“A Black Hole is a region of space . . . into which matter has fallen, and from which nothing . . . can escape. . . .”
The Gravitational Pull of the First Amendment
In a 2019 survey conducted by the First Amendment Center of the Freedom Forum Institute, 65 percent of respondents agreed with the statement that “[s]ocial media companies violate users’ First Amendment rights when they ban users based on the content of their posts.”That is, a majority of respondents believe that the First Amendment applies to private actors. This belief animates the multiple lawsuits that have been filed against companies such as Twitter and Google for alleged free speech violations and fuels the increasingly common claim that social media platforms are censoring conservative viewpoints.
But as the text of the First Amendment itself makes clear, this belief is wrong as a matter of law. The First Amendment states that “Congress”shall make no law abridging the freedom of speech: the right to free speech, like all rights guaranteed in the Bill of Rights, is a right against the government. While the reference to Congress is now understood to include a wide range of government action, the “state action” doctrine maintains the fundamental distinction between governmental and private actors. Private actors are not subject to the restraints of the First Amendment except in the rare cases when they perform a “traditional, exclusive public function.”
While some have argued that social media platforms are “public forums” that should be treated as state actors for First Amendment purposes, the Supreme Court made clear in Manhattan Community Access Corp. v. Halleck (2019) that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”Social media companies are no more obliged to uphold the First Amendment rights of their users than nightclubs are to protect their patrons’ Second Amendment rights or parents are to respect their children’s Fourth Amendment rights.
The mistaken belief that social media platforms are bound by the First Amendment is one indication of the grip that the First Amendment has on the public imagination. Another is the belief that even if the First Amendment does not apply to social media platforms as a matter of law, its principles should apply to social media platforms as a matter of policy. This is a belief not only common to civil libertarians but also endorsed by the tech companies themselves.
As Kate Klonick writes, “a common theme” in the evolution of three major technology platforms — YouTube, Facebook, and Twitter — is reliance on First Amendment law
American lawyers trained and acculturated in American free speech norms and First Amendment law oversaw the development of company content-moderation policy. Though they might not have “directly imported First Amendment doctrine,” the normative background in free speech had a direct impact on how they structured their policies.
It is not particularly surprising that those who created the governing policies of the most influential communication platforms of our time would be so influenced by First Amendment doctrine. Multiple legal scholars have remarked upon the “gravitational pull” of the First Amendment,an influence so powerful that it reaches beyond the confines of legal discourse. Frederick Schauer describes “the First Amendment’s cultural magnetism” in depth:
To an extent unmatched in a world that often views America’s obsession with free speech as reflecting an insensitive neglect of other important conflicting values, the First Amendment, freedom of speech, and freedom of the press provide considerable rhetorical power and argumentative authority. The individual or group on the side of free speech often seems to believe, and often correctly, that it has secured the upper hand in public debate. The First Amendment not only attracts attention, but also strikes fear in the hearts of many who do not want to be seen as opposing the freedoms it enshrines.
In considering explanations for the seductive power of the First Amendment, Schauer posits that one significant factor is how invoking free speech is “a good way of attracting the attention and sympathy of the press.”As the media has a direct stake in conflicts over free speech controversies that it does not have in other constitutional values, it will be more likely to pay and give attention to First Amendment controversies.
Schauer offered this speculation in 2004, before the full emergence of the tech titans that now dominate the media landscape. It is not difficult to see why the creators of “new media” — search engines, social media platforms, and communication applications — would be even more fully immersed and invested in First Amendment rhetoric than traditional media. A persistent and vexing preoccupation of First Amendment theory is the boundary between speech and conduct, and, as Danielle Citron has written, “[a]dvances in law and technology . . . complicate this distinction as they make more actions achievable through ‘mere’ words.”Some of the earliest and most influential cyberspace theorists framed the Internet as a realm of pure speech: for example, John Perry Barlow, a founder of the Electronic Frontier Foundation (EFF), declared in 1996 that cyberspace “consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.”
Considering these factors — the seductive pull of the First Amendment generally, the self-interest of tech companies and the media specifically, and the internet’s reification of speech especially — it is more obvious than ever not only that “the First Amendment has emerged, formal doctrine notwithstanding, as the argument of choice both inside and outside the legal arena,”but also that it should dominate the worldview of those in charge of the giant corporations that now structure how we communicate, access information, and interact with one another.
Journalist Nicholas Thompson has described the magnetic influence of free speech on the tech industry, writing that
the idea of free speech has long been a central concern in Silicon Valley. The hacker ethic, the loose code that early computer programmers embraced, prized the free flow of information. In 2009, Facebook declared its mission to “make the world more open and connected.” That was the same year that the thwarted Green Revolution in Iran was briefly called the Twitter Revolution. “We wanted to maximize the number of opinions online, because it was our belief that more speech was better speech,” Jason Goldman, a member of the founding team at Twitter, told me. In 2012, an executive at the company referred to the platform as the “free speech wing of the free speech party.”
