Throughline - We The People: Free Speech

Episode Date: July 25, 2024

The First Amendment. Book bans, disinformation, the wild world of the internet. Free speech debates are all around us. What were the Founding Fathers thinking when they created the First Amendment, and how have the words they wrote in the 18th century been stretched and shaped to fit a world they never could have imagined? It's a story that travels through world wars and culture wars. Through the highest courts and the Ku Klux Klan. Today on Throughline's We the People: What exactly is free speech, and how has the answer to that question changed in the history of the U.S.? (Originally ran as The Freedom of Speech)Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. The Constitution is our founding document, and we revere it. But we've also changed it a lot, 27 times so far. And those 27 amendments say a lot about how our country has evolved, who we say we are, and who we want to be. ThruLine's ongoing series, We the People, explores the controversies,

compromises, and consequences behind our nation's constitutional amendments. Today, the First Amendment. Come on, y'all, no Nazis, no KKK, no fascist USA. Spirited commentary. The Constitution guarantees freedom of speech and thought to all Americans. Lively debate. U.S. Supreme Court handed social media companies a major victory. Supreme Court cases that could reshape the future of the internet.

Right now, we are witnessing an extraordinary amount of confusion. Do you think some of this is going to fall? An extraordinary amount of threats. But where is the line? An extraordinary amount of passion about what free speech means. This has everything to do with trying to take the voices of people and making sure that they stay silent. There is such a big gap in some ways between what the average American understands the First Amendment to say and to protect and what the law actually says. And in addition to that, the law is actually extremely confusing and changing every minute. Mary Ann Franks is a professor at the George Washington University Law School and author of the book,

The Cult of the Constitution. Her forthcoming book on the First Amendment is called Fearless Speech. The bottom line is free speech affects everyone. It's obviously an incredibly important value for Americans. And so understanding what the stakes are, where we've been, where we're going is incredibly important for our democracy. schools and libraries. We've seen the media try to lie about telling the truth. And we've seen an online world that's been mostly freed to do what it wants. So in this episode, we're talking with Marianne Franks about what the founding fathers were thinking when they created the First Amendment and how those words written in the 18th century have been stretched and shaped to

fit a world they never could have imagined. It's a story that travels through world wars and culture wars, through the highest courts and the Ku Klux Klan. Coming up, what exactly is free speech, and how has the answer to that question changed in the history of the U.S.? This is Dan Meyer from Vancouver, British Columbia. I love this show. Great job, guys. You're listening to ThruLine on NPR. This message comes from WISE, the app for doing things in other currencies.

Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today, or visit WISE.com. T's and C's apply. This message comes from NPR sponsor, the NPR Wine Club, a place to explore the exciting world of wine, including wines inspired by popular NPR shows, like Weekend Edition Cabernet. Whether buying a few bottles or joining the club, all purchases help support NPR programming and fun quality reporting developed to connect people to their communities and the world they live in. More at nprwineclub.org slash podcast. Must be 21 or older to purchase. to guests like Jenny Slate, Bowen Yang, and Chris Pine. Follow Wildcard wherever you get your podcasts, only from NPR. December 15th, 1791.

First Amendment to the Constitution of the United States. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government

for a redress of grievances. While those words may sound simple enough, they've been at the center of political and cultural debates in the United States for centuries. Especially that little clause about the freedom of speech. To understand the power and confusion behind those words, we sat down with George Washington University law professor Mary Ann Franks. We tend to use the shorthand sometimes and say, well, the First Amendment protects free speech. But if we look at the actual text of the First Amendment, it protects a bunch of things, namely five things. So it is about the freedom of religion. It's about freedom of the press.

It's about the freedom of assembly. It's about the freedom to petition your government. And it's about the freedom of speech. It's about the freedom to petition your government. And it's about the freedom of speech. So it does all of these things. And even when you just take apart any one of those, just take the free speech part, it's incredibly complicated. But what the text actually says is, Congress shall make no law upridging the freedom of speech. But if we just look at those words, that doesn't tell us much about what the modern First Amendment looks like. And so it's really hard to just look at the text and understand what it's assuring us of or

what it's protecting. And like maybe the most fundamental thing that it doesn't help us answer is what is speech? Exactly. And not just what is speech, but, you know, the amendment could have been written to say Congress shall make no law that infringes upon speech. But they actually said the freedom of speech. The debate among many scholars is, well, when you say the freedom of speech, it seems to indicate something a bit more abstract. That the freedom of speech meant something very specific, perhaps, to the founders when they were thinking about freedom of conscience and the ability to discuss certain types of criticisms of the government together. So it's a little bit of a black box. We don't really know what they meant by this. So that tension between the need for free speech and the regulation of speech that can harm people or cause problems, right? Can infringe on other people's liberty, et cetera.

