It has become fashionable to talk — pro or con — about textualism and originalism. Even so, when it comes to the language of the First Amendment, there has been relative silence in analyzing terms such as “no law” and “abridging.”
There is much talk about the freedom side of “freedom of speech,” but far less attention has been devoted to the substantive side: The speech side, as that term was commonly understood on December 15, 1791, when the Bill of Rights was ratified.
I mean “speech” as in real people talking to one another in real time, in real places, and in actual association with other real people. Notice the emphasis on “real”? Back then, communication between those at a distance entailed considerable time waiting for messages. Contact was dependent on things like letters sent in the U.S. mail. But so much of the way we communicate, the way we “speak,” has changed radically with the technologies of our times.
Life back then was a life of waiting. Messages took time. Deliveries took time. Replies took time. All that waiting made us anxious.
All of this brings me to a few reflections on that old-fashioned free-speech principle, as it plays out in our contemporary culture of expression directed by today’s communication technologies.
Alienation is the nemesis of the modern mind. That enemy within — that alien that haunts our subconscious — is why we so sorely need to be wired 24/7. The thought of being completely alone, beyond constant communicative reach, terrifies us. We need our moment-by-moment contact fix; we cannot wait for it. Our smartphones are there for us, much as a warm needle is there for a lonesome junkie.
A businessperson crosses the street lost in telephonic conversation, oblivious to oncoming traffic. A woman waits in a Starbucks line with her eyes racing back and forth to scroll through an array of emails, unaware that the clerk has asked for her order. A teenager averts his glance while driving to catch an incoming text message, unmindful of the perilous veer in his steering. A lonely lover checks his Snapchat app incessantly, hoping against all odds that his romantic fate will change for the better. And a lawyer prepares to go to sleep with her Google Pixel ready to deliver those prized pings, if only to be sure she won't miss any important LinkedIn messages.
These are the tales of our times. This is who we’ve become.
There is no verdict here. No condemnation has been tendered, and there certainly is no self-righteous moral to my story. Oh no. That is not my message. I have something else on my mind. It has to do with that existential fixation on alienation.
Enter Messrs. Sartre and Camus, all too ready for the philosophical feast:
Turn my life clock back to 1963, when I was 14. How many times did I (a girl-obsessed teenager) run to a heavy black phone hoping that she would call? How many times did we parents check the mail searching for that letter from afar? And how well do I remember those long-distance calls that could only be made after 10 p.m., along with those times when our dog barked — the telltale sign that the “mailman” had arrived?
Life back then was a life of waiting. Messages took time. Deliveries took time. Replies took time. All that waiting made us anxious. That anxiety worked its way into the lyrics of a tantalizing 1961 song by the Marvelettes. Have you ever heard it?
Wait a minute Mr. Postman!
Wait Mr. Postman.
Wait Mr. Postman, look and see,
is there a letter in your bag for me?
Please, please, Mr. Postman. . .
Please check and see, one more time for me. . .
Deliva the letta, the sooner the betta.
As we sang along in splendid unison, that message tapped something deep within us — a frustrated sense of alienation born of interminable waiting. And until that letter arrived, or that call from the other end of the coast came, or that face-to-face meeting happened, we were left alone with little more than a copy of Camus’ “The Stranger” to ponder.
Being incommunicado left us isolated and alienated, with little choice but to escape to the world of real-life contact with real people in real places — which, of course, has its own psychological costs. For many, those costs were too great. They preferred instead to be alone and seek escapist comfort in songs such as “White Rabbit” by Jefferson Airplane.
It seems so absurd. We have countless contacts, though with fewer real people in real time. In our craving for communication, we seem to be moving further away from the real and closer to the virtual.
Suddenly, like an auspicious bolt from on High there came THE CURE: portable and continuous communication. Waiting became as passé as pay phones. With this new technology mortals would never have to be “alone” again. Almost magically, there was an electronic surfeit of messages and maps, photos and videos, digital chat rooms and trans-Atlantic interactive word games, along with every other conceivable form of communication, reasoned and ribald alike. Best of all, it is there at our clutching fingertips.
Have you noticed that more and more people are working at home in their underwear? Downtown areas filled with tall buildings are increasingly empty in these post-COVID times, when people work by Zoom, Webex, or Google Workspace. Working in real spaces and speaking with real persons seems so antiquated, so last century. And who needs to solve a problem with real people when one has AI?
Chatbots to the cerebral rescue! But we do still need connection. We are, after all, WIFI junkies.