This free speech rhetoric has for years been employed to justify these companies’ laissez-faire approach to controversial content, from terrorist training videos to “revenge porn.” These companies commonly invoke familiar First Amendment tropes to present their passivity as principled neutrality: the best response to bad speech is more speech; “censorship” is a cure that is always worse than the disease, and so on.
But as Schauer writes, one particular effect of the gravitational pull of the First Amendment is constant “outward pressure on the boundaries of the First Amendment both in the courts and outside of them.”Civil libertarians, politicians, and scholars have increasingly begun to argue that because private companies such as Facebook, Twitter, and Google have become “statelike” in many ways, even exerting more influence in some ways than the government, they should be understood as having First Amendment obligations even if this is unsupported by the actual text or existing doctrine of the First Amendment. In this view, the First Amendment should be expanded beyond its current borders.
Such an expansion is seductive in many respects. It relies upon the intuition that the First Amendment is, to speak in Panglossian terms, “the best of all possible worlds” when it comes to the protection and promotion of free speech. The expansionist view assumes that a doctrine that emerged in the United States in the late eighteenth century and its two hundred years of subsequent interpretation and application provide the best possible basis for governing the contemporary global communications infrastructure.
But this intuition is fundamentally wrong. The world the First Amendment built is not the best possible world for free speech. In fact, First Amendment doctrine has created a free speech dystopia in which only the powerful are truly at liberty to speak and the pursuit of truth has been rendered virtually impossible.
Daniel Greenwood warned, twenty years ago, that “[t]he First Amendment threatens to swallow up all politics.”The First Amendment’s gravitational pull has become so strong that it risks becoming a black hole from which nothing — democracy, autonomy, or truth — will be able to escape.
The World the First Amendment Built
The First Amendment’s contemporary magnetism can make it difficult to recall that free speech doctrine has been traditionally understood not as a good in itself but as a means of securing other important values. The most commonly cited of those values are democracy, autonomy, and truth. The freedom to speak is essential for the ability of the people to govern themselves, the development of the human personality, and the pursuit of knowledge. But the creation, interpretation, and application of the First Amendment subverts rather than protects these values.
If freedom of speech is intended to serve the interests of democracy — understood in a basic sense as the ability of all citizens to participate in self-government — then the First Amendment presents a problem from its inception. The First Amendment was rooted in inequality from the start and has continued to primarily serve the interests of a privileged minority at the expense of other groups.
Free speech in America was, to put it bluntly, a right created not only by but for white men.The political process that produced the First Amendment, like the rest of the Constitution, excluded all women and people of color from participation. While the Constitution was written in the name of “we the people,” the rights it articulated were implicitly limited to white, property-owning men. The most basic form of political expression, the right to vote, was denied to black men until 1870 and women until 1920. As Catharine MacKinnon has written,
The First Amendment was written by those who already had the speech; they also had slaves, many of them, and owned women. They made sure to keep their speech safe from what threatened it: the federal government. You have to already have speech before the First Amendment, preventing government from taking it away from you, does you any good.
Even after the passage of the Reconstruction and Nineteenth Amendments, women and nonwhite men continued to be excluded from the political, employment, and educational opportunities available to white men, with the result that their voices were excluded from legislatures, juries, public spaces, workplaces, and schools. This in turn has ensured that the institutions, litigants, and scholars who influenced the direction and boundaries of the First Amendment were never a representative sample of the population. The Supreme Court was exclusively white until 1967 and exclusively male until 1981. Of the 114 Supreme Court Justices that have served in its 228-year history, all but six have been white men. Of the roughly five hundred First Amendment freedom of expression cases the Supreme Court has heard, 89 percent were brought by men,and 92 percent were litigated by men. Of the thirty-two individuals listed in the Wikipedia entry for “First Amendment Scholars,” twenty-five are male. Of the top twenty most-cited constitutional law scholars from 2013–17, nineteen are male.
It is no coincidence that so much of the speech the First Amendment has been invoked to protect has a silencing impact on women and nonwhite men, including racist, anti-Semitic, and misogynist speech.First Amendment doctrine, practice, and scholarship have primarily focused on protecting the free speech interests of white men, even if those interests chill the speech of other groups.
