The First Amendment Is Not a Suicide Pact
Confused thinking is standing in the way of a perfectly achievable goal: moderating speech on the internet.
Free-speech absolutists love to quote the 1922 concurrence by Supreme Court Justice Louis Brandeis in Whitney v. California: If free speech is a problem, “the remedy to be applied is more speech, not enforced silence.” When Twitter shut down President Trump’s account in the wake of the assault on the U.S. Capitol, Twitter CEO Jack Dorsey agonized over the blow to the “noble purpose and ideals” of free speech. Even free-speech pragmatists were conflicted, worrying that banning incitement, fraud, and defamation from the major platforms of social media would only push violent extremists to conspire in the web’s dark shadows.
This ambivalence about the regulation of speech and media stands in the way of proven measures that can enhance both moderation and freedom of speech. The First Amendment guarantees not just freedom of speech but freedom of the press, since the two are inextricably linked. To improve speech, we need to empower professional journalists and editors not as censors but to shape the forums in which speech is conducted. This means putting a diverse mix of professional journalists and editors in charge of the dissemination of news and opinion on each of the major internet platforms and backing them up with arm’s-length regulatory oversight.
We know that this formula works, even when content is supplied by masses of internet volunteers. Well functioning platforms like Wikipedia impose professional editorial control over speech. In its early days, Wikipedia relied overwhelmingly on loosely regulated editorial input from volunteers. Back then, the site was awash in errors and marred by partisan struggles over entries on controversial topics like the Armenian genocide. In response, Wikipedia hired more professional content managers and imposed a strict hierarchy of editorial authority based on volunteers’ track records of reliability and good judgment. As a result, Wikipedia became a trusted site to which fact checkers redirect unwary YouTube users who stumble upon erroneous content.
From 1949 until 1987, the Federal Communications Commission’s “Fairness Doctrine” required broadcast media companies to produce “balanced” coverage of important public issues or risk losing their licenses. Many observers now view this system as having produced a “golden age” of journalism, providing a common factual basis for our politics—which was often contentious but not so polarized as to portray alternate realities.
The U.S. Supreme Court allowed the Reagan Administration to abandon the Fairness Doctrine, accepting the argument that the plethora of contending voices in U.S. media guaranteed coverage of many viewpoints even if any one outlet lacked balance. Immediately, right-wing media propagandists set about establishing a speech monoculture in vulnerable segments of the American media audience, first with rural talk radio and later with the monopolization of local TV and newspapers, Fox News, and conspiracy-mongering websites.
Naive progressives unwittingly played into their hands, championing regulation-free internet rules in the 1990s. These new rules facilitated President Trump’s unchecked demagogy; empowered QAnon; gave Alex Jones’ Infowars website a mass audience for its “Pizzagate” defamation of Hillary Clinton; and for a time allowed Facebook to ignore its platform’s role in fueling mass support for the Myanmar military’s genocide of the Rohingya, vigilantism in India, and Trump’s violence-inciting “Stop the Steal” campaign to overturn the 2020 presidential election.
Many progressives are still dragging their feet on effective media reform because they believe in the following seven myths, which together animate their exaggerated fear of a slippery slope to censorship.
First, many Americans across the full spectrum of opinion—from the progressive left to libertarians to Trump-supporting conspiracy theorists—talk as if the First Amendment guarantees their right not only to voice their opinions in public, but to have instant, unfiltered, global access to an audience of millions, regardless of how ill-founded, incoherent, and misleading those opinions might be. In fact, for the first two centuries of the First Amendment, people whose opinions did get widespread exposure achieved this attention only through the press, whose freedom is likewise guaranteed by the First Amendment.
By tradition and common sense, if not explicit constitutional stipulation, one of those press freedoms is the right to make editorial judgments about the newsworthiness of content. Although major internet platforms like Facebook and Twitter have tried to evade their responsibility for content by pretending to renounce this right of judgment, their business models depend on the algorithms and terms of service through which they shape access to speech in their forums. The question is not whether speech is to be regulated, but whether it will be regulated well or badly.
