Thoughts – How can the U.S. Government restrict our First Amendment Rights?

Free Speech

“Vigilance has never been more crucial, or more difficult, for the free press around the world. The greatest threat isn’t to one or two individuals, nor is it confined to any given country or year. An information battle is under way worldwide, and it is evolving in extremely dangerous ways. The one constant, as always, is that reporters are on the front line.”(1)

– Christiane Amanpour

To level set, the objective of this blog is to address the degree to which technology has changed domestic and international politics in the modern Information Age with profound implications upon human civil liberties.

Throughout the arc of history, there is clear and compelling evidence the development and ownership of complex tools and technologies, as a product of human creativity, has changed the course of humanity. There is no shortage of excellent books and blogs written by profound authors on these advancements. There seems, however, to be a gap in the dialog that this blog has addressed and will continue to address. The point of view this blog is written from is that humans have a digital persona that mirrors their physical one, but the two personas do not share the same set of constitutional and human rights despite being one in the same.

In the previous post I revisited one of the core questions of my research efforts to evaluate whether the U.S. could still be considered an authoritarian national surveillance state. My updated findings conclude that not only can the U.S. still be considered an authoritarian national surveillance state; it is actually getting worse and showing few signs of legitimate abatement.

It is generally well understood authoritarian governments look to collect as much information about people as possible, while simultaneously restricting the information people can know about the government’s own activities. Moreover, authoritarian governments also seek to control what can be said about them in public/private. In the U.S. we have the Constitution’s First Amendment, which provides the people the freedom of speech and freedom of the press. Edmund Burke dubbed the press as the “Fourth Estate” attributing it as a fourth branch of government that is critical to a healthy democracy.(2) The Snowden NSA leaks not only touched off a global debate about privacy and surveillance, but also a debate on the freedom of speech and the press to report on sensitive government matters. Given the U.S. government, through the lens of my research is considered deeply authoritarian; the objective of this research post is to examine how the U.S. government can and is seeking to restrict our freedoms of speech and the press, through the lens of progressive legal scholars and presidential advisors who view the U.S Constitution and its freedoms, as “negative rights”. In the interest of context and concision, I will briefly touch on the following questions in this post that have already been addressed in more expansive individual posts on this research blog. If you have already read my previous posts on these questions, feel free to skip ahead to the section titled “A Progressive Projection of the First Amendment”. This is a long form post but I have labored to break the information down into logical and digestible sections.

How has the religion of state power made government simpler?

What does Obama and his NSA Review Panel Really Think About Security & Surveillance?

What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas?

First Amendment Text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.(3)

How Has the Religion of State Power Made Government Simpler?

Part 1 of this research blog argued the U.S. National Surveillance State is authoritarian in nature by using a framework provided by Jack Balkin at Yale Law School. The framework was found within a broader paper by Balkin titled, “The Constitution in the National Surveillance State.” Moreover, in my research endeavors I found this paper was also published as the lead essay in a book titled “The Constitution in 2020” that was co-edited by Jack Balkin. The book was published in 2009. “The Constitution in 2020”, with extensive funding from George Soros, is a movement that openly seeks to create a “Progressive” consensus as to what the U.S. Constitution should provide for by the year 2020. Before being published as a book, “The Constitution in 2020” was a series of conferences financially underwritten by George Soros’ Open Society Institute, The American Constitution Society, and The Center for American Progress. Those conferences started in 2005.  Coincidentally, Attorney General Eric Holder was a member of the Board of Directors at the American Constitution Society prior to being appointed AG.  Eric Holder’s outgoing quote at the American Constitution Society in 2008:

“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more safe,” Holder said in his speech this past June. “For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”

– Eric Holder, U.S. Attorney General

Part 2 of this research blog argues that Governance, which is based on the rule of law, is a technology in of itself and the nature of current U.S. governance policy is based upon the ideas, methods, and tactics written within the book, “The Constitution in 2020.” The generic name for this movement is: “democratic constitutionalism.”

In 2012 Justice Ruth Bader Ginsburg made the following quote that I believe is emblematic of “Democratic Constitutionalism”:

“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the Constitution of South Africa … a fundamental instrument of government that embraced basic human rights.”

Supreme Court Justice Ruth Bader Ginsburg, Jan. 30, 2012.

Ms. Ginsburg’s comments may sound absurd, but they reflect an ongoing movement among “progressive” legal activists to render the Constitution, as we know it unrecognizable. Perhaps Harvard law professor Mark Tushnet expressed the best definition of this movement:

“For 30 years, conservatives have hijacked the Constitution, and we’re taking it back.”

Mark Tushnet, Harvard Law School

So the big story is that Justice Ginsburg’s enthusiastic embrace of the South African Constitution is a long-range political movement to create a “progressive” constitution to ultimately supplant the founding documents of the United States. The main threat the Constitution was designed to protect the people from was a source of tyrannical and unchecked power that is in direct conflict with the Bill of Rights.

The purpose of this progressive movement was described in a May 26, 2009, New York Times Magazine article: “… the organizers set out to gather together a group of scholars to define a progressive constitutional agenda for the coming century. … the democratic constitutionalists see courts and political movements as partners, influencing each other and society as a whole.” Democratic constitutionalism (Progressivism) is tantamount to practicing a particular religion; in this case it is the religion of state power. So how do those who practice the religion of state power seek to restrict our first amendment rights to make government simpler?

Although there is no secret about the existence of the “Constitution in 2020” movement, the radicals who would deface the current Constitution plan to do so by stealth.(4) Stealth will be in the details written way below the surface or created by alternative means such as administrative law or international treaties and agreements.(5) Examples like Obamacare and the recent Climate Change agreements are apt. The Trans-Pacific Partnership and the FCC ruling on net neutrality are a few others.  The real threat will come “under the radar,” as President Barack Obama is wont to say.(6)

A lead-off speaker during the follow-up 2009 Soros-funded “Constitution in 2020” conference reconvened at Yale University Law School, professor Aziz Huq of the University of Chicago Law School laid out the need for a deep political masquerade to accomplish real change.(7)

“We’ll start with the problem of candor,” Huq said. “No constitutional movement ever got very far by admitting that it sought innovation in the founding document. Or by admitting that it was enabled by the particular social/historical or doctrinal circumstances of the change that it urged. Yet to be a credible movement for constitutional change—a credible social movement—that movement has to deny, in a sense, its ultimate goal.”(8) 

These words sound remarkably just like the recently released statements of key Obamacare architect, Jonathan Gruber, regarding how American voters are stupid and lack of transparency is a powerful political tool and was necessary to gain the votes for the Obamacare legislation.(9)

And the deniable goal of progressivism clearly is to supplant our rights, memorialized for Americans with our unique position as the freest people in the world, with a bizarre set of government-granted privileges masked as “rights” or “positive rights”—a kind of leftist cultural affirmative action creating unprecedented social division: a constitutional caste system between the American people.(10) It will be a reflection of President Obama’s now ubiquitous cultural war.(11) Lets now explore what Obama and his NSA review panel really think about security and surveillance.

What does Obama and His NSA Review Panel Really Think About Security & Surveillance?

As stated in a previous post regarding how this research project started, Part 1 and Part 2 of this research blog were written in June and October of 2013.  Part 3 was written in 2011 as my Masters Thesis at The Fletcher School of Law and Diplomacy.  After writing Part 1 in June 2013, I decided to take the opportunity to distribute it to as many scholars, thought leaders, journalists, and business people I could find who were speaking and writing publicly on surveillance, security, and technology.  The Snowden revelations have stirred quite a public debate about these topics and I thought at the time some of those people might be interested in my findings.  Moreover, I was also looking to see if anyone had a different point of view and or perspective I had not taken into consideration.  So I crafted a standard email and sent it with the paper that comprised Part 1 to as many people as I could find who were publicly discussing the intersection of security/surveillance.  Everyone, more or less got the exact same email.

Surprisingly I didn’t get a lot of responses but I measure success by the number of people who respond and the nature of their responses, not by the number of people who do not.  You miss 100% of the shots you don’t take is my perspective and my tactic was aim and shoot and repeat.  I also knew in my gut there was another paper to write, but I didn’t know what it was going to be about just yet and hoped by reaching out to the broader community that process would illuminate for me where I should focus my efforts.  Out of no less than a few hundred emails sent, I received around 10 responses and those particular responses mostly came from the progressive legal scholar community.  They mostly tried to pour cold water on my research.  I thought that data point was interesting, but I had also used Jack Balkin’s framework for what constitutes a democratic or authoritarian national surveillance state.  Jack Balkin is a famous Yale legal scholar, but in my emails I didn’t explicitly say I used his framework, only by opening and reading my paper would someone learn that.  So it was a little hard to surmise what truly sparked particular interest from that particular community in general.  Being the impatient person I am, I gave myself a few months to send out emails and collect feedback because the nature of surveillance/security revelations was ongoing and more people kept joining the public conversation.  I kept taking shots when the opportunity was there for no other reason than I could.