Increasingly, the groups that benefit most from First Amendment protections are not only white and male but wealthy and powerful. Lincoln Caplan noted in 2015 that “the most fervent champions” of free speech today “are not standing up for mistrusted outliers . . . or for the dispossessed and powerless” but instead “do the bidding of insiders — the super-rich and the ultra-powerful, the airline, drug, petroleum, and tobacco industries, all the winners in America’s winner-take-all society.”John Coates notes that almost “half of First Amendment legal challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals,” leading him to conclude that “corporations have increasingly displaced individuals as direct beneficiaries of First Amendment rights.” As MacKinnon observed in 2018,
Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful. . . . Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.
The creation of the right to free speech itself, and its subsequent interpretation and application over two centuries, can hardly be said to safeguard the equal participation of all members of society in matters of self-governance. Instead, the First Amendment has at best permitted, and at worst directly entrenched, rigid hierarchies of gender, race, and wealth. As such, it has failed to serve the interests of democracy.
Autonomy, writes C. Edwin Baker, “consists of a person’s authority (or right) to make decisions about herself — her own meaningful actions and usually her use of her resources. . . . It encompass[es] self-expressive rights that include, for example, a right to seek to persuade or unite or associate with others — or to offend, expose, condemn, or disassociate with them.”It is easy enough to see how freedom of speech is essential to self-development; indeed, communication is one of the chief ways in which individuals discover their personalities, express their values, establish connections with other human beings, and forge intimate relationships that are central to human flourishing. If people fear punishment or sanction for engaging in such means of expression, they will be “chilled” from engaging in that expression. As Schauer describes it, “[a] chilling effect occurs when individuals seeking to engage in activity protected by the first amendment are deterred from so doing by governmental regulation not specifically directed at that protected activity.”
The conventional account of the relationship between free speech and autonomy often omits the fact that the exercise of some people’s speech risks chilling other people’s speech.That racist and sexist speech can produce chilling effects has been backed up by empirical studies showing that the targets of bigoted speech may experience not only psychological effects — lack of confidence, social anxiety, fear — but also physiological effects, such as increased heart rate and stress. This in turn can lead to targets censoring themselves as a means of avoiding these negative effects.
Free speech, then, can either promote or undermine autonomy, depending on who is speaking and who is being spoken of. Thus, the assertion that regulating speech inevitably chills speech is false: given that some forms of speech themselves inflict chilling effects, regulating those forms of speech may actually serve free speech interests. This is particularly true for the category of speech that is best described as “unanswerable.” Unanswerable speech is speech that is resistant to the beloved civil libertarian remedy of “counterspeech.”
In perhaps the most famous articulation of the virtues of counterspeech, Justice Brandeis wrote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”While counterspeech can indeed be effective in some cases, it comes at a price. Being forced to respond to offensive or injurious speech encroaches upon one’s autonomy. If autonomy includes being able to choose for oneself how and when to speak, then being compelled to engage in counterspeech is corrosive of that value. Every word a person must speak back to a racist or sexist attack is a word she does not get to speak on a subject she has chosen for herself.
What is more, as Justice Brandeis also understood perhaps better than most, the evil of some speech cannot be countered by more speech. In the 1890 article he coauthored with Samuel Warren, The Right to Privacy, Brandeis argued that every person had the right to keep truthful, intimate information out of public view. In contrast to the law of defamation, which involves the right “to prevent inaccurate portrayal of private life,” the law of privacy protects the right to “prevent its being depicted at all.”There is no “counterspeech” to the nonconsensual publication of a person’s nude image, the dissemination of a home address, or the disclosure of undocumented status. No “process of education” can undo their damage.
Unanswerable speech such as “revenge porn” (the unauthorized disclosure of private, sexually explicit imagery), “doxing” (the online publication of personally identifying information about an individual), and harassment are disproportionately targeted at women and minorities.The impact of unanswerable speech on the autonomy of its targets can be devastating. Harassment chills freedom of expression, mobility, and association. Cynthia Bowman observes that “the continuation and near-general tolerance of street harassment . . . inflicts the most direct costs upon women, in the form of fear, emotional distress, feelings of disempowerment, and significant limitations upon their liberty, mobility, and hopes for equality.” According to a 2014 study on street harassment, women’s responses to street harassment include no longer visiting certain places alone; changing the way they walk, behave, or dress; giving up on outdoor activities; quitting jobs; or moving. Mari Matsuda writes that victims of racist speech “have had to quit jobs, forgo education, leave their homes, avoid certain public places, curtail their own exercise of speech rights, and otherwise modify their behavior and demeanor.”
The immediacy and anonymity of online communication has increased both the incidence and reach of unanswerable speech. The internet is flooded with misinformation, threats, conspiracy theories, doxing, revenge porn, threats, and harassment, which undermine the free and open exchange of ideas, impair the search for truth, and jeopardize democracy. The architecture of the internet removes many of the incentives for refraining from abusive and harmful expression as well as making it harder to investigate such expression.
