Tuesday, October 15, 2019

The View from the Cult

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Jeff Kosseff

I was a rookie journalist, reporting about a nonprofit that abused a federal program intended to help people with disabilities.  I was on the phone with a New York lawyer for the media conglomerate that owned my newspaper. The lawyer, who likely billed more in one hour than I earned in a week, rattled off a list of threats from the subject of the reporting.  I only understood some of what he said.  I still recall the phrases “Texas Penal Code” and “defamation per se.”

I was terrified.  The nonprofit that was the subject of my reporting did not want us to publish the stories, which were based partly on information that I received from confidential sources.  After reviewing the story, the lawyer gave us the green light to publish, and assured us that there would be no grounds for a defamation lawsuit or criminal prosecution.  “The First Amendment is a great thing,” he assured me.  Sure enough, we published the investigative series, and the only ones who went to prison were the nonprofit’s executives.  The government reformed a program that created jobs for people with disabilities.  The First Amendment prevailed.  I went to law school.

Not surprisingly, I approached The Cult of the Constitution with cautious skepticism.  The book forces us to critically evaluate the impacts of the First Amendment.  Such a task is particularly uneasy for free speech enthusiasts.  As a lawyer, I have represented news organizations in newsgathering disputes.  As a professor, I wrote a book in which I offer a qualified defense of Section 230 of the Communications Decency Act, which immunizes platforms for many claims arising from user content.  And without the New York Times v. Sullivan, New York Times v. United States, and other expansive First Amendment jurisprudence, I could have suffered financial ruin or imprisonment simply for doing my job as a journalist. Indeed, in many other countries, I likely would have faced those consequences for the stories that I wrote.  First Amendment protections were not a theoretical debate for me; they were my professional survival tools.

Still, Mary Anne Franks, more than any other contemporary scholar, caused me to evaluate my normative view of free speech protections. It would be intellectually dishonest to ignore or minimize the very real harms that Franks highlights in her discussion of the First Amendment and Section 230.  Franks correctly observes that the near-absolutist view to online speech has “given tremendous power and voice to a regressive and censorious attitude toward women.”  Those of us who worship the First Amendment must directly and clearly address that it protects not only crusading journalists, but also hateful 8chan trolls.

First Amendment absolutists often worry about the chilling effect that government regulations will have on free speech.  Franks forces those of us who believe in robust civil liberties to confront other chilling effects that we may not typically address in our scholarship.  Franks demonstrates that the robust interpretation of the First Amendment too often provides a megaphone to people who abuse their privilege, chilling the speech of women, racial minorities, and others who do not have the same access to speech.
Case in point: the continued confusion over the First Amendment’s relationship with hate speech.  The headline across most of the Aug. 6, 2019 business section of the New York Times was bold and confident: “Why Hate Speech on the Internet Is a Never-Ending Problem.” Below the headline was an excerpt from Section 230, followed by: “Because this law shields it.”  Section 230 does not “shield” platforms from liability for “hate speech” because, as the Times noted in a correction, the First Amendment prevents liability for “hate speech.” The New York Times was not the first to make this mistake.  In response to a debate about conservative pundit Ann Coulter, former Vermont Governor Howard Dean tweeted in 2017 “[h]ate speech is not protected by the first amendment,” and was quickly corrected.  Although most first-year law students could tell you that the First Amendment protects a wide swath of objectionable speech, that hard fact is too often forgotten or whitewashed.

Franks challenges her readers to question their long-standing assumptions about free speech.  Supported by meticulous research, she argues that more than two centuries of jurisprudence have interpreted the Bill of Rights in a manner that favors the privileged.  As Franks notes, the First Amendment protects speech from regulation due to the fact that it is “merely unpleasant, unpopular, or crude expression” (though she notes that the contemporary conception of hate speech also can include speech that is not protected by the First Amendment, such as incitement and true threats).

We must confront the very real harms that Franks highlights, and question how this affects our First Amendment analysis.  Yet it would be equally disingenuous to entirely disregard the substantial benefits of our substantial constitutional and statutory free speech protections.  In today’s political environment, it has become even more important for people to have the ability to freely express their criticisms of the government and other powerful institutions, and for journalists to be able to do their jobs, unfettered by regulation, prosecution, or litigation.

Addressing Franks’s legitimate equal protection-based concerns while maintaining the equally legitimate benefits of free speech requires a careful case-by-case weighing of the benefits and costs of the free speech protections, and perhaps a rethinking not of whether to protect free speech, but how to do so.  This reexamination requires trade-offs and a balancing of compelling interests.  A nuanced and balanced approach to the First Amendment is in line with Franks’s admonition against absolutist interpretations.

In some areas, courts have attempted to address First Amendment disputes with a balanced approach.  I’m currently at work on a book about the history of one such topic: anonymous speech.  As Franks notes, the ease of online anonymity for harassers “makes it difficult if not impossible for their victims to engage in self-help or legal remedies.”  Franks points to anonymizing technology that enables Internet users to mask their IP addresses and other identifying information. The First Amendment also helps to protect many Internet users’ identities.  If, for instance, a defamation victim sues an anonymous Internet user, the plaintiff must subpoena identifying information from online service providers.
Such subpoenas raise First Amendment concerns because the United States has a history of anonymous and pseudonymous speech, dating back to the publication of the Federalist Papers by Publius. The Supreme Court has recognized the value of anonymity.  In 1958, the Court invalidated Alabama’s attempts to force the NAACP to disclose its membership lists.  Two years later, the Court struck down a Los Angeles ordinance that required handbills to include the names of their authors and distributors; in the case before the Supreme Court, the handbills urged boycotts of employers who discriminate by race. “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” Justice Black wrote. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”

The NAACP and a wide range of protesters and dissident voices have benefitted from the U.S. tradition of anonymous speech.  So, too, have so many of the harassers and trolls whom Franks highlights in her book.  As courts have been asked to compel the disclosure of the identities of online posters, they have struggled with the need to preserve the longstanding tradition of anonymous speech while leaving open the courthouse door for those who have suffered serious harms. To do so, courts have developed balancing tests rooted in the First Amendment.  The tests vary by court, but largely require judges to balance the strength of the plaintiff’s claim against the defendant’s free speech rights.

Such thoughtful, fact-specific approaches to speech disputes should weigh the real harms that Franks highlights in her book, particularly as related to people who historically have lacked power or voice.    They also should balance the consequences of chilling speech, such as a corrupt company silencing critics with defamation threats, or reporters facing jail time.

To my fellow free speech cultists -- the civil liberties groups, the journalists, the media lawyers, the technology companies: I urge you to read Franks’s book, and consider with an open mind how it fits with your conception of the First Amendment.  Be honest with yourself. Be creative.  Consider nuanced solutions that preserve our extraordinary free speech rights while minimizing harms to others and allowing everyone to have a voice.  Rather than dismissing Franks’s arguments as a call to restrict speech, consider how we can work together to open avenues to speech for all Americans, and not just the privileged.

Jeff Kosseff is an assistant professor of cybersecurity law at the United States Naval Academy.  You can reach him by e-mail at jkosseff at The views expressed in this post are only his, and do not represent the Naval Academy, Department of Navy, or Department of Defense.

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