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The New York Times is wrong to attack the First Amendment

Is the First Amendment under threat in modern America? Credit: Getty

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.

The piece then discusses First Amendment proponents’ concerns about the recent law giving Biden power not only to ban TikTok, but also other companies with even indirect connections to people or entities in “foreign adversary countries”. While it is true that China poses some potentially grave threats to the private data of TikTok users, why did so few congressional records offer strong evidence to that end? If the government wants such an extraordinary power, it needs to prove its concerns — ideally in the legislative record — and in court. We should expect nothing less from defenders of civil liberties.

The article concludes by talking about potential First Amendment arguments that will be made against the regulation of artificial intelligence, as if not allowing the government to have that power over the development of such a crucial technology is necessarily playing to the interests of corporate America. This is a wild oversimplification. As Greg testified before Congress several months ago, the most boring and predictable play in the regulatory process is when corporations try to get regulated on their own terms, in order to create a legal environment that is favourable to them and hostile to their upstart competitors. This is the game that we believe the current AI powerhouses are playing in Washington, an argument that Marc Andreessen has also made.

The First Amendment is there to limit the harm that can be caused by the prejudices of those who wield power — the power to tell us what we can say, what we can know, and what information can be shared. The open exchange of opinion and information is one of the defining characteristics of a free society. While it doubtless has costs, giving fallible government officials too much power over this right poses far graver threats.


Greg Lukianoff is the president and CEO of the Foundation for Individual Rights and Expression (FIRE), and co-author of The Canceling of the American Mind. Adam Goldstein is the vice president of strategic initiatives at the Foundation for Individual Rights and Expression (FIRE).

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Jim Veenbaas
Jim Veenbaas
9 days ago

If you oppose free speech or the first Amendment, you are not a journalist.

Ex Nihilo
Ex Nihilo
7 days ago
Reply to  Jim Veenbaas

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?

Ex Nihilo
Ex Nihilo
9 days ago

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.

Matt Sylvestre
Matt Sylvestre
8 days ago
Reply to  Ex Nihilo

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)

Ex Nihilo
Ex Nihilo
7 days ago
Reply to  Matt Sylvestre

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.

Carlos Danger
Carlos Danger
9 days ago

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.

Helen E
Helen E
8 days ago
Reply to  Carlos Danger

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.

Kirk Susong
Kirk Susong
7 days ago
Reply to  Helen E

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.

Andrew Fisher
Andrew Fisher
3 days ago
Reply to  Helen E

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.

Jeremy Bray
Jeremy Bray
9 days ago

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.

David Morley
David Morley
8 days ago

The First Amendment is there to limit the harm that can be caused by the prejudices of those who wield power — the power to tell us what we can say, what we can know, and what information can be shared. 

Part of the problem is that those who wield such power, and want more of it, masquerade as the powerless victims.

Brendan O'Leary
Brendan O'Leary
8 days ago

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.

Peter B
Peter B
8 days ago

Just wish we had the First Amendment here in the UK. One of the US’s finest inventions.

Matt Sylvestre
Matt Sylvestre
8 days ago
Reply to  Peter B

Absolutely and I up voted your comment but I really wish people who down vote such would comment and sincerely explain their objections…

Kirk Susong
Kirk Susong
7 days ago
Reply to  Matt Sylvestre

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.

Andrew Fisher
Andrew Fisher
3 days ago
Reply to  Kirk Susong

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!

Kirk Susong
Kirk Susong
3 days ago
Reply to  Andrew Fisher

Do any of us have the time to correct *every* wrong thing on the internet?

Daniel Lee
Daniel Lee
8 days ago

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.

Carlos Danger
Carlos Danger
8 days ago

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.

RM Parker
RM Parker
7 days ago

The first six words of the headline make a reliable rule of thumb, I find.