A 2016 report by Data & Society found that 47 percent of Americans had experienced online harassment or abuseand that 27 percent self-censor to avoid potential abuse. As with offline abuse, the negative consequences of online abuse are unevenly distributed across society. Alice Marwick writes,
women experience a wider variety of online abuse, including more serious violations. Young people also experience such behavior far more than older adults. Thus, young women have it the worst; they’re much more susceptible to doxing, sexual harassment, cyberstalking, and in-person attacks than men or older women. Lesbian, gay, and bisexual people are also more likely to experience harassment.
That women experience more frequent and more serious forms of online abuse helps explain why women self-censor at greater rates than men.The Data & Society study found that 41 percent of women in the 15–29 age group self-censor online, as compared to 33 percent of men in that same age group. As Marwick writes, social media sites “function as hosts for public conversations on a huge variety of social issues. If women, people of color, and LGBT internet users are shying away from contributing because of well-founded fears of retaliation, their voices will be missing from this important civic sphere.”
If freedom of speech is intended to protect the right of individuals to express themselves and to associate with others without fear of punishment or sanction, then the fact that the First Amendment has so often been invoked to protect speech that silences or coerces vulnerable individuals should give us pause. As the director of public policy for the popular social media application Instagram has stated, “If toxicity on a platform gets so bad that people don’t even want to post a comment, they don’t even want to share an idea, you’ve actually threatened expression.”
The autonomy value is, moreover, directly tied to the value of democracy. When speech undermines one, it generally undermines the other. As Danielle Citron writes, “If expressing opinions online subjects someone to the risk of assault . . . , the result will change the kinds of people who participate in online discourse. . . . An online discourse which systematically under-represents people — particularly women and people of color — cannot effectively process our various attitudes and convert them into truly democratic decisions.”
Justice Brandeis’s Whitney concurrence suggests that counterspeech — and more broadly, “the marketplace of ideas” — is the best means of discerning the truth, another value the First Amendment is intended to protect. The best remedy for “falsehood and fallacies” is “the processes of education” and “more speech.” However, it is important to note the qualification at the beginning of this famous passage: “If there be time.”In an age of instantaneous transmission, there often is literally no time to correct falsehoods before they go “viral.” By the time corrections are made — if they are made at all — it is often too late to correct first impressions or undo harm. As the expression goes, “a lie can get halfway around the world before the truth has a chance to get its pants on.” What is more, attempts to correct untruths can actually backfire, due to what psychologists refer to as “the illusory truth effect.” Repeated exposure to false information, even in a corrective context, increases the likelihood that the false information will be remembered as true. Recent studies have confirmed that when people view false headlines, they are more likely to accept them as true when they encounter them again.
As the “fake news” epidemic has amply demonstrated, Americans are neither necessarily interested in nor particularly gifted at discerning truth from falsity or fact from opinion. Short attention spans, lack of education, and confirmation bias lead many people to believe things that are demonstrably false.Being constantly plugged into the internet, a medium allowing nearly unfettered and instantaneous exchange of information, has worsened, not improved, this situation. Susan H. Williams’s breakdown of the tenuous relationship between free speech and truth is comprehensive and worth quoting at length:
In order for free speech to lead to truth, it must be the case that, when people hear both truth and falsity, they will be able to distinguish the two and will be prepared to adopt the true view. There is, however, a wealth of empirical data from psychology documenting and describing the failures of rational assessment to which people are prone. We are less likely to accept a truth if it conflicts with our preexisting beliefs or our perceived interests; our understanding and appreciation of an idea is deeply affected by our sense of the person who presents it; and our capacity to appreciate and process information is limited simply by the volume of ‘noise’ to which we are subjected. . . . [H]istory itself seems to disprove the hypothesis that people will reliably recognize the truth. There are innumerable examples of ideas we now believe to be false that have convinced large numbers of people for long enough periods of time to do substantial harm in the world. . . . It is possible, of course, that truth will triumph in the long run, but such examples suggest that the long run may, in some cases, be longer than we can afford to wait.
Robert Post maintains that the ends of First Amendment doctrine and the pursuit of truth and knowledge are simply at odds: “[s]tandard First Amendment doctrine is unsuited for the creation of new knowledge. This is because First Amendment doctrine is deeply hostile to all censorship based upon viewpoint-based discrimination, as well as to content-based discrimination. Indeed, ‘The First Amendment recognizes no such thing as a ‘false’ idea.’ The creation of knowledge, however, depends upon practices that continually separate the true from the false, the better from the worse.”
The Unstoppable Force and the Immovable Object
The powerful forces that shape and control the internet as we know it today are, as we have seen, particularly susceptible to the gravitational pull of the First Amendment. But as we have also seen, this irresistible force is not a benevolent one. The First Amendment threatens to swallow up democracy, autonomy, and truth in the name of free speech.