Make of it what you will as you read my message on your new T-Mobile 5G smartphone. Yet as I step back in my mind, I wonder: For all this wizardly magic, have we really escaped alienation? Have we actually dodged that bullet tagged loneliness? Or have we just reconfigured the psychological template so that we can never be really satisfied, no matter how many messages we receive? The more we receive, the more we want. We mainline our messages ad infinitum.
It seems so absurd. We have countless contacts, though with fewer real people in real time. In our craving for communication, we seem to be moving further away from the real and closer to the virtual. In this wired state reality is redefined — as is the very notion of speech itself. We don’t speak anymore so much as we type, text, email, and DM. In the process the philosopher’s picture changes only slightly: As a man pushes the rock up the mountain, he now does so with a smartphone in his back pocket — always ready to receive the next text message.
So this is what freedom of speech has come to in our electronic age — an age soon to be reconfigured by AI and artificial communications.
Upcoming event on generative AI, free speech, and human rights
- “Symposium on AI, Free Speech and Human Rights,” Vanderbilt University (Oct. 12-13)
The Future of Free Speech Project-in conjunction with Vanderbilt University and Google will bring together thought leaders, researchers, activists and industry professionals from around the world to discuss the implications of emerging AI technology for freedom of expression and access to information.
We have designed the conference program to cover a wide range of themes and challenges related to AI governance and its implications. The conference will feature keynote speeches, panel discussions and interactive elements, including the presentation of a cutting-edge beta version of a tool kit to counter hate speech and multimodal AI.
Thursday, October 12 - 9:00 a.m. to 4:15 p.m.
Panels and presentations include:
- Panel Discussion: The First Amendment, Human Rights Standards and AI Governance
- Panel Discussion: Improving Linguistic Inclusion in Large Language Models
- Panel Discussion: The Future of AI: Open-Source or Centralization?
- Presentation: AI Counter Speech Tool Kits for Hate Speech and Disinformation
Friday, October 13 - 8:30 a.m. to 12:00 p.m.
Panels and presentations include:
- Panel Discussion: The Challenge of Disinformation in Generative AI
- Panel Discussion: Trust and Safety in Generative AI
- Presentation by OpenAI
Ex-Google CEO on the future of A.I.
- Fareed Zakaria, “Ex-Google CEO makes prediction about the future of Artificial Intelligence,” CNN Business (Sept. 2023)
- Henry Kissinger, Eric Schmidt, and Daniel Huttenlocher, “The Age of AI and Our Human Future,” Back Bay Books (2022)
- “‘Your Next Stop’: The Twilight Zone of A.I. and the First Amendment,” First Amendment News 391
New scholarly article on AI and visual libel
- Jon Garon, “AI’s Picture Paints a Thousand Lies: Designating Responsibility for Visual Libel,” Journal of Free Speech Law (2023)
The visual depictions possible through various generative AI systems have advanced far past the point where a casual observer can determine whether an image is real or synthetic. Synthetic, fake videos have been used for disinformation in the Russian war against Ukraine, to produce countless instances of revenge pornography, to create artificial news anchors in South Korea, and to generate fictional social media influencers. These tools have both compelling commercial applications and potential for significant weaponization. Combined with the tendency of some generative AI systems to hallucinate or produce false information the AI claims to be accurate, the concerns over potentially libelous and harmful visual content will only grow.
This article focuses on responsibility and liability for libelous publication of generative synthetic media. The article explores the legal consequences when an AI system itself generates false and harmful images to determine which parties, if any, would be liable for the damage caused by such publication. By providing this framework, the article also identifies the steps parties involved in the AI content production chain can take to protect individuals from the misuse of these systems.
Knight Institute launches essay series on algorithmic amplification
- Katy Glenn Bass, “Exploring Algorithmic Amplification: A New Essay Series,” Knight First Amendment Institute (Aug. 22)
The Knight Institute is publishing the first essays from our April 2023 symposium, “Optimizing for What? Algorithmic Amplification and Society.” The symposium was the product of a year-long collaboration with Arvind Narayanan, the Institute’s 2022-23 Visiting Senior Research Scientist and a Professor of computer science at Princeton, where he also directs the Center for Information Technology Policy.
We wanted to study algorithmic amplification in depth because almost every kind of speech and discourse online is now hosted on algorithmic platforms designed to optimize for engagement. As we wrote in the call for proposals:
Algorithms are not neutral. Compared to nonalgorithmic systems (such as a chronological feed), they amplify some speech and suppress others. Platforms are “complex systems,” so amplification is an emergent and hard-to-predict effect of interactions between design and human behavior. Platform companies themselves have repeatedly failed to anticipate the effects of algorithm or design changes. Independent research is stymied both by the inherent difficulty of studying complex systems and the lack of transparency by platform companies.
