Is the First Amendment Obsolete? | Knight First Amendment Institute

If it seems that the First Amendment’s main presumptions are obsolete, what might be done? There are two basic answers to this question. The first is to admit defeat and suggest that the role of the political First Amendment will be confined to harms that fall within the original 1920s paradigm. There remains important work to be done here, as protecting the press and other speakers from explicit government censorship will continue to be essential. And perhaps this is all that might be expected from the Constitution (and the judiciary). The second — and more ambitious — answer is to imagine how First Amendment doctrine might adapt to the kinds of speech manipulation described above. In some cases, this could mean that the First Amendment must broaden its own reach to encompass new techniques of speech control. In other cases, it could mean that the First Amendment must step slightly to the side and allow different legal tools — like the enforcement of existing or as-yet-to-be-created criminal statutes — to do the lion’s share of the work needed to promote a healthy speech environment. Accepting a Limited First Amendment If we accept the premise that the First Amendment cannot itself address the issues here discussed, reform initiatives must center on the behaviors of major private parties that are, in practice, the most important speech brokers of our times. What naturally emerges is a debate over the public duties of both “the media,” traditionally understood, and of major Internet speech platforms like Facebook, Twitter, and Google. At its essence, the debate boils down to asking whether these platforms should adopt (or be forced to adopt) norms and policies traditionally associated with twentieth-century journalism.86