How does the internet complicate that tension, which just seems to, by your definition, always been around since the First Amendment was put into place? How does the internet age kind of change that dynamic? Well, right. So the history of the First Amendment, long before you get to the internet age,

is already really complicated. The whole thing was controversial to start with, right? Because the Constitution was controversial to start with. And the Bill of Rights, which include the First Amendment, were this kind of compromise to get people who were really nervous about the Constitution and the centralized government to come on board because it was meant to offer some reassurances about how this doesn't, we're not just going to repeat British monarchy. And so you have this package of rights, it's 1791 that it gets ratified. And the First Amendment just happens to be the first because the first two that were originally proposed don't get ratified. And seven years later, 1798, Congress

literally makes a law abridging the freedom of speech by passing what are known as the Alien and Sedition Acts that broadly prohibit the ability of Americans to criticize the government. So you have controversy from the very outset. So long before we get to how does the internet change things, you know, we really have to acknowledge that there was never a moment where the First Amendment was clear to people, even to the people who wrote it, and what it actually meant. There was always that debate about, well, what about really harmful speech? What about speech that jeopardizes national security? What about speech that tries to criticize this really new fledgling government that we're trying to hold on to and establish a democracy around? What does that mean when you are talking about people who

are writing up pamphlets and distributing them to each other or publishing in newspapers all the way to, okay, now there's this medium where people can, with a push of a button, right, or not even just a click, right, they can say whatever's on their mind. They can say that to basically anyone. They don't have to tell anybody what their identity is. And they can speak to millions of people all at once. And that's something so far removed from the historical context or the reality of 1791 that it's almost like it's not even the same world. So it's really hard not just trying to determine what the First Amendment meant in that time when these men were living. So much harder now to say so much has changed, especially the nature of communication.

What could it possibly mean in this age? You used the phrase harmful speech to refer to like speech against the government or things like in that era it seems were were they were maybe hyper vigilant about particularly like speech against the government criticisms as they're trying to form as you said like this like new fledgling nation and everything um but i'm just struck by the fact that just as confusing or complicated as the freedom of speech is to define harmful speech, even then, and for sure continuing to today, is a very hard thing to define. And I'm saying harmful speech, but I guess some of driving factor in the story of the First Amendment. Because really what you see from this abstract protection for the freedom of speech immediately becomes a question of practical application. That is, okay, so we want to broadly protect people's ability to say things, but we

also recognize that saying things can lead to people getting hurt, and it can lead to jeopardizing national security. It can lead to all kinds of public disorder. So throughout the history of the First Amendment, you see these battles over, okay, is this so harmful that we have to make an exclusion or an exception for the protections? Is this kind of speech so much like conduct that it shouldn't even be considered speech at all is another kind of debate. And whose harms do we actually care about? And that, especially in the modern age of, well, who are we counting? Because, you know, one thing that is clear at the moment of the founding and the ratification of the Constitution and the Bill of Rights is who's not being counted, right? So the Constitution is quite clear about how we're not counting vast amounts of society.

That is, enslaved people don't have those rights. The Bill of Rights is not for them. And even though it's not explicit in the Constitution or in the Bill of Rights, that also goes for women of all races. Because women weren't considered to have the same status as men. Their interests were considered to be represented by their husbands or their fathers. And there was really no conception of, well, what would it mean for the freedom of speech to apply to everyone? We're talking about it theoretically at this point, and you're saying there's a lot of

chapters in this, but at some point, lines have to be drawn. And that's subjective to some extent. One interesting case that kind of came up for us was the Brandenburg case, like where that line is set. Can you talk about what happened in that case and what crosses that line of dangerous speech versus not dangerous speech? Yeah, Brandenburg is hugely important to modern day First Amendment understandings of free speech. And to understand what Brandenburg does that's so interesting and different from what came before, we really have to look at some of the cases

that preceded Brandenburg to see just where the break is. So what you have before you get to 1969 is you have all of this flurry of activity over speech starting around World War I. We're at war with Germany, and there's all of these objections to the war, not just to the draft, but also to the entire concept of war. There are objections to the way that capitalism seems to be destroying society, so there's a lot of labor organizing. Feminism is sort of taking off as well. Questions about racial equality. All of this speech is happening in this really

interesting way in the States. But right when the war begins, two months after the United States enters the war, Congress passes yet another law that really does restrict freedom of speech. That law is called the Espionage Act of 1917. It prohibited obtaining and disseminating information or documents related to national defense that could be used against the United States. It also made it criminal for anyone to obstruct enlistment in the military. And that's kind of the touch point for these early modern cases. And one of the most famous cases from that time that lasted until essentially Brandenburg is this case called Schenck versus the United States.

