The First Amendment was drafted when speech was expensive and attention was abundant. Can it adapt to an era of too much speech and too little attention?
Talk is cheap, it’s said—but for most of human history that wasn’t really the case. When the framers of the U.S. Constitution drafted the First Amendment, it was costly and difficult to make public speech, especially through mechanisms like newspapers, and relatively easy for a government to crack down on the speakers.
That’s no longer the case. Today, the greatest danger is not that speech is scarce and endangered, but rather that enemies of open debate have found ways to combat free speech that the First Amendment was never intended to address—and so far is failing to address, according to Tim Wu, a law professor at Columbia.
“Today we live in an environment where speech is cheap, where it is abundant, where the fundamental challenge is no longer finding speakers but rather finding attention for speech,” Wu said Tuesday at the Aspen Ideas Festival, which is hosted by the Aspen Institute and The Atlantic.
Where once the greatest threat to the American press was censorship, the bigger challenge now is what could be called reverse censorship. Authoritarian governments, led by Russia and China, have devised methods of taking advantage of the internet to stifle speech without directly blocking it. The prevailing tactics of each of those countries have now found a home in the United States, and Wu believes the U.S. First Amendment tradition needs revamping to handle it.
As the internet spread, the regimes in Moscow and Beijing concluded that simply blocking the web would be unworkable, but they were unwilling to surrender their existing control over speech. China’s answer was flooding the zone: paying people to create content that supported the government and effectively drowned out any critics. It was soft censorship, less politically toxic and resource intensive than locking up any dissenter. Russia adopted a more bellicose stance, raising armies of trolls who would harass, defame, and humiliate Vladimir Putin’s critics, whether at home or abroad.
The tactics themselves were not always new. Russian attempts to defame opponents echoed World War I British “atrocity propaganda,” which attacked Germans with a mix of partially true and fabricated claims of deviance. Russia simply adapted that to the internet age.
It’s not hard to pick out how these tactics have spread to the United States. Trolling has been imported, both by Americans mirroring Russian tactics, and also by the very same Russian trolls—as alleged by Special Counsel Robert Mueller in his indictment of the “troll farm” Internet Research Agency and some of its employees and officers. There’s plenty of flooding the zone, too, from President Trump’s attention-sucking Twitter feed to the burgeoning market in fake news. The “Pizzagate” conspiracy theory emerged from the atrocity-propaganda tradition, and required internet trolls to spread. It combined a real restaurant with fake claims to slur Hillary Clinton and her aides.
“Somehow, most of them seem ridiculous, but over time these things have had a unfortunate tendency to stick,” Wu said.
The idea that the First Amendment should, and even can, adapt to a new moment like this is jarring—it feels like an everlasting edict. But as Wu pointed out, what Americans think of as the First Amendment tradition dates only to the mid-20th century. Seven years after the ratification of the Bill of Rights, the government jailed a U.S. congressman under the Sedition Act because he had accused President John Adams of an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
Almost exactly 100 years ago, Eugene Debs gave a speech in Canton, Ohio, criticizing American engagement in World War I and the draft. He was charged, convicted, and sentenced to 10 years in prison, with the punishment upheld unanimously by the Supreme Court. As late as the 1930s and ’40s, people were imprisoned for advocating communism. It was only after World War II that the current free-speech doctrines came into play.
That is both frightening and heartening. On the one hand, the shallow roots of today’s traditions show how easily the recent gains could be erased. Yet it also shows the First Amendment tradition can be flexible and adaptable to new moments. If Wu’s diagnoses are intriguing, however, his prescriptions are less satisfying.
“We have to start talking not just about the duty to prevent government from censoring speakers, but the duty of government to protect the main channels of expression,” he said. “There is a tradition in American constitutional law that says that the First Amendment creates not just rights but certain duties. Among those duties is the duty to protect speakers.”
Just as police must protect speakers threatened by a mob, Wu thinks prosecutors need to do more to prevent threats and attacks on speakers, and especially journalists. That wouldn’t require new law—the criminal statutes are already on the books—just different prosecutorial choices under current law.
“Anybody who makes it their business to go around making death threats to journalists who don’t agree with them should be imprisoned,” Wu said. “That should become an enforcement priority. It’s not right now.”
It’s open for debate how effective that could be. The Internet Research Agency trolls may find their travel restricted by their indictment, but they are unlikely to ever see the inside of an American courtroom, much less a prison. Other nefarious actors foment threats without ever actually making them themselves, and could sidestep accountability that way.
If enforcement priorities go some way to answering the troll form of reverse censorship, Wu has fewer answers for how First Amendment jurisprudence can rise to the challenge of those who pursue the Chinese zone-flooding model. Wu, like other commentators, argues that tech giants like Facebook need to acknowledge that they are now media companies. With that burden, they need to work to stem the flow of fake news and to adopt journalistic ethics about spreading rumors and libel. That recommendation is good as far as it goes: There’s an increasing consensus that tech companies ought to act. Whether and how they will is a different question.
When I asked Wu what the government could do to stop zone flooding—independent of private companies doing the right thing—he acknowledged that many possible solutions quickly run into complications. “Almost all of the ideas are horrible,” he told me. Slippery slopes abound. Even without solid answers, though, the work of pushing to modernize the First Amendment to address an age of reverse censorship, rather than old-fashioned censorship, is an urgent one.
