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July 3, 2024 - 5:40pm
Those of us who defend freedom of speech have unfortunately become used to hysterical headlines from the New York Times decrying the problem of the First Amendment.
Some of these headlines rely on straw man arguments to make their case, such as “Free Speech Is Killing Us” by Andrew Marantz in 2019. And who could forget Ulrich Baer’s 2017 article, “What ‘Snowflakes’ Get Right About Free Speech”, which argued that people who agree with him should have more control over speech on campus? (Perhaps the least surprising position a university administrator has ever taken.) Or Lisa Feldman Barrett’s 2017 article, “When Is Speech Violence?”, which argues that speech can become violence when it’s… stressful? If that’s the case, then what’s the First Amendment for?
Professor Tim Wu’s piece this week, “The First Amendment Is Out of Control”, was in this troubling tradition of free-speech catastrophising. As he notes at the beginning of the article, “[n]early any law that has to do with the movement of information can be attacked in the name of the First Amendment.” Well, sure. Fear of government power over the free flow of information was a big part of the reason why “Congress shall make no law.”
Indeed, that’s also a big part of why the founders included “the press” in the First Amendment. And by “the press”, they didn’t mean institutional journalism (although the First Amendment clearly protects that as well). They meant the literal biggest information-moving technology of the day: the printing press.
Wu then moves into a criticism of the Supreme Court’s decision in Moody v. NetChoice, the case about Texas and Florida laws regulating social media moderation. In his view, the Court presumed “free speech protections apply to a tech company’s ‘curation’ of content, even when that curation involves no human judgment.” But there were humans involved. There’s substantial daylight between the concept of machine-aided curation and curation that involves no human judgement. This feels like another straw man, because the key rationale motivating the Texas law Wu has championed is political bias in content moderation — bias that was, at some stage, introduced by a human being exercising a political judgement.
Meanwhile, the risk of empowering a government to go after social media sites couldn’t be higher. Wu states that social media regulations such as those in Florida and Texas are “legitimate tool[s] with which democratic governments can stand up to private power”. But the power of the government is exactly what the First Amendment is supposed to limit — and for good reason. If we curtail the First Amendment to make it easier for governments to go after private actors, those governments will not stop at corporations or machines. They’ll go after individuals, too.
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SubscribeIf you oppose free speech or the first Amendment, you are not a journalist.
I see your comment has one “thumbs down” vote. Who gives free speech and the first Amendment a thumbs down? Is Kim Jong-un reading and responding on UnHerd now?
Outlets like the NYT have jettisoned or otherwise lost the best of their journalists, who are too principled to conform to echo chamber mentality, too creative to be happy with group-think, and too talented and ambitious to simply disappear. The Washington Post is hemorrhaging cash as the public’s appetite for its absurd notions of journalism fades. Meanwhile outlets like UnHerd and The Free Press are being created by the diaspora of exceptionally-talented and well-educated journalists who either reject or are themselves rejected by legacy media. Thank God! I learn more from Freddie Sayers, Mary Harrington, Nellie Bowles, or Bari Weiss in a week than a year’s worth of NYT.
Perfect comment… I would add Douglas Murray, Colman Hughes (sp?), and Kat Rosenfield (again sp?) and of course Quillette (can’t even begin to spell that one)
Absolutely! I love them all and feel so lucky that we no longer live in the world of twenty years ago when the alternatives to legacy media were Fox News, Rush Limbaugh, Glenn Beck, and the other nutters of that era.
Tim Wu is a Columbia law school professor who has also been in and out of government (and actually ran for office himself). Lina Khan joined him at Columbia just before she was picked by Joe Biden to head up the FTC. Both, like Jonathan Kanter at the Justice Department, are hipster antitrusters (neo-Brandeisians). They think that for any problem, the government can provide a solution.
That’s wrong. As economist Thomas Sowell likes to say, there are no solutions, only trade-offs. That’s a problem the hipster antitrusters can’t seem to grasp. The hand of government is heavy, and the top-down regulation they preach with zeal stifles the trading-off that bottom-up market forces nurture. Slogans like “big is bad”, “the curse of bigness”, and “break ’em up” don’t leave much room for compromise.
