Future Tense

The First Amendment vs. Free Speech Online

Musk mugging in a tux on the red carpet
Elon Musk at the Met Gala in New York on May 2. Dimitrios Kambouris/Getty Images for the Met Museum/Vogue

Just about every day, people tear one another apart online about what free speech means, especially what on platforms like Facebook or Twitter. These arguments have reached a crescendo, as Elon Musk moves to buy Twitter while promising a place where speech will flourish. But the problem—according to Jameel Jaffer, a former lawyer for the ACLU and the current director of the Knight First Amendment Institute at Columbia University—is that our current understanding of free speech was shaped by court cases that are older than the internet itself.

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On Sunday’s episode of What Next: TBD, I spoke with Jameel Jaffer about online speech and how to make rules that will truly serve the next generation. Our conversation has been edited and condensed for clarity.

Lizzie O’Leary: Does it feel, to you, like we are in a pivotal moment in how we think about online speech?

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Jameel Jaffer: Absolutely. Part of the reason for that is that all of the big Supreme Court decisions that defined free speech for our society were decided 50 years ago. We are now building a framework that will really shape what free speech looks like for this coming generation or generations. Getting the free speech questions right is a predicate for getting the larger democracy questions right. Right now, we don’t seem to be getting the free speech questions right.

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There’s a tweet from Elon Musk from March 26 where he says that Twitter serves as the de facto public town square. It’s true that in a 2017 case called Packingham v. North Carolina. In that case, the court ruled that a North Carolina law that kept registered sex offenders off social media was unconstitutional. In the majority opinion, Justice Anthony Kennedy wrote that the internet was the modern public square. Why is the public square so important?

In First Amendment law there’s the concept of a public forum, like a city street or a park—property where historically we used to engage in political speech. Those kinds of public forums are highly protected under First Amendment doctrine. For example, the government can’t kick you out of a park because it doesn’t like what you’re saying. That was the body of law that the Knight Institute used when we sued President Trump over his practice of blocking people from his Twitter account. We said for the same reasons the government can’t kick you out of a park because it doesn’t like what you’re saying, President Trump can’t kick you off his Twitter account because he doesn’t like what you’re saying.

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It’s possible that Justice Kennedy in the Packingham case meant to reference that body of law, and what he meant was that Facebook and other social media platforms shouldn’t be excluding people from these spaces based on their viewpoints. I think that his statement that Facebook and other social media platforms serve as public squares at this point is noncontroversial. If you treat it as a legal proposition, though, I think it’s a lot more difficult to defend.

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Well, because it’s not a public park. It’s a private company.

Yeah. In a way that was true of President Trump’s Twitter account too, right? President’s Trump’s Twitter account was on private property. It was on Twitter’s property. Yet the courts all held that that Twitter account was a public forum. But it’s one thing to say “President Trump, a government actor, can’t kick you out of this space on the base of your viewpoint.” It would be another thing to say, “Twitter can’t kick you out of this space because of your viewpoint.” These are questions that the courts are only beginning to grapple with, and there’s not a single answer that everybody is coherent around.

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Thinking about it more as metaphor, it feels like we are maybe circling as a country around the idea of a public square without any of the parts intact. Maybe we all just think there’s something real important here in the middle.

I just think about it as the space, the sort of metaphorical or even metaphysical space, in which we engage with each other, share information, debate issues, come to consensus. Where do we do those things? We do those things increasingly online and increasingly on social media in particular. Forget the legal stuff. Just as a kind of factual claim, those are the spaces whose integrity is important to democracy.

This idea of a public square was at the heart of a speech that former President Barack Obama gave on disinformation in April. It was the first time that Obama, who had long been friendly with Big Tech, publicly called out social media companies for how their algorithms warp online speech. You had a sometimes-adversarial relationship with the former president. What was your reaction to this speech?

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I was at the ACLU for 14 years, and eight of those years were during the Obama administration. I think I probably filed 100 lawsuits against the Obama administration, many of them related to the freedoms of speech and association and privacy in particular. We represented whistleblowers, we sued over government secrecy, we filed I don’t know how many suits over government surveillance, all First Amendment suits or First Amendment-adjacent suits. I was not enthusiastic about the Obama Administration and the First Amendment. I didn’t expect to agree with as much of President Obama’s speech on disinformation as it turned out I did. One of the things I liked about it was sort of how modest it was.

