Feature: The Evolution of First Amendment Jurisprudence in a Post-Fact World

Authors: Sreya Pinnamaneni and Stevie Shukman

For free speech enthusiasts, 2017 may be the new 1984: though lacking in two-way TVs or an official slogan advocating “ignorance is strength,” the federal government has preyed upon an information-rich, attention-scarce nation to degrade the value of true information. By flooding information channels with violent opinions and normalizing the use of “alternative facts,” the current administration, magnified by the tactics of social media companies and tech firms, illuminates novel twenty-first century speech obstacles that the First Amendment may not be ready to tackle.

It is now more important than ever to address this oversaturation of information and equating of opinion with fact (or, tweets with fact). On April 27th, at his “100 Days” rally in Pennsylvania, President Trump revealed the debilitated national precedent for truth-seeking as he spent the first ten minutes of his speech assailing the media, deeming CNN and MSNBC “fake news” and newspaper staffers fundamentally “incompetent, dishonest people.”[i] This perception most recently came into play after the horrific Las Vegas shooting, when false reports emerged claiming the massacre was the work of the Islamic State or even left-leaning Donald Trump opponents.[ii] Such claims disclose the frightening reality of our “post-fact” world, fraught with both Trump’s contemptuous tweets and powerful social media platforms that provide forums for polarizing words while censoring their speakers.

The frequency of these deceptive claims, often amplified by resonating echoes from White House walls, poses a problem for the expressive environment: free speech advocacy, in addition to defending contested words from suppressive efforts, must also protect open forums for truth-seeking. The First Amendment’s safeguards thus require that any championing of free speech “must not privilege any immutable notion of the truth to the exclusion of others.”[iii] Yet this is almost certainly what happens when fraudulent news and an overarching distrust in press permeate society. Disoriented by a slew of “fake” claims, citizens are shielded from the truth—a needle in the haystack of information abundance.

At The Washington Post, speech specialist Margaret Sullivan dubbed the rhetorical tactics of the administration as “the most sustained attack any president has ever made on news media.”[iv] Sullivan’s words may be indicative of larger concerns with the expressive environment. Perhaps this should have been anticipated: although legal foreshadowing often offers us little, Trump’s verbal slip-up at his Inauguration Address serves as a forthright premonition for the impending constitutional landscape. After addressing his audience as “the people” themselves, the President proceeded to swear an “oath of allegiance to all Americans.” A legal tension emerges: the President’s oath should be directed not towards the masses, but to the Constitution; while “the people” can and will disagree on procedural foundations, only the Constitution provides secure judicial interpretative content.

Trump’s rhetorical strategies point us towards a new fear: that the First Amendment is entering a new era of irreverence—that it cannot save the very citizens clutching on to it one-handedly (the other, of course, gripping their smartphones). This panic boils down to one main cause: “it is no longer speech itself that is scarce, but the attention of listeners.”[v] Although this panic can be attributed to a number of factors, the easiest is the rise of the Internet and our modern technology era. The digital revolution decreased the costs of distributing information, created global social media communities, and eliminated the need for intermediaries between individuals, the press, and a world of news—both “fake” and true.[vi] Herbert Simon, in 1971, posited that “ . . . a wealth of information creates a poverty of attention and a need to allocate that attention efficiently among the overabundance of information sources that might consume it.” In doing so, he aptly predicted the present crisis: that today’s attention-scare climate is one in which the amount of information trades off with the number of people listening.

Attention scarcity raises novel concerns both over the types of speech invading society and their slated protections. To frequent public surprise, the First Amendment did not become active until the speech control agenda following the First World War. Following the passage of the Espionage and Sedition Acts, those who disseminated opinions contrary to the Allied war effort were quickly arrested.[vii] The first judicial defense of speech finally appeared in 1919, when Supreme Court Justice Holmes’s dissent in Abrams v. United States defended Jacob Abrams and others’ distribution of pro-Russian flyers, claiming that “the ultimate good desired is better reached by free trade in ideas that the best test of truth is . . . accept[ance] in the competition of the market.”[viii] Holmes’s theory set the stage for an era of First Amendment jurisprudence aimed at protecting political dissonance. For as late as the 1970s, the Court’s protections within the political and journalistic realm extended only to the government’s “censorship and punishment of dissidents.”[ix] This “Old” First Amendment makes sense: iterating through two different postwar eras, the protection of individual speakers against the governmental monolith appeared essential to the preservation of American democracy.