And it's a case where Charles Schenck and Dr. Elizabeth Baer are these two socialists who are distributing information that objects to the draft essentially. And they get convicted under this law. In World War I. In World War I, right. So, and that's really important to the context because this revered, rightly revered in many ways, Justice Oliver Wendell Holmes, the Civil War veteran who's on the court, he articulates that what we need to think about to answer this question of harm, right, harmful speech is a test that he develops, which is essentially what's known as the clear

and present danger test. And that is meant to be protective of speech to say, you can say a lot of critical, provocative things, but you can't engage in speech that is going to present a clear and present danger, really something that is close to happening. And what's really interesting about the Schenck case is that what Holmes is really saying is that this distribution of these flyers that object to the draft under normal circumstances would be protected by the First Amendment, but they're not going to be protected at this moment because we are at war. And it's in this case that Holmes gives us this really famous metaphor, which I think at the time really wasn't a metaphor about shouting,

falsely shouting fire in a crowded theater because people actually did die in stampedes and buildings at the time. So we have that perception for some time. Clear and present danger, we can convict people and put them in jail for objecting to the draft. But the way that the path really develops after Schenck and this clear and present danger test is one that really comes to light in a case in 1927 against a woman named Anita Whitney. And this is important to Brandenburg because Brandenburg is the case that overturns Whitney. So what's so interesting about the Whitney case is Anita Whitney is this feminist. She's a suffragist. She is advocating for racial equality. She's a suffragist. She is advocating for racial equality.

She is a pacifist. She gives a speech in Oakland, California at the Women's Civic Center, and it's about the economic and political disenfranchisement of African Americans. And she also speaks to the history of lynching in the United States and gives really graphic descriptions of it in a way that's sort of reminiscent of Ida Wells. And it implies that really if America is going to live up to its promise, it has to confront the shameful history and these inequalities. And immediately after she gives the speech, she's arrested.

And she's arrested and charged under a California law that mirrors in some ways the federal law against espionage and sedition. It's a law called criminal syndicalism. And it's basically saying you can't advocate for economic or social change by advocating violence. Anita Whitney helped establish the Communist Labor Party. And the state of California argued that the party would use violence to overthrow the U.S. government. So she's arrested and she gets convicted under the statute for this, for the state says, because she's a member of the Communist Labor Party. And her case becomes kind of a media sensation. There are people who are sympathetic to her saying the governor should pardon her.

And she says, I have done nothing to be pardoned for. And then she also tells reporters at the time that if the governor wants to pardon anyone, he should pardon the men who are in much worse positions than she is and have been subjected to much worse treatment. All of this is a lead up to saying this is an opportunity for the court to rethink this bad tenancy test, this clear and present danger idea and overturn her conviction. But the court to rethink this bad tendency test, this clear and present danger idea, and overturn her conviction, but the court doesn't. In fact, it doubles down on the clear and present danger test that Holmes had given and says, look, what she's saying here and the ideas that she's putting out there, it's clearly within the state's power to shut down this kind of speech

because it presents a threat to public welfare. And what happens in this case is that Holmes breaks away. So he joins this opinion, this really famous opinion by Justice Louis Brandeis. And Brandeis' opinion is separate from the majority opinion. And it's where we get that gorgeous rhetoric about how the best answer to bad speech is more speech. And it's this extraordinary passage where he says, fear of serious injury cannot alone justify suppression of speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. So this is really maybe more than any other statement considered to be the articulation of the modern First Amendment doctrine understanding.

We have to be extremely protective of speech, even if it runs these risks, because the best thing for us to do to preserve democracy is to hear those ideas out and counter them with better speech. But the really important thing, I think, to realize about the Whitney case,

they don't vacate her conviction. So whatever they meant by this great theory did not apply to her. Whatever this great vision of, you know, let's protect dissidents and let's protect provocative speech,

they did not protect her. This is the scene that we have to understand when we get to Brandenburg. Coming up, the KKK brings a case and the Supreme Court flips its tone. Hi, this is Nuria de las Casas from Newton, Massachusetts, and you're listening to ThruLine from NPR. Thank you for this amazing podcast. You're definitely my number one.