One particular person who initially responded on September 13th 2013 was Geoffrey Stone from the University of Chicago.  He initially declined to comment because he had just been chosen by President Obama to sit on the NSA Review panel with Cass Sunstein, Peter Swire, Michael Morrell, and Richard Clarke.  You can see a comprehensive outlook on their profiles here in Part 2.  I respectfully thanked him for responding and asked him if he would be able to comment after the review panels’ work and report were published.  He said he didn’t know but that I should reach back out at that time.  In December 2013 the NSA review report was released.  After digesting the report and the two conflicting court opinions on surveillance that were also released in December I reached back out to Mr. Stone and asked him the following question:

If the government cannot be responsible enough to hold this highly sensitive data, to what degree are you confident an “independent” agency can keep it sufficiently secure from theft and illicit use?

He responded:

  1. The telephone providers ALREADY have the data.
    2. Beyond the telephone meta-data, private companies have vastly more data about us than what’s involved in the 215 program.
    3. The primary constitutional concern is about government — not private — abuse. As the Framers understood, the government can do far more harm to us than private organizations or individuals. The concern here is not so much leaks of the information (although the government can prohibit that with a private provider as well as when it holds the data) but with misuse of the information.

I responded:

So effectively what the panel and Obama are suggesting is a Federal Reserve Bank of Citizen Data? Not quite private, not quite public which means it falls into constitutional gray areas?

Seems like it only transfers the political risks, all other risks remain the same.

Mr. Stone didn’t respond to that and I wrote him back 24 hours later with the following and copied via email the four other NSA Review panel members:

When technology and telco firms know more about people than the government does, it is inherent in the nature of governance to seek rebalance. Governments have traditionally had the monopoly on the majority of citizens information, but now that is not the case. What is readily apparent from the list in your last email is that you believe and the rest of your panel members believe too (since the report recommendations were unanimous in agreement), is that the government feels it is entitled to citizens information. Agree?

If the amalgamated data exists in the form your panel suggests, it cannot be guaranteed today nor in the future that it is sufficiently secure from theft and illicit use by anyone, Government or otherwise. Perhaps your other panel members can help and weigh in here. The only reason your report suggests and the president desires to move the program out of the hands of the NSA but still capture the data is transferring/dispersing political risk. Sure, let the DOJ for the next few months find an apparatus for a seemingly private entity that in one sense is government, but in the other it is not but it looks on the surface to be narrowly “Constitutional” to have blanket warrants on citizens information.

Do you and the panel agree that our digital lives and our physical lives should both share the same set of civil liberties? Remember, where people sit is where they stand. Thank you.



Again, neither Mr. Stone nor any of the other NSA Review Panel members responded. What could they say? So I wrote again 24 hours later:

Geoff et al,

I think it is important to revisit a previous point of our discussion regarding “positive rights” and “constitutional misinterpretations” as core threats the U.S. I take it on your lack of response/rebuttal and position as chief editor of the “inalienable rights” books series that you disagree or just don’t want to publicly acknowledge at this time that those are threats to the U.S. Perfectly fine. Where people sit is where they stand. Fortunately, we have Mr. Sunstein who has written prolifically on the topic and even attempted to defrost the notion of a second bill of rights that has been collecting freezer burn since FDR tried to start it in the New Deal days. While many of Mr. Sunstein’s ideas are novel, much like many of the ideas that come from the Center for American Progress, the implementation of those ideas is intellectually lazy because of the methods required to institute them. The methods are all laid out in a book I am sure you are familiar with “The Constitution in 2020”. The shocking thing is that the people/authors, some of you, are far from being intellectually lazy in my opinion.

The reason this is important? Jack Balkin’s essay within “the constitution in 2020” that is titled “ The Constitution in The National Surveillance State” does a tremendous job of providing a meaningful framework to understand our current predicament. In addition, he does a great job articulating how the information state is a natural extension of the social state because of the amount of information processing required to administrate social programs (Think Obamacare for instance). Balkin even goes so far as to articulate the differences between an authoritarian surveillance state vs a democratic surveillance state. The point is that you gentlemen and Obama feel entitled to all U.S. citizens data and all data of global citizens, even those within societies who are democratic or “free”. Guess which classification the U.S. currently falls in if using Balkins Framework? Can you guess which category the U.S. falls in after inserting Obama’s ideas form his speech on Friday?

Furthermore, Obama believes the collection should be ongoing and constant, but the government (Obama) cannot be trusted according to Obama’s speech on Friday and your panel’s report said the same insofar as trust. Obama Trying to reframe the debate from whether the information should be collected by the government or not to where the location the data should be held was a rookie sleight of hand attempt. The U.S. Government and National Surveillance has become and desires to continue being an information miser and everyone knows that over time governments will abuse this power. In this case the government will probably find ways of misinterpreting the constitution to institute positive rights for the people that are really only positive for the government, not the people because of the transfer of power. We also know the surveillance programs have had zero meaningful use in stopping any legitimate terrorist events.

The founding fathers put an intellectual bullet through the concept of tyranny by engineering the Constitution the way they did. That is its genius because it enables us a method to interpret novel ideas like “Positive Rights” and “misinterpretations” which are poised to do nothing but enhance the power of the government in insidious ways. Would you say that is a fair assessment? I am open to being persuaded otherwise if anyone wants to step in the ring. One would think at least one of you would have the stones to jump in, but perhaps prestige can only take a person so far.

Best, Chris

Here is the email dialog supporting the above discussion.  I didn’t get a response, but the experience did give me an idea and it also sufficiently proved to myself the NSA Review Panel, The President, Congress, nor the courts seem to have any real interest in protecting the rights of U.S. Citizens or global citizens for that matter….the U.S. government is only interested in its own security, not the security of the people. So I decided to expand my activism to test this group of legal scholars on what they think about their own ideas. Here is what I learned.

What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas?

The Snowden revelations have caused what Bruce Ackerman from Yale law school describes as a “Constitutional Moment”.  Another liberal legal scholar, Jonathan Turley from George Washington University, has been outspoken about the utilization of executive authority and how the current and former administrations, congress, and courts (Madisonian Institutions) have in some instances abdicated their separation of power duties to create what he calls an “Imperial presidency”.  This is an educated, elegant, and hip way of saying “dictator”.

This imperial presidency notion by Turley is interesting because if we revisit Michael Glennon’s research on “National Security and Double Government”, we get a completely different picture of the real power of our elected officials and institutions.  The picture we get from Glennon’s research is that America’s National Surveillance Network (Trumanites) and bureaucratic institutions exercise real power and are the true source of government policy.  True policy bubbles up from the bureaucracies to the Madisonian institutions.  So what happens when the U.S. National Surveillance State is authoritarian and we have a president in executive authority that is authoritarian in nature too?

The second part to my question regards the addition of an “imperial presidency” to an authoritarian national surveillance system.  The question changes a little because the task is to understand if an alliance of mutual interest in ideology and policy exists between the authoritarian executive authority and the national security network of institutions.  If an alliance of mutual interest exists between the authoritarian executive authority and authoritarian national surveillance network, where do the ideas that support the particular ideology of the executive come from?

The bottom line from my research activities aimed at addressing this question, found this group of progressive legal scholars understand their ideas and methods for implementing them are illiberal. They also understand that public scrutiny of their ideas and methods is the fastest path to failure of implementation. Thus I personally took the progressive political handbook, “Rules for Radicals” and engaged those rules in applied research with these scholars. This process reaffirmed that they do not think highly of their own ideas, when they have to own up to them publicly. You can read about how I applied those rules here, but lets now explore what progressives think the Constitution’s first Amendment should do for U.S. citizens in the near future.

A Progressive Projection of The First Amendment

In February 2014 a group of liberal progressive legal scholars held a symposium on the First Amendment at Harvard Law School. The majority of these scholars are also contributors to the “Constitution in 2020”, which as previously noted is a liberal progressive movement to surreptitiously change the meaning of the U.S. Constitution. The stated purpose of the symposium according to the opening paper by Mark Tushnet is to explore the first amendment through the lens of general constitutional law.(12) It focuses on broad questions about the roles of courts and legislatures ranging from federalism (including preemption and the treaty power) to the state action doctrine.(13) It also brings to bear “realist” or political perspectives on how the Court’s doctrines might be shaped by the Justices’ policy preferences.(14)

In Tushnet’s opinion, those perspectives suggest that the Roberts Court’s probusiness tilt in First Amendment doctrine might conflict with the desires of global internet businesses.(15) In essence, Mark Tushnet and these legal scholars are taking the approach that they don’t like or agree with the first amendment and think that First Amendment scholarship has too much of a bias towards liking the First Amendment.(16) This point of view can be seen and heard explicitly in this video of Mr. Tushnet’s opening symposium speech.

Mr. Tushnet’s approach gives rhetorical and political cover to the essay contributors to evaluate and explore ways in which the U.S. government can restrict our First Amendment freedoms from multi-variable perspectives, while not actually acknowledging that is what these scholars are doing. Remember, this “Constitution in 2020” crowd believes that having candor in their motives is a major threat to their efforts. Lets now explore each symposium essay individually to understand its context in the framework that Mark Tushnet and progressives have provided.

