already known First Amendment problem, by analogy to unduly burdensome mandatory disclosures. This analogy also takes advantage of Wu’s suggestion to focus on particular methods of government speech, rather than on the existence of “propaganda.” (The tools courts have for assessing whether a message is “factual” or “propaganda” are, as the mandatory disclosure debates show, very limited — in fact a message can easily be both, though a requirement that the government not engage in false speech is also, sadly, important.)
Compelled speech doctrine more generally also recognizes the importance of identifying the government as the source of speech, rather than attributing it to non-governmental sources. Anonymity may be a First Amendment right for private speakers under many circumstances, but there is little reason to allow the government the same kind of freedom in pretending to be something it’s not. Compelled speech doctrine has identified one particular harm — the harm to the speaker of a false attribution to it of a position that actually comes from the government. But even when there is no real speaker, the false attribution harms the audience, and that ought to be enough to create a First Amendment problem where the speaker is in fact a government entity.
Wu proposes a similar doctrinal reorientation in the understanding of a “captive audience,” a situation in which the Supreme Court has allowed more government regulation of third-party speech. He argues that changing technologies make us captive audiences in more situations, and his suggestion finds support in the recent Supreme Court case invalidating a ban on “social media” for registered sex offenders.3 The Court wrote eloquently about the centrality of social media to ordinary American life, and the possibly devastating, certainly isolating, consequences of being excluded from Facebook, LinkedIn, Twitter, and numerous other new communication tools. Although some people may choose to self-exclude and self-silence to protect themselves from exposure to the messages from such services, the importance of these communications channels means that it is not reasonable to ask audience members to do this, any more than it is reasonable to tell people that they shouldn’t take public transportation if they want to avoid discriminatory messages. This is the very definition of a captive audience: one that has no realistic choice but to listen, for whom turning away will come too late.
One friendly amendment I’d add is that, along with the measures Wu discusses, it might be useful to reexamine education as a First Amendment issue. Understanding the new information environment may be the most important tool citizens have to participate in democracy, which is a core First Amendment aim.4 Education has always been important, of course, and learning how to think has long been at the center of the Western educational mission. Education specifically in how to evaluate information, however, has a shorter history. The growing field of media education has many ideas about how to do this, but it is not yet a standard part of the curriculum — a “reality” to be added to reading, writing, and arithmetic. If we see government as responsible for the speech environment, and particularly for structuring markets in which some groups get to silence other groups, then the government’s obligation to assist in media education is another First Amendment issue.
Finally, it’s worth considering that expansion in one direction (protecting corporate speech about commercial matters and unrestricted election spending) has led Wu to advocate, not contraction, but expansion in a different direction. I’m not sure about the strategic implications of that response. On the one hand, it could be that articulating a coherent, larger-in-some-ways version of the First Amendment could help explain where the First Amendment should not extend. On the other hand, because the interests the First Amendment serves have long been multivalent and at times incoherent, not least because of competing theories among the justices of the Supreme Court, projects such as Wu’s might push us further in the direction of making everything a First Amendment issue.5 Because Wu’s arguments do not focus, as some previous interventions in this vein have done, on the way that helping some speech is hurting other speech, they may be more likely to have the latter effect: More First Amendment constraints on government speech alongside more First Amendment protections for corporate speech. But that is speculation. I raise the issue merely to note that a full conception of the First Amendment should include a theory of what speech is not protected.
1 J.M. Balkin, Ideological Drift and the Struggle over Meaning, 25 Conn. L. Rev. 869 (1993); William Felstiner, Richard Abel, and Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming . . ., 15 Law & Soc’y Rev. 631 (1980–1981).
2 See, e.g., Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 Pepp. L. Rev. 427 (2009).
3 Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
4 See, e.g., David Weinberger, Pointing at the Wrong Villain: Cass Sunstein and Echo Chambers, L.A. Rev. Books (July 20, 2017), https://lareviewofbooks.org/article/pointing-at-the-wrong-villain-cass-sunstein-and-echo-chambers (“Our educational systems need to do a better job of teaching us not just what we should know, but how to know in the age of the internet. How can we assess the worthiness of what we have just read?”).
5See Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 267-82 (1981); see also Mark V. Tushnet, Alan K. Chen, and Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (2017).