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That's Love Week from The Indicator. Listen on your podcast app or smart speaker. When the Supreme Court upheld the conviction in 1927 of Anita Whitney for helping to organize the Communist Labor Party, it set a precedent that would remain in place for decades. States, the court said, could punish people who use speech that tends to incite crime, disturb the public peace, or threaten to overthrow the government by unlawful means. It wouldn't be until the 1960s that a case overturned Whitney. It was a case that established a new test, a test that we still use today to determine when speech has gone too

far. It's the case Brandenburg versus Ohio. We pick up the conversation with George Washington University law professor Marianne Franks. Clarence Brandenburg is a KKK leader. He is a KKK leader who calls up a reporter and says, you should come cover this rally that I'm going to be speaking at, and you should bring a cameraman, and you should film everything that happens at this rally. And at this rally, he's in full Klan regalia speaking to all of these other hooded individuals and says, if the white race continues to be oppressed by the president and Congress and the Supreme Court, we may have to take, and he calls it, revengeance. And during that rally, they then burn a cross,

and they're carrying weapons. They're using anti-Black, anti-Semitic slurs. It's pretty clear that it's meant to be threatening and intimidating. And the broadcast of the speech is not just played on local news, but it makes national news. So everybody really has the chance to hear it. He's convicted for the speech under the Ohio statute, and that goes up to the Supreme Court and you get the opposite result. That is his conviction is overturned because the court says, oh, we were wrong in Whitney. So what they give you in the Brandenburg case is a different test. No more clear and present danger, definitely no bad tendency. Now we have a test of imminent lawless action. And this is a to happen immediately, and it has to be really likely that that lawlessness is going to happen. So it's a really, really narrow view of what

you're allowed to prohibit under the First Amendment. How much do you chalk this up to what's going on in the country uh in each of these moments you know one happening you know i guess soon around the world war one era right and another happening at the tail end of the civil rights era um how much is it relating to what's going on in society more broadly at those times in your opinion and how much is it relating to what's going on in society more broadly at those times, in your opinion? And how much is it relating to also like who's actually making up the court at each of those moments? I think both of those things are very important to the way these cases come out. So you've got this interwar period in 1927 where people are just nervous about

communists, right? They're nervous about the kind of social upheaval. They're nervous about change. And then by the time you get to the 1960s, you're at another point of upheaval, but it's going in the opposite direction, at least according to the speaker who's now at issue, who is trying to attack other people. And the court says that it has a principled reason

for doing so, but one kind of blunt way of looking at what happened here is that, well, the court says no to feminism and racial equality and says yes to the KKK. And that has to be partly due to what they're perceiving the value of the speech to be and perceiving the identification of the speakers and how much it matters and what the impact of the speech, how much of it matters. The KKK rally is at the heart of the Brandenburg test, which essentially protects speech unless it's likely to incite people to engage in imminent lawless action. And that's still the test we use today. When we think about what the Brandenburg test has done for free speech or the understanding of free speech, that it's not just the cases that actually come up. Because if you look at the history of the cases that go before the court that are trying to figure out what the First Amendment means and what its boundaries are, there are cases that come out in favor of radical speakers, radical speakers who

are not trying to endanger other people, but are in fact arguing for the opposite. So you do get good rulings that protect civil rights activists, and you do get rulings that are protecting, in some cases, people who are advocating for workers' rights. You get some of that. But what you also get in the 70s, the 80s, and 90s, so as we're moving towards the internet age, increasingly what you get is more and more First Amendment protections being given to corporations, to really powerful industries. So the big cases that come out are also benefiting pornographers and the tobacco industry. And they're all making claims about free speech to say, look, our speech might be harmful. It might be offensive. It might be causing public disorder, but it's really important for that reason. And you have to accept those as the necessary costs of free speech. So what is the effect of violent misogynist speech on women?