Article Title: First Amendment Common Sense

Symposium Presentation Video (Starts around 22 minute mark):

Author: Susan Crawford

Author Profile:

John A. Reilly Visiting Professor in Intellectual Property at Harvard Law School, a Professor at Cardozo Law School, and a contributor to Bloomberg View and Wired. She served as Special Assistant to the President for Science, Technology, and Innovation Policy during 2009, co-led the FCC transition team between the Bush and Obama administrations, and was a member of Mayor Michael Bloomberg’s Advisory Council on Technology and Innovation.

Article Overview:

In Verizon v. FCC, high-speed Internet access provider Verizon asserted that the December 2010 Federal Communications Commission (FCC) Open Internet Rules were subject to heightened scrutiny under the First Amendment.(17) Verizon’s claim was that because it reserves the right to edit what users access across its high-speed Internet connections, any regulation (and thus, necessarily, any statute) limiting that discretion amounts to compelled speech. (18) (Verizon also claimed that it did not in fact carry out such editing.) The cable industry, for its part, has long maintained that when it is selling high-speed Internet access its activities are shielded by the First Amendment, and that any nondiscrimination obligation aimed at cable Internet access providers “would not only encroach upon but would obliterate the boundaries established by the First Amendment and would surely be subject to at least ‘heightened scrutiny’ by the courts.”(19) Commentators working with think tanks such as the Free State Foundation have said that they agree with the idea that private providers of Internet access services should enjoy the same First Amendment protection from government oversight, as do newspapers. (20)

This commentary is surprising.(21) Congress has for more than a hundred years had unquestioned authority to impose on private providers of general-purpose two-way communications lines a traditional, comprehensive, economic regulatory regime that protects innovation, speech, and national competitiveness by overseeing the activities of these providers, subject only to rational basis review by courts.(22) When the FCC acts pursuant to this congressional authority, it must comply with the Administrative Procedure Act (APA) and applicable statutory language. (23) But its regulatory activities in this arena have not in the past been thought to raise serious constitutional concerns under the First Amendment that would trigger heightened scrutiny. (24)

This Article views the providers’ First Amendment arguments in a broad framework of political power.(25) Verizon, speaking (effectively) for the entire high-speed Internet access sector, is seeking to grant greater influence to courts than legislators or regulators by raising constitutional questions about steps that Congress or the FCC may seek to take. (26) From this perspective, aggressive First Amendment arguments that trigger judicial concern are useful to Verizon and its brethren in undermining traditional deference to regulators and legislators. (27) But to apply a heightened First Amendment standard when a court is reviewing an ordinary economic regulatory program, merely because there may be some indirect effect on private speech caused by the challenged regulations, would return us to the Lochner era and sharply undermine congressional authority.(28)

The risk is that a court will someday take the providers’ First Amendment position seriously.(29) Today, the providers’ arguments would likely fail given the Court’s carefully reasoned (and unanimous) opinion in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR).(30) But the providers’ assertions have an interesting temporal dimension: although it seems almost unthinkable that a general-purpose high-speed Internet access provider — selling services that are the modern-day substitute for a telephone connection — would be considered to be “the same as” the New York Times for speech purposes, the network providers have the incentive to change the facts on the ground.(31) As providers of high-speed Internet access have gained market power in the absence of either competition or oversight, their abilities to selectively present digital communications to users and close their gates to content (or “edge”) providers unwilling to pay tribute to them have increased.(32) In the future, their exercise of these powers may arguably make them more like newspapers or the cable pay-television operators found to trigger heightened scrutiny in Turner Broadcasting System, Inc. v. FCC (Turner I) and less like a communications transport network subject to economic regulation.(33)

Because the consequences of the adoption of the providers’ arguments would be to make every congressional enactment in this area subject to a presumption of unconstitutionality, and to strip the FCC of the deference to which it is normally entitled, this is a critical time for courts and others to carefully and deliberately explain why the carriers are wrong.(34) For though the D.C. Circuit declined to address Verizon’s First Amendment claims in Verizon, the providers of high-speed Internet access in America will continue to make these assertions in every possible case and before Congress, repeating their claimed entitlement to heightened scrutiny until it becomes a mainstream argument.(35) On this battlefield, and given that legislators are now suggesting that a rewrite of the Telecommunications Act of 1996 is needed, the particular administrative classification the FCC has applied to the providers of high-speed Internet access is irrelevant, both now and in the future.(36) The sole question is whether the providers’ constitutional claims should be taken seriously.(37) This Article endeavors to provide a roadmap for the needed explanation as to why they should not be, by engaging with the doctrinal, policy, and normative dimensions of the providers’ assertions.(38)

Article Title: More Than A Feeling: Emotion and the First Amendment; “Resolving Discrepancies in the regulation of emotional expression”

Symposium Presentation:

Author: Rebecca Tushnet (Daughter of Mark Tushnet)


Professor Tushnet has taught at Georgetown since 2004.  Previously, she was on the faculty at New York University School of Law. She also has worked at Debevoise & Plimpton in Washington, D.C., where she
specialized in intellectual property. She clerked for Chief Judge Edward R. Becker of the Third Circuit Court of Appeals in Philadelphia and Associate Justice David H. Souter of the U.S. Supreme Court.

Professor Tushnet graduated from Harvard University in 1995 and from Yale Law School in 1998. At Yale, Professor Tushnet served as an articles editor for the Yale Law Journal and as an editor of the Yale Journal of Law and Feminism.  During her law school summers, she worked for the Center for Reproductive Law & Policy and for Bredhoff & Kaiser.

Article Overview:

New York Times Co. v. Sullivan remains a foundational case even as the First Amendment issues occupying the courts today have significantly changed.(39) Modern speech regulations can take many forms; the “new school” Jack Balkin identifies has supplemented, rather than replaced, the “old school.”(40) But the old school has also undergone some renovations.(41) Rather than governing the New York Times, many of today’s trickiest speech regulations target speakers who aren’t traditional publishers, which makes it easier to treat these regulations as fringe cases and to overlook some deep contradictions in current doctrines.(42)

Here, I wish to examine one aspect of Sullivan, which is its requirement of a false factual statement, and the relationship of the falsity requirement to ideas about harm and emotion.(43) Disparaging speech is usually harmful because it triggers negative emotions in the audience, causing other people to treat the victim differently.(44) First Amendment law has generally been leery of government attempts to change the marketplace of emotions — except when it has not been.(45) Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked.(46) There is no judgment, whether moral or otherwise, without emotions to guide our choices.(47) Judicial failure to grapple with this reality has produced some puzzles in the law.(48)

Part I of this Symposium contribution will examine the intersection of private law, the First Amendment, and attempts to manipulate and control emotions.(49) After Sullivan, statutes and common law rules that authorize one person to control too much of another person’s speech can violate the First Amendment.(50) Another key aspect of Sullivan is that only false factual statements can defame, not mere derogatory opinions.(51) Yet trademark law allows exactly the kind of control over nonfactual, emotional appeals that modern defamation law precludes.(52) These two bodies of law thus stand in contrast, one constrained by the First Amendment to cover only facts and the other allowed to reach much further into the dark heart of emotional manipulation.(53)

Part II turns to compelled speech, and again finds two contrasting regulations united by their emotional mechanisms, but divided by their constitutional fates.(54) Courts have struck down mandatory smoking warnings in visual form, but have approved mandatory abortion disclosures and ultrasound requirements that operate in the same emotional register.(55) Regardless of whether the regulation involves a direct government mandate or private parties claiming competing rights to influence the audience’s emotional state, then, current First Amendment law doesn’t have a consistent account of the proper role of emotion in speech regulation.(56)

Part III suggests that the contradictions of current doctrine could be ameliorated by less distrust of emotion and more acceptance that where information is being conveyed, emotion will regularly follow.(57) Our focus then should not be on whether deployment of emotion is “manipulative,” but whether it is part of a discriminatory or factually misleading regulation.(58) When the government regulates speech, the regulation will generally have an emotional component because human thought is emotional.(59) Objections to emotion-based regulations should not be based on the obviousness of that component.(60) Rather, the acceptability of the government’s aim should be the guide, especially when nongovernmental speakers are free to use emotional appeals to press their own cases.(61) The government may be required to be neutral as between classes of private speakers, which Sullivan requires and which I will argue should be the case with respect to trademark law.(62) It is not required to be neutered.(63) When the government can otherwise constitutionally mandate disclosure, the fact that these disclosures have emotional resonance is not an independent constitutional barrier.(64)

Article Title: Press Exceptionalism “How to Identify the Press and its protections”

Symposium Presentation:

Author: Sonja West


Sonja R. West joined the University of Georgia School of Law in the fall of 2006. She specializes in constitutional law, media law and the U.S. Supreme Court.

