Jurisprudence

Who Gets First Amendment Protections These Days, Anyway?

A woman holds up her first while speaking into a megaphone at a protest.
A protest in Atlanta in June. Chandan Khanna/Getty Images

On a recent episode of Amicus, Dahlia Lithwick talked with Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, to unpack how the scope of the First Amendment continues to grow even as it fails in the face of so many of the free speech issues we face today. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.

Dahlia Lithwick: I think I’ve had a Post-it note pinned to my screen saying, “Do a First Amendment show” for three years. It sweeps in every news cycle. From the Facebook “Supreme Court,” your own litigation around Trump’s tweets, cancel culture, the speech defenses that came up at the impeachment trial—I think of the First Amendment as a framework that governs all of those things. But of course it implicates less and less of those things. As you suggested to me, when we were thinking about this show, the First Amendment is “everywhere but nowhere.” I wonder if you could talk a little bit about this tension, where the Supreme Court is protecting more and more activity under the First Amendment, but as private actors flood this zone, the First Amendment actually matters less and less. Is that an accurate description of what is going on?

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Jameel Jaffer: Yeah, I think so. When I said that the First Amendment is everywhere and nowhere, I was thinking about the fact that the Supreme Court does keep expanding the First Amendment’s reach to more and more kinds of expression—not just expression but speech very broadly construed. There was a case called Sorrell from a few years ago, which involved data mining and drug companies’ efforts to market their drugs to doctors. The Supreme Court held that this particular kind of commercial activity was speech, and there’s a stray phrase in Justice Anthony Kennedy’s opinion, which says something like, “Information is speech. Data is speech.”

There is this thread in recent Supreme Court jurisprudence that is consistent with that very broad conception of the First Amendment. This idea that the First Amendment protects not just speech as colloquially understood but any effort to convey information. If you’re a First Amendment enthusiast, then maybe your first reaction to that is, “Well, isn’t that great? Isn’t it great that the First Amendment is getting attached to more and more things?” Well, it might be great or it might be not so great.

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The consequence of attaching the First Amendment to new forms of expression or speech is that it becomes much, much harder for government to regulate those activities. There’s a case in the district court now, involving Clearview, which is a company that scraped millions and millions of photographs from the internet in order to build a facial recognition app. The ACLU and others have sued Clearview under an Illinois state law that applies to the collection and sale of biometric information. Clearview is represented by Floyd Abrams here, who is a legendary First Amendment litigator. Clearview is arguing that their activities are protected by the First Amendment and that this Illinois law is unconstitutional as applied to its activities.

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That just gives you a sense of what’s at stake in these debates about the scope of the First Amendment. Because if you interpret the First Amendment very, very broadly to encompass the right of a company like Clearview to scrape photographs from the internet and build facial recognition apps of this kind, then you have really disabled legislatures from enacting laws that many people, including me, think are necessary to protect individual privacy—and maybe even necessary to protect the integrity of public discourse, which is supposed to be what the First Amendment is all about. So the First Amendment is everywhere in the sense that the courts are extending the First Amendment’s application to more and more kinds of activity.

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But it’s also true that the First Amendment is strangely absent in some places where we really should want it to be present. Some of them have nothing to do with the digital age and some of them are just much more places where we for a long time would have expected the First Amendment to be, but it doesn’t seem to be. I’m thinking about protest rights, for example, or whistleblower rights, right? During the Black Lives Matter protests over the last year, there were all kinds of abuses by police, abuses of protesters, abuses of the journalists being prevented from reporting on important public activities of the police. The First Amendment seemed to do very little work in protecting those core First Amendment rights.

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I would say the same thing with respect to whistleblowers. The Obama administration infamously used the Espionage Act more than any previous administration against whistleblowers who were sharing information with the press, and the Trump administration continued the trend. The First Amendment is really nowhere to be found when it comes to the right of whistleblowers to share information—national security secrets with the press where those national security secrets would inform the public of the abuse of power by government officials, for example, or large-scale waste or fraud on the part of government officials. The First Amendment doesn’t seem to be doing very much work. So the First Amendment is everywhere in some senses and nowhere in other senses.

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What you’re saying is there are benefits to being able to regulate some of this under First Amendment doctrine, but they’re real harms. And one of the harms is that it then falls almost entirely onto private entities. In some ways that’s a good thing. I think you would contend right from the beginning we don’t want the government deciding what is speech. But you’re saying that the cost of saying, “You know what, this has nothing to do with the First Amendment. It’s entirely a private entity and they should regulate that,” it might be what the Framers wanted, but it creates a whole host of new problems.

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I think all of that is true. Now we have these private entities that are doing a lot of the work of regulating speech. When we engage in political speech now, it’s often on social media platforms or on new communications platforms that are controlled not by the government but by private corporations. Those private corporations now have a very significant role in determining who gets to speak, and what can be said, and what ideas get traction in the public sphere. That, I think, is a new thing and one that we haven’t collectively quite figured out how to deal with.

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It feels as though part of what you’re saying is the Supreme Court has been diligently beavering away —and we all stipulate this is the most speech-protective Supreme Court probably in history—creating new free speech rights in all sorts of contexts. Yet there are these archaic rights, like assembly, which is something that we don’t quite know what it means. It’s fallen into disuse. The doctrine is aged. So it’s not actually doing the things it’s meant to be doing.

The circle is expanding to encompass a whole bunch of other stuff, and then there’s this other circle that is completely a separate sphere from government regulation of speech, which has all these private actors. We keep falling into this habit of thinking of them as First Amendment problems, but they’re entirely separate.

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It’s true that these private companies are not bound by the First Amendment in that particular sense. I’d just say that that’s true under current doctrine. There are many serious First Amendment theorists who think the current doctrine is wrong and that the First Amendment should have something to do with whether Facebook, for example, can tell somebody that they can’t use Facebook. But under current doctrine, that’s not governed by the First Amendment. Facebook is free to make whatever decisions it wants.

But when governments try to regulate the technology companies, often the technology companies are relying on the First Amendment as a means of challenging the legitimacy of those regulations. The Clearview case is a good example of it, but it’s not the only example. There’s another case that my institute is tangentially involved in in Maine, involving an internet privacy law that restricts what internet service providers can collect about their customers and how they can use that data. The ISPs are challenging the law on First Amendment grounds. They’re saying, “This law prevents us from collecting certain kinds of information and from doing targeted advertising on the basis of that information and that’s a restriction of our First Amendment rights and the law needs to be struck down.”

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So it’s not just that the First Amendment doesn’t regulate the activities that these companies are engaged in; it’s that when Congress tries to regulate those activities, these companies rely on the First Amendment to challenge the legitimacy of the regulations. Some people are looking to the First Amendment to be the solution to our problems in the digital public sphere. I think there’s a real question: Can the First Amendment be a solution here? But there’s also a question: Is the First Amendment the problem? Is the First Amendment, as currently understood, an obstacle to the kind of legislation and regulation we need to protect the integrity and the vitality of the digital public sphere?

To hear their entire discussionlisten below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

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