Second, free-speech absolutists fear that reining in objectionable speech necessarily means censoring the content of speech. This is not the case. Provocative speakers whose views lie outside the mainstream can be—and are—interviewed by professional journalists who contextualize the interviews with established facts, ask the interviewees pointed questions, and invite sparring. The speakers can say anything they like, though they may be shown up as ill-informed blowhards or worse.
A related fear is that the zone of censored speech—incitement, defamation, and fraud, which are not protected by the First Amendment—will undergo creeping expansion. But these types of speech already have well established legal definitions; media and platforms can and should stick to these definitions to justify barring such speech. As for speech in the “gray zone,” the solution is to give journalists more discretion in using newsworthiness and editorial judgment to decide whether to pull the plug or add explanatory context. In fact, exercising such judgment is routine for them: TV stations eventually decided to cut away from Trump’s rants on covid and election fraud. He could still deliver his statements, but mainstream outlets didn’t have to run them uncut or could clearly label them as false.
Third, even those less concerned about threats to the First Amendment worry that pushing conspiratorial “hate speech” off mainstream platforms will backfire, sheltering it in balkanized niches of the internet where it will thrive, isolated from contact with reality-based discourse. These pragmatists fear that moves by internet service providers to shut down sites like Parler could degenerate into endless games of whack-a-mole, further embedding their users in a culture of aggrieved deviance.
We’re likely to see this pattern with hardened extremists, but they aren’t the only occupants of this space. The Trump base of conspiracy believers includes huge numbers of regular people engulfed in an information environment in which virtually everyone watches Fox News and the local right-wing station, listens to conspiratorial talk radio, and hears the same politicized preacher every Sunday. Haphazardly attentive people absorb conspiracy theories because these theories occupy a routine place in everyday discourse, not because they assiduously seek them out while “doing their own research,” as diehard QAnon addicts put it.
In the era of Walter Cronkite, inattentive viewers had to turn off the TV to avoid the mainstream; fact-based news was served up on the three networks in the same dinnertime slot. Hard-core extremists could search out John Birch Society pamphlets, which were not censored, but most people didn’t bother to do so. As a result, politics was not polarized in the way it is now. Things changed in the 1970s, when the proliferation of cable TV allowed the disengaged to abandon mainstream network news in favor of “Three’s Company” reruns. The reality anchor of the common nightly news was replaced by less adequately vetted local influences.
Being the default source of information means being a powerful tool for either moderation or extremism. The radical Right, knowing this, took control of as many of these tools as they could. Similarly, authoritarian regimes know that they don’t need to suppress all speech if they just control mainstream discourse. The genocidal Serb strongman Slobodan Milosevic monopolized TV but allowed fringe opposition discourse on low-powered radio stations and in print. Vladimir Putin controls Russian TV, but not all internet access.
Errors of Judgment
A fourth error in judgment of skeptics of media reform is that they sometimes attribute the parlous state of political discourse to the alienation of media audiences from all elites and symbols of authority. In this view, the root causes are economic vulnerability and rapid, unsettling cultural change, compounded by elites’ indifference and disdain; distrust of media and belief in conspiracies is seen as merely a symptom. It follows that the media can’t be fixed until these underlying problems are addressed.
Yet this is only partly right. When Columbia Professor Tamar Mitts and I surveyed twenty thousand Google users for their views about five proposals for structuring Facebook’s newsfeed, the winners, in a dead heat, were these: (a) Each user should have complete control over which news sources to see and how they should be displayed, and (b) Facebook should hire a very diverse staff of experienced professional journalists to manage its news feed.