Prior to joining the Georgia Law faculty, West taught as the Hugo Black Faculty Fellow at the University of Alabama School of Law. She has also served as a judicial clerk for U.S. Supreme Court Justice John Paul Stevens and Judge Dorothy W. Nelson of the U.S. Court of Appeals for the 9th Circuit. Her other professional experience includes several years as an associate attorney for the Los Angeles law firms Gibson, Dunn & Crutcher and Davis Wright Tremaine, where she represented media clients on a variety of First Amendment and intellectual property issues at the trial and appellate levels

Article Overview:

The Occupy Wall Street movement was one of the largest grassroots political demonstrations in American history.(65) The protests raised issues about government policies and social structures that sparked debate nationwide.(66) Treatment of the demonstrators by public officials garnered scrutiny too, as did the tactics of the protestors, which some alleged included unlawful conduct.(67)

Yet despite the high level of newsworthiness, many reporters who attempted to cover the protests faced significant roadblocks.(68) Some were denied access to protest sites.(69) Others were arrested, even when they could and did display press credentials.(70) Airspace was blocked to prevent filming from news helicopters.(71) This shabby treatment of journalists led to condemnation by press organizations and caused the United States’s ranking on the Reporters Without Borders’ Press Freedom Index to drop sharply, from twentieth to forty-seventh place.(72)

The experiences of the reporters covering the Occupy protests reflect a broader reality about journalism: on a day-to-day basis, American journalists deal with legal uncertainties in the pursuit of news.(73) There are difficulties of access to property (sometimes even public property), information, and government meetings.(74) Journalists have uncertain protections against subpoenas and face frequent government demands that they testify about what they have learned while gathering news or that they reveal the identities of confidential sources.(75) Reporters’ notes, photographs, emails, drafts, and video outtakes are potentially subject to search by law enforcement.(76) Members of the press also face risks of criminal or tort liability if they engage in undercover reporting or reveal leaked information.(77)

The underlying problem journalists face is that they are treated by the law as being no different than the subjects they are covering or, perhaps, mere curious bystanders.(78) For constitutional purposes at least, it is entirely irrelevant to courts whether the speakers are members of the press or whether they are actively pursuing the news.(79)

To be sure, once journalists publish or broadcast a story, their speech — like everyone’s speech — enjoys powerful First Amendment protections.(80) Journalists are shielded — again, as is everyone — from prior restraints and content-based censorship of their messages.(81) But when it comes to recognizing the special role of reporters as watchdogs and conduits of information for the citizenry as a whole, the Supreme Court has taken a hands-off approach.(82)

One of the primary reasons for this failure to distinguish between constitutional protections for speech and the press is the problem of identification.(83) In order to recognize unique press protections, the Court must figure out who or what the press is.(84) The Occupy protests again illustrate the problem.(85) Among the crowds at these demonstrations were many people utilizing their constitutional speech rights in ways that might seem “press-like.”(86) An office worker on his way to lunch might see a traffic backup caused by the protestors and use his smartphone to tweet a message to his followers warning them to avoid the area.(87) A cable comedy show might send a “correspondent” to the site to interview protestors and poke fun at some of the colorful participants.(88) A newly graduated journalism student could decide to write an article about the protests with the hope of getting her first publication as a freelance writer.(89) Then there are the bloggers.(90) Some bloggers might post regularly about related issues and thus be attempting to gather information for their established readership whereas others might be offering unrelated content on an inconsistent basis to an unproven audience.(91)

This all raises some important questions: Are these speakers the press?(92) Are all of them or only some of them?(93) And does the difficulty of answering this question confine us to a reading of the First Amendment that gives no meaning to the Press Clause that reaches beyond the Speech Clause?(94)

This Article advances the principle of press exceptionalism — that there exist certain speakers who fulfill unique roles in our democracy.(95) These press speakers devote time, resources, and expertise to the vital constitutional tasks of informing the public on newsworthy matters and providing a check on the government and the powerful.(96) We must recognize these speakers in order to consider and potentially protect their specific needs.(97) A continuing refusal to do so, moreover, comes with risks.(98) These risks include not only a failure to fulfill the promises of the First Amendment, but also widespread societal costs arising out of reduced information flow and weakened government scrutiny.(99)

The challenge, however, is that there are also numerous other speakers who use their speech rights in ways that at times appear to be “press-like.”(100) I refer to these speakers as “occasional public commentators.”(101) Aided increasingly by advances in communication technology, occasional public commentators share information and ideas about matters of public interest to a potentially broad audience in a timely manner — the very activities that were once considered the exclusive province of the press.(102) Because viewing occasional public commentators as press speakers comes with constitutional costs, as I explained in a prior article, it is desirable to distinguish between the two groups.(103) Therefore, I seek to establish a theoretically sound and practically workable methodology for identifying and distinguishing these two types of speakers.(104)

Drawing on past attempts to identify the press and also using the Supreme Court’s recent discussion of who is and who is not a “minister” for the purposes of the Religion Clauses of the First Amendment as a model, I suggest that courts should take a holistic approach to finding the press.(105) This approach could include relying on the cues of third parties and public institutions as proxies, as well as considering the speaker’s track record of publication and audience to determine which speakers are best fulfilling the press functions.(106)

I develop these ideas in three parts.(107) Part I explores who are members of the press for First Amendment purposes, what they do, and why it matters that they be identified.(108) Part II then considers how changing technology has impacted the search for the press, concluding that, rather than defeating the effort, it has helped to focus it and to alleviate concerns of elitism.(109) Finally, Part III combines past efforts by others to identify the press with insights from the Court’s recent discussion on how to determine who is a “minister” for the purposes of the Religion Clauses of the First Amendment to offer a usable beginning framework in our search for the press.(110)

Article Title: The “New” New York Times: Free Speech Lawyering in the Times of Google and Twitter

Symposium Presentation:

Author: Marvin Ammori


Marvin Ammori is a leading First Amendment lawyer and Internet policy expert. He was instrumental to the adoption of network neutrality rules in the US and abroad–having been perhaps the nation’s leading legal advocate advancing network neutrality–and also instrumental to the defeat of the SOPA and PIPA copyright/censorship bills.

He is a Legal Fellow with the New America Foundation Open Technology Initiative and an Affiliate Scholar at Stanford Law School’s Center for Internet & Society. He also heads a law firm and consulting practice, the Ammori Group, whose clients include leading Internet companies and nonprofit organizations.

Article Overview:

When Ben Lee was at Columbia Law School in the 1990s, he spent three months as a summer associate at the law firm then known as Lord, Day & Lord, which had represented the New York Times in New York Times Co. v. Sullivan.(111) During those months, Lee listened to the firm’s elder partners recount gripping tales of the Sullivan era and depict their role in the epic speech battles that shaped the future of free expression.(112) Hearing these stories, a young Lee dreamed that one day he too would participate in the country’s leading speech battles and have a hand in writing the next chapter in freedom of expression.(113)

When Ammori met with Lee in August 2013, forty-nine years after Sullivan, he was working on freedom of expression as the top lawyer at Twitter.(114) Twitter and other Internet platforms have been heralded for creating the “new media,” what Professor Yochai Benkler calls the “networked public sphere,” for enabling billions around the world to publish and read instantly, prompting a world where anyone — you and I included — can be the media simply by breaking, recounting, or spreading news and commentary.(115) Today, freedom of the press means freedom not just for an institutional press but freedom for all of us.(116) The core business functions of Twitter, YouTube, and other platforms turn on expression — no less than the New York Times’s.(117) The lawyers working for these companies have business reasons for supporting free expression.(118) Indeed, all of these companies talk about their businesses in the language of free speech.(119) Google’s official mission is “to organize the world’s information and make it universally accessible and useful.”(120)’s corporate mission is to “democrati[z]e publishing.”(121) Facebook’s is to “give people the power to share and make the world more open and connected.”(122) Perhaps even more than other Internet platforms, Twitter thinks of itself as a medium for free speech: its former general counsel calls Twitter “the free speech wing of the free speech party,” its CEO calls it the “global town square,” its cofounder set out as a default principle against blocking speech that “[t]he [t]weets [m]ust [f]low,” and the company instituted a “church-state divide” reminiscent of newspapers separating employees engaged in content from those selling advertising.(123) Lee told Ammori, “I don’t know what others think with the phrase ‘town square,’ but I think about free expression cases.”(124)

Had Lee been born fifty years earlier, his dream of influencing the future of free speech likely would have inspired him to take a job representing the New York Times or some other leading newspaper at a law firm like Lord Day.(125) Instead, being born to a different time, Lee followed his dream by first taking a job working on free expression at Google, a company with 100 times the market cap of the New York Times and arguably 100 times the influence.(126) While at Google, he worked on free expression alongside other well-known free speech lawyers, including Alex Macgillivray and Nicole Wong, whose influence has been documented in major news profiles.(127) These lawyers must address difficult and novel cases concerning the speech of hundreds of millions of users.(128) They have grappled with these questions on everything from the Occupy Wall Street movement to the publication of WikiLeaks.(129) They have navigated issues from UK local law enforcement measures to Chinese state censorship.(130) These lawyers have earned lots of praise with reporters hoping their practices would become the “industry standard” and claiming that Twitter “beta-tested a spine.”(131) Many reporters credited Twitter’s actions to its speech lawyers.(132) Professor Jeffrey Rosen opined that Google’s lawyers and executives “exercise far more power over speech than does the [U.S.] Supreme Court” and called an administrative law case (that Ammori worked on) involving the blocking of Internet speech “a model for the free-speech battles of the future.”(133)

