Time for a First Amendment Jubilee? [2 of 2]
Let's Do a Free Speech Reset for the Information Age.
The First Amendment in the Digital Age
The First Amendment guarantees Americans the most extensive protections of speech in the history of the world:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Our shared identity as Americans is reflected, protected, and advanced by this keystone of our constitutional order.
As in prior moments of technological change, the digital age is posing new challenges:
There is now a capacity for anyone, anywhere to share their views on social media and by other digital means.
In a fit of national absent mindedness, the public square has become dominated by private actors. They control access, determine how information is disseminated, and harvest vast amounts of data. Such data can be readily directed to commercial and political purposes, with limited accountability. Such enterprises are sheltered by First Amendment and statutory protections. As they have overreached in their interactions with customers, a handful of tech giants have intruded on our rights and expectations as fellow American citizens.
As they have overreached in their interactions with customers, a handful of tech giants have intruded on our rights and expectations as fellow American citizens.
Social media—Twitter and Facebook and YouTube, among others—have the capacity to totalize the imposition and enforcement of online norms. While Dave Chapelle is surely right that “Twitter is not a real place,” it can have powerful real-world consequences. An errant tweet or “like” can be weaponized by a hostile mob of partisans, ideologues, cranks, bots, and whatever else the barge brings in. Institutions and individuals of influence can frame disfavored expression in ways that become indelibly defining.
From its ratification in 1791, the First Amendment has represented a historic innovation. Part of this was the separation of church and state. Free speech debates in Great Britain were complicated by the government’s role in adjudicating rules on blasphemy and other tenets of the established church. By contrast, the United States moved toward content neutrality. Reason, not revelation, would be paramount. Today, as “woke” politics strives to fill the space once occupied by religious institutions, it’s encountering friction with our First Amendment values. It’s enabling simultaneous assaults on ideals of content neutrality and citizen sovereignty.
Where people traditionally have been granted some forgiveness for “youthful indiscretions,” the digital world maintains records for all time. Inadmissible opinions of teenagers may be used to discredit them years later. Anyone’s worst moment may be preserved and presented as evidence of an identity that is outside the pale—and implicitly or explicitly irredeemable.
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Past Statements No Limitation on Future Value
Imposing a statute of limitations on prior statements would not mean that the statements would disappear. It would establish a norm that they would no longer constitute credible criteria to exclude the speaker from full participation in the public square.
This would sweep in cases such as those of Rogan and Goldberg.
It would also protect others who have weighed in on recent free speech controversies.
For example, journalist Nikole Hanna-Jones, an advocate of speech restrictions from the left, would not be liable to having her views categorically dismissed on account of virulently racist commentary she penned as a student.
The same standard would apply to writers at National Review, a publication of the right. Their arguments against the efforts to de-platform Rogan would not be liable to categorical dismissal because the founder of their publication, the late William F. Buckley Jr. expressed racist views in the 1950s and 1960s.
Curiously, some of those who believe that we have little to learn from the history are the most assiduous in combing through the records of others in search of evidence to marginalize them by the standards of the moment.
It’s time to bring such self-referential exercises to a close. The stakes before us are simply too high.
All Hands On Deck
In the digital age, individuals have capacities to gain information and express themselves that were previously limited to governments and other institutions. At the moment, these forces are seeking to restore something like the status quo ante.
We are engaged in a struggle to determine what voices can be heard and heeded.
We should keep two overarching truths front-of-mind: Our elites are not infallible; our nation is not invulnerable.
We need all hands on deck.
Our elites are not infallible; our nation is not invulnerable. We need all hands on deck.
Our First Amendment traditions enable us to hear and heed the voices of history. They enable us to hear and heed a range of views and experiences from our extraordinarily diverse people.
They enable us to cultivate imagination.
They enable us preserve and protect our shared national identity as Americans.
Image Credit: ‘The Levites Sound the Trumpet of Jubilee,’ 1873 illustration, Unknown, Public Domain via Wikipedia.