The Volokh Conspiracy

The article is here; the Introduction:

Throughout the mid-twentieth century, many commentators sharply criticized the perceived oligarchy of mass communications. "Freedom of the press," journalist A. J. Liebling famously said in 1960, "is guaranteed only to those who own one." For a while in the early 2000s, thanks to the "cheap speech" made possible by the internet, everyone seemed to own a printing press capable of producing and distributing thousands (sometimes millions) of copies of one's electronic leaflets. Many thought that the future of free speech was therefore one with broad freedom for speakers.

But now, we see it was too good to be true—for certain values of the variable "good." It turns out that, today, we're just borrowing printing presses: Facebook's, X's (formerly Twitter), YouTube's. Even those of us who have our own blogs rely on hosting services such as WordPress, GoDaddy, and the like. And while most of the time these services are happy to let us use them, some of the time they say no. This platform interest in restricting speech has surged in the last ten years, and it seems likely to grow further.

What to do about this is one of the main free speech questions likely to occupy courts and legislatures in at least the near future. It arises in various contexts. For instance, are state laws that ban viewpoint discrimination by private platforms wise and consistent with the First Amendment, Section 230 of Title 47 of the U.S. Code (which gives internet service providers and platforms certain immunities from state regulation), and the Dormant Commerce Clause (which limits state authority to regulate interstate transactions)? What should we think about calls for greater "responsibility" on the part of platforms and other intermediaries? And, especially important, when may the government encourage or pressure social media platforms and other intermediaries to restrict speech on their property?

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I'm delighted to pass along this book review by Prof. Jacob Mchangama (Vanderbilt), who is the author of Free Speech: A History from Socrates to Social Media and other works on free speech; he is also the CEO of The Future of Free Speech and Senior Fellow at the Foundation for Individual Rights and Expression.

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Mary Anne Franks claims that her new book, Fearless Speech: Breaking Free from The First Amendment, "offers a different and bolder perspective on free speech that takes power, harm, and history seriously." In this post (adapted from a thread on X) I provide a brief critique of Franks' thesis and methodology.

Franks argues that "First Amendment norms have consistently exalted and elevated reckless speech that benefits the powerful at the expense of the vulnerable. This exploration peels back the rhetoric of free speech to expose how it has perpetuated and maintained a neo-Confederate ideology of white male supremacy."

Franks rightly points out that proponents of slavery and white supremacy systematically censored proponents of equality. But she conveniently omits that many of those whose voices were quashed were deeply committed to a universalist and principled conception of free speech. Take Frederick Douglass, who is entirely left out of the book. Douglass insisted that "the right of speech is a very precious one, especially to the oppressed" and that "[n]o right was deemed by the fathers of the Government more sacred than the right of speech." To Douglass, free speech was "the dread of tyrants" and critical to the abolitionist movement.

Douglass also famously argued, "A man's right to speak does not depend upon where he was born or upon his color. The simple quality of manhood is the solid basis of the right—and there let it rest forever."

In the South, which criminalized abolitionist speech, Douglass would have been tortured and executed for his "incitement." In the North, where anti-slavery speech was better protected, he became a sensation who moved hearts and minds. In reflecting on Douglass' 1841 speech in Nantucket, William Lloyd Garrison wrote, "I shall never forget his first speech at the convention — the extraordinary emotion it excited in my own mind—the powerful impression it created upon a crowded auditory, completely taken by surprise—the applause which followed from the beginning to the end of his felicitous remarks. I think I never hated slavery so intensely as at that moment."

In her book, Franks jumps from Whitney v. California (1927) to lynchings and KKK terror to the Brandenburg decision in 1969. She argues that SCOTUS upheld the conviction of Anita Whitney under the "bad tendency" test but moved to a "reckless speech" standard in order to overturn the conviction of a KKK leader who threatened "revengeance" against Blacks and Jews in Brandenburg v. Ohio (1969).

But along the way, she forgets to mention landmark cases often brought by civil rights activists expanding their right to speak and breathing new life into the First Amendment to the benefit of all Americans. In Herndon v. Lowry (1937), the U.S. Supreme Court overturned the Georgia Supreme Court's upheld conviction of an African American who possessed Communist publications In NAACP v Alabama (1958), the court ruled Alabama violated freedom of speech and assembly by attempting to access membership lists of the NAACP. In Garner v. Louisiana (1961), the court ruled that Louisiana could not convict peaceful sit-in protestors under state's "disturbing the peace" laws. Edwards v. South Carolina (1963) found that the Constitution forbids state officials from forcing a crowd to disperse when legally marching for civil rights at the state house. And New York Times v Sullivan (1964) overturned the Alabama Supreme Court's defamation decision against supporters of Martin Luther King, who placed an ad in the New York Times, limiting the ability of public officials to sue for defamation.

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The article is here; the Introduction:

The language of the Free Speech Clause is not self-definitional. Almost all human activities involve communications; even criminality can be infused with expressiveness, but that does not mean that conspiracy, assault, and hate crimes are protected by the First Amendment. The Supreme Court of the United States is tasked with explaining the scope of its coverage. In recent years, the Court has taken a decidedly libertarian approach to laws that impose even nominal restrictions on communications.

That approach has proven strategically beneficial to special interests who challenge laws meant to secure labor rights, to restrict corporate expenditures on political campaigns, to prevent protestors from standing too close to the entrances of clinics where abortions are performed, and to compel the posting of health notices. The Court's reasoning has become increasingly formalist, adopting judicial categories of interpretation to strike legislation without giving adequate consideration to countervailing government interests.

The Supreme Court's free speech jurisprudence has relied increasingly on a categorical understanding of free speech that purports to have historical pedigree. Close examination, however, reveals absolutist statements and historical inaccuracies. A series of recent cases have strictly construed the Free Speech Clause to strike various regulations. The predominant framework of analysis strengthens the Court's hand at the expense of legislative initiative. As the power of the judiciary has waxed, the ability of legislators to pass laws responsive to constituents' demands has waned. The Court's rigid free speech doctrine creates a model of governance that is "incapable of responding to new conditions and challenges."

Judicial formalism lacks transparency, which is essential to litigation and appeal. This essay argues for greater judicial clarity in balancing competing interests and in evaluating surrounding circumstances. It proposes an analytical approach for courts to undertake when assessing First Amendment challenges to traditional government functions. Rather than dismissing lawmakers' concerns, the Court should evaluate whether a law interferes with self-expression, civic participation, or factual assessment. A balance is needed for courts to reflect on speech concerns, how well the law fits with regulatory aims, and alternatives for communication.