Whether or not Rosen is right that Google lawyers somehow outrank Chief Justice John Roberts, no one should doubt that lawyers like Lee are shaping the future of free expression worldwide.(134) While they have been criticized for some of their decisions, the lawyers at companies like Google and Twitter are reminiscent of newspaper lawyers of old in their conscious thinking about and focus on freedom of expression.(135) Their companies are not perfect, just as the New York Times is not perfect.(136) Fifty-years from now, though, we will remember these lawyers and their impact on how millions of people experience freedom of expression.(137) And their paradigmatic decisions already have played significant roles in some of the most important freedom of expression episodes in modern times, including the leaking of classified documents to WikiLeaks and The Guardian, the sharing of anti-Islamic videos on YouTube, and the legislative debate over telecommunications and copyright rules such as “network neutrality” and “SOPA.”(138)

This Primary thesis of Ammori’s essay is that some of the most important First Amendment lawyering today is happening at top technology companies.(139) If the decisions of these lawyers and their companies further freedom of expression, decades from now we may be celebrating them as we celebrate those who handled Sullivan.(140) This Article relies on interviews and discussions with many of the top lawyers at these companies to reveal some of the striking influences shaping our digital-speech environment.(141) While First Amendment lawyers at leading technology companies must of course reckon with decisions of the U.S. Supreme Court — and these decisions may shape these lawyers’ mental frameworks — they must also contend with their own corporate and community objectives, with extremely important speech rules promulgated by acts of Congress, and with the laws and traditions of foreign nations that govern so many of their users.(142) A First Amendment practice thrives in the offices of Silicon Valley as it does in the offices of the world’s leading newspapers and organs of opinion.(143) In order to fully understand it, however, we need to look not only to judicial opinions but also to legal sources that many might consider nontraditional.(144)

Article Title: Old School/New School Speech Regulation: Governments Develop New Techniques for Controlling and Surveilling Speech

Symposium Presentation:

Author: Jack Balkin


Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School and the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and new information technologies, as well as the director of the Knight Law and Media Program and the Abrams Institute for Free Expression at Yale. Professor Balkin received his Ph.D. in philosophy from Cambridge University, and his A.B. and J.D. degrees from Harvard University. He is a member of the American Academy of Arts and Sciences.

Article Overview:

New York Times Co. v. Sullivan and New York Times Co. v. United States (Pentagon Papers) are two famous examples of a great flowering of First Amendment jurisprudence during the middle of the twentieth century.(146) The philosopher Alexander Meiklejohn declared Sullivan to be “an occasion for dancing in the streets.”(147) Sullivan recognized that “the central meaning of the First Amendment” was that the state could not punish criticism of public officials made without malice either directly through the criminal law or indirectly through civil damages for defamation.(148) Pentagon Papers reaffirmed the central First Amendment principle against prior restraints; Justice Stewart’s concurring opinion added that the government could not suppress disclosure of sensitive information unless the disclosure would “surely result in direct, immediate, and irreparable damage to our Nation or its people.”(149) Together these two decisions celebrated the crucial role of the press in a democratic society, and stood for the principle that the circulation of public discourse is crucial to democratic legitimacy.(150) Half a century later, the impact of these two decisions has been weakened by significant changes in the practices and technologies of free expression, changes that concern a revolution in the infrastructure of free expression.(151) That infrastructure, largely held in private hands, is the central battleground over free speech in the digital era.(152)

Government practices have also changed in the past fifty years.(153) To be sure, governments still regulate speech through fines, criminal penalties, and injunctions; they still engage in predigital practices of surveillance.(154) But new techniques have supplemented traditional modes of control over speech and traditional modes of surveillance.(155) Like speech itself, the regulation and surveillance of speech require an infrastructure. (156) Increasingly, speech regulation and surveillance are technologically imposed and involve cooperation between governments and the private entities that control the infrastructure of free expression.(157)

Thus, a significant feature of the early twenty-first century is that the infrastructure of free expression increasingly is merging with the infrastructure of speech regulation and the infrastructure of public and private surveillance.(158) The technologies and associated institutions and practices that people rely on to communicate with each other are the same technologies and associated institutions and practices that governments employ for speech regulation and surveillance.(159)

Consider a mid-twentieth-century newspaper like the petitioner in New York Times Co. v. Sullivan.(160) To reach its audience, the Times depended on an infrastructure of technologies and institutions: printing presses, labor unions, delivery trucks, newsstands, and advertisers.(161) These features of the Times’s business may have been regulated by the government in various ways — in trucking regulations, labor law, and so on.(162) But for the most part the government’s capacities for control and surveillance of speech were not built into the very technologies and practices that the Times used to communicate with its audience.(163) The government did not have a long-distance switch that allowed it silently and inexpensively to control the Times’s printing presses or prevent certain articles from appearing in its pages. (164) The government did not require that members of labor unions operating the Times’s printing presses wear hidden microphones and cameras so that the government could learn about any potentially subversive or infringing materials.(165) That is why it was necessary for the government to seek an injunction in the Pentagon Papers case.(166) Of course, the government did control the public streets.(167) Arguably it could have created roadblocks throughout New York City to search for and stop the Times’s delivery trucks, but this would have been highly visible, logistically difficult, and costly in terms of legitimacy.(167)

The digital era is different.(168) Governments can target for control or surveillance many different aspects of the digital infrastructure that people use to communicate: telecommunications and broadband companies, web-hosting services, domain name registrars, search engines, social media platforms, payment systems, and advertisers.(169) The very forces that have democratized and decentralized the production and transmission of information in the digital era have also led to new techniques and tools of speech regulation and surveillance that use the same infrastructure.(170) These tools of regulation and surveillance often work automatically and in the background; they may harness the cooperation or coercion of private owners of infrastructure to achieve the government’s regulatory goals.(171) Low salience and use of private parties can help governments preserve legitimacy even as their policies block, limit, or spy on expression.(172) This is the big story about the freedoms of speech, press, and association in the digital age.(173)

Traditional or “old-school” techniques of speech regulation have generally employed criminal penalties, civil damages, and injunctions to regulate individual speakers and publishers.(174) The landmark decisions in Sullivan and Pentagon Papers responded to old-school speech regulation: in both cases, the state had used penalties and injunctions directed at speakers and publishers in order to control and discipline their speech.(175)

These methods have hardly disappeared in the twenty-first century.(176) But now they are joined by “new-school” techniques of speech regulation.(177) The latter regulate speech through control over digital networks and auxiliary services like search engines, payment systems, and advertisers; instead of focusing directly on publishers and speakers, they are aimed at the owners of digital infrastructure.(178)

These new-school techniques have three characteristic features that often operate together. None of these features is entirely new.(179) Each has counterparts or precedents in the predigital world, but each has been reshaped to fit the demands of a new technological environment.(180)

The first feature is collateral censorship, in which the state regulates party A in order to control speaker B.(181) The digital age enables a vast number of people to communicate widely across the country and around the world.(182) Because there are so many speakers, who are often anonymous, difficult to co-opt, or otherwise beyond the government’s effective control, the state aims at Internet intermediaries and other owners of digital infrastructure — threatening liability to induce them to block, limit, or censor speech by other parties.(183)

Second, and relatedly, public/private cooperation and co-optation are hallmarks of new-school speech regulation.(184) To the extent that the government does not own the infrastructure of free expression, it needs to coerce or co-opt private owners to assist in speech regulation and surveillance — to help the state identify speakers and sites that the government seeks to watch, regulate, or shut down.(185) To this end, the government may offer a combination of carrots and sticks, including legal immunity for assisting the government’s efforts at surveillance and control.(186) Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.(187)

Third, governments have devised new forms of digital prior restraint.(188) Many new-school techniques of speech regulation have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions.(189) In addition, prior restraints are especially important to the government’s expansive surveillance practices in the National Surveillance State. (190) As Balkin explains in Part III of his essay, prior restraints directed at owners of private infrastructure are now ubiquitous in the United States; gag orders have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible.(191)

First Amendment Scholarship and Doctrine From an Interest Group Point of View

This portion of Mr. Tushnet’s essay examines First Amendment scholarship an doctrine with reference to the incentives and background thinking that underlie its production.(192) Section A develops an argument that these incentives lead to something like agency capture as it occurs in other domains: the phenomenon of “liking” the First Amendment arises from the structural fact that advocates of specific regulations limiting expression are scholars only of their specific regulatory domains and so are less well tutored in First Amendment Doctrine than are scholars whose focus is the First Amendment itself.(193) Section B suggests that thinking about the First Amendment as a distinct subject matter systematically undervalues the interests supporting regulation of expression according to Tushnet.(194)