The problem arises as we recognize that core assumptions of the “Old” First Amendment are rapidly deteriorating. In Whitney v. California, the notable 1927 Supreme Court decision that upheld California’s conviction of Whitney for her creation of the Communist Labor Party of America, Justice Brandeis first posited the idea of increased speech as a means to civil liberty. Although he eventually concurred with the majority, Brandeis diverged on First Amendment concerns to deliver what has been deemed one of the greatest defenses of free speech. Relying on the interdependence of individuals’ speech as well as their access to democratic governing process, he argued that, “without free speech and assembly, discussion would be futile . . . the greatest menace to freedom is an inert people.”[x] Brandeis’s alternative to this terrible policy apathy, then, was further information saturation: the “remedy to be applied is more speech, not enforced silence.”[xi]

Alarmingly, this litmus test for the expressive atmosphere, “more speech,” has quickly become the First Amendment’s next obstacle. The “Old” First Amendment operated under the understanding that only a few speakers would be participating in Holmes’s “free trade in ideas” as defined in Abrams; these speakers would, in turn, be given due diligence by their listeners.[xii] Yet following the rise of the internet, deceptive presidential rhetoric, and the influence of social media platforms, the attention capacity of Americans has dwindled. To the detriment of First Amendment proceedings, Brandeis’s plea for “more speech” soon evolved into “more and more speech,” and has now, to quote UCLA Law School’s Professor Eugene Volokh, become “cheap speech.” According to Professor Volokh, cheap speech has both democratized communication, assuring “more speakers will be able to make their speech widely available,” and shifted power to listeners themselves, making it “easier for people to choose only the information they know they want, and to ignore other topics.”[xiii]

These conditions, information abundance and selective political reception, are the very forces pushing a “New” First Amendment among us. It is difficult to envision a world where this limited arrangement of constitutional safeguards can offer appropriate legal defenses against the post-factual world’s varied censorship tactics. Yet it is also a cruelly dismaying undertaking to accept that the First Amendment’s political protections ended with the Espionage persecutions of the 1920s. The second path and the far more ambition answer, however, is an expansion of the First Amendment’s traditional objects of jurisdiction. By enlarging the traditional “state action” requirement to include the murky realm of government-sponsored social media censorship, jurists may be able to apply free speech protections to the new age of post-factual suppression.

Online social media and speech platforms like Twitter, Facebook, and Google do not traditionally assume “state” responsibility for actions—they are, after all, private companies, and are not subject to the “Old” First Amendment’s protections of governmental suppression. Despite this facet, these platforms inherently operate as open forums for public dialogue. The recently overruled 2008 Supreme Court case, Packingham v. North Carolina, demonstrates the enduring function of social media platforms as virtual “public forums” for all: in justifying the unconstitutionality of a North Carolina statute regulating sex offenders’ access to the internet, Justice Kennedy wrote that even “in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn.”[xiv] Packingham demonstrated the Court’s current working hypothesis at the time—that free speech questions arising on the Internet should be governed in parallel to those doctrines that protect speech at parks and playgrounds.

In light of this, Twitter, last February, attempted to implement its own internal regulations to rid its interface of harassment and troll tools. In the wake of President Trump’s new penchant to communicate public policy updates on Twitter, the platform has “over the long term seen an uptick in abuse and harassment on the service, with some users even quitting it after being harassed.”[xv] Yet almost immediately after implementing the abuse fix, the company was bombarded by protests claiming the measure was not within the company’s user agreements.[xvi] The tension arises since Twitter, a private entity, does not wholly possess the “state action” characteristic that permits judges to apply First Amendment doctrine to “government” speech. Thus, as far-reaching as it may appear, the path to First Amendment expansion may include an equivocation of Twitter and other social media and speech platforms to the state itself.

Louis XIV, who proclaimed “l’etat c’est moi” and equated his private actions with those of the French state, may have discovered a rationale pertinent to the Digital Age. In order to regulate constituents without public scorn or judicial rollback, Twitter may itself merit treatment as a state actor. There is, in fact, some legal precedent for this maneuver. In Marsh v. Alabama, a 1946 Supreme Court concerning the applicability of Alabama’s state statute forbidding Marsh’s distribution of religious material within the bounds of Chickasaw, a town privately owned by Gulf Shipbuilding Co., the Court held that the corporation had assumed enough responsibility for “the welfare of community and nation” to assume the responsibility of the State itself. By hedging this bet, the Court was able to rule in favor of Marsh, holding that despite his presence on private property, Alabama’s statute was still an unconstitutional government intrusion on speech.

It is clear that Twitter, Facebook, and Google are much different from private, rural Alabama towns. However, the precedent set by Marsh at least introduces the Court’s aversion to “easy constitutional evasion by privatization.”[xvii] Twitter’s existence as a “government” platform is thereby the very premise fueling Knight Institute v. Trump, an ongoing suit by Knight First Amendment Institute at Columbia University against President Trump and his communications team for unconstitutionally blocking seven vocal Twitter critics from the @realDonaldTrump account.[xviii] Since the president utilizes the account to publicize White House updates, the platform likens itself, in those instances, to government speech that must necessarily operate under the “state action” doctrine. Alex Abdo, one of the senior staff attorneys at the Institute, likened Twitter to a “modern form of town hall meeting or public comment periods for government agency proposals”—both mediums where the government is subject to constitutional speech defenses.[xix] This case, a new development presiding at the intersection of our President’s deceitful updates and the saturated company of his favorite social media platform, exemplifies the intricate array of modern digital qualities assailing the First Amendment.

