Future Tense

What Kind of First Amendment Do We Want?

Legal scholar Neil Richards on the uses and abuses of free speech in the digital age.

A portion of the text of the First Amendment, with editing marks
Illustration by Slate

On Wednesday at 11:30 a.m. Eastern, the Free Speech Project will host Do We Need a First Amendment 2.0? with Neil Richards and other experts on free speech. For more information and to RSVP, visit the New America website.

The First Amendment has long been considered a bedrock of American democracy. In the so-called “marketplace of ideas,” the more information, the better. That’s why many once assumed the internet would be a tool for democracy, ushering in a new age of engaged citizenship. Yet the halcyon days of the early internet have now given way to growing disillusionment not only with rising hate speech and disinformation on social media, but also with corporate activity—including data harvesting and surveillance—protected under the First Amendment. In our digital age, some have started to wonder: Is the United States in need of a First Amendment 2.0?

Recently, I spoke with Neil Richards, the Koch distinguished professor in law at Washington University in St. Louis, who specializes in privacy law, information law, and free speech. During the course of our conversation, which has been edited and condensed for clarity, we discussed the ways the First Amendment has changed throughout American history, the fraught relationship between privacy and free speech, and how we can start to reconceptualize the First Amendment’s place in our society.

Chloe Hadavas: In general, how has the internet changed the ways we think about free speech?

Neil Richards: In a digital age, it is a lot easier for us to express ourselves, but it’s also much easier for motivated actors to spread misinformation, lies, propaganda, and hate. The challenge is to take advantage of the tremendous communicative potential of digital technologies, from the internet, to smartphones, to social networking and search engines, but to address the problems that these technologies pose as well.

I’m old enough to remember the onset of the internet in American society. In the mid-1990s, I was a law student, and I remember the revolutionary—almost prophetic—language that internet evangelists used to talk about this technology. And I think they were exactly right that it was revolutionary, but like all revolutions, some bad came along with good. The internet makes it easier for critics of the government to get their message out. It made it easier for Edward Snowden and Chelsea Manning to engage in courageous whistleblowing. But it also made it easier for Cambridge Analytica and Facebook to warp the processes of democracy in the 2016 presidential election and the Brexit referendum, for the NSA to drastically expand its surveillance capacities after 9/11, and for aspiring populist demagogues to spread lies and misinformation, and half-truths and full-blown conspiracy theories. And that’s the challenge.

Reckoning with that challenge requires us to reckon with the new media of the digital age, just as the First Amendment of the 20th century had to reckon first with mass newspapers, and then with other forms of mass media, such as radio and television.

Have there ever been any points in American history—perhaps when those new forms of media arrived in the 20th century—when the First Amendment has reached a similar moment of crisis?

The interesting thing about the First Amendment is we’re used to talking about it like it’s always been the same. Americans, since the Revolution, have talked about the First Amendment as if it was supremely protected. But in reality, the modern First Amendment really only starts getting invented in the aftermath of the First World War, in opinions by [Supreme Court Justices] Oliver Wendell Holmes and Louis Brandeis and [Judge] Learned Hand. Before the 1940s, federal and state governments had pretty broad powers to punish expression that they didn’t like. For example, one of the first significant congressional enactments was the Sedition Act of 1798, which basically made it a crime to criticize the government. You see, from the 19th century to 1920s, there’s suppression of all kinds of dissident speech—whether it’s by abolitionists, suffragists, advocates of free love, anarchists, socialists, or communists.

So the First Amendment has had a series of crises, and I think that should be expected, because free expression is very often how we deal with social unrest. It’s always been contested, and it continues to be deeply contested today—not just in the context of digital expression, but at the increased willingness of American courts to extend First Amendment protections to a whole host of corporate activities, whether that’s money in politics, or advertising, or even, in some cases, the processing of personal data.

One of the reasons it’s contested is that, as scholar Tim Wu has written, the First Amendment isn’t well suited to deal with “the use of speech as a tool to suppress speech.” In other words, some people’s unrestrained speech can threaten others’ ability to express themselves. How do you think about that tension?

One of the hardest problems in First Amendment law is the problem of hate speech, because we know that the expression of hatred, particularly against marginalized or historically oppressed groups, is not just hurtful, but it’s silencing—and stigmatizing. On the other hand, we know that giving the government the power to separate “good speech” from “bad speech” is also tremendously dangerous and can be used as a tool of oppression and tyranny.

So, you can see the difficulty of this problem in the divergent approaches of the United States and, for example, Canada and Western Europe. In the United States, judges have largely taken the [Oliver Wendell] Holmes position, which is that because we doubt our ability to determine the truth, we have to be really reluctant to regulate speech based upon its content, particularly upon its viewpoint. By contrast, European and Canadian judges applying their own fundamental rights that are analogous to the First Amendment have worried less about that problem and have authorized not just civil, but also criminal punishments for targeted racial abuse, for example.

The virtue of the American approach is that it is maximally speech protective, and it eliminates the risk that the government will use powers to regulate the tone or the content of political debates as a proxy for censorship. On the other hand, the American approach really does run the risk that dissent will be silenced, that real political damage can result, and that the status quo can be preserved. Charting a middle way between these two paths is really difficult.

What does that middle way look like right now?

I think you could imagine a jurisprudence that would allow wide-ranging discussion on matters of public concern, including race relations, but also recognize that it’s appropriate to prohibit and in certain cases punish racial abuse, cross burnings, harassment, stalking, and other forms of the use and abuse of words that cross a line where what is being expressed really has little value, but is undoubtedly harmful and stigmatizing.