A. “Liking” The First Amendment: The Possibility of Capture

First Amendment scholarship, it seems to Mr. Tushnet, differs from scholarship on other relatively discrete constitutional topics.(195) Scholars of the First Amendment seem to “like” the Amendment, whereas scholars of the Second or Fourth Amendment do not necessarily like their Amendment.(196) Of course one has to like a subject to which one devotes a great deal of attention, but that is not the same as “liking” the First (or Second, or any other) Amendment.(197) What Tushnet means by “liking” the First Amendment is something like this: A First Amendment scholar hears that a court has held that some local ordinance or state statute violates the First Amendment, and his or her initial thought is that that decision is presumptively correct.(198) The presumption is more than a bubble ready to burst as soon as an iota of information arrives suggesting that the decision might have been mistaken.(199) Rather, the presumption has some weight in the scholars assessment of the decision: moderately strong reasons must be offered to explain why the decision was wrong.(200)

Of course some scholars of the Second and Fourth Amendments like their Amendment in the same sense.(201) But, Mr. Tushnet believes, a fair number of such scholars do not like their Amendment at all and think that the Constitution would be better on balance without it.(202) The Structure of scholarship in these fields differs from that in the First Amendment area.(203) The reason is that the Second and Fourth Amendments are basically dichotomized: a scholar can be “pro-gun rights” or “pro-gun control,” or “pro-privacy” or “pro-security/pro-police.”(204) First Amendment scholarship, in contrast, is pluralist – but only on the side of regulation.(205) Some advocates of consumer protection seek forced disclosures or restrictions on the dissemination of consumer information and develop arguments why those regulations are consistent with the First Amendment.(206) Some feminists seek regulation of sexually explicit material that does not qualify as obscene under the Supreme Court’s definition and develop why those regulations are consistent with the First Amendment.(207) Some pro-choice advocates seek restrictions on pro-life advocacy in close proximity to sites where abortions are provided, and do the same.(208) Copyright is dichotomized between content producers, who do not like First Amendment restrictions on copyright, and content disseminators, who do.(209)

Additionally, the structure of the pro-regulatory arguments differs from area to area.(210) So, for example, some arguments assert that First Amendment doctrine should take into account the fact that some regulatory proposals place constitutional rights of one sort – privacy, or choice with respect to abortion, or equality – against rights of expression.(211) Other arguments defend either a categorical or a general balancing approach to the First Amendment, even when, as in many consumer protection settings, one cannot claim that the regulation seeks to advance some constitutionally protected right. (212)

The various arguments are met on the other side with unified advocacy of First Amendment protections. (213) We are familiar with one situation in which a unified interest faces diverse opposing ones.(214) The setting is “agency capture” in administrative law.(215) If interested in exploring further the history and dangers of Administrative Law, you can do so here. Agency capture occurs when an agency’s jurisdiction extends to a single industry, railroads being the classic example.(216) The interest groups opposing railroads are diverse: consumers, farmers, shippers of manufactured goods, and trucking companies.(217) A specific proposed regulation will promote the interests of one of these many groups at the expense of railroads, but he unaffected groups will be different about it. (218) Structurally, we can expect the railroads’ interest to prevail, at least in the proposed regulations will generally be watered down as they work their way through the agency.(219) The reason is that the railroads

B. The First Amendment as a Distinct Field

First Amendment scholarship has another feature, so obvious that it is likely to be overlooked.(220) First Amendment Scholarship is just that – scholarship about the First Amendment.(221) This could be otherwise, and historically were according to Mark Tushnet.(222) We could have scholarship about constitutional law that treats First Amendment as a point of focus, as we did when the First Amendment was simply one topic in a general constitutional law course.(223) The shift from treating the first amendment as merely one part of a general constitutional law to treating it as a separate field of scholarship has two effects Tushnet discusses: that First Amendment scholarship and doctrine tend to overlook the possibility of a generalized skepticism about judicial review and that scholarship and doctrine tend systematically to undervalue governmental interests in regulating speech.(224) Section 1 uses Justice Breyer’s opinion in United States v. Alvarez to illustrate why skepticism about judicial review might sometimes be well placed.(225) Section 2 uses Jack Balkin’s article as an example of the undervaluation of regulatory interests.(226)

  1. The Possibility of General Skepticism About Judicial Review

Though it can range more widely, scholarship about general constitutional law tends to focus on the justifications we might have for allowing courts to displace judgments made by elected institutions, which are directly responsive to the public.(227) First Amendment scholarship and doctrine then take those justifications as given and seek to develop appropriate doctrine.(228) First Amendment scholars sometimes focus on how the protection of expression serves interests in individual autonomy, without grappling with the difficulties associated with grounding constitutional rights in autonomy.(229) More often they nod in the direction of Carolene Products, connecting the First amendment to ideas about democratic representation but here too without much concern about working out such a theory in detail.(230) This inattention leads to a tendency within First Amendment scholarship and doctrine to disregard the possibility of a generalized skepticism about judicial review.(231)

Consider for example Justice Breyer’s arguments in Alvarez, concurring with the plurality’s determination that the Stolen Valor Act of 2005 was inconsistent with the First Amendment.(232) The Act made it a federal for a person to state falsely that he or she had received a military honor.(233) The government argued that the Act was a permissible means of preserving the reputation of those who actually did receive such honors; allowing others to make false assertions that they too had received the honors would have tarnished that reputation.(234) Justice Breyer rejected that argument. (235) He began by stating his general approach.(236) Judges should “examine the fit between statutory ends and means” and “determine whether the statute works speech-related harm that is out of proportion to its justifications.” (237) He observed that existing prohibitions on the dissemination of false statements were limited to circumstances where “specific harm is …especially likely to occur.”(238) Actions that “dilute the value of awards” might count as specific harm.(239) But, Justice Breyer continued, “it should be possible significantly to diminish or eliminate risks from ‘ breadth of coverage’ by enacting a similar but more finely tailored statute,” such as one that distinguished among military awards.(240) This was simply Justice Breyer’s assessment of that possibility, without any weight given to the fact that Congress might have assessed the probabilities differently.(241)

Justice Breyer’s opinion is a robust assertion of a judge’s power to assess legislation in light of the Constitution independent of any possible congressional judgment.(242) As such, it exemplifies the modern tradition of constitutional review, rejecting an older one articulated in 1893 by James Bradley Thayer in “The Origin and Scope of the American Doctrine of Constitutional Law.”(243) There Thayer offered a broadly skeptical view of judicial review, arguing that courts should find legislation unconstitutional only when the unconstitutionality is “so clear that it is not open to rational question.”(243) We can find Thayerians whose skepticism about judicial review leads them to support a quite deferential judicial approach to questions of federalism, separation of powers, and Second Amendment, and almost everything else – except the First Amendment.(244) First Amendment Thayerians are hard to come by.(245) One reason for their absence may be that scholars of the First Amendment implicitly believe that some of the justifications for judicial review are unassailable with respect to all First Amendment issues.(246) What Mark Tushnet finds striking, though, is a significant lack of attention given to the justification for regulation.(247) This is in part an undervaluation of the substantive reasons for regulation but in more substantial part, an absence of serious grappling with the fact that the regulations are the product of a democratic process.(248)

  1. Undervaluing Regulatory Interests

On one available reading, Jack Balkin’s discussion in his symposium article here of what he calls the National Surveillance State can be taken as an example.(249) As he has described it elsewhere, “In the National Surveillance State, the government uses surveillance, data collection….. and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services.”(250) Though Jack Balkin says relatively little in his essay about the last of these functions; one of those services is national security. (251) Many of the programs he discusses aim to further national security.(252) And, it deserves emphasizing, all of these programs are authorized by statutes implemented by an executive branch whose actions are themselves supervised by the courts. (253) So someone assessing the programs’ constitutionality might ask, either from a citizen’s perspective or from that of a person seeking a predicate for an argument that courts should evaluate constitutionality, what significance legislative authorization and judicial endorsement have.(254)

At times the answer appears to be: no significance whatever.(255) That answer, it seems to Mr. Tushnet, flows from the characterization of the National Surveillance State as an actor in itself.(256) That characterization occurs in the course of a discussion of the Obama Administration’s attempt to discover the sources of leaks about antiterror programs.(257)

Mr. Tushnet writes that perhaps the implicit theory about the constitutionality of the National Surveillance State’s programs is an Ely-like one.(258) Some who study authoritarian regimes have developed the idea of a “Deep State,” an organization or network of people whose decisions actually determine the course of public policy notwithstanding purported supervision by democratically accountable executives and legislatures.(259) Mr. Tushnet writes that the National Surveillance State might be like that.(260) True, Congress enacted the statutes that the agencies of the National Surveillance State invoke when their activities are challenged.(261) And True, Congress has set up procedures for oversight of the statues’ implementation, which include the transmittal of information from the agencies to Congress and the courts. (262) But the argument would go, the oversight mechanisms are inherently flawed because of the secrecy surrounding the National Surveillance State’s activities.(263) Neither Congress nor the courts can know what they don’t know – Donald Rumsfeld’s uknown known unknowns.(264) So, when the National Surveillance State’s activities come to light, through leaks or otherwise, their justification cannot always rest on authorization from the people and their representatives according to Tushnet.(265) The predicate for a Thayerian approach to the National Surveillance State is absent.(266) Conversely, the inadequacies of the political process with respect to the actions taken in secret and not subject to oversight justify courts and citizens in assessing the rationales for the actions directly, without referring to the actions (often nonexistent) democratic pedigree.(267)

