 Israeli tech billionaire Shlomo Kramer recently told CNBC News, “I know it’s difficult to hear, but it is time to limit the First Amendment in order to protect it.” That remark reminded Americans of a certain age of the U.S. Army major in Vietnam who told journalist Peter Arnett in 1968, “It became necessary to destroy the village in order to save it.” Kramer went on to argue that because social media polarizes opinion into extremes, “we need to control the platforms.” When asked by his interviewer who he meant by “we,” Kramer replied, “the government.” Kramer thus handed us a golden opportunity to write an easy piece dancing all over his Orwellian worldview – a weak argument that many high school civics students could demolish. Giving the government power to control speech would inevitably lead to media that parrots the party line, depending on which party is in power. If you don’t trust a handful of social media companies, why on earth would you trust politicians to manage our speech? Make no mistake: the government isn’t “we.” A Defense of Unpopular Speech First Amendment advocate, journalist, and lawyer Glenn Greenwald seemed to agree with Kramer when he tweeted: “Genuine thanks to Israeli billionaire Shlomo Kramer for stating so explicitly and unflinchingly what so many other top Israelis and their U.S. loyalists are saying, albeit a bit more subtly.” A closer reading of this tweet – in the context of Greenwald’s long history defending the First Amendment in print and in court – reveals his sarcasm. Perhaps it also reveals his genuine appreciation for not having to cut through mealy-mouthed claims by some of constitutional fealty before issuing their authoritarian wish lists. Rather than do an easy dance on Kramer’s suggestion, or merely echo Greenwald, let us take this debate as an opportunity to explore some hard and difficult questions. Starting with Greenwald, while we part company with his grouping of Americans who support Israel into a “loyalist” camp, Greenwald does consistently remind us that the First Amendment protects unpopular speech and protest, including speech that criticizes Israel. At times, the Trump Administration has conflated criticism of Israel with “terrorism.” Thus, Tufts University Ph.D. student Rümeysa Öztürk, who co-signed an op-ed respectfully urging her school to divest from Israel, was seized by plainclothes federal agents on a Boston street, hustled into a van, and held in detention in Louisiana. The First Amendment does not tolerate such viewpoint-based punishment. At the same time, we should be grateful that the Trump Administration has stepped forward to defend the First Amendment rights of Jewish students and faculty from bullies who tried to enforce “Jew-free zones” on UCLA and other campuses. But Kramer Does Raise Important Points There are, of course, also finer points worth exploring in Kramer’s remarks. But as we explore those points, we should keep in mind that the dangers of government control of media have been on full display under both the Biden and Trump administrations. In the former, the White House deployed FBI agents to pressure platforms into secretly removing social media content. Under the current administration, the Federal Communications Commission was used to pressure Paramount into a multimillion-dollar settlement of an absurd defamation lawsuit. While Kramer’s proposal is dangerous, downsides to free speech do exist. The age-old reply of free-speech defenders is that the solution to bad speech is more speech. But does that still hold true? We have to be honest with ourselves: dysfunction on social media is testing the First Amendment as never before. Here are just a few of the new issues arising from speech in the internet age. Do we really have to respect the First Amendment rights of bots – some deployed by hostile foreign powers – that spread demonstrable misinformation, with none of the traditional means of accountability? Is AI slop – fake content, fake images – overwhelming fact-based discourse and in need of cleanup? Do algorithms need to be toned down to reduce polarization? What about speaker anonymity, which Kramer raised in his interview? Anonymous speech allows irresponsible speakers to lob rhetorical grenades and then hide. No Easy Solutions On the other hand, algorithms, bots, and AI slop don’t produce themselves – at least, not yet. They reflect human expression, regardless of the worthiness (or lack thereof) of their messages. If government cracked down through regulation and law, where would the line be drawn between responsible and irresponsible speech? And does anyone in their right mind trust politicians to draw it? We also shouldn’t forget the utility of anonymous speech, whether for modern-day whistleblowers or for Madison and Hamilton, who wrote The Federalist Papers under pseudonyms. What about the ugly problem of incitement? Under the standard set in 1969 by the U.S. Supreme Court in Brandenburg v. Ohio, even the hate speech of the Ku Klux Klan was found to be protected by the First Amendment. Only speech “directed at inciting imminent lawless action” and likely to “incite or produce such action” may be punished. Under current law, a speaker is free to demonize a racial or religious group without sanction – but crosses the line when he directs people to commit violence against a particular house of worship or group. After the mass murder of congregants at Pittsburgh’s Tree of Life synagogue in 2018 – whose killer was saturated in antisemitic hate speech on the social media platform Gab – we have to ask how one applies Brandenburg to the internet age. It was one thing for the Klan to spew hatred at a street protest heard by a few people in Ohio. It is something else to broadcast this poison on platforms with global reach, where thousands of unstable minds might hear it and act on it. So how do you deal with speech that is the equivalent of people pushing cars off of hills that may slam into innocents tomorrow, if not today. The law of large numbers, and the limited effectiveness of law enforcement in the face of communication without boundaries, perhaps require an updated definition of what constitutes “imminent lawless action.” Some Partial Solutions Already Exist On anonymity, X now offers users a way to verify their identity. Presumably, readers find speakers who use their real names more credible than those who hide behind pseudonyms. Some platforms require accounts to be tied to a valid email address. Perhaps platforms could go further in encouraging the authentic identities of speakers. As for AI slop, perhaps defamation law and commercial law governing the use of one’s name, image, and likeness could offer at least a partial remedy. And hate speech? As we have seen in the EU, the UK, and Canada, hate-speech laws quickly become oppressive – to the point that comedians are arrested for slightly off-color jokes. Still, a healthy debate is needed about how we apply limits on incitement in recognition of the new reach of speech-encouraged violence. Needed: New Thinking that Respects the First Amendment We readily admit that answers to some of these dilemmas are far from obvious. New thinking – and some adaptation, perhaps with technological help – is needed to catch up with this new era of internet speech. But that is no reason to burn down the First Amendment village. We hold fast to the conviction that the First Amendment is worthy of defense against its critics, despite serious problems and drawbacks. Free speech is ugly, dangerous, hateful, inspiring, beautiful, informative, and healing. The governmental cure is overwhelmingly likely to be worse than the supposed First Amendment diseases. We should treasure and protect the First Amendment – while remembering that it imposes responsibilities as well as rights. Comments are closed.
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