An attention-scare, information-abundant planet is fear-provoking in more than one way. When no one was listening, the federal government seized control over dubiously protected online mediums for their political benefit; long after “fake news” practices were normalized, the nation started to notice the Orwellian tones the year had assumed. Will our short attention spans cost us a decade of First Amendment jurisprudence, or will an expanding “state doctrine” action redeem the marketplace of ideas? Only time will tell.

[i] Watson, Kathryn. “Trump happy to be with “much better people” than Washington press corps.” CBS News. April 29, 2017. Accessed October 20, 2017. https://www.cbsnews.com/news/watch-live-president-trump-rally-speech-in-pennsylvania/.

[ii] http://foreignpolicy.com/2017/10/12/the-pro-free-speech-way-to-fight-fake-news/

[iii] http://foreignpolicy.com/2017/10/12/the-pro-free-speech-way-to-fight-fake-news/

[iv] Sullivan, Margaret. “Perspective | Trump’s vicious attack on the media shows one thing clearly: He’s running scared.” The Washington Post. August 23, 2017. Accessed October 20, 2017. https://www.washingtonpost.com/lifestyle/style/trumps-vicious-attack-on-the-press-shows-one-thing-clearly-hes-running-scared/2017/08/23/4fc1a6a2-8802-11e7-a50f-e0d4e6ec070a_story.html?utm_term=.9bcf152fc58e.

[v] Wu, Timothy. “Is the First Amendment Obsolete?” Knight First Amendment Institute. September 2017. Accessed October 18, 2017. https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.

[vi] Schaller, Barry R. (2009) “The First Amendment in the Digital Age: Protecting Free Speech (and Other Values),” Sacred Heart University Review: Vol. 25: Iss. 1, Article 7.

[vii] Wu, Timothy. “Is the First Amendment Obsolete?” Knight First Amendment Institute. September 2017. Accessed October 18, 2017. https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.

[viii] “Abrams v. United States 250 U.S. 616 (1919).” Justia Law. Accessed October 21, 2017. https://supreme.justia.com/cases/federal/us/250/616/case.html.

[ix] Wu, Timothy. “Is the First Amendment Obsolete?” Knight First Amendment Institute. September 2017. Accessed October 18, 2017. https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.

[x] “Whitney v. California 274 U.S. 357 (1927).” Justia Law. Accessed October 21, 2017. https://supreme.justia.com/cases/federal/us/274/357/case.html.

[xi] “Whitney v. California 274 U.S. 357 (1927).” Justia Law. Accessed October 21, 2017. https://supreme.justia.com/cases/federal/us/274/357/case.html.

[xii] Wu, Timothy. “Is the First Amendment Obsolete?” Knight First Amendment Institute. September 2017. Accessed October 18, 2017. https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.

[xiii] Volokh, Eugene. “Cheap Speech and What It Will Do.” The Communication Review, Vol.1, No.3 (1996), pp.261-90. 24.

[xiv] “PACKINGHAM v. NORTH CAROLINA .” SupremeCourt.gov. October 2016. Accessed October 20, 2017. https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf.

[xv] Ribeiro, John. “Twitter rolls back abuse fix few hours after protests.” Computerworld. February 14, 2017. Accessed October 20, 2017. https://www.computerworld.com/article/3169844/internet/twitter-rolls-back-abuse-fix-few-hours-after-protests.html.

[xvi] Ribeiro, John. “Twitter rolls back abuse fix few hours after protests.” Computerworld. February 14, 2017. Accessed October 20, 2017. https://www.computerworld.com/article/3169844/internet/twitter-rolls-back-abuse-fix-few-hours-after-protests.html.

[xvii] Wu, Timothy. “Is the First Amendment Obsolete?” Knight First Amendment Institute. September 2017. Accessed October 18, 2017. https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.

[xviii] “Knight Institute v. Trump – Lawsuit Challenging President Trump’s Blocking of Critics on Twitter.” Knight First Amendment Institute. Accessed October 21, 2017. https://knightcolumbia.org/content/knight-institute-v-trump-lawsuit-challenging-president-trumps-blocking-critics-twitter.

[xix] Volz, Dustin. “Trump’s blocking of Twitter users violates U.S. Constitution: rights institute.” Reuters. June 06, 2017. Accessed October 20, 2017. https://www.reuters.com/article/us-usa-trump-twitter/trumps-blocking-of-twitter-users-violates-u-s-constitution-rights-institute-idUSKBN18X2LR.