Perhaps so according to Tushnet, but the foregoing arguments rest on empirical claims about the adequacy of authorization and oversight.(268) And, at least as far we know now, the mechanisms Congress set up for overseeing the National Surveillance State’s actions have been used: key members of Congress have been fully briefed about the programs and courts have been informed about them, requiring modifications where, in the courts’ view, the National Surveillance State exceeded is statutory mandate.(269) Perhaps the members of Congress behaved irresponsibly after being briefed, although Tushnet doubts that, standing alone, such behavior can count as a kind of systemic failure of the political process necessary to justify disregard of a programs democratic warrant in his opinion.(270) And perhaps the oversight mechanisms were designed badly – but then the target of constitutional concern should be not the National Surveillance State’s activities, but he statutory oversight mechanisms according to Tushnet.(271) The secrecy of the National Surveillance State’s activities seems to Tushnet to have nothing to do with the latter question.(272) This suggests, in turn according to Tushnet, that no defect in the political process justifying the abandonment of the Thayerian stance has been identified.(272)

Mr. Tushnet thinks that perhaps the National Surveillance State is so “Deep” that we cannot know whether legislators can now enough to regulate it.(273) That would be a situation, according to Tushnet, where paranoid fantasies happen to be true.(274) No institutions can deal with such situations, thus according to Tushnet, First Amendment Scholarship would profit from a more systematic engagement with general constitutional theory, and especially with the Thayerian Tradition.(275)

  1. Is the First Amendment Business Friendly?

Shortly after the Supreme Court held that the First Amendment covered commercial speech, Professors Thomas Jackson and John Jeffries accurately foresaw that the First Amendment would become this generation’s version of economic due process, a constitutional right restricting the ability of legislatures to regulate business practices.(276) In this part, Tushnet pursues Jackson and Jeffries’s insight into the Internet era.(277) After elaborating in Section A the proposition that the First Amendment has become business friendly in general, Tushnet argues in Section B that the First Amendment might come to tilt against Internet businesses operating on a global scale: those businesses might prefer to trade off some protections afforded them by the U.S. regime of protecting free expression to get access to markets in nations that regulate speech more extensively.(278)

A. How is the First Amendment Business Friendly?

Tushnet writes that the First Amendment covers all businesses but only with respect to those of their activities that can be described as expressive.(279) So, for example, cigarette makers receive constitutional protection for some of their advertising activities, and pharmacies that combine pharmaceuticals, nominally to tailor drugs to individual patients, receive similar protection when they advertise the general availability of compounded drugs.(280)

Coverage does not mean protection.(281) Whether covered material is protected turns on whether the government lacks sufficient justification for its regulation.(282) The Supreme Court has recently come to require that regulations serving even important goals must do a substantially better job at promoting those goals than other, almost-as-good regulations that have a smaller impact on covered speech.(283) As an example, the Court has held that the First Amendment protects the activities of a company that mines publicly available data about physicians’ practices in prescribing specific medications and then compiles that data in a way especially useful to pharmaceutical manufacturers seeking to locate doctors who might be persuaded to sell more expensive, rather than less expensive, medications.(284)

All this matters for two reasons according to Tushnet.(285) First, he suggests much of the modern law of commercial speech has become disconnected from general constitutional law and its focus on the justifications for overturning legislation.(286) The court relies on its own assessment of how well the regulation serves important goals, giving essentially no weight to the legislature’s apparent determination that its regulation was as narrowly tailored as it could be, given the legislature’s sometimes complex goals.(287) Second, and perhaps more important, Tushnet suggests this is why denying protection to much commercial speech is compatible with the core idea that the First Amendment quite strongly protects the activities of businesses whose primary purpose is the dissemination of information.(288)

New York Times Co. v. Sullivan, after all did involve a business.(289) How does it differ according to Tushnet from Verizon, the subject of Susan Crawford’s detailed case study? Verizon has invoked the First Amendment against efforts to ensure that information producers have equal access to the Internet’s channels of information dissemination.(290) But, Tushnet suggests, though with some diffidence, the difference lies in the business models of the New York Times and Verizon.(291) One reading of the New York Times Co. v. Sullivan is that the Court believed it was essential to provide strong protections for the dissemination of falsehoods that damaged reputation to ensure that businesses and individuals would continue to engage in information dissemination.(292) That is the “chilling effect” at the heart of Justice Brennan’s analysis.(293) In contrast, perhaps, requiring that Verizon use an “equal access” business model will have only modest effects on Verizon’s bottom line and will not deter it from continuing to disseminate information.(294)

Verizon’s case has some plausibility, whether it prevails or not, because the First Amendment has become friendly to businesses generally, not simply to businesses for whom strong First Amendment protection is arguably integral to the business model.(295) In her essay, Rebecca Tushnet describes the courts’ inconsistent treatment of “emotion” as a component of First Amendment analysis, but a cynic might suggest that there is a nondoctrinal consistency in the court’s actions: the courts say that emotion matters when taking it into account allows them to find a regulation of business activities unconstitutional under the First Amendment but doesn’t matter when regulation of nonbusinesses is a at stake.(296) Trademark cases typically involve conflicts between businesses, but as Rebecca Tushnet suggests in her essay, trademark rules “discriminate in favor of the already powerful,” that is, in favor of big business and against small ones.(297) For two generations, then, the First Amendment has been business friendly and might not remain so according to Mark Tushnet.

B. Why Might the First Amendment Become Less Business Friendly in the Internet Era?

While the First Amendment has become business friendly, Marvin Ammori’s interviews with general counsels of “new media” companies suggest that might change in Tushnet’s view.(298) Ammori shows that “new media” companies see the First Amendment as “a local ordinance,” akin to a regulation adopted by a city council or state legislature.(299) The reason is that these companies operate in a necessarily international environment, and their financial returns come only in part from their operation within the United States.(300) “New Media” companies of this sort are likely to seek implementation of a consistent regulatory regime, and that regime might conflict with the First Amendment as interpreted by the U.S. Supreme Court in connection with purely domestic regulations.(301)

The analogy here is to corporations operating on a national scale within the United States.(302) Such corporations sometimes face a plethora of regulations emanating from city councils and state legislatures.(303) Complying with such a wide array of regulations can be quite burdensome.(304) The solution is obvious: seek national legislation that preempts state and local regulation.(305) The corporations’ preference ordering might be the following: Most preferred is a national regime of a no regulation at all.(306) Least preferred is a system allowing a wide range of state and local regulations, from quite restrictive to quite permissive.(307) The most interesting possibility lies in between – a national regime of moderately stringent regulation.(308) Corporations might prefer such a regime even if its regulations are more stringent than some of those applied locally because it might be cheaper to comply with a single, moderately stringent regulation than to comply with all the various regulations adopted locally.(309)

Treaties provide analogue in the international domain to congressional legislation in the domestic one.(310) And just as national corporations might want to see Congress enact a statute preempting diverse local regulations, so international corporations might want to see the United States enter into treaties preempting diverse national regulations.(311) Now suppose that, responding to pressure from “new media” corporations operating internationally, the United States enters into a treaty displacing domestic regulation everywhere, including the United States.(312) It is not difficult to imagine circumstances under which that treaty would contain provisions that, if enacted as purely domestic legislation within the United States, would raise serious First Amendment questions.(313) Tushnet claims to not be technologically sophisticated enough to know whether in the international domain there are close analogues to the “open access” rules Susan Crawford discusses in here essay.(314) But if there are according to Tushnet, one can imagine a situation in which U.S. treaty partners insist on open-internet rules that would be unconstitutional were Verizon’s challenge to succeed.(315) The U.S. negotiators might resist such rules, with support from U.S. “new media” companies whose first preference is a regime of no regulation at all.(316) But the partners might insist, and the U.S. “new media” companies might be willing to accept a regime of some regulation instead of having to deal with different regulation in each country.(317)

It is easy to imagine other cases according to Tushnet.(318) New York Times v. Sullivan places rather strict limits on the ability of states to impose liability for disseminating false information that harms reputation, and it has been extended to limit the imposition of liability for disseminating true information that invades privacy by casting the personae people present to the world in a false light.(319) Most other nations interpret their constitutional protections of free expression to allow liability to be imposed in such cases.(320) Similarly, Tushnet says perhaps there are nations that would not insulate intermediaries from liability as extensively as the United States does at present.(321) Suppose, then, that treaty partners insisted on regulations authorizing imposition of liability for libel or invasion of privacy via the Internet, or imposition of liability on intermediaries, more extensively than would be permitted by the First Amendment as it has been interpreted so far.(322) The First Amendment would then turn from being businesses’ friend into being (some) business’ enemy.(323)