What is the effect of violent racist rhetoric on the people, on Jews and Black individuals who are usually the targets of those kinds of screes, the KKK, the neo-Nazis, those kinds of speech acts that are getting protected in such a prominent way by these court cases. What does it mean in terms of who feels comfortable to speak? Because once again, if the court is reinforcing this idea that when you're a neo-Nazi who's making these anti-Semitic slurs, not only should you not be punished, but you in fact are a free speech hero of a sort, that doesn't just have legal power, that has social power, that is galvanizing, that is telling, that is sort of saying to these groups, you are included and you should proceed with the speech as opposed to marginalize the speech. I could also see a world

in which you read it as, yeah, that's protecting arguably potentially harmful speech. I could also see a world in which you read it as, yeah, that's protecting arguably potentially harmful speech. But it's also a protection for people on the left who maybe would have been silenced like Whitney in the past. And so that's where I feel this getting complicated because in a way, isn't it good? Isn't that ruling good to open up the boundaries of what the government is allowed to kind of regulate in terms of speech? It is extremely complicated. And this is why the politics around First Amendment doctrine are so incredibly confusing in a way, because for long periods of history, the modern First Amendment doctrine are so incredibly confusing in a way, because for long periods of history, the modern First Amendment has been very much identified with leftist,

progressive causes. The civil libertarian movement, ACLU and others, they're broadly considered to be on the kind of progressive side, and that they're pushing for more rights as opposed to trying to roll back. And for that period of time, the First Amendment was looked at with some disdain by Republicans and conservatives who thought, oh, you're protecting all kinds of bad speech. But then along the way, in the 80s and the 90s, there's a kind of weird convergence. Suddenly the right decides that it does like the First Amendment after all, partly because it realizes that it's a really powerful tool for corporations to say, well, powerful money-making enterprises can also use the First Amendment, not only to defend their profits, but also to

defend excluding people. And as we've seen the far right become much more open in our own time about who they want to exclude, now they're much more sympathetic to the view, the kind of Brandenburgian view that is not just an abstract principle of protecting harmful speech, but it's quite clear that they like the result. And the result is often going to be the intimidation of racial minorities, sexual minorities, and they're using that. And that makes a lot of progressives uncomfortable, but it also brings most of them to say, well, that is just sort of how we have to roll, that if you want to protect civil rights activists, you also have to protect the KKK. The question though is, well, why are those two things just two sides of the same coin? If part of what your speech is, is to fundamentally deny that certain people deserve rights,

then you are not engaging in speech that is compatible with democracy. Forget about offensiveness or any of the rest. That's just incompatible with the values we profess to have. And ahead of this interview, I was looking up a couple years ago, a CNN commentator on air said to a Republican commentator that white men like you are the greatest terrorist threat in this country. And what it made me think was I don't think a lot of people would identify that as hate speech. But if they had said substitute another race or another identity group in that and called them the biggest terrorist threat in this country um or if someone had called me and said you know iranian men or muslim men like you're the biggest terrorist i think a lot

of people would agree that that was like kind of close to inciting some kind of hate speech what it makes me think is in this divided country politically divided country you live in how we define hate speech often comes from whatever ideological point of view we're coming from and so it's getting really difficult i think for many people and i think i'm conveying the view of a lot of people in the public that are kind of like what does this even mean why does the first dependent first amendment even apply if this we're just applying it subjectively in this way and i think that's a great point and it is exactly at the heart of this controversy what does it mean if if it's just about free speech for me and not for thee, right? Yeah.

But I think there's a couple of questions to raise about that, which one is, I would say the term hate speech, I think, is a particularly unhelpful term. And that's because we don't have an agreed upon definition of what it is. There's a tendency for a certain segment of society to say hate speech is not protected by the First Amendment, and there's an equally vociferous part of society that says it is protected by the First Amendment. They can actually both be right and wrong because we're not necessarily talking about the same things. If what we mean by hate speech is comments that

people find offensive, critical statements, et cetera. That's, yeah, that's probably protected by the First Amendment because the First Amendment goes that far. But if we're talking about things like shouting racial slurs in the workplace to your colleague, that isn't actually protected. So we have to be much more specific about what we mean. And I think the term hate speech can be, is really too ill-defined to be useful as a concept here. But to your point about that's the concern, right? That if the government is in charge of deciding what is offensive or hateful or harmful, isn't it just going to be whatever the person in power likes or doesn't like? And I think that is exactly the concern. The issue, I think, is we have presumed that that's not what's been

going on this whole time, where we have been claiming to defend the First Amendment. So we've been saying we defend the First Amendment, but who goes to jail? Anita Whitney goes to jail. Who doesn't go to jail? The KKK leader does not go to jail. We have this vision sometimes or this view that the Supreme Court has protected most speech. But think about all the things that they say are not actually protected. Defamation, obstinacy, fighting words,

fraud, child pornography. There are all of these things where we've made some kind of judgment that that speech is too harmful. So it's not a question of if we're going to choose sometimes that some speech is more harmful. It's about when we choose and how principled are we when we choose it.