The rulers of the internet, however, may be the actors best suited to resist the black hole of the First Amendment. They have both the vast capacity and the freedom to develop free speech countercultures that can subvert First Amendment orthodoxy.Online platforms and services provide natural experiments to test hypotheses about chilling effects, counterspeech, and the pursuit of truth. Internet behemoths like Facebook, Google, and Twitter exert increasingly significant power over free speech norms and practices, and their status as nongovernment actors mean they have the freedom to act outside the constraints of the First Amendment. These factors, combined with the generous immunity provided to them by Section 230 of the Communications Decency Act, create the opportunity for internet platforms to undertake creative innovations and radical interventions regarding speech.
They can, for example, engage in as much content-based or even viewpoint-based regulation as they wish, choosing to highlight or boost the speech of vulnerable or historically marginalized populations or to ignore or quarantine violent, false, or otherwise reckless speech. Over the last few years, tech industry leaders have finally begun to take some online abuses seriously and to reckon with the detrimental impact they have on democracy, autonomy, and truth. More and more online platforms are confronting the reality that the best answer to bad speech is not, in fact, more speech.
Several tech companies have developed tools and policies to address nonconsensual pornography, “deep fakes” (digitally manipulated audiovisual material), racist message boards, mugshot sites, fake news, and terrorist propaganda. Major social media platforms have taken the step of banning high-profile speakers who violate their terms and services.The attempts to curb abuse on online platforms have not only reduced harassment and hateful speech but also fostered more speech by more diverse groups. And while expansionist critics complain that such actions violate the principle if not the law of free speech, they are in fact exercises of online platforms’ own First Amendment rights.
Beginning in July 2018, several major online platforms began removing content produced by Alex Jones, a high-profile, far-right radio show host and creator of the conspiracy theorist website Infowars. Jones is notorious for claiming, among other things, that the Sandy Hook shooting did not take place and for promoting the “PizzaGate” conspiracy theory. In July, YouTube removed several of Jones’s videos for violating the company’s policies and also demonetized his YouTube channel. Following YouTube’s action, Facebook removed several of Jones’s videos and issued a thirty-day time-out preventing Jones from posting on his personal Facebook page. Spotify, Stitcher, and Apple all removed some of Jones’s podcasts soon after. By the first week of August, Pinterest, LinkedIn, Mailchimp, Vimeo, and even YouPorn had deleted content by or relating to Jones.For several weeks, the only major online platform not to take action against Jones was Twitter. On September 6, 2018, Twitter announced that it was permanently suspending Jones and the Infowars account.
The mass banning of Alex Jones is only one example of online platforms exercising their rights to remove or limit reckless speech. On February 24, 2015, Reddit, the self-described “front page of the Internet,”became the first major online platform to ban the unauthorized disclosure of intimate images (also known as nonconsensual pornography or “revenge porn”). The announcement came as a surprise to many, as only months before, Reddit had been one of the primary circulation points of nude photos hacked from the private accounts of over a hundred celebrities. Two weeks after Reddit’s announcement, Twitter announced that it too was banning nonconsensual pornography and implementing a specific reporting process for such material. Facebook announced its ban against nonconsensual pornography in March 2015. On June 19, 2015, the senior vice president of Google Search announced that the search engine would “honor requests from people to remove nude or sexually explicit images shared without their consent from Google Search results.”
In April 2017, Facebook announced that it would begin using “photo hashing” technology in nonconsensual pornography cases, making it the first major company to publicly adopt this strategy.Photo hashing software called PhotoDNA was developed by Microsoft to screen for and remove child pornography. PhotoDNA uses “‘robust hashing,’ which calculates the particular characteristics of a given digital image—its digital fingerprint or ‘hash value’—to match it to other copies of that same image.” Companies such as Google, Facebook, and Yahoo use PhotoDNA to scan images and videos uploaded to or transmitted through their platforms. The developer of PhotoDNA, Hany Farid, is heading up a project to apply this technology to extremist content, “proposing a system that proactively flags extremist photos, videos, and audio clips as they’re being posted online.”
Around the same time that it banned nonconsensual pornography, Reddit began to “quarantine” some of the site’s most controversial subreddits and to ban others outright.When a subreddit is banned, it is deleted altogether from the site; when a subreddit is quarantined it is still accessible but is flagged with a warning prompt and cannot host ads. Among the subreddits that Reddit has banned are r/fatpeoplehate, which encouraged mockery of overweight individuals; r/CoonTown, a subreddit dedicated to racial invective ; and r/GreatAwakening, which is devoted to the right-wing conspiracy theory QAnon. The authors of a study of this ban found that Reddit’s actions
succeeded at both a user level and a community level. Through the banning of subreddits which engaged in racism and fat-shaming, Reddit was able to reduce the prevalence of such behavior on the site. The amount of hate speech generated across Reddit by treatment users went down drastically following the ban. By shutting down these echo chambers of hate, Reddit caused the people participating to either leave the site or dramatically change their linguistic behavior. . . . At a community-level, the ban also worked. The subreddits that inherited the activity of former r/fatpeoplehate and r/CoonTown users did not inherit their previous behavior.
