PT1st’s Erik Jaffe: “Censorship in the Age of Algorithms Risks Gutting the First Amendment”

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The Federalist Society’s recent Freedom of Thought Conference featured a panel on varied conservative perspectives about censorship in the digital age, with both the more liberal and more populist conservative panelists congenial to greater control over speech. This left it up to Protect The 1st Policy Director Erik Jaffe to make “an old school textualist” defense of robust First Amendment protection of free speech, regardless of the technology or medium. While others called for more government control of algorithms, Jaffe expressed deep wariness of expanding government influence over speech-related technologies.
 
Stanford’s Jud Campbell emphasized the Founders’ views of speech as tied not only to natural law, but also to “the public good.” Jaffe challenged the notion of a general public-good exception to the First Amendment, and contended that the constitutional text, not original applications or anticipated outcomes, must govern today. He warned that interpreting rights based on past state practices or public morality risks “gutting the First Amendment.”
 
The panel debate became animated over the nature of algorithms and how much responsibility their designers have for their results. Jaffe argued these software codes, and the rules they apply when promoting content, are “not anything different [from traditional speech and editorial judgments] except in speed.” They are fundamentally tools that execute human editorial choices, and the constitutional rules limiting or imposing liability for those choices should be the same whether the choices are executed in digital or analog form.
 
John Ehrett, Chief of Staff and Attorney Advisor to FTC Commissioner Mark Meador, pointed to companies’ conflicting legal positions, which call algorithms black boxes in liability cases, yet editorial speech when they make First Amendment defenses. “I don’t see how you can have this both ways,” Ehrett said. Jaffe saw no dichotomy – when a social media company designs an algorithm to treat speech in a certain way, that company is simply “making an editorial choice.” While a particular individual may not be able to follow the interaction of various rules for each and every choice, he observed that algorithm-driven programs are no more of a black box than the human brain.
 
Jaffe was equally blunt in opposing the idea that platforms like Facebook or TikTok constitute the “modern public square.” He argued that attempts to treat private companies as public utilities are “always abused” and rejected the premise that when platforms reach a certain degree of popularity, they become public property. “If you want to make a platform a ‘public’ space, go take it under the takings clause,” he said. “Pay the billions of dollars and run it yourself.”
 
On Section 230, there was some agreement that reform is possible, but Jaffe was alone in emphasizing the practical risk of overcorrection. He warned that removing liability protections could lead platforms to suppress lawful content out of fear: “Everybody and their mother starts suing Facebook,” he said. “Facebook starts saying, ‘well, sorry, none of you can speak on our platform now.’”
 
The panel also addressed the growing concern over government efforts to influence content moderation by private platforms, a practice often described as “jawboning.”
 
Jaffe concluded this is a threat that is not receding, just taking new political forms. “The Biden administration was more subtle about the threats,” he said. “The current administration is not subtle at all … they’re beating people to death with the jawbone of an ass.”
 
Jaffe said claims that behind-the-scenes pressure effectively turns private companies into government agents raises serious constitutional concerns. This practice also creates troubling interactions with the so-called government-speech doctrine, which can wrongly insulate heavy-handed government censorship from First Amendment scrutiny. While panelists generally agreed that coercion is troubling, Jaffe went further, calling for enforceable remedies. He endorsed legislative proposals to allow lawsuits – called Bivens claims and §1983-like actions – against federal officials who violate the First Amendment by pressuring platforms to suppress speech.
 
Jaffe closed with a warning against paternalism. While some panelists called for new legislative frameworks to balance expression with social harms, Jaffe pushed back hard. “The First Amendment has an assumption underlying it that people are not sheep,” he said. “The danger of treating them like sheep is too great.”
 
Watch the full panel here: 

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