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Wednesday, January 17, 2018

Tim Wu on Unconventional “Private” Threats to Freedom of Speech

Tim Wu has circulated an important and insightful article asking whether the First Amendment is obsolete. I want to highlight here one of Wu’s arguments, because he says much better what I attempted to argue in a recent post: Freedom of speech is threatened by attacks that the First Amendment does not address, such as the “unleashing ‘troll armies’ to abuse the press and other critics.” As Tim notes, “[s]ome suppression of speech is disturbing enough to make one wonder if the First Amendment and its state action doctrine (which holds that the Amendment applies only to actions by the state, not by private parties) are hopelessly limited in an era when harassment is so easy.”

Tim has some interesting suggestions about how the “state action” doctrine might be tweaked to address these new threats. Although he offers a couple of arguments for expanding the concept of “state action” to treat ostensibly private persons who suppress speech as state actors, I take these suggestions to be doctrinal and political non-starters and bad ideas: We do not need constitutional centralization in this fraught area. His more interesting (to me) suggestion is that the First Amendment get out of the way, so that state and federal law can protect us from private threats to freedom of speech. As an example, Tim flags United States v. Moreland, in which a district court upheld against a First Amendment challenge liability under the federal anti-cyberstalking statute for trolling harassment of a journalist. My only caveat is that I prefer state over federal law as a way to manage these new “private” threats to freedom of speech. Our disputes about the scope of the right to harass is a reasonable and deep disagreement requiring decentralized accommodation. I’d urge that SCOTUS read various First Amendment concepts capaciously (for instance, “reckless disregard for truth” in Gertz) to accommodate these subnational experiments.

In any case, the article is short and important, written by someone writing with exceptional authority about the governance of the internet. As Larry Solum likes to say, “download it while it’s hot!”

Posted by Rick Hills on January 17, 2018 at 01:40 PM | Permalink

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