Academic journal article Michigan Law Review

Is the First Amendment Obsolete?

Academic journal article Michigan Law Review

Is the First Amendment Obsolete?

Article excerpt

INTRODUCTION

The First Amendment was a dead letter for much of American history. Unfortunately, there is reason to fear it is entering a new period of political irrelevance. We live in a golden age of efforts by governments and other actors to control speech, discredit and harass the press, and manipulate public debate. Yet as the expressive environment deteriorates, the First Amendment has been confined to a narrow and frequently irrelevant role. Hence the question-when it comes to political speech in the twenty-first century, is the First Amendment obsolete?

The most important change in the expressive environment can be boiled down to one idea: it is no longer speech itself that is scarce, but the attention of listeners. Emerging threats to public discourse take advantage of this change. As Zeynep Tufekci puts it, "[c]ensorship during the internet era does not operate under the same logic [as] it did during the heyday of print or even broadcast television."1 Instead of targeting speakers directly, it targets listeners or undermines speakers indirectly. More precisely, the emergent techniques of speech control depend on new punishments, like the unleashing of "troll armies" to abuse critics, the fabrication of news, and "flooding" tactics that distort or drown out other speech through the payment of fake commentators or the deployment of propaganda robots.2 Powerful actors, both public and private, have adopted speech itself as a weapon for controlling speech, yielding challenges for which the First Amendment is unprepared.

The First Amendment first came to life in the early twentieth century, when the main threat to the nation's political speech environment was state suppression of dissidents. Since its activation, the First Amendment has presupposed an information-poor world, and it focuses near-exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster.

But today, speakers are more like moths: their supply is apparently endless, and they tend to congregate on brightly lit matters of public controversy. The fundamental challenge comes not from cheap speech itself, but that its cheapness makes it easier to weaponize as a tool of speech control. The unfortunate truth is that speech may be used to attack, harass, and silence as much as it is used to enlighten. And the use of speech as a tool to suppress speech is, by its nature, challenging for the First Amendment to deal with-especially if it is taken as being in the business of protecting speech, no matter what the form. As it stands, the First Amendment seems to be waiting for a pamphleteer to be arrested before it will recognize a problem. Even worse, it may be used to try and block efforts to deal with some of the problems described here.

It may sound odd to say that the First Amendment is growing obsolete when the Supreme Court has an active First Amendment docket and there remain plenty of First Amendment cases in litigation. So that I am not misunderstood, I emphasize that the First Amendment's core protection of the press and political speakers against government suppression is hardly useless or undesirable.3 With the important exception of cases related to campaign finance,4 however, the landmark free speech decisions of the last few decades have centered not on political speech but on economic privileges, like the right to resell patient data5 or the right to register offensive trademarks.6 If we accept that protection of political speech is a core function of the First Amendment, many of the recent cases are not merely at the periphery of this project but arguably on another continent.7 The apparent flurry of First Amendment activity masks the fact that the Amendment has become increasingly irrelevant in its area of historic concern: the coercive control of political speech.

The protection of a healthy speech environment in our times demands a rethinking of what it means to protect the channels of political speech in the internet age. …

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