The First Amendment in One Net

-- By EricSantos - 06 Mar 2015

What Do You Mean by Freedom?

Milton Friedman famously wrote, “My freedom to move my fist must be limited by the proximity of your chin.” Milton Friedman, Capitalism and Freedom: Fortieth Anniversary Edition, 26 (2009). Friedman’s essential point is that freedom can mean many things. In this way, envisioning a world where the ideals of the First Amendment guarantee an absolute sort of freedom of expression runs into various logical, ethical, and practical quandaries. It is not just that freedom of speech will be forced to compete against other values; even accepting that the First Amendment is a “trump” in an age of One-Net interconnectedness, difficult cases must arise in which different conceptions of its guarantees conflict.

The Difficult Cases

An easy attack against the idea of boundless free expression is hate speech. It makes sense; hate speech is extremely odious and plays into strong narratives about inequality and social justice in modern society. At best, however, this can only be a gut check for real free speech advocates. If you accept that free speech is unimpeachable, it is easy to see that while the victims are certainly violated in other ways, their legal ability to respond or debate is not infringed. So while many such instances could be concocted to question whether unlimited free speech is a good thing, such cases also make it seem like a very clear position. A person wants to use expression to do bad things to an otherwise innocent person, and how can we allow that?

As Professor Moglen notes, this type of clash is often the subject of First Amendment jurisprudence. There are some values that the courts feel can be legitimately balanced against free expression. Safety is essential, so they upheld prohibitions on “fighting words” in Chaplinsky. Being a jerk doesn’t quite rise to that level of importance, so Neo-Nazis must have the opportunity to march in Skokie, IL. But referring to Neo-Nazis or One Direction as examples of free speech gone awry misses the real complexity of the issue. Rather, formulating a freedom of speech that provides a clear answer in all cases can be maddeningly difficult even accepting that absolute freedom of expression is, in general, a worthy goal. Does the freedom entail only that the law cannot technically prohibit speech, or does the government have a duty to preserve and facilitate avenues for expression? A simple example of this tension is disruptive speech. If Tom wants to make a speech in a traditional public forum, should Richard and Harry be allowed to show up and shout to prevent others from hearing Tom? Even if permits can be issued to restrain Richard and Harry’s physical ability to enter the space, should they be prohibited from setting up large speakers nearby? If Larry and Sergei decide that they do not like the content of Tom’s speech, are they exercising legitimate expressive freedom if they program their search engine not to display any results relating to it?

It would be difficult to argue that the behavior of Tom, Richard and Harry, or Sergei and Larry does not constitute speech, yet they also exist at odds with one another. While it may be argued that all of these examples are legitimate and that Tom will need to find his own way around the disruption, this supposes an extremely formalist view of free expression by casting as irrelevant any functional value in the timing or location of speech or the resources of the speakers involved. It is fine to say that Tom can counter Richard and Harry, but it is less plain that Tom’s freedom of expression can’t be meaningfully curtailed by concerted opposition from Google.

More to the point, unlimited speech risks much more than tyranny-by-the-largest-megaphone. Is speech that convinces others to self-censor legitimate in a world where the First Amendment is absolute? For example, it is easy to cast revenge porn and doxing as clashes between unsavory expressors and uncomfortable victims. If this were the full story, a good free speech libertarian could confidently say that the victim’s best remedy is to respond with more, superior speech. However, this oversimplifies the dynamic because the goal of a revenge pornographer is to retaliate against and repress the speech of others. Revenge porn is threatening as well as humiliating; it tells the victim that if they continue to speak, they can be hurt.

In a world of total connectedness, should speech designed to suppress that of others be allowed? It may be argued that these are costs that must be borne to prevent despotic control of the net by the state, but is de facto tyranny by private entities a superior alternative?

Developing a Useful Definition

More than anything, I believe that reinvigorating the First Amendment would require a unified theory that can cogently address these questions. The answer is not to try to slice-and-dice speech and attempt to divide it into neat boxes, nor is it useful to focus on the identity of the speaker. And while it would be easy to punt the question to the courts and say that contested speech must be analyzed by balancing various factors, this would allow the threat of litigation to repress speech in lieu of direct government control. “No tyranny” is fine as a broad-strokes guide, but doesn’t do much work in clearing up more granular issues. A clear, predictable standard is needed, but difficult to formulate.

The best proposal I have come up with is that in cases where different types of speech conflict, the solution that allows for the functional expression of the widest range of viewpoints must prevail. My worry is that this standard would give the courts outsized discretion in drawing lines on matters of free expression; it preserves a certain amount of ambiguity. This may lead to repression of speech through the threat of litigation, or, more cynically, give the courts another opportunity to hand despotic control of free expression back to the government.