According to Mark Tushnet, it is completely uncontroversial – now – that the Senate and the President cannot enter into a treaty with binding domestic effect that would violate the Bill of Rights, including of course the First Amendment.(324) The treaties sketched might be business friendly, according to Ammori’s informants, but the First Amendment would be the enemy of their businesses.(325)

Of course, perhaps none of this will come about: no relevant treaties might be negotiated; those that are might not contain provisions that raise serious domestic First Amendment questions: and by the time any such treaties come before the courts, the First Amendment might already be interpreted in a less business friendly way (So that treaty provisions would not violate the First Amendment domestically).(326) Likewise, the treaty power might be interpreted in a more business friendly way (So that treaties could in fact make domestically valid provisions that would otherwise be domestically invalid).(327) But the possibilities suggested by reading the essay’s by Susan Crawford and Marvin Ammori together bring to mind the Psalmist’s wisdom, “put not your trust in princes: – or in the First Amendment.(328) They also show why it is important to reconnect First Amendment Scholarship with general constitutional law, here the law dealing with preemption and the treaty power according to Tushnet.(328)

  1.  State Action Issues and The New Information Economy

The essays by Jack Balkin and Susan Crawford show that the interactions between government and private corporations caused by contemporary regulation raise a question that would typically be assessed by using the state action doctrine: when do actions taken by those who transmit digital speech from one place or person to another, whether regulated by the government or insulated by statute against liability, become actions subject to direct constitutional control?(329)

Here too New York Times Co. v. Sullivan is the key case according to Mark Tushnet. (330) It should be found in two places in standard constitutional law casebooks, once in the section on the First Amendment and once in the section on the state action doctrine.(331) The Court held unconstitutional central aspects of Alabama’s common law rules defining contours of a privately held right to reputation according to Tushnet.(332) The case shows that the Constitution sometimes in the view of Tushnet, always speaks to state common law definitions of entitlements.(333) Of course many state law entitlements are constitutionally permissible, but some are not.(334) To say that state action is absent is to say that the common law ruels under examination are constitutionally permissible; to say that it is present is to say that we must engage in further analysis by applying the relevant substantive constitutional law to those rules.(335) So, for example, in New York Times Co. v. Sullivan the court first concluded that Alabama’s imposition of civil liability on the newspaper was state action because “the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press.(336) It then examined that claim using substantive constitutional law and held that the “state rule of law” was unconstitutional.(337)

The state action doctrine has become complex and confusing because the courts and commentators have lost sight of the fact that in every state action case the core issue is whether the “state rule of law” – In New York Times v. Sullivan, the state rule of law defining the contours of the right to reputation – is consistent with the Constitution in Tushnet’s assessment.(338) The articles by Jack Balkin and Susan Crawford bring this issue more into focus.(339)

For Balkin, one feature of new-school regulation is “public/private cooperation or co-optation.”(340) Ammori writes in a similar vein that statutory standards have displaced the Constitution as the primary legal vehicle for protecting corporate speech activities.(341) These observations immediately bring to mind one current formulation of some of the circumstances where state action should be found.(342) Under that formulation, nominally private action is directly subject to constitutional constraints when public and private actors are “pervasively entwined.”(343) Mr. Tushnet believes that further engagement with the state action doctrine might well benefit the First Amendment analysis of some of the more interesting questions about regulation of the new information economy. (344) The ideas of intermediary liability and immunity, for example, would be transformed dramatically were intermediaries treated as directly subject to First Amendment constraints.(345) Balkin describes various forms of collateral censorship by Internet Intermediaries.(346) With the state action doctrine in hand, we could call them simply censorship and ask directly whether the censorship could be justified.(347)

Mr. Tushnet doubts that under existing case law (2014), much intermediary activity is sufficiently entwined with public action to count as state action directly. (348) Yet that dos not dispose of the state action issue as identified in New York Times v. Sullivan, which calls on courts to asses the constitutionality of that “state rule of law” that defines property entitlements.(349) Tushnet writes that the intermediaries’ property rights should be the focus of attention.(350)

Crawford’s Article identifies a subject to which the state action doctrine properly understood speaks rather directly because the subject is one were the “rule of law” is precisely what is at issue.(351) Crawford argues that the “equal access” rules Verizon is challenging are the modern version of common carrier rules at common law.(352) Suppose that he Federal Communications Commission had never proposed those rules and Verizon adopted a policy limiting the access of some users to its facilities.(353) And suppose a user disfavored by that policy challenged it as a violation of the users First Amendment Rights.(354) The user’s initial problem would be to establish state action.(355) Where could this be found?

Again, Tushnet says New York Times Co. v. Sullivan provides the answer.(356) There, Alabama had a common law regime of legal rights with respect to reputation. (357) The New York Times article about Commissioner Sullivan infringed on the legal rights Alabama law conferred on him.(358) The Supreme Court held that Alabama’s system of legal rights in reputation was unconstitutional.(359) The reason was that the substance of Alabama’s rules – creating a right to reputation protected from harm cause by false statements made even without knowledge of their falsity and without reckless disregard for their truth or falsity – violated the First Amendment.(360)

Shelley v. Kraemer, the modern foundation of state action doctrine, has the same form, although that form is rarely recognized as such.(361) There, Missouri had a common law rule allowing restraints on the alienation of real property except in situations where the restraints excluded too large a group from the ability to purchase the property.(362) The Supreme Court first found state action in the Missouri rule, then held that rule unconstitutional.(363)

Mr. Tushnet focuses on the substantive holding of Shelley v. Kraemer.(364) The only coherent interpretation of that holding is that state property rules are unconstitutional when they have a substantially disparate impact on racial minorities. (365) Now return to the Verizon problem.(366) The user disadvantaged by Verizon’s policy notes that Verizon is relying on its background property rights, presumably under state law, to choose how to make its facilities available.(367) That is, the user’s claim would be that the background property law, which does not treat Verizon as a common carrier, violates the First Amendment.(368) How? The background law is the ordinary law of property, treating Verizon no differently than it treats an ordinary homeowner or a cake maker, who can choose whom to serve subject only to statutory nondiscrimination rules, which are, by hypothesis, absent in Verizon’s case.(369) The ordinary law of property is a content-neutral set of rules if ever there was one according to Tushnet.(369)

Still, content-neutral rules are not per se constitutional under the First Amendment according to Tushnet.(370) As a matter of stated doctrine, and occasional application, content-neutral rules violate the First Amendment when they have a substantial disparate impact on the ability of certain speakers to disseminate their messages, unless those rules serve a counterbalancing important interest (including, in the present context, the interest in preserving wide discretion in property owners to direct the use of their property).(371) This allows for the users’ challenge to be recasted: it is not to Verizon’s policy of regulating access but to the background rules of property law that fail to impose common-carrier obligations on Verizon.(372)

Tushnet has no doubts that today’s courts would reject the user’s challenge, probably on state action grounds (“Verizon is neither a state actor nor pervasively intertwined with one”) without recognizing the real structure of the challenge.(373) And Tushnet has little doubt that, were they to see the challenge in the correct way, today’s courts would find that the background law of property does not violate the First Amendment’s modest restrictions on content-neutral regulations.(374) Still, framing the issue in the Verizon case in state action terms brings out the real structure of the First Amendment arguments, which are over the constitutionality of specific content-neutral property rules.(375)

Tushnet frames the constitutional issue with reference to a user’s challenge to the alleged discriminatory practice Verizon would like to institute.(376) The case Susan Crawford discusses of course involves Verizon’s challenge to a proposed regulatory scheme.(377) Another classic case shows that the two challenges are in fact symmetrical. (378) Miller v. Schoene was a challenge to a Virginia Statute authorizing the state to destroy certain infected cedar trees so that the infection would not spread to nearby apple trees.(379) The cedar tree owners argued that the destruction was a taking of their property without just compensation.(380) Rejecting the challenge, then-Justice Stone, writing for a unanimous court, observed that “the state was under the necessity of making a choice between the preservation of one class of property and that of other wherever both existed in dangerous proximity.”(381) He continued, “it would have been none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked.”(382) Note, though, precisely what the state’s choice would have been had it “done” nothing.(383) It would have been a choice to allow the cedar tree owners to exercise their ordinary property right to use their trees as they wished.(384) The statute authorizing the trees destruction and the common law property rule were subject to exactly the same constitutional test.(385) So too with the common-carrier challenges, whether brought by Verizon or the user.(386)

Once again, thanks to Mark Tushnet, we see how general constitutional law is inextricably connected with First Amendment issues that one might have tried to deal with using only First Amendment doctrine and theory.

This is why in my opinion misinterpretations of the constitution and the concept of “positive rights”, as ideological methods for interpreting the Constitution, are the single greatest threats to our liberties in the U.S. They are antithetical to the core principles of the constitution and return our country to it pre-revolutionary state of prerogative power under administrative laws and regulations, which are unconstitutional.

I highly recommend also watching this panel discussion of these legal scholars for greater context into how and why they think the way they do….. as statists pretending not to be statists or heroes of fascism.

Harvard Law Review- First Amendment Symposium Open Panel Discussion

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