And I completely think a more nuanced conversation about that is necessary that some speech is more harmful. It's about when we choose and how principled are we when we choose it. And I completely think a more nuanced conversation about that is necessary. But I think we first have to get rid of this myth that we've been being principled up to this point and there's a new wave that wants to do something different. I think the new wave is pointing out that this has never been equally applied. Whatever the theory says, it's never worked in this way.

Coming up, everything changes when speech becomes digital, and anyone can reach a global audience with the click of a button. Hi, this is Eileen from Greenwood, California, and you're listening to ThruLine on NPR. This October, heal your existential dread with shortwave. We're going to talk about the science of why we die and come out the other side with answers to live better as we live longer hear about the innovations when you subscribe now to shortwave the science podcast from npr There's no doubt that technology and social media online have changed the conversation about the First Amendment and free speech. The rules that apply for legacy media, like television, newspapers, radio,

or even podcasts like ours, those rules don't apply to other media companies like X, formerly Twitter, and Facebook. And that's where things get messy. To get a better sense of what the internet has meant to the First Amendment, we need to look back at another case from the 1960s that's played a major role in defining which lines the media can and cannot cross. The case is the New York Times versus Sullivan. We pick up the conversation with George Washington University law professor Mary Ann Franks. And just a quick note, we actually recorded this conversation when the social media site now called X was still called Twitter. So you'll hear us referring to it as that throughout the interview.

The question about media is so important. I mean, it's even in there in some ways in the Brandenburg test, right? Because the Brandenburg facts really did involve the media as much as they involve just the speaker. So it has to do with this question of what does it mean to amplify someone's speech? We have this longstanding category of defamation that says, okay, as much as we believe in the power of free speech and we want to make sure that the government's never allowed to punish you, one of the kind of exceptions is when you lie about people. In this case, the New York Times was not the speaker in the strict sense. It wasn't the New York Times or one of its reporters.

But instead, it was an ad. It was a paid ad by civil rights activists who got some facts wrong about the way that police had responded to a protest. And the law enforcement officer in question got very upset and sued the New York Times for running this ad. And the question was, how much is the New York Times responsible for what it published? What the court said is that there's no evidence to show that they knew that it was false. That is, that they saw that there were these errors, they knew they were false and decided to publish them anyway. There's also no evidence that they knew that it was false. That is that they saw that there were these errors, they knew they were false and decided to publish them anyway. There's also no evidence that they

were reckless and reckless here meaning specifically that they had a pretty good sense that this was probably false and they didn't bother to check or they just dismissed the risk. And the court says, barring that, especially when we're talking about someone in the position of Sullivan, the standard is going to be that a person like that, a person who're talking about someone in the position of Sullivan, the standard is going to be that a person like that, a person who is a public official, cannot recover damages against a newspaper for defamation unless you can show that the newspaper either absolutely knew it was false or disregarded a very strong possibility that it was false. And so what the court did there was say, so yeah, we're not

saying the defamation is not harmful, but we're saying the press in particular needs breathing space. That is, they're going to get stuff wrong sometimes. And the only times that we should punish them for it is when they were really reckless about it. What are the odds that that, because it made me think about Dominion versus Fox, right? And that basically Dominion voting systems alleged that Fox made false reports about Dominion voting systems and messed with their business. Basically, people stopped using them because and that they knew that they were making this stuff up. That like members of the kind of staff there on air talent made this stuff up and they knew it. Now they settled that. But is there a possibility that another case comes along that changes that because i think for us in the media that's a scary prospect

that suddenly you can easily be sued for reporting that you know either has small inaccuracy or something else uh or even if it's um interpretation is some off you can actually get personally sued do you think that's possible that that might change? You could have relied, I think, in even five or 10 years ago on certain things not shifting dramatically, right? That the Supreme Court is supposed to be bound by this practice of basically respecting precedent so that you don't make dramatic shifts back and forth unless you have a really, really good reason. But there are some members of the current Supreme Court that have openly expressed their hostility to this principle and think that it should be easier to sue the media for saying negative things or making somewhat small errors.

