MARCH 8, 2019
IT MAY COME as a surprise that in a nation so closely identified with a long tradition of robustly protecting free speech, it took 128 years for the US Supreme Court to grapple with the breadth and meaning of the First Amendment. In 1919, for the first time in American history, the Court was confronted with a series of cases that pitted the demands of patriotism and national security against the Constitution’s unqualified command that Congress “shall make no law […] abridging the freedom of speech, or of the press.”
Early that year, driven by the intellectual force of Justice Oliver Wendell Holmes Jr., the Court rejected the First Amendment claims of several antiwar dissidents. Yet by the fall, Holmes had changed his mind and together with Justice Louis Brandeis they became the dissenters, extolling the value of protecting free speech even — indeed, particularly — in times of national crisis.
2019 is not only the 100th anniversary of that seminal year — it is also a year in which confident assumptions about the permanence of free speech and a free press are under assault. In short, it is a perfect occasion to examine the growth, development, and future of the First Amendment.
To tell that intriguing story, two of the nation’s foremost scholars of freedom of speech and the press, Lee Bollinger, the president of Columbia University, and Geoffrey Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago, have gathered 16 thought-provoking essays to explore the “extraordinary evolution in the ways in which the Court has given meaning” to the First Amendment, through “a series of false starts, shifting doctrines, and often controversial and surprising outcomes” and to assess the future of this “puzzling ‘experiment.’”
Divided into four parts, The Free Speech Century examines the nature of First Amendment jurisprudence; contemporary uncertainties and controversies; the extent to which American conceptions of free speech have been embraced and rejected in other countries; and the vexing challenges posed by new technologies, social media, fake news, tribalism, and foreign interference. The editors open and close the book with two incisive dialogues assessing the different and often conflicting perspectives presented in their admirable collection.
The First Amendment was ratified in 1791, but the ink was barely dry on that historic document when only seven years later Congress passed and the illustrious Founding Father and president John Adams signed what history has declared the infamous Alien and Sedition Acts, punishing “disloyal” foreigners and jailing outspoken newspaper editors. And so it would go for more than a century as the bold promises of the First Amendment lay dormant, while the spirit of political opposition struggled to be heard in the face of repressive local, state, and federal laws which routinely strangled dissent. Before 1919, when the few cases challenging such laws reached the Supreme Court, in opinions written by Holmes, the Court had refused to invoke the First Amendment to protect, for example, the publication of articles and cartoons criticizing a state supreme court or an article defending anarchists right to bathe in the nude.
Consequently, it was unremarkable that Holmes continued to lead the Court in that direction when the cases of antiwar dissidents reached his desk. In the fever pitch surrounding the United States’s entry into World War I, at the urging of President Woodrow Wilson, Congress passed the Espionage Act of 1917 and the more draconian Sedition Act of 1918, which together imposed severe prison sentences and fines on any communications deemed disloyal or unpatriotic toward the government, the flag, or the military.
In March 1919, in a series of unanimous opinions written by Holmes, the Supreme Court decided three key cases. It upheld the convictions and prison sentences of Charles Schenck and Elizabeth Baer, members of the Executive Committee of the Socialist Party, for authorizing, printing, and mailing more than 15,000 fliers to men slated for conscription, which argued that the draft constituted involuntary servitude prohibited by the 13th Amendment; Eugene Debs, a leading American labor leader and five-time Socialist Party candidate for president, for giving a speech in Canton, Ohio, protesting US involvement in the war; and Jacob Frohwerk, a Prussian immigrant, for publishing antiwar editorials in the newspaper Missouri Staats-Zeitung, which blamed the war on English empire-building and international cartels of bankers and munitions makers.
Taken together, these decisions affirmed the constitutionality of the Espionage and Sedition Acts and their application to what Schenck, Baer, Debs, and Frohwerk had written and said. According to Holmes,
Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.
Holmes illustrated his point by writing one of the most famous (and oft-misquoted) sentences in Supreme Court history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
However, only eight months later, in November 1919, joined by his protégé Justice Brandeis in the case Abrams v. United States, Holmes would signal a dramatic and pivotal shift in his approach to the First Amendment. As recounted in the illuminating essay “Rights Skepticism and Majority Rule at the Birth of the Modern First Amendment,” by Vincent Blasi, Corliss Lamont Professor of Civil Liberties at Columbia Law School (which explains why the year 1919 deserves to inaugurate the Free Speech Century), Holmes’s dissent planted the fertile seeds of our modern-day First Amendment jurisprudence. Holmes declared that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that the truth is the only ground upon which their wishes safely can be carried out.” He saw the Constitution as “an experiment, as all life is an experiment,” but he warned that
we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Blasi traces Holmes’s evolving ideas on free speech to his oft-proclaimed interest in Charles Darwin’s On the Origin of Species, which was published in 1859 when Holmes was an undergraduate at Harvard. Its electrifying effect on campus intrigued Holmes and nurtured his sense that attitudinal adaptation is encouraged by having a plethora of points of view which help weed out the fallacious and the obsolete. Consequently, as Blasi sees it, “Holmes came to value the freedom of speech largely for its capacity to generate new ways of thinking, discredit obsolete ideas, and alter priorities of inquiry.”
