The First Amendment in One Net

-- By EricSantos - 06 Mar 2015

What Do You Mean by “Freedom”?

Envisioning a world where the ideals of the First Amendment guarantee an absolute sort of freedom of speech and expression runs into various logical, ethical, and practical quandaries. It is not just that freedom of speech will be forced to compete against other values; even accepting that the First Amendment is a “trump” of sorts in an age of One-Net interconnectedness, cases will arise where simple insistence that speech must be free cannot resolve anything.

A basic example of this tension is disruptive speech. If Tom wants to make a speech in a traditional public forum, should Richard and Harry be allowed to show up and shout to prevent others from hearing Tom? Even if permits can be issued to restrain Richard and Harry’s physical ability to enter the space, should they be prohibited from setting up large speakers nearby? If Larry and Sergei decide that they do not like the content of Tom’s speech, are they exercising legitimate expressive freedom if they program their search engine not to display any results relating to it? The proposition that freedom of speech should be unlimited provides very little guidance in these situations without further elaboration.

A Formal Approach

A court considering these questions could read the guarantee rigidly and formally and find that the First Amendment prevents any intervention in these cases; Tom will be left to find his own solution. In addition to the practical problems of a legal system that guarantees that no person can ever be prevented from setting up speakers and broadcasting whatever they like at any time and place, this interpretation is flawed because it casts as irrelevant any functional value in the timing or location of speech or the resources of the speakers involved. It is fine to say that Tom can counter Richard and Harry with a more-speech solution, but it is less plain that Tom’s freedom of expression can’t be meaningfully curtailed by concerted opposition from Google.

More to the point, formalistic unlimited speech risks much more than tyranny-by-the-largest-megaphone. For example, it is easy to cast revenge porn as a clash between unsavory expressors and uncomfortable victims. If this were the full story, a good free speech libertarian could confidently say that the victim’s best remedy is to respond with more, superior speech. However, this oversimplifies the dynamic because the goal of a revenge pornographer is to retaliate against and repress the speech of others. Revenge porn is threatening as well as humiliating; it tells the victim that if they continue to speak, they can be hurt. In a world of total connectedness, should speech designed to suppress that of others be allowed? It may be argued that these are costs that must be borne to prevent despotic control of the net by the state, but is de facto tyranny by private entities a superior alternative?

Possible Evasions

Courts who want to maintain a rigid guarantee of the First Amendment’s supremacy could avoid some of these problems with absurd line-drawing. They could delineate the boundaries of what constitutes “speech” even more aggressively than courts have already done and pretend that refusing to display certain websites on a search engine is somehow separable from the content of blog posts or that threats are impliedly physical and thus subject to regulation where “pure” speech would not be. These types of semantic acrobatics would conveniently preserve the First Amendment’s status as a trump, but would also render it entirely feckless. The government could defend any type of oppression from a First Amendment challenge by accomplishing it through means deemed not to be speech.

Glorious Functionalism

A different court may acknowledge that the expressive rights of individuals sometimes conflict and that we should instead find that the First Amendment requires the government to take actions to foster that the “most” speech and that these considerations must take precedence over all other values. The problem with this conception of free expression is that it also leads to absurd results if carried to its logical end. Consider the example of Tom, Richard, and Harry discussed above. A court that supports this functionalist view of free expression could easily justify limiting Richard and Harry’s ability to disrupt Tom’s speech. However, they could not do so if the government’s involvement was only to restrain Richard and Harry; if they did, the functional effect of a government action would have been to reduce the total amount of speech in society. Instead, the government could only use the First Amendment to limit Richard and Harry’s speech if they also ensured that this limit was “offset” by some other opportunity for even more speech. The only other solution would be for the government to allow Richard and Harry’s disruption, which reverts back to the formalist interpretation of the First Amendment discussed above.

In this case, the solution is easy. Abstracted, however, this principle would require the government to take affirmative steps to maximize the amount of speech and expression in society. If no other principles can trump the value of speech, this duty would be unlimited. The government would be implicitly authorized to take ANY action that facilitates more speech. It would become a leviathan, not the primarily-passive overseer of the One Net.

Unlimited Free Speech is a Bad Idea

The more coherent resolution to these issues is to drop the idea that the First Amendment can be truly unlimited. Other values must enter the equation even when free expression is at issue. The Constitution should not revert to abstract absolutes; it should be a living law that adapts to the particular needs of our time. A frank conversation about the way to interweave the guarantee of free speech together with the other essential values inherent in the American form of government would be more productive than trying to stretch principles across all situations to the extent that they become feckless platitudes or the basis for true tyranny.