Contrary to First Amendment orthodoxy, suppressing reckless, inflammatory, and violent speech does not necessarily make it grow stronger. Since Alex Jones was banned from multiple online platforms, his influence has waned.The same is true for Milo Yiannopoulos, the right-wing provocateur who was permanently suspended from Twitter in 2016, and for white nationalist leader Richard Spencer, whose website was removed by web hosting service GoDaddy in 2018. All three have watched their followers dwindle and their sources of financial support dry up: “once you remove the biggest megaphones from bad actors, their power diminishes and their ability to attract larger audiences and sow disinformation decreases.”
Several of these tactics can be viewed as part of a larger strategy that Joan Donovan and danah boyd have called “strategic silence.”As they explain, strategic silence has a long and powerful history. Donovan and boyd point to Felix Harcourt’s scholarship on the Ku Klux Klan’s reliance on media coverage in the 1920s — even or especially negative media coverage — to amplify their recruitment efforts and to gain influence over public opinion. According to them, strategic silence deprived them of that power:
Knowing they could bait coverage with violence, white vigilante groups of the 1960s staged cross burnings and engaged in high-profile murders and church bombings. Civil rights protesters countered white violence with black stillness, especially during lunch counter sit-ins. Journalists and editors had to make moral choices of which voices to privilege, and they chose those of peace and justice, championing stories of black resilience and shutting out white extremism. This was strategic silence in action, and it saved lives.
As Donovan and boyd write, “All Americans have the right to speak their minds, but not every person deserves to have their opinions amplified, particularly when their goals are to sow violence, hatred and chaos.”Strategic silence can lead, however counterintuitively, to greater speech: A 2017 study found that rather than chilling online speech, laws criminalizing online harassment and stalking “may actually facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women.” The author of the study surmises that when women “feel less likely to be attacked or harassed,” they become more “willing to share, speak, and engage online.” Knowing that there are laws in place prohibiting harassment “may actually lead to more speech, expression, and sharing online among adult women online, not less.”
Companies such as Facebook, Twitter, and Google wield a terrifying amount of influence over society. There are very good reasons to be nervous about the power they hold, and clinging to the First Amendment is an understandable impulse in the face of uncertainty. But the modest and belated attempts by a handful of powerful Internet actors to resist the gravitational pull of the First Amendment should be celebrated, not condemned. The First Amendment has never truly protected democracy, autonomy, or truth, and it is invoked more selectively and self-servingly today than perhaps ever before.Stepping out of the shadow of the First Amendment does not warrant the doomsday predictions of self-described civil libertarians and powerful establishment figures. Those sounding of the alarm of internet censorship, from the ACLU to President Trump, may believe that the world the First Amendment built is the best of all possible worlds. But if the masters of our new digital universe dare to dream of something better, we would do well to let them try.
© 2019, Mary Anne Franks.
Ian Nicolson & Patrick Moore, Black Holes in Space 6–7 (1974).
State of the First Amendment 2019 – Report, Freedom F. Inst. 5 (2019), https://www.freedomforuminstitute.org/wp-content/uploads/2019/06/SOFAreport2019.pdf.
Manhattan Community Access Corp. v. Halleck, No. 17-1702 (U.S. Jun. 17, 2019).
Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1598, 1621 (2018).
See Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 549 (2004) (“Core First Amendment values seem to have exercised a gravitational pull, reshaping fair use in the First Amendment's image”); Susan S. Kuo & Benjamin Means, The Political Economy of Corporate Exit, 71 Vand. L. Rev. 1293, 1303 (2018) (referring to “the gravitational pull of First Amendment analysis”).
Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765 (2004).
Id. at 1790 (2004).
Id. at 1791–92 (2004).
Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. Rev. 61, 99 (2009).
John Perry Barlow, A Declaration of the Independence of Cyberspace (1996), https://www.eff.org/cyberspace-independence.
Schauer, supra note 6, at 1809.
Nicholas Thompson, The Great Tech Panic: Instagram’s Kevin Systrom Wants to Clean Up the Internet, Wired (Aug. 14, 2017),
Schauer, supra note 6, at 1798.
Daniel J. H. Greenwood, First Amendment Imperialism, 1999 Utah L. Rev. 659 (1999).