Blasi also admires Brandeis’s immense contribution to building the historical foundation and bold meaning of the First Amendment rooted in the courage and ambition of the Founders. In 1927, in his concurring opinion in Whitney v. California, in which Holmes joined, Brandeis wrote what Blasi calls “his most intellectually ambitious account of the freedom of speech.” Brandeis began by honoring the beliefs of “those who won our independence” that “the final end of the state was to make men free to develop their faculties, […] that, in its government, the deliberative forces should prevail over the arbitrary” and that they “valued liberty both as an end and as a means.” He declared that “the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” He warned that “[f]ear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.” Accordingly, “no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion.”
It would take until 1969, the mid-point of the Free Speech Century, for the views of Holmes and Brandeis to become the law of the land in Brandenburg v. Ohio. In that unanimous decision, the Supreme Court overturned the conviction of a Ku Klux Klan leader who led a rally of men in robes and hoods, some carrying firearms and flaming crosses. Speakers at that rally referred to the possibility of “revengeance” [sic] against “Niggers” and “Jews”; claimed the government “continues to suppress the white, Caucasian race”; and announced plans for a march on Washington on the Fourth of July. The per curiam opinion for the Court, written by Justice William J. Brennan Jr. (who receives too little attention in this book given his important contributions to the development of First Amendment law), paraphrased the key words of Holmes in Schenck and Brandeis in Whitney and held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Other essays in the first part of The Free Speech Century offer many additional insights. In “Every Possible Use of Language?,” Frederick Schauer, David and Mary Harrison Distinguished Professor of Law at the University of Virginia, points out that despite the unlimited sweep of the First Amendment (“Congress shall make no law…”), not every spoken or printed word deserves constitutional protection, including the words used to solicit murder, perpetrate securities fraud, commit perjury, or sell a defective used car. It is situation dependent.
In “Rethinking the Myth of the Modern First Amendment,” Laura Weinrib, Professor of Law at the University of Chicago Law School, accuses what she calls “the liberal conception of free speech” — that free speech shields unpopular speakers and, in the interest of informed governance and pluralistic tolerance, exposes the polity to unconventional and even dangerous ideas — of being a “myth” and an “airbrushed account,” which is an “inadequate” and “pat narrative” which on closer inspection “begins to unravel.” While Weinrib certainly adds a useful perspective emphasizing that class conflict, the struggles of the labor movement, and the American Civil Liberties Union all played important roles in the protection of free speech, she largely fails in her hyperbolic effort to demolish the broader historical account described in the other essays in the collection.
In the second part of The Free Speech Century, six writers tackle several major contemporary First Amendment controversies, including campaign finance reform, free speech on campus, government secrecy, and obscenity.
In two highly engaging essays, Floyd Abrams, a leading First Amendment litigator and adjunct professor at New York University School of Law, and Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School, delve into the controversial decision in Citizens United v. Federal Election Commission (2010), which held that under the First Amendment, corporations (and, implicitly, unions) could not constitutionally be limited in their expenditure of money used to advocate for the election or defeat of a candidate for federal office.
Abrams, who filed an amicus curiae brief in support of the parties who prevailed in Citizens United, believes the decision upholds the fundamental principle articulated by Justice Robert Jackson in 1945 that “the very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” But the primary purpose of Abrams’s essay is not to reargue the merits of Citizens United but to test whether the dire predictions that followed the issuance of the decision were in fact correct.
Major newspapers predicted the ruling would “thrust politics back to the robber-baron era of the 19th century” by allowing “corporations to use their vast treasuries to overwhelm elections” (The New York Times); that “corporate money, never lacking in the American political process, may now overwhelm […] the contributions of individuals” (Washington Post); and that “voters should prepare for the worst: cash-drenched elections presided over by free-spending corporations” (San Francisco Chronicle). Former senator Bob Kerrey warned that with “$85 billion in profits during the 2008 election, Exxon Mobil would have been able to fully fund over 65,000 winning campaigns for U.S. House.”
