Social Media Regulation, The Limits of Originalism, and the Supreme Court's Obsession with Free Speech
By Eric Segall
Last Friday I participated in a virtual symposium at Mercer Law School on "Social Media Platforms and Free Expression." The issues raised by government regulation of the internet are complex, and of course no one can do justice to them in a lengthy law review article, much less a blog post. But there are two points I want to highlight about this issue that came through clearly during the symposium: 1) originalism is completely unhelpful as a theory of interpretation/construction when it comes to judicial evaluation of regulatory limits on social media companies; and 2) the United States Supreme Court has an obsession with free speech values (at the expense of other important concerns) not shared by most other free countries.
Beginning with originalism, it should be obvious to everyone that the worlds of 1791 and 1868, or more specifically, the first amendment's original meaning, simply are of no use to judges or scholars trying to figure out what limits the Constitution places on government regulation of the internet. Unfortunately, this reality is often twisted by self-professed originalists and at the most visible of times. For example, Professor Larry Solum was the only legal scholar asked to testify about originalism at the confirmation hearing of then Judge Neil Gorsuch, and he said the following:
There was no Internet when the First Amendment was written in 1791. Today, Americans can speak over the Internet. The application of the freedom of speech to a speech broadcast over the Internet is very simple. Speech is speech, whether it is in person, amplified by speakers, or transmitted over the Internet. The Constitution was written in language that can be applied to new circumstances. There was no state of Nebraska when the Constitution was ratified, but there is no difficulty in applying the constitutional provision that grants each state two Senators to Nebraska.
Similarly, that late faux originalist Antonin Scalia once said: "Of course [constitutional] provisions have to be applied to new phenomena like the radio and the Internet....It is essential to originalism, as it is not to so-called 'evolutionary constitutional jurisprudence,' to know the original meaning of constitutional provisions." And Justice Gorsuch has written that as "originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet."
Whom are these people talking to? Of course the first amendment applies to new forms of speech and expression, just as evolved methods of torture implicate the eighth amendment and electronic surveillance triggers the fourth amendment. But those banal observations do not address whether the alleged original meaning of the first amendment can help us sort out hard issues regarding government regulation of Facebook or Twitter. It cannot, and we shouldn't pretend that it can. Similarly, the text of the first amendment is too imprecise to be helpful in most if not all litigation involving the internet. So where does that leave us? I'll return to that issue below.
The internet changed the world in ways no one could have imagined a century or two centuries ago. The ability of one person sitting at home to reach millions of people represents a new kind of communication that brings with it unexpected benefits and harms. The internet can mobilize both peaceful and violent public demonstrations in ways unimaginable not that long ago. Social media can inspire and defame folks all over the world, affect elections with both true and fake news, and mislead and inform people with a deluge of information unfathomable to both the public and legal experts in times past.
There has always been a tension between free speech values and other important concerns that at times outweigh speech values (think perjury, bribery, and libel laws) but the exponential growth and reach of the internet compared to the forms of communication available in 1791 or 1868 is not a difference in degree but a difference in kind.
No historical inquiry can tell us whether we should hold social media companies liable for speech on their platforms or whether the government can require them not to censor people they ban from their websites. Saying the first amendment places some limits on internet regulation is both obviously true and totally unhelpful when it comes to judges deciding real cases on the ground or legislators trying in good faith to act constitutionally when balancing free expression with other harms. Historical inquiry in this area of constitutional law simply cannot help, no matter what type of originalism bridge originalists are trying to sell.
Thus, it is no surprise that only one person (Russ Weaver) focused on history during the day, and there was no mention of originalism during the symposium nor, of course, a focus on the text of the first amendment, which cannot shed light on these hard issues. The futility of textual and historical analysis regarding free expression and social media regulation suggests, to this author anyway, that we question how much second-guessing we want from unelected, life-tenured judges on legislative solutions dealing with these serious and new problems. The Court will, as it almost does, rely on its own prior decisions, usually devoid of serious textual or historical analysis, to try and resolve future cases in this area. But that is just today's judges musing over what previous judges have said, and those previous judges, like the current ones, had little expertise in technology and the relationships between and among evolving communication tools, free speech, and other values such as not letting a few huge social networks delegitimize an election or spread false information about vaccines.
When our federal courts get involved in cases pitting free speech values against other important concerns, they generally privilege speech, as the Supreme Court has effectively ordered them to do. That emphasis, however, is not shared by the rest of the free world. During the symposium, Professor Andras Koltay, a Budapest Law Professor, talked about the different ways European countries balance free speech concerns with other important values compared to how our Supreme Court does so. In Germany, for example large social media companies must take Nazi symbols down once the provider is made aware of them. Such a requirement could not be imposed in America because free speech advocates would be yelling about slippery slopes, Confederate flags, and other symbols.
I'm not here to say whether it is on balance a good or bad thing for countries to impose rules such as the one adopted by Germany, but it is wrong to dismiss such ideas simply because our own elite, life-tenured judges would strike down such a law. It is also helpful to remember that four Supreme Court Justices (including Stevens) thought that the states could ban the burning of the American flag as a symbol of protest, but my guess is none of those four would have allowed the government to ban the depiction of the Confederate flag on social media. Germany adopts rules to address the horrors of its past while we build monuments to segregation and racism, often with taxpayer dollars.
In addition, as the law currently stands, doctors can be required by states to give what is often false information to women seeking abortions, but so-called pregnancy crisis centers cannot be forced by states to give truthful information about lawful medical procedures provided by those states. Such offensive picking and choosing by government officials (judges) of favored and disfavored speech is highly problematic and should lead us to view with more seriousness than we currently do how speech and other values are weighed by foreign countries.
The last question of the day during the symposium was directed to me. A student asked me what I thought would happen if my clear error rule for constitutional law was adopted in the context of judicial protection of dissenting speech. It was an excellent question. My answer, which I cannot address here in any detail, was that the Court has historically done a terrible job protecting dissent when it really matters so the question assumed a fact not in evidence.
I will have more to say about that issue in later blog posts. For now, it is enough to note that the Roberts Court is much more concerned about the speech of big corporations and business interests than political dissenters, and that's not what the text or history of the first amendment suggests. That’s what happens when we let judges run amok. There may well be a better way if we just open our eyes and are more humble about how other countries have addressed hard issues concerning the freedom of speech.