It's really hard to clear the bar of reckless disregard than the malice standard from New York Times. But if ever a news outlet did it, it was Fox News because all of this evidence came out to show, unlike in the New York Times case, that they knew, they knew the people they were about to put on air were going to lie. Their own fact checkers had said, this is a lie. And they didn't do what they said, which is, oh, we're just reporting on the controversy. No, they had people come on and talk about it like it was fact. You know, I can't help but think that, you know, you're talking about a newspaper in the original case, and then you get 24-7 news, you know, in the 90s, and now you have the online plethora of media outlets that exist on the internet,

how do you see the evolution of the technology and the way that we interact with information and with different forms of speech evolving in this kind of most recent era that we now live in? And it's a great, I think Dominion is actually a great jumping off point for thinking about that, because when we're talking about defamation cases against newspapers or television stations or whatever we can think of, that's not an online communication. You cannot just pass off the responsibility by saying that was somebody else's speech. Not if you knew about it and not if you, again, ignored the fact that there were errors that you yourself were aware of. And certainly not when you're profiting from that and pushing that out to your audience. What is so incredibly disturbing about the way that things are playing out on the online context is that none of those rules apply.

The defense that gets laughed out of court in Fox is actually the defense that regularly the tech industry is able to use to stay out of court altogether. So because of this law known as Section 230 that was passed in 1996 as a way to try to keep the Internet free of regulation so that it could flourish, that law has been interpreted to effectively create a shield on top of all the First Amendment protections that are out there, a shield for these companies uniquely, so social media versus non-social media, to do whatever it wants. That is, you can boost all the bad speech you want, you can promote lies, you can spread disinformation, you can get people killed, and your defense is, you can't even bring me into court because of the statute called Section 230. And one of the questions that I really hope Americans are asking themselves in the wake of the Dominion case is,

why are the rules different for Facebook and for Twitter than they are for Fox when Fox acts as a regular legacy media outlet? Because they are different. And is it good for free speech that they're getting so much more of a pass and have essentially no incentive to be worried about the harm

that they might cause or amplify? Is that a good situation for free speech, especially when newspapers have to answer these kinds of questions, when cable companies have to answer these questions, book publishers have to answer these questions? Why does the social media industry get a pass? The Supreme Court had a chance to change those rules when it ruled on two particular cases in 2023. The two cases were Tomna against Twitter and Gonzalez against Google. And these were two cases that had very similar facts. And they were both situations where individuals had been killed in terrorist attacks and surviving members of their families were suing these platforms, including Twitter and Google and others, on the theory that these platforms had in some way

contributed to these attacks, that they had provided these terrorists, ISIS members, with the opportunity to connect or to amplify their content. And that was the claim that they had provided these terrorists, ISIS members, with the opportunity to connect or to amplify their content. And that was the claim that they had made going forward to try to suggest that these platforms have some kind of liability for those ultimate terrorist attacks. In a lot of quarters, these decisions are being hailed as a big win for the tech industry. And yes, it's a win in the sense that the court is saying, we don't think that in these particular cases, the kinds of things that these platforms did, did in fact contribute to terrorist attacks. But they've said nothing about whether they think that the industry needs this really extraordinary immunity shield, because those are really two different things. The court is answering the question of liability and is not speaking at all to the question of immunity,

contrary to the position that the tech industry has taken all this time saying, we need immunity. We need to never even be asked the question of whether we might be responsible in these cases. What they are, I think, clearly signaling is that down the road, we probably are going to have to decide some of these Section 230 issues if something doesn't happen in the meantime. For instance, Congress clarifying or reforming or maybe even repealing Section 230. And to the extent that there has been some hesitation on the part of Congress to act while these cases were pending, the answer that the court has given is we don't want to have to do anything about Section 230. So if you, Congress, are planning to do something, now is the time.

These were two big cases. But there are other cases she thinks are worth keeping an eye on, including cases about social media regulation that were recently sent back to lower courts. Then you've got kind of a, in some ways, a mirror image of those cases involving the attempts by Florida and Texas to pass social media legislation, which is not complaining about what social media companies are leaving up and not taking responsibility for. Instead, what Florida and Texas are saying is that we should be, we, the governments of Florida and Texas should be allowed to force these social media companies to keep things up. And that's really important because what that is essentially saying to those companies is that their own First

Amendment rights, that is to say Facebooks or Twitters, they're saying, you don't really have any. And what I mean by that is the full picture of what it means to be a non-government actor and have First Amendment rights, as opposed to being the government that has First Amendment obligations, is that me and you and Facebook and Twitter are allowed to not only speak, but not speak. We're allowed to share information and not share information. We're allowed to make those decisions. And what Florida and Texas are trying to do is to say, single out those social media platforms and say, no, we don't think that those are First Amendment rights. We think that we, the government, should be allowed to tell you what you have to keep up. So in your view, like how big of a moment are we in right now when it comes to this, you know, broader history of free speech in this country?