The January 2020 Pew survey of distrust toward U.S. media showed that Democrats, liberals, and moderates trusted a broad range of mainstream media. Republicans and conservatives, in contrast, trusted only Fox and a small number of right-wing talk-radio hosts and websites. Research on the life cycle of conspiracy theories from a Harvard team led by Yochai Benkler likewise showed a contrast between left and right. In the right-wing media ecosystem, conspiracies arising on fringe websites and social media were echoed and amplified by Fox News and Donald Trump. In other media systems, the far Left generated just as many conspiracy theories; but these ideas failed to thrive because the New York Times, NPR, and other mediating institutions refuted or ignored them. These results suggest that while underlying popular attitudes matter, whether they are propagated in the marketplace of ideas depends heavily on how media systems are structured and regulated.
Fifth, pessimism about media reform is also rooted in the assumption that there is widespread opposition to any form of government regulation. In this view, reestablishing the Fairness Doctrine might be desirable, but the zeitgeist is against it. This pessimism is exaggerated. The United States has now run its experiment with unregulated social media and biased broadcast news. We now know that it has led to conspiracy theories that threaten the survival of constitutional democracy. As a result, the major internet communications platforms are now open to various forms of self-regulation, journalistic input, third-party oversight, and occasionally even rhetorical invitations to government regulation that would get them off the hook of widespread public opprobrium.
Far from being a radical innovation, a government role in promoting and regulating communications media has been a continuous theme in the U.S. marketplace of ideas since the time of the Founders. Benjamin Franklin led the federal government to establish the postal system, which was so important in the country’s political life that Southern members of Congress insisted on the infamous Gag Rule, allowing them to ban mail from the North that might include abolitionist material. The federal government also funded America’s original telegraph system. It later regulated broadcast radio, initially justifying the intervention by citing the need to avoid overlapping radio frequencies but continuing regulation—including the Fairness Doctrine—for broader reasons of the public interest. When faced with a perceived decline in the quality of TV and radio, Congress established the Public Broadcasting Service and National Public Radio, setting a successful precedent for funding public interest journalism.
That precedent is even more germane today in light of the current crisis of journalism’s business model and the increasing control of local private media by entities like the Sinclair Broadcast Group. The assumption that there was adequate diversity in our news media, which underpinned Supreme Court rulings against the Fairness Doctrine, has been refuted.
The Court’s decisions in this area addressed an executive branch rule with ambiguous grounding in congressionally enacted statutes. There is no reason why Democrats, with control of the Congress and the White House, can’t do it better this time, passing a constitutionally acceptable version of the Fairness Doctrine.
And Clouded Thinking
A sixth sign of confusion is that some progressives are keener to use antitrust lawsuits to break up the monopolistic media and communications platforms than to regulate them. But there is a risk that antitrust cases would divert attention from pressing regulatory needs while dragging on inconclusively. The breakup of Google, Facebook, and Apple, even if achieved, might yield smaller successor companies that have the same incentives to sort users into homogeneous opinion bubbles and use algorithms to pander to appetites for misinformation. From the standpoint of managing incitement, defamation, misinformation, and “hate speech,” having a more integrated, well-regulated marketplace of ideas with a major role for professional journalists might be preferable to a balkanized, trust-busted public sphere.
Antitrust might be the best way to deal with the overall political and market power of the tech platforms, but that should not be confused with the specific problem of regulating media discourse. Likewise, regulating speech to protect democratic rights does not necessarily require the same remedies as the problem of privacy, domestic terrorism, or the economic travails of news media companies. A good solution for one problem will not necessarily solve all the others.
A final worry of skeptics of media reform is that journalistic professionalism and enlightened media regulation might succeed too well in reducing polarization and the plague of conspiracy theories and would court the opposite danger: complacent consensus. Nobody wants a return to the cozy relationship between the elite press and the national security state that led to the Gulf of Tonkin Resolution or the softball treatment of Colin Powell’s claims to the UN Security Council that Iraq had deployed weapons of mass destruction. However, better forums for public debate and critical journalism need not submerge disagreement; instead, we have reason to hope that they will increase its rigor and credibility.
Jack Snyder is the Robert and Renée Belfer Professor of International Relations in the political science department and the Saltzman Institute of War and Peace Studies at Columbia University. His books include Human Rights Futures (2017) and Human Rights for Pragmatists (forthcoming).
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