See Mary Anne Franks, Beyond “Free Speech for the White Man”: Feminism and the First Amendment, in Handbook on Feminist Jurisprudence (Cynthia Bowman & Robin West, eds., 2018).
Catharine MacKinnon, Feminism Unmodified 204 (1987).
Percentage based on Westlaw searches of First Amendment cases, finding 515 cases involving First Amendment freedom of expression, of which 59 were brought by women.
Ronald K. L. Collins notes that 38 women argued 43 cases involving First Amendment freedom of expression, which is a little over 8% of 515. 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018, Concurring Opinions (Aug. 7, 2018), https://concurringopinions.com/archives/2018/08/fan-199-first-amendment-news-special-issue-38-women-who-argued-first-amendment-free-expression-cases-in-the-supreme-court-1880-2018.html.
Category: First Amendment Scholars, Wikipedia, https://en.wikipedia.org/wiki/Category:First_Amendment_scholars.
Brian Leiter, 20 Most-Cited Constitutional Law Scholars in the U.S. for the Period 2013–2017, Leiter’s Law School Reports (Aug. 21, 2018), http://leiterlawschool.typepad.com/leiter/2018/08/20-most-cited-constitutional-law-scholars-in-the-us-for-the-period-2013-2017.html (the one woman who made the list is Reva Siegel).
See generally Mari Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, And The First Amendment (1993).
Lincoln Caplan, The Embattled First Amendment, Am. Scholar (Mar. 4, 2014), https://theamericanscholar.org/the-embattled-first-amendment/#.V7toqI5eyVp.
John C. Coates IV, Corporate Speech & the First Amendment: History, Data, and Implications, 30 Const. Comment. 223, 223–24 (2015).
Adam Liptak, How Conservatives Weaponized the First Amendment, N. Y. Times (June 30, 2018), https://www.nytimes.com/2018/06/30/us/politics/first-amendment-conservatives-supreme-court.html.
C. Edwin Baker, Autonomy and Free Speech, 27 Const. Comment. 251, 254 (2011).
Frederick Schauer, Fear, Risk, and the First Amendment: Unraveling the Chilling Effect, 58 Bos. Univ. L. Rev. 685, 693 (1978); see also Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L. Rev. 1633, 1655 (2013).
Owen M. Fiss, The Irony of Free Speech 26 (1996) (“From the perspective of the First Amendment, we must attend to the silencing effect of hate speech and pornography on disadvantaged groups — how certain forms of speech violate the equal right to free speech of those groups, that is, to the Fourteenth Amendment ramifications of those two forms of speech”).
D.R. Williams & H. Neighbors, Racism, Discrimination, and Hypertension: Evidence and Needed Research,
11(4) Ethnicity & Disease, 800–816 (2001).
Jon Penney, Can Cyber Harassment Laws Encourage Online Speech?, Medium (Aug. 15, 2017), https://medium.com/berkman-klein-center/can-cyber-harassment-laws-encourage-online-speech-4e1ae884bfba.
Whitney v. California, 274 U.S. 357 (1927) (J. Brandeis, concurring).
Samuel Warren & Louis Brandeis, The Right to Privacy, 4(5) Harv. L. Rev. 193 (Dec. 15, 1890) at 218.
See Mary Anne Franks, Fearless Speech, 17 First Amend. L. Rev. 294, 311 (2019).
Franks, supra note 15.
Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 Harv. L. Rev. 517, 542 (1993); see also Olatokunbo Olukemi Laniya, Street Smut: Gender, Media, and the Legal Power Dynamics of Street Harassment, or “Hey Sexy” and Other Verbal Ejaculations, 14 Colum. J. Gender & L. 91 (2005).
Stop Street Harassment, Unsafe and Harassed in Public Spaces: A National Street Harassment Report 20–21 (2014), http://www.stopstreetharassment.org/wp-content/uploads/2012/08/2014-National-SSH-Street-Harassment-Report.pdf.
Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L . Rev. 2320, 2337 (1989).
See Danielle Citron, Hate Crimes in Cyber Space 190–226 (1968).
See Amanda Lenhart et al., Online Harassment, Digital Abuse, and Cyberstalking in America, Data & Soc’y 4 (2016), https://www.datasociety.net/pubs/oh/Online_Harassment_2016.pdf.
Alice Marwick, A New Study Suggests Online Harassment Is Pressuring Women and Minorities to Self-censor, Quartz (Nov. 24, 2016), https://qz.com/844319/a-new-study-suggests-online-harassment-is-pressuring-women-and-minorities-to-self-censor/.
