First Amendment

Prince Harry's First Amendment Aversion Is Funny; the Governments That Agree Are Scary

We expect British royals to favor muzzling commoners, but too many lawmakers feel the same way.


The appropriate reaction to criticism of constitutionally protected rights by a member of the British royal family is certainly an eyeroll. After all, we fought a revolution to make sure British aristocrats would no longer have a say over the freedoms Americans exercise, so the reminder that we dodged a bullet on that front is no surprise. What is more concerning, though, is that opposition to free-wheeling speech is more widely shared among people who are in a position to impose a disgruntled prince's vision of good policy on the world at large.

Prince Harry's comments came on the May 13 episode of actor Dax Shepard's Armchair Expert podcast. As the Hollywood- and Hollywood-adjacent celebrities commiserated about the awfulness of the paparazzi and their behavior, the wayward prince mused about the legal framework that allows intrusions into the private lives of famous people.

[42:50] I don't want to start sort of going down the First Amendment route because that's a huge subject and one which I don't understand because I've only been here for a short period of time. But you can find a loophole in anything. And you can capitalize or exploit what's not said rather than uphold what is said….If there's an ideology or you want to spread hate. Laws were created to protect people, right? That's how I see it.

[44:50] I've got so much I want to say about the First Amendment as I still don't understand it. But it is bonkers.

As difficult as it is to sympathize with wealthy people who make a living from high-profile lives whining about the folks who provide publicity, there's not much peril in them either. Prince Harry, after all, left the life of a human poodle in the United Kingdom to take on the role of a less-responsible show dog in the United States. He's no danger to our liberty, though he is a remarkably un-self-aware reminder that his ancestors once did pose a threat with similar sniffy views about "bonkers" freedoms.

But Prince Harry's old-school dismissal of free speech protections finds its echo among equally sniffy modern legal theorists who agree with inconvenienced aristocrats that the First Amendment is a Very Bad Thing and that speech should be subject to greater restrictions.

"Instead of thinking about content moderation through an individualistic lens typical of constitutional jurisprudence, platforms, regulators, and the public at large need to recognize that the First Amendment–inflected approach to online speech governance that dominated the early internet no longer holds," writes Harvard Law School lecturer Evelyn Douek in an April 2021 Columbia Law Review article. "Instead, platforms are now firmly in the business of balancing societal interests and choosing between error costs on a systemic basis."

The catalyst for this shift away from First Amendment-style speech protection by the tech giants was COVID-19, claims the Australian academic, who approves of the transformation. She sees lasting effects beyond social media. "The state of emergency that platforms invoked during the COVID-19 pandemic is subsiding, and lawmakers are poised to transform the regulatory landscape," Douek adds.

Douek cites a pre-pandemic paper by Harvard Law School's Jonathan Zittrain who unintentionally anticipated the impact of COVID-19 when he observed that the treatment of speech is moving to a "public health framework [that] is much more geared around risks and benefits than around individual rights."

Among the lawmakers treating speech as a health threat are French President Emmanuel Macron and New Zealand Prime Minister Jacinda Ardern, who have joined together with other political and tech leaders to demand tighter regulation of online speech. New Zealand's prime minister, in particular, wants digital media companies to implement "ethical algorithms" to steer people away from material of which the authorities disapprove and toward content that they prefer.

"Let's have that conversation around the ethical use of algorithms, and how they can use be used in a positive way and for positive interventions," Ardern last week told a conference of participants in Christchurch Call, which advocates for greater control over online content.

Ardern faces opposition at home, where the libertarian ACT party, which won 10 of 120 seats in the October 2020 election, makes free speech a major part of its platform and its opposition to the governing Labour Party. That was already a demanding job in a country that has an official national censorship office, and hasn't become easier in a pandemic-shocked world grown accustomed to "emergency" incursions into individual rights.

But Christchurch Call, co-founded by the governments of France and New Zealand, wins a friendly reception elsewhere. The European Union has long been on-board with speech controls and had no objection to endorsing the effort. Over 50 governments and most of the big tech companies have also signed on.

"YouTube is committed to the #ChristchurchCall," CEO Susan Wojcicki tweeted May 14. "We continue to strengthen our policies, improve transparency, and restrict borderline content. We look forward to continuing to work with the Call community."

Also endorsing the Christchurch Call is the government of the United States, land of "bonkers" constitutional protections for personal freedom.

"The United States endorses the Christchurch Call to Action to Eliminate Terrorist and Violent Extremist Content Online, formally joining those working together under the rubric of the Call to prevent terrorists and violent extremists from exploiting the Internet," the U.S. State Department announced on May 7. The statement went on to promise that "the United States will not take steps that would violate the freedoms of speech and association protected by the First Amendment," but that's going to be hard to square with a mandate for "ethical algorithms" intended to nudge people away from ideas frowned on by officialdom.

But a vision of a First Amendment somehow reconciled with restrictions on speech might just be bonkers enough to win the favor of resentful celebrities and displaced royals. Prince Harry apparently has some time on his hands and could be available as a spokesman for the cause.