Simplistic, black-and-white thinking does not work in our complex world. With free speech, we need to be more tolerant on both sides. For one thing, we need to stop bringing cases like Murthy v. Missouri. The plaintiffs couldn’t produce evidence that they had been harmed by the vast “censorship-industrial complex” they claimed exists. Must not be so vast a complex if they can’t find a single person who it harmed.
That’s not to say there isn’t a problem with censorship on social media. But the problem is with the social media companies. And it’s not such a big problem that it can’t be worked out. Litigation, though, is not the way to work out problems. Litigation is like little kids running to Mommy to settle their disputes. They should learn to work it out themselves.
Problems with easy solutions have already been solved. It’s not like parents, or the courts, have all the answers. The nine members of the supreme court, for example, sit on thrones, garb themselves in robes, insist on being called “your honor”, make everyone rise when they enter or leave, and are appointed for life without ever having won the favor of the people. They become aristocrats who labor over long opinions crammed with case citations and abstruse arguments but lacking in the common sense and wisdom that comes from the crowd.
It’s a mistake to rely on abstractions instead of practical experience. Tim Wu ends his article with a quote from justice Robert Jackson in 1949: “if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Though I disagree with Tim Wu on most of what he says, I do think he’s right that we need to stop acting like the right to free speech is hallowed and sacred. It’s a lot more messy than that.
Thanks for the background on Wu and Khan. However, I take issue with one of your points:
“The plaintiffs couldn’t produce evidence that they had been harmed by the vast ‘censorship-industrial complex’ they claimed exists. Must not be so vast a complex if they can’t find a single person who it harmed.”
They could have asked me. I myself and others have been harmed by our inability to explore lines of thought that were stifled by federal agencies’ interference with what’s allowed to be expressed over tech platforms.
First Amendment jurisprudence covers not only the right to speak but also the right of audiences to hear.
Standing is a pretty important part of a ‘conservative’ approach to jurisprudence, to limiting judicial power over social disputes. I haven’t read the opinion, so I may be wrong about this case. But in general people worried about judicial overreach should be very protective of even technical standing arguments. They’re really important.
Turning back to this case in particular, isn’t one of the problems here that the plaintiffs who had their social media presences suppressed were being suppressed by the social media giants even before/without the govt pressure? Facebook and Twitter didn’t have their arms twisted by the Biden Administration… they shook hands in agreement on the ‘problem’. First Amendment jurisprudence assumes that the govt is coercing unwilling actors, not that the govt is encouraging willing actors. ‘Groupthink’ or the ‘Deep State’ or whatever you want to call it is a major problem in our society.
An abridgement of your rights to hear all relevant arguments is a free speech issue in itself. But that’s not going to be solved by further censorship, which will of course be overwhelmingly bias towards the progressive left.
NYT: I am happy to support your right to publish absurd attacks on free speech despite your failure to understand the value of the First Amendment. But it is one good reason not to buy your rag.
Part of the problem is that those who wield such power, and want more of it, masquerade as the powerless victims.
Am I right in thinking that the liberal disdain for free speech started around the time Hillary lost the election? And then cranked into overdrive when they lost control of Twitter/X.
Just wish we had the First Amendment here in the UK. One of the US’s finest inventions.
Absolutely and I up voted your comment but I really wish people who down vote such would comment and sincerely explain their objections…
I did not downvote that comment but will offer a thought on downvotes more generally. Sometimes I downvote a comment even though I agree with the commenter’s primary point, because I think his rationale or underlying assumptions or side comments are wrong.
I would say that that’s a very subtle use of downvotes! If you disagree with someone’s reasoning then you ought to put in the effort to explain your own.
Otherwise it sounds like a bit of a sniffy de haut en bas – I have excellent reasoning but you don’t. Which perhaps others of us might be in a position to question!
Do any of us have the time to correct *every* wrong thing on the internet?
This has been the direction the legacy media and the Left have been moving in since the Internet began giving ordinary people the opportunity to speak freely and voluminously instead of being limited to a few Letters-to-the-Editor criticizing Progressivism – but then only politely and with due deference for their betters. They want to shut us up.
Very good point about the TikTok bill. That bill is based on fiction, not fact. It’s a disgrace to our country to ban a company that is majority-owned by Americans with no evidence of any harm. We claim to be the land of the free, yet we are as bad as China.
The first six words of the headline make a reliable rule of thumb, I find.