Law professors have a lot of theories about what the First Amendment means, but the most "standard" theory is not very useful for addressing some of the most important free speech issues of our time--and that theory would even limit average Americans' ability to speak with one another. To understand these theory's frequent uselessness, consider that it does not really incorporate mass media, broadcasting, cable, and Internet laws. Nor does it usually incorporate rules ensuring that all speakers have access to government-owned public parks and streets. These areas of law are merely "exceptions" to their theories, revealing little about the First Amendment's meaning.
To see the harm, consider what happens when scholars' do turn to these exceptions. They suggest that government cannot interfere with the "unfettered" private market, even if government is acting to expand the spaces available for average Americans to speak with one another. Imagine government acts to ensure digital spaces are available to all speakers. Government could pass a law saying that phone companies cannot deliberately block phone calls; refuse to carry text messages; or block websites and speech technologies. According to the standard theory, these laws aiming to ensure access to digital speech spaces would violate the First Amendment, despite any argument that these laws promote free speech goals. These laws would supposedly violate the free speech rights phone (or cable) companies--to operate in an unfettered private market free of government interference. They claim "access rules," which provide Americans access to media and telecom companies' facilities, consist of dangerous government involvement.
That is, a side effect of scholars theories is to conclude that the First Amendment is not a bedrock for ensuring democratic discourse but a protection for the nation's largest telecom and media corporations.
I address these issues in a (much longer) recent draft paper, and do so more briefly here. My thinking is influenced by (and in turn influenced) my work as the lead lawyer on a network neutrality case that Jeff Rosen called "a model for the free-speech battles of the future." Tim Wu called this draft paper an "important work" and "fascinating," but not everyone can read 70 pages of legal analysis. Here is the Cliff Notes, the version I tell at cocktail parties and indie rock shows.
The problem. Scholars' standard theories rest on a few Supreme Court decisions. They read these decisions and draw conclusions about "what the First Amendment means." They downplay the significance of decisions that conflict with these few, chosen opinions, and classify the conflicting decisions as mere "exceptions."
The flaws with this approach would be obvious elsewhere. Imagine your "baseball theory" is that the Chicago Cubs win the World Series every October; years they win prove your theory, but years when other teams win are mere "exceptions" to the dominant theory. Or, imagine your physics theory is that the universe revolves around the Earth; the moon proves your theory, but the orbits of planets and galaxies are mere "exceptions" to the true theory.
Yes, it sounds a little odd. But that is what First Amendment theory looks like. A few cases prove the theory, while scholars admit many important areas are mere exceptions--from the Internet and broadcast to public streets and parks. And they are "exceptions" precisely because they disagree with the standard theory based on chosen cases.
The standard: theory. The chosen cases are certainly important--they include those protecting the speech of racists, flag-burners, funeral protesters, and other offensive speakers on public property. While protection for the "speech we hate" is very important, the First Amendment does far more than that. But, if you look only at those cases (and cases like them), the core principle of the First Amendment reflects a "negative liberty." Negative liberty is a political science term meaning a liberty from government action. It is not a liberty to anything--like the liberty to meaningfully contribute to public debate or to have ample spaces for speech. If the core principle is negative liberty, then the First Amendment means government must stay out of the speech market. There are corollary principles (see pages 12-24 for the intrepid). But we can stick to negative liberty here.
But there are exceptions--laws with unusual orbits.
The exceptions: reality. I focus on particular, very important exceptions to test whether the First Amendment is--or should be--merely a negative liberty, rather than broader commitment to our democracy. Specifically: The right to free speech is meaningless without some place to exercise it. What does the First Amendment have to say about Americans access to speak and gather on physical spaces and on digital spaces? The standard theories of negative liberty sounds unconcerned with this issue. So long as government "stays out" and simply respects everyone's private economic rights, people can speak wherever they have a right to speak.
The standard theories cannot explain reality--so much of reality is an exception to the theories.
- Public forums like public streets and parks. The First Amendment requires government to respect Americans' access to these spaces for speech. (Note 115)
- The same streets and parks in a privately owned "company town," where the First Amendment requires identical access. This rule is considered a complete outlier, both requiring space, and on private property. (Page 30, discussing Marsh v. Alabama.)
- Private property like shopping malls, where people congregate and speak. While the First Amendment does not require access to these spaces, it permits governments to pass laws giving us the ability to speak there, "interfering" with shopping mall owners' speech rights and interferes with the private speech market. (Pages 25, 33, discussing Pruneyard v. Robins.)
- Private communications property like phone, cable, and wireless systems, including Internet systems, all of which have been subject to dozens of complex, detailed laws ensuring some or all Americans access to speak through these systems. Again, the First Amendment permits such rules. (Pages 27-52, discussing too many cases to list here.)
The theory dictates that the government need not, and must not, be involved in speech--neither in making physical or digital spaces, neither public nor privately owned spaces, available to Americans for speech. The theory dictates--as several leading scholars have in fact argued--that courts use the First Amendment to strike down any laws passed by congress or agencies that interfere with private speech rights by grant Americans access to "private property" like Internet or phone systems. (For the skeptical, see pages 4, 8-9, 18-19.)
The actual law tells a different story. It's a more complicated story, just as understanding that stars and planets and moons have different orbits is more complicated than taking the earth as the center of everything. As I (painstakingly) argue, there are several themes and principles evident in the law and Supreme Court decisions that suggest government can provide access to many privately owned spaces for speakers, can require that those spaces be extended to all Americans, can ensure spaces for local and/or national discourse, and can ensure that these spaces carry diverse and antagonistic speakers. (For the curious, see pages 27-51.) The government's discretion to ensure additional speech spaces also helps justify why the government must make at least streets and parks available: so the public can debate at least these issues, determining whether more spaces are necessary in our democracy.
Usually, when a theory conflicts with reality, the theory must give. Eventually, people will abandon a Cubs-centric baseball theory or an earth-centric physics theory. But, in law, theory can change reality: five Justices could accept the theory and change real law.
The Future of the First Amendment. Changing the law is exactly what scholars argue for. A legal change would align the law with their chosen theories of negative liberty.
What is most at stake in this change is whether the public can adopt laws expanding our access to physical and digital spaces, particularly now as the Internet is as central to American democracy as it is to other nation's quest for democracy.
Take our example of network neutrality again. The standard theories suggest that government cannot ensure access to digital spaces because that would invite government to make decisions about who can speak that are usually left to the private market; that government would be interfering with the "editorial discretion" of cable and phone companies to "speak" as they wish with their own property, unfettered by government. In fact, when a net neutrality order came before an important federal court last January, a judge asked the lawyer for the affected company (Comcast) why Comcast wasn't leading with its First Amendment arguments. That First Amendment argument, which follows directly from the standard emphasis on negative liberty, would have empowered Comcast to block technologies on the Internet (such as Miro's) in the name of their own free speech rights. (See pages 4, 8-9.)
The Supreme Court has not followed this path. Indeed, it deserves to be commended--even now, with a court that does not always favor the free speech rights of the little guy--for upholding and encouraging government's ability to promote spaces for all Americans to speak. And that the Supreme Court (and most lower courts) have resisted the temptations of this simple theory, in decision after decision, year after year, in medium after medium has been one of the more important and pro-democratic features of our current and past First Amendment. It should remain a key pillar of our law, informing our thinking about what the First Amendment means and should mean, in the free speech battles to come.