Jameel
Jaffer and David Pozen
The
First Amendment’s free speech and free press clauses, and the values they stand
for, have been the subject of intense controversy in recent years. Events in Charlottesville have reinvigorated
old debates about the proper response to hateful speech. President Trump routinely vilifies the news
media and constitutional libel law. Critics
on the right decry what they describe as a growing culture of close-mindedness
on university campuses. Critics on the
left decry a “Lochnerian” turn in judicial doctrine, as the courts have come to
rely on the First Amendment to limit regulation of economic activity. On the Internet, new threats to political
discourse—from “fake news” to increasingly subtle forms of governmental and
nongovernmental censorship made possible by digital technologies—appear to be
mounting.
Against
the background of these formidable challenges, we are excited to announce that
the Knight First Amendment Institute at
Columbia University
will commission and publish a series of essays that grapple with newly arising
or intensifying structural threats to the system of free expression. These threats may be caused by changes in the
forms and applications of technology, in the means and economics of
communication, in the norms and practices of politics, or in legal doctrine itself. The Emerging Threats papers
explore ways to address these threats and thereby preserve features of
democracy essential to healthy open societies.
We
launch this series today with the publication of a provocative essay by Tim Wu,
professor at Columbia Law School and author of The Attention Merchants. In
“Is
the First Amendment Obsolete?” Wu observes that some of the forces that
undermine contemporary political discourse—such as “troll armies,” “flooding,”
and propaganda robots that aim to distort or drown out disfavored speech—may be
beyond the reach of the First Amendment as traditionally interpreted. To secure the expressive environment against
these threats, Wu explores a range of possible responses, including new uses of
“accomplice liability” and “captive audience” doctrines under the First
Amendment and new laws that would broaden criminal liability for online
intimidation of members of the press. We
asked two leading legal scholars to reflect on Wu’s arguments. Geoffrey Stone of the University of Chicago identifies
historical parallels to the threats Wu spotlights and urges caution, while Rebecca
Tushnet of Harvard Law School considers
possible extensions of Wu’s ideas in areas such as compelled speech and public
education.
In
future Emerging Threats essays,
authors including Matthew Connelly, Justin Driver, Lina Khan, Kate Klonick, Frederick
Schauer, Amanda Shanor, and Olivier Sylvain will examine the legal and policy
implications of fake news, hostile audiences, privately owned online platforms,
government secret-keeping, economic concentration in the media and related
sectors, online conduct that harms historically subordinated groups, and other
phenomena that are raising profound challenges for the system of free
expression. We don’t expect to offer
simple or uncontroversial solutions to any of these challenges, but we hope that
the series will deepen certain existing First Amendment debates and spark some
new ones.