The project focused specifically on the algorithms that power social media platforms’ content recommendation systems. Conversations about recommender systems, particularly in the law and policy arena, often fail to accurately describe how these systems operate, relying instead on shorthand references to “the algorithm” as the source of social media’s ills. We wanted to commission papers that would offer more precise explanations of how recommender systems work and propose some interventions that would mitigate some of the harms caused by amplification, or allow us to take fuller advantage of the benefits—whether through platforms changing their algorithms and design, or institutions and individuals adapting to algorithm-mediated information propagation.
We also wanted to engage with some normative questions about algorithmic recommenders: What should they optimize for? What does it mean to design a system to promote a healthier, or more just, public discourse? How can we promote human creativity and innovation in an age when platforms are designed to show us more of what (they think) we already like? Our hope is that these papers will facilitate a more deeply informed debate about these systems’ impact on society and how they could be improved.
The symposium brought together an outstanding group of scholars, nonprofit leaders, and technology industry professionals from a wide range of disciplinary backgrounds, including computer science, psychology, law, philosophy, and other fields. In the coming months, we will publish more than a dozen essays written by symposium participants, beginning with the two we are releasing today.
Elon Musk vows defamation lawsuit against ADL: 'The Irony!'
“The social media platform, X, (formerly Twitter), will be forced to sue the Anti-Defamation League (ADL) for defamation, X owner, Elon Musk, wrote in a post on the platform Tuesday morning.”
Thus was the headline and opening of a recent story in the Jerusalem Post. Over at CBS News, Elizabeth Napolitano reports that “Elon Musk said he may sue the Anti-Defamation League for purportedly accusing X and the billionaire owner of the social platform of antisemitism and fueling advertisers' exodus from the social network.”
In a post on X (formerly known as Twitter) on Monday, Musk accused the civil rights group of “trying to kill” X by “falsely accusing it & [him] of being anti-Semitic.” In another post he claimed that X’s falling advertising revenue, which has plunged roughly 60% since his formal takeover of the platform in October of 2022, is "primarily due to pressure on advertisers" by the ADL.
“If this continues, we will have no choice but to file a defamation suit against, ironically, the 'Anti-Defamation' League,” Musk said.
Musk’s threats to sue the ADL come after a campaign called #BanTheADL trended on X this weekend. Musk engaged with the campaign, which calls for the group's account on X to be banned, and asked his more than 155 million followers if he should “run a poll” on the matter.
North Carolina justice raises First Amendment claim in suit against state’s judicial ethics commission
- Susanna Granieri, “North Carolina Justice Sues to End Ethics Probe Sparked by Her Diversity Critique,” First Amendment Watch (Sept.1)
A North Carolina Supreme Court justice filed a federal lawsuit on Tuesday against the state’s judicial ethics commission seeking to end an ongoing investigation into public statements she made about the lack of diversity in the state’s court system.
Associate Justice Anita Earls accused the North Carolina Judicial Standards Commission, a 14-member ethics panel that considers complaints of misconduct against the state’s top jurists, of attempting to silence her in violation of her First Amendment rights to discuss matters of public concern.
“The First Amendment allows Justice Earls to use her right to free speech to bring to light imperfections and unfairness in the judicial system,” the filing reads. “At the same time, the First Amendment prohibits the Commission from investigating and punishing her for doing so.”
She is seeking a declaration from the court that the ‘investigation and potential punishment … for her statements on matters of public concern’ is unconstitutional as well as a permanent injunction ‘barring further investigation or punishment’ for future statements.”
Reminder: Upcoming free speech summit at the National Constitution Center
I’m pleased to remind everyone that the fine folks over at the National Constitution Center are partnering with free speech groups to host an upcoming First Amendment summit on Sept. 13. It looks like Jeffrey Rosen, the center’s president and CEO, aided by New York University professor Stephen Solomon, editor of First Amendment Watch, has put together a stellar group of participants, including:
- Floyd Abrams
- Akhil Amar
- Bruce Brown
- Will Creeley
- Jeannie Suk Gersen
- Jameel Jaffer
- Lyrissa Barnett Lidsky
- Jacob Mchangama
- Nadine Strossen
And to lead off the event, author and free-speech advocate Salman Rushdie will engage in a virtual keynote conversation with Suzanne Nossel, CEO of PEN America. The program is presented in partnership with the Freedom Forum, FIRE, the First Amendment Watch at NYU, PEN America, and the Reporters Committee for Freedom of the Press.
