« Matthew Seligman: The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes
Michael Ramsey
| Main | Stephen Halbrook on the Historical Right to Bear Arms
Michael Ramsey »

10/13/2021

Eric Segall on the Internet, Free Speech, and Originalism [with my comments] [Updated]
Michael Ramsey

At Dorf on Law, Eric Segall: Social Media Regulation, The Limits of Originalism, and the Supreme Court's Obsession with Free Speech. From the core of the argument:

... [I]t should be obvious to everyone that the worlds of 1791 and 1868, or more specifically, the first amendment's original meaning, simply are of no use to judges or scholars trying to figure out what limits the Constitution places on government regulation of the internet. Unfortunately, this reality is often twisted by self-professed originalists and at the most visible of times. For example, Professor Larry Solum was the only legal scholar asked to testify about originalism at the confirmation hearing of then Judge Neil Gorsuch, and he said the following: 

There was no Internet when the First Amendment was written in 1791. Today, Americans can speak over the Internet. The application of the freedom of speech to a speech broadcast over the Internet is very simple. Speech is speech, whether it is in person, amplified by speakers, or transmitted over the Internet. The Constitution was written in language that can be applied to new circumstances. There was no state of Nebraska when the Constitution was ratified, but there is no difficulty in applying the constitutional provision that grants each state two Senators to Nebraska.

Similarly, [Justice Scalia] once said: "Of course [constitutional] provisions have to be applied to new phenomena like the radio and the Internet....It is essential to originalism, as it is not to so-called 'evolutionary constitutional jurisprudence,' to know the original meaning of constitutional provisions." And Justice Gorsuch has written that as "originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet."

Whom are these people talking to? Of course the first amendment applies to new forms of speech and expression, just as evolved methods of torture implicate the eighth amendment and electronic surveillance triggers the fourth amendment. But those banal observations do not address whether the alleged original meaning of the first amendment can help us sort out hard issues regarding government regulation of Facebook or Twitter. It cannot, and we shouldn't pretend that it can. ... The internet changed the world in ways no one could have imagined a century or two centuries ago. The ability of one person sitting at home to reach millions of people represents a new kind of communication that brings with it unexpected benefits and harms. The internet can mobilize both peaceful and violent public demonstrations in ways unimaginable not that long ago. Social media can inspire and defame folks all over the world, affect elections with both true and fake news, and mislead and inform people with a deluge of information unfathomable to both the public and legal experts in times past. 

There has always been a tension between free speech values and other important concerns that at times outweigh speech values (think perjury, bribery, and libel laws) but the exponential growth and reach of the internet compared to the forms of communication available in 1791 or 1868 is not a difference in degree but a difference in kind. 

No historical inquiry can tell us whether we should hold social media companies liable for speech on their platforms or whether the government can require them not to censor people they ban from their websites. Saying the first amendment places some limits on internet regulation is both obviously true and totally unhelpful when it comes to judges deciding real cases on the ground or legislators trying in good faith to act constitutionally when balancing free expression with other harms. Historical inquiry in this area of constitutional law simply cannot help, no matter what type of originalism bridge originalists are trying to sell.

This is a serious criticism, but I think it overstates.  True, the original meaning of the First Amendment is often not easy to identify.  But once identified, its application to the internet should not be so daunting.  Professor Segall doesn't give specific examples so it's hard to engage his post directly.  But here are a few counterexamples:

It's fairly well accepted that the First Amendment's original meaning did not allow the government to ban newspapers from publishing criticism of government policies.  If that's right, the modern application of the original meaning seems straightforward: the government also cannot ban social media platforms from publishing criticism of government policies.  The original meaning applies equally to old technologies and new technologies, as Solum, Scalia and Gorsuch say.  Similarly, it seems clear that the First Amendment's original meaning allowed the government to punish newspapers for publishing libelous content.  So similarly, the First Amendment's original meaning allows (but of course doesn't require) the government to punish social media platforms for publishing libelous content.  I don't see why Professor Segall has a problem with this.

Professor Segall says that the world of the internet is fundamentally different from the eighteenth century.  True.  He further says (or implies) that therefore we need different rules.  That may be true.  But it does not prove that the old rules cannot be applied to social media; it only means that applying the old rules to social media may yield results he doesn't like.  The originalist response is simple: if the old rules yield bad results due to changed circumstances, change the rules (using appropriate procedures, which in this case would be a constitutional amendment if one thinks the original meaning of the First Amendment is too restrictive in the internet age).

I readily concede two points: (1) the original meaning of the First Amendment is not always clear (though sometimes it is); and (2) the modern world of social media is very different from the eighteenth century and so different rules may be more appropriate.  But neither of these points shows that the emergence of the the modern social media world means the First Amendment's original meaning (to the extent we can understand it) cannot be applied.

UPDATE:  Eric Segall replies:

Thanks to Mike for posting and discussing my piece. The original meaning of the first amendment, when it comes to judicially enforceable rights, is extremely narrow. Mostly, the founders were concerned with prior restraints but no originalist I know takes that position. Moreover, newspapers may be like Facebook but then they may not be like Facebook. The reach and potential harms and benefits of world-wide social media platforms have little analogies at the Founding. The key point is judges can (and will) pick and choose what similarities and difference are relevant, and they have virtually unlimited discretion to do so.