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That it wasn’t some big sweeping condemnation?

Well, a lot of people come to this issue of disinformation with the idea that “Why don’t we just prohibit all of this disinformation? Isn’t that the obvious solution here?” And that’s not where President Obama landed. He starts off by recognizing that social media has in some important ways made our society fairer and more democratic and more inclusive. He also recognizes that many of our problems as a society are not fairly traceable to social media or social media alone. But then he goes on to say that some of our problems do have the social media companies at their source. He points to the design of the platforms as one place where we could look for the roots of some of our free speech pathologies today.

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In his speech, Obama seemed to reject an argument that social media platforms often make, which is that the best way to counter disinformation or misinformation is through better content moderation. What role does content moderation really play here?

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I think content moderation is much less significant than these design decisions. But also, I would include algorithmic design under the banner of design. What speech is getting amplified and what does it mean to be marginalized? Those questions are all questions that the platforms decide, often invisibly, but they have a profound effect on what public discourse looks like on those platforms. I think those decisions are much more important than the content moderation decisions. I think it’s much less important whether Alex Jones is on the platform or not, than it is what happens to Alex Jones’ speech when it’s on the platform. Another thing I liked about Obama’s speech is that he pointed to transparency mandates as certainly not a total solution to any of this, but at least something worth considering.

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I do think that one of the things we need most is a deeper understanding of how the platform’s decisions are shaping public discourse. The way to do that is to create more space for journalism and for research that focuses on the platforms.

There is a strain of thinking that sometimes comes up in Silicon Valley where executives will say, “Well, we would step in and police more hate speech, we would do more content moderation, but we’re really deferring to the First Amendment here.” What do you do with that?

I do think that because a small number of social media companies now serve as gatekeepers to a large part of public discourse, it’s better for our democracy if those companies hesitate before taking speech down, especially political speech. Those kinds of decisions, in a democracy, should belong to ordinary citizens. I think that there are lines that public figures could cross that would lead me to say it makes sense for the companies to take those people down. But as a general matter, I think it’s better if they interfere as little as possible in political speech. The result is going to be a lot of terrible speech will stay up. But I think we have to trust that other actors, civil society organizations, the media, other political leaders, will respond to that speech.

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I want to push back on that a little bit though, because it sounds like a handful of billionaires are already making those decisions for us, if the business models of the platforms are amplifying certain pieces of content and speech. Does the regular person ever get a chance to make that decision for themselves?

Yeah, I think that you’re absolutely right and this is what I meant when I said that content moderation decisions aren’t as important as the design decisions. We should spend less energy focused on this question of who’s on and who’s off the platform and focus our energy instead on this question of what happens to speech that is on the platform.

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There’s a bill in Congress right now that would require a little more transparency in how the platforms work. It would make platforms like Twitter, Facebook, and Instagram give academics and researchers access to their data, but it doesn’t solve the thorny questions about speech.

I think we need a First Amendment that prevents the government from intervening in the marketplace of ideas, from putting a thumb on the scale for a particular political viewpoint. But we also need a First Amendment that leaves space for regulatory interventions that serve democratic values. So, for example, carefully drafted transparency legislation or legislation that requires the platforms to tell people who are deplatformed why they’re being deplatformed, or privacy legislation that restricts what the platforms can collect about their users. If the First Amendment makes all of that off limits, then I think the First Amendment will become a really big obstacle to the kind of public square, public sphere, digital public sphere that we need.

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Did you ever think you would articulate a sentence like that when you were the ACLU guy?

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I’m proposing this not because I think there are things more important than free speech. I’m proposing this because I think this is what will serve free speech best. What does it mean to be a free speech absolutist in an era in which the social media companies have a totally plausible claim that they are exercising First Amendment rights, and social media companies’ users have a totally plausible claim that their free speech interests are being suppressed when the platforms exclude them from these private spaces, and governments sometimes have a totally plausible claim that the public needs to know certain things about the companies in order to understand how the companies are shaping or distorting public discourse? Those are all free speech arguments of one kind or another, and the First Amendment has to account for all of them.

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

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