The ultimate problem here is that we human beings do so many things with words—good and bad, honorable and evil, and many, many things in between. And it is asking too much to come up with a test that judges and courts can apply that separates out the harmful from the harmless with perfect precision. Ultimately, we have to realize that human beings are imperfect, and judges are human beings, too, and that law can only do so much to either encourage a culture of thoughtful free expression, or to restrain the uses of words that are undeniably harmful.

We have to look to other factors like our political culture; our belief not just in education, but in civic education; and the production of a society in which we are treated in equal ways that transcend histories of marginalization and oppression—and that ultimately, we have a robust, independent, professional free press that has the resources and the legal protection to ask difficult questions of our leaders, to hold them accountable for their mistakes and their biases, to praise them where appropriate, and to not be denigrated as the enemy of the people by aspiring demagogues. And that when our politicians cross that line and malign the press, we hold them accountable, and we vote them out.

Much of the discussion about online discourse seems to conflate the First Amendment specifically with free speech more broadly. How does that connect to the debate over content moderation?

One of the practical developments that we’ve seen, as we’ve shifted to more political debate and communication by politicians and other leaders through social media, is that we’ve come to realize the tremendous gatekeeping power that social media companies have over our system of free expression—and also, the fact that many of these companies were and are wholly unequipped to act as those kind of gatekeepers, whether we call them content moderators or censors.

So much of our public debate has fallen to advertiser-supported private companies offering “free services,” whose interests are often to make money or boost engagement or sell ads, rather than free and fair debate. Very often, their marketing departments have wrapped themselves in the language of the Constitution, but they haven’t really understood the depth of their responsibilities and, more importantly, the complexity of the problem of separating out “good expression” from “bad expression.” But it is encouraging that it in recent years, both Twitter and Facebook have finally started to grapple with their problems. It’s just taken them far too long.

The First Amendment is often weaponized by corporations not just to abdicate responsibility, but to undermine individuals’ privacy. When are the two at odds with each other?

There’s often been a tension between privacy and the First Amendment. But as I argued in my book, Intellectual Privacy, while they’re sometimes in conflict, we also need zones of privacy in our life—what I call intellectual privacy—to make up our minds about the world and our place in it: to read freely, to think boldly, free of monitoring or interference, and to test out our potentially crazy ideas in confidence before we’re ready to share them with the world.

When it comes to privacy and free expression, it’s worth keeping a few simple rules in mind. First, we need to have both. Both are human rights, and both are necessary for the kinds of political freedom and commitment to eccentric individuality that Western societies say that they value. Second, most of the time, when the press is reporting on matters of policy, and even the personal lives of public servants, on balance the First Amendment should win, because people have a right to know what is being done in their name. Third, just because we allow scrutiny into the policies and politicians’ professional lives, doesn’t mean that ordinary people shouldn’t have a right to privacy. And fourth and finally, we need to understand that the role of the First Amendment is to [support] free citizens of a democratic society. That doesn’t mean that anything a company does with data, or any information that a company might collect for a commercial purpose, should be treated with the same constitutional reverence as an editorial on the front page of the New York Times criticizing the president.

And when we look at invasive data-based surveillance models, when we look at tech companies following us around the internet so they can sell us shoes, when we look at companies like Clearview AI, whose business model seemingly consists of scraping data to train facial recognition models that can be sold to law enforcement and ICE, we should think about the values that are at stake here. The First Amendment is a fundamental right. But it’s a right in pursuit of human freedom. And when corporations and purveyors of ad tech and A.I. try to wrap themselves in the First Amendment to prevent regulation of their dangerous business practices, I think we should we should recognize those claims for the charade which they are.

What do you think of proposals, such as Emily Bazelon’s recent piece in the New York Times Magazine, that the First Amendment may need a rethink today?

I think the most important thing about these arguments is that I’m encouraged that we’re having these kinds of conversations. It’s essential in a democratic society that we have serious, wide-ranging conversations about what we value, and what kinds of expression are important, and why. Ironically, it’s broad protection for free expression that allows us to have those conversations in the first place. But when it comes to specific issues, such as hate speech, I think the European approach has a lot of merits to it and should be taken seriously.

The problem here, though, is less one of the First Amendment and more one of constitutional politics in general and judicial politics in particular. If we care about the First Amendment, we have to care about its ideas, of course, but we also have to care about the institutions by which our system of free expression is protected and preserved in practice. And that means not just protecting, nurturing, and safeguarding the business models of a free press, but also interrogating the ways we select judges and asking potential judges about their views. It’s really unfortunate in recent years that the primary qualification for politicians to nominate judges is ideology first, and qualities like experience and temperament and, for lack of a better word, judgment second.

We’re used to talking about the First Amendment as if it is an abstract thing. But it’s a lot more than that. And it’s so important that we can’t just talk in philosophical terms if we care about free expression and human rights. We need to worry about our social norms and our institutions as well. When we talk about institutions like the press, social networks, and the federal judiciary, I wouldn’t say I lose hope, but there’s a lot of work for us to do.

We need to have robust, uninhibited conversations about what kinds of a First Amendment we want. The good news is that even though there’s a large disagreement about what the First Amendment should protect, almost everyone agrees that it does protect that kind of conversation. So, as a lawyer, it’s my job to be neurotic and worry about potential problems. But as a human being, as a member of society, I am nevertheless hopeful for the future.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.