IFJ Survey: Two-thirds of Women Journalists Suffered Gender-based Online Attacks, Int’l Fed. of Journalists (Dec. 7, 2018), https://www.ifj.org/media-centre/news/detail/category/press-releases/article/ifj-survey-two-thirds-of-women-journalists-suffered-gender-based-online-attacks.html (“Online harassment affects both male and female journalists. However, initial results from the IFJ survey found that online abuse has a massive impact on women journalists — it affects almost two-thirds of them — causing psychological trauma and leading to self-censorship”).
Thompson, supra note 12.
Citron, supra note 9, at 104–05.
Whitney v. California, 274 U.S. 357 (1927) (J. Brandeis, concurring) (emphasis added).
Lisa K. Fazio et al, Knowledge Does Not Protect Against Illusory Truth, 144(5) J. of Experimental Psychol.: General 993–1002 (2015).
Brian Resnick, Alex Jones and the Illusory Truth Effect, Explained, Vox (Jun. 19, 2017), https://www.vox.com/science-and-health/2017/6/17/15817056/alex-jones-megyn-kelly-lies-nbc-psychology-illusory-truth.
Robert Chesney & Danielle Keats Citron, Deep Fakes: The Looming Crisis for Privacy, Democracy, and National Security, 107 Calif. L. Rev. (forthcoming 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3213954.
Susan H. Williams, Truth, Autonomy, and Speech: Feminist Theory and the First Amendment 17 (2004).
Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 479 (2011).
Franks, supra note 32 (much of the ground covered in this section was previously covered in my article Fearless Speech).
Kate Conger & Jack Nicas, Twitter Bars Alex Jones and Infowars, Citing Harassing Messages, N.Y. Times (Sept. 6, 2018) https://www.nytimes.com/2018/09/06/technology/twitter-alex-jones-infowars.html.
Sarah Wells, Here Are the Platforms That Have Banned Infowars So Far, TechCrunch (Aug. 8, 2018), https://techcrunch.com/2018/08/08/all-the-platforms-that-have-banned-infowars.
Conger & Nicas, supra note 52.
Jake Wildman & Will Nicol, What is Reddit? A Beginner’s Guide to the Front Page of the Internet, Digital Trends (May 22, 2019), https://www.digitaltrends.com/web/what-is-reddit/.
See Mary Anne Franks, “Revenge Porn” Reform: A View from the Front Lines, 69 Fla. L. Rev. 1251, 1271–1272 (2017).
Id. at 1256.
Id. at 1272.
Id. at 1274.
Id. at 1273.
Id. at 1274.
Steven Asarch, Reddit Quarantines A New Wave of Subreddits Including Cringeanarchy and Watchpeopledie, Newsweek (Sept. 28, 2018), https://www.newsweek.com/reddit-quarantine-subs-toxic-controversial-moderators-1144663.
Adi Robertson, Reddit Has Banned the QAnon Conspiracy Subreddit r/GreatAwakening, The Verge (Sept. 12, 2018), https://www.theverge.com/2018/9/12/17851938/reddit-qanon-ban-conspiracy-subreddit-greatawakening.
Eshwar Chandrasekharan et al., You Can’t Stay Here: The Efficacy of Reddit’s 2015 Ban Examined Through Hate Speech, 1(2) Proc. ACM Hum.-Computer Interaction 31:17 (Nov. 2017), https://doi.org/10.1145/3134666.
Jack Nicas, Alex Jones Said Bans Would Strengthen Him. He Was Wrong, N.Y. Times, Sept. 4, 2018, https://www.nytimes.com/2018/09/04/technology/alex-jones-infowars-bans-traffic.html.
Elle Hunt, Milo Yiannopoulos, Rightwing Writer, Permanently Banned from Twitter, The Guardian (Jul. 20, 2016), https://www.theguardian.com/technology/2016/jul/20/milo-yiannopoulos-nero-permanently-banned-twitter.
Julia Manchester, Richard Spencer Website Taken Down by Host: Report, The Hill (May 3, 2018), https://thehill.com/blogs/blog-briefing-room/news/386081-richard-spencer-website-taken-down-by-host-report.
Laura Hudson, Twitter is Wrong: Facts Are Not Enough to Combat Alex Jones, The Verge (Aug. 10, 2018), https://www.theverge.com/2018/8/10/17675232/twitter-alex-jones-jack-dorsey-free-speech.
Joan Donovan & danah boyd, The Case for Quarantining Extremists: When Confronted with White Supremacists, Newspaper Editors Should Consider “Strategic Silence,” The Guardian (Jun. 1, 2018), https://www.theguardian.com/commentisfree/2018/jun/01/extremist-ideas-media-coverage-kkk.
Penney, supra note 29.
See generally Mary Anne Franks, The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech (2019).
The increasing ideological affinities between the two are, perhaps, no accident.
Mary Anne Franks is a Professor of Law and Dean’s Distinguished Scholar at the University of Miami School of Law.