Are we sitting at a pivot point like, you know, we're talking about the Brandon Byrne case and these other kind of inflection points. Is this an inflection point that we're living through? I think it is. And that raises the third category of cases that I think are worth paying attention to before the court. And it's a case that the court heard, Kahneman versus Colorado. And it isn't necessarily characterized as an online speech case, but in many ways it is. It's a case about the use of Facebook Messenger, social media messaging communication, in a case where a man was convicted of stalking a local musician in Colorado. So this man, counterman, becomes obsessed with a local musician and sends her thousands and thousands of messages. She tries to block him. She tries to avoid him.

He eventually is sending messages that indicate that he's watching her, that he thinks that they're having a conversation that they're not having. And he gets convicted under the Colorado stalking statute. And it seems fairly straightforward, right? Stalking is about a course of conduct that is unwelcome and causes a reasonable person to feel distress. But then he, counterman, the stalker says, I have a first amendment right to say what I did. It's protected speech. Not only can I not be punished, it's protected. And how does he manage to say this? Well, he says, well, there's an exception that the stalking statute can fall under called the true threats doctrine, but the true threats doctrine requires in counterman's perspective, not only that a person would have objectively have been terrified, but that the person speaking subjectively intended to make that person terrified. His claim is, well, I didn't mean

to upset her. I just really like her. And so he's offering this new principle of saying, until you can show that I meant to cause her harm, then it's the difference between protected free speech and stalking is what I say it is, I the stalker. But not only did the court take up this case, which it arguably shouldn't have, if we had some optimism that maybe they would be smart about this case or nuanced about this case, all of that was kind of blown away by the oral arguments that took place where the chief justice reads out some of the text messages that the woman in question received and jokes about them, says essentially, well, you know, I can't say that I haven't said things like this myself. And so the signals from the oral arguments were not good and not a healthy evaluation of where

we are when it comes to protecting freedom of speech without confusing freedom of speech with stalking and harassment and threats. It's like you have to prove what's in someone's heart and mind, basically. Which is disturbing enough when we're talking about someone who, let's say, makes a bomb threat, right? One-off case. That's hard enough to prove what they actually meant. It's impossible to prove in a case of stalking

because stalking, by definition, is a course of conduct. People's motivations don't stay static. There are many stalkers who firmly believe that what they're doing is welcome. They firmly believe that it's just going to take one more delivery of flowers, one more unsolicited phone call, and then she's going to see the light. That then, you know, the moment that she doesn't see the light turn into, okay, now I'm going to murder her because we do know that so many stalking cases eventually become homicide cases. And the idea that we would even entertain the possibility that the termination of whether this is free speech will turn completely on that subjective intent standard is terrifying.

Yeah, and it's not, I mean, the victim there is, it's like it's prioritizing the aggressor versus the victim's point of view. Exactly this. And this is why my own concern about this case, considering the history we've talked about, is this is the dark part of that First Amendment test. This idea that we claim what is happening here, or First Amendment, the court, First Amendment absolutist will claim, well, we're just upholding a principle here for everyone. But that's never the case when you actually look at the application. You are choosing a speaker because if we were really worried about chilling people's speech or worried about whether or not this is going to, in some ways, make it complicated for them to produce their art or express themselves, why are we only worried about his speech as opposed to hers? And the fact that the court is not entertaining them on the same level shows that buried beneath every abstract, neutral principle is really a set of assumptions about whose speech matters and whose doesn't.

We spoke with George Washington University law professor Mary Ann Franks in the summer of 2023. Since then, the court threw out counterman's stalking conviction and sent the case back to state courts. Next week on We the People, through-'s series looking at the stories behind constitutional amendments. The Second Amendment. The right to bear arms. If there's one thing that I think just so often gets lost in the discussion about the Second Amendment, it's that it's not a binary.

It's not an either or. And that's it for this week's show. I'm Randa Abdelfattah. I'm Ramteen Arablui. And you've been listening to ThruLine from NPR. This episode was produced by me. And me and... Fact-checking for this episode was done by Kevin Vogel.

Also thanks to Johannes Sturgey and Anya Grunman. This episode was mixed by Maggie Luthar. Music for this episode was composed by Ramtin and his band, Drop Electric, which includes Anya Mizani. Naveed Marvi. Sho Fujiwara. And as always, if you have an idea or like something you heard on the show, please write us at thruelineine at NPR.org.

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