Upcoming online Library of Congress event: Barbas on NYT v. Sullivan
- Robert Brammer, “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan,” Library of Congress Blogs (Aug. 25)
We hope you can join us, online, for our Constitution Day event on September 14th, 2023, at 3 p.m. EDT. University at Buffalo School of Law Professor Samantha Barbas will discuss her book, “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan.”
University at Buffalo School of Law Professor Samantha Barbas will provide a lecture that discusses the roots of the U.S. Supreme Court’s New York Times v. Sullivan decision, which created the “actual malice” standard that a public official must prove in a successful suit for defamation. Professor Barbas’ lecture will focus on describing the origins of the New York Times v. Sullivan decision in the context of the 1960s Civil Rights Movement.
More in the news
- Drew Harwell, “Truth Social investment partner extends deadline, avoiding liquidation,” The Washington Post (Sept. 5)
- Eugene Volokh, “Arbitrators, Like Judges, Are Immune from Libel Lawsuits Based on Their Opinions,” The Volokh Conspiracy (Sept. 5)
- Kyle Cheney and Josh Gerstein, “Appeals court limits special counsel’s effort to access Rep. Scott Perry’s phone,” Politico (Sept. 5)
- Jack Birle, “Disney looks to narrow federal lawsuit against DeSantis to First Amendment claims,” Washington Examiner (Sept. 5)
- Eugene Volokh, “May a Judge Sanction Lawyers by Requiring Them to Get Remedial Training from a Particular Ideological Organization?” The Volokh Conspiracy (Sept. 5)
- Mead Gruver, “Conservative book-ban push fuels library exodus from national association that stands up for books,” The Free Speech Center (Sept. 5)
- Eugene Volokh, “Woman Found Responsible for Internet Harassment in Canada Loses Defamation Suit Against N.Y. Times,” The Volokh Conspiracy (Sept. 5)
- Joseph Funk, “Kan. reporter files federal lawsuit against police chief who raided her newspaper's office,” The Free Speech Center (Sept. 1)
- “Judge Blocks Arkansas Law Requiring Parental Permission for Minors’ New Social Media Accounts,” First Amendment Watch (Sept. 1)
- Lynn Greenky, “Judicial orders restricting Trump's speech seek to balance his own constitutional rights,” The Free Speech Center (Aug. 30)
- Brooke Simgman, “John Eastman warns that freedom of speech is 'gone' after Fulton County charges,” Fox News (Aug. 29)
2022-2023 SCOTUS term: Free expression and related cases
- 303 Creative LLC v. Elenis (6-3 per Gorsuch for the majority and Sotomayor for the dissent: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.)
- Counterman v. Colorado (held: First Amendment violated — 4 votes per Kagan with Sotomayor concurring in part joined by Gorsuch in part. Thomas filed a dissent and Barrett also filed a dissent, in which Thomas joined). (“In this context, a recklessness standard — i.e., a showing that a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another’ . . . — is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats — with diminished returns for protected expression. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment.”)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny non-commercial use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.) (This is from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)
- United States v. Hansen (7-2: Title 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encouraging or inducing” illegal immigration — forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law and is not unconstitutionally overbroad.)
- Vidal v. Elster
- O’Connor-Ratcliff v. Garnier
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
- United States v. Hansen (argued, March 27) (Volokh commentary here)
- Counterman v. Colorado (argued, April 19)
Cert. granted and case remanded
- U.S. v. Hernandez-Calvillo (cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the 10th Circuit for further consideration in light of United States v. Hansen) .
- Klein v. Oregon Bureau of Labor and Industries (cert. granted, judgment vacated, and case remanded to the Court of Appeals of Oregon for further consideration in light of 303 Creative LLC v. Elenis).
- O’Handley v. Weber
- Center for Medical Progress v. National Abortion Federation
- Mazo v. Way
- Tingley v. Ferguson
- Frese v. Formella
- National Rifle Association of America v. Vullo
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Novak v. City of Parma (cert. denied)
Immunity under Foreign Sovereign Immunities Act
- NSO Group Technologies Limited v. WhatsApp, Inc. (cert. denied)
Liability Anti-Terrorism Act
- Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)
Section 230 immunity
- Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)
- Mobilize the Message v. Bonta
- North Carolina Sons of Confederate Veterans v. North Carolina Dept. of Transportation
- Price v. Garland
- Keister v. Bell
- Morgan v. Arizona
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of Mr. Collins.