“The First Amendment is spiraling out of control,” Columbia University law professor Tim Wu warned in an article. New York Times prose. While Wu ostensibly opposed the Supreme Court’s decision, which he argued interpreted freedom of speech too broadly, his complaint amounted to a rejection of the principle’s premise that it should be applied consistently, especially when it is beneficial to a speaker and message he doesn’t like.
The immediate provocation for Wu’s diatribe was yesterday’s Supreme Court rulings in two cases challenging laws in Florida and Texas designed to limit moderation of social media content. Although the justices sent both cases back to lower courts for further proceedings, Justice Elena Kagan’s majority opinion Moody’s v. NetChoice Make it clear that “editorial discretion” protected by the First Amendment extends to the choices social media platforms make in deciding what content to host and how to present it, even if those decisions are inconsistent, biased, or potentially unfair. That discretion includes using algorithms that reflect that value judgment, she said.
Although Wu expressed reservations about the “wisdom and questionable constitutionality of the Florida and Texas laws,” he argued that “the breadth of the court’s reasoning should set off alarm bells.” He accused the justices of “blithely assuming” the “calculus Legal decisions are equivalent to expressive decisions made by human editors in newspapers.” Wu said the ruling reflects a broader trend in which “liberal and conservative judges and justices alike have expanded the First Amendment to protect almost anything that can be called ‘speech,’ regardless of its Whatever the value, regardless of whether the speaker is human or otherwise.
According to Wu, free speech should depend on the “value” of the ideas people express. It’s hard to imagine a broader license for government censorship.
Wu praised the decision to protect the speech rights of “political dissidents, religious outcasts, courageous journalists and others whose ability to express their views is threatened by powerful and sometimes tyrannical states.” In these cases, he said, “the First Amendment is a tool to help the vulnerable” and ensures “intense political debate.” It’s not hard to imagine how “losers” or “intense political debate” would behave in a legal system that empowers the government to decide what speech is valuable and worthy of tolerance.
Wu accuses Supreme Court of upholding verdict in 2012 case United States v. AlvarezAs he put it, the First Amendment protects “even outright lies.” Once again, allowing the state to suppress speech it deems inaccurate would pose a chilling threat to “dissidents” of all kinds.
Wu worries that the First Amendment “begins to threaten many of the country’s important jobs, such as protecting national security and the safety and privacy of its citizens.” Like “value” and “accuracy,” “national security” and “security” are speech restrictions vague, subjective excuses that have a much broader reach than Wu might have hoped.
Citing “national security” grounds, Wu argued that the government should actively resist “information warfare,” which he said would mean banning TikTok, even though it would have an impact on the 122 million Americans who use the platform for purposes that even he himself Recognition relates to rights guaranteed by the First Amendment. The fight against “information warfare” presumably also involves censoring the online speech of those identified (perhaps erroneously) as foreign agents. Wu may have hoped that restrictions on speech in the name of national security would stop, but history shows otherwise.
Wu also believes the First Amendment should not apply to individuals organized as corporations. He predictably criticized Citizens United v. Federal Election CommissionIn a 2010 ruling, the Supreme Court struck down legal restrictions on political speech by unions and businesses, including small businesses and countless nonprofits representing diverse viewpoints. “If the First Amendment has any force,” Justice Anthony Kennedy wrote for the majority, “it prohibits Congress from fining or imprisoning citizens or civic associations solely for engaging in political speech.” Kennedy rightly wondered why Individuals should lose their right to free speech simply because they seek to exercise it in the form of an “association taking corporate form.”
Wu glossed over the diversity of organizations affected by the rule, saying, “Judges have transformed a constitutional provision designed to protect unpopular opinions into a catch-all tool that invalidates legislation and now primarily protects corporate interests.” He argued that this This is particularly worrisome because “the power of private actors has grown to rival that of nation-states.” Given his publishing history, you won’t be surprised to learn that Wu considers the “most powerful” of these private actors to be “large tech platforms, which have wrapped themselves around humanity like a cocoon and have grown to control business and Speech: Make totalitarian countries jealous.
Wu somehow missed an important difference between companies like Facebook. and “totalitarian states”: while the former cannot use force “to control commerce and speech,” blatant coercion is the defining characteristic of the latter. This difference has constitutional significance, although Wu apparently believes it should not be so. To counter the purported state-like power of “big tech platforms,” he hopes to deploy actual state power, emulating what he calls totalitarian technologies that pale in comparison to voluntary, consensual interactions with YouTube or Amazon. .
Big tech companies (and smaller ones) are free to adopt various content moderation policies based on what they think users want, giving people options they wouldn’t have if governments overturned those decisions. Although Wu resists the idea, these choices are embodied by algorithms (created by humans!) designed to organize large amounts of content in ways that are accessible, interesting, and useful. All of these support the ability of individuals to go online, find information and opinions that interest them, and express themselves in one forum or another.
If one’s beef with Wu is with the First Amendment itself rather than any particular application of the First Amendment, he concluded by quoting Supreme Court Justice Robert Jackson: “If the Court doesn’t temper its doctrine with a little practical wisdom, Logic, it would turn the Constitution’s Bill of Rights into a suicide pact. Jackson made the comments while objecting to the court’s 1949 decision. terminillo v. chicagoThe “breach of the peace” conviction of a priest who delivered an inflammatory speech was overturned.
Just as Judge Oliver Wendell Holmes used the analogy of “wrongfully shouting fire in a theater” in 1919, there was nothing wrong with his use of the analogy to argue for jailing someone who distributed anti-draft leaflets claims that Jackson’s “suicide pact” warning was an attempt – for anyone looking to justify restrictions on constitutionally protected speech. While the comments are outdated, Wu is working hard to revive the attitude behind them.