But Abrams points out that empirical data gathered by the Federal Election Commission and the Center for Responsive Politics show that “the repeatedly expressed concerns about corporate dominance of the political process after and as a result of Citizens United were not only overstated but also simply insupportable.” Anyone who purports to express an opinion for or against Citizens United needs to take a hard look at the campaign finance information that Abrams sets out in detail.
In the entire 2016 election cycle, ExxonMobil — the brunt of Bob Kerrey’s speculation — contributed not a single dollar to any super PAC. In fact, corporate contributions to super PACs during the 2016 election were far smaller than those of unions and other organizations. Whereas the National Education Association contributed $23,773,966, Service Employees International Union contributed $23,274,845, the Carpenters and Joiners Union contributed $19,507,737, and the AFL-CIO contributed $15,610,189, only one corporation in the Fortune 500 or the Global Fortune 500 — Chevron — contributed $2,015,000. And individuals, rather than corporations, contributed by far the most money to super PACs. Of the total of $1.8 billion, $1.04 was donated by individuals; labor unions and other organizations contributed $242 million; and $85 million was donated by corporations. The 10 largest donors in the 2016 election were all individuals, with liberal Tom Steyer topping the list at $89,544,744, balanced off in second place by conservative Sheldon Adelson at $77,900,000. According to Brooklyn Law Professor Joel M. Gora, the “predicted wave of corporate financial political intervention never materialized.”
Abrams’s essay is juxtaposed with Lessig’s, which instead of focusing on the question of corporate campaign contributions (indeed, he suggests that Citizens United could well be correct) decries the corrupting influence of all campaign contributions. His theory is that laws that restrict political speech that aim to protect the public from speech deemed troubling are unconstitutional, while laws restricting political speech that aim to ensure that representatives are not subject to improper influence are constitutional. Consequently, he disagrees with the Court’s decision in Austin v. Michigan Chamber of Commerce (1990), which struck down a state law that banned corporate speech, as having an “improper” influence on the public. For Lessig, if “the First Amendment means anything, it must mean that the government has no power to decide which political speech is dangerous and which is not.” The people
must learn to take care of themselves. And indeed, they can take care of themselves. To the extent they are exposed to speech from one side, they can expose themselves to speech from the other side. There is no need for the government’s intervention. Even if there were a need, the danger of so enabling the government plainly outweighs any benefit.
Robert C. Post, Sterling Professor of Law at Yale Law School, approaches the highly controversial issue of free speech at our college campuses by taking a surprisingly limited view of the First Amendment. He claims that over the past two decades, the Supreme Court has “lost track of why the First Amendment protects speech,” citing its application “to all kinds of communication that have nothing to do with the formation of public opinion.” While “the formation of public opinion” is certainly one of the purposes of the First Amendment, it is hardly the only one. Post doubles down on his shrunken view of the scope of free speech by arguing that the purpose of our colleges and universities — public and private — is limited to “education and research,” both of which he also defines very narrowly. Post ignores the fact that the First Amendment, education, and research all serve the fundamental purpose of allowing individuals to “generate new ways of thinking, discredit obsolete ideas, and alter priorities of inquiry,” as Blasi summarizes Holmes’s views on these matters — or, as Brandeis puts it, “to make men free to develop their faculties.”
With his tight constrictions firmly in place, Post wonders why people are complaining that universities are denying First Amendment rights. He claims that outside speakers invited to campus by student organizations and faculty members are “strangers to the essential missions of the university,” whose First Amendment rights are “irrelevant.” Calling complaints about campus speech codes, which have been used to disinvite speakers or punish students and faculty for controversial statements (all of which have been struck down when tested in court), “overblown public rhetoric,” Post goes so far as to assert that “it makes little sense to apply core First Amendment principles of freedom of speech to public universities.”
Post concludes his essay with a provocative hypothetical, which could have sharpened his thesis had he followed it through. He imagines that at a public university, “students march through campus chanting, ‘No means yes; yes means anal.’” Post readily concedes that “such a demonstration could not be excluded from a public park, because it would be protected by the cardinal rules of First Amendment jurisprudence” and thereby “immunized from regulation despite its offensive and outrageous nature.” But he suggests, without deciding, that such a student demonstration might “seriously interfere with the educational mission of a public university.” He claims that First Amendment doctrine is not helpful to resolving this issue, because “such doctrine is rooted in the requirements of self-governance in the context of a heterogeneous nation.” And that’s where he leaves us.
It’s curious why Post suggests that such a student demonstration, which would undoubtedly constitute “public discourse” fully protected by the First Amendment off campus, would be unprotected on campus. Far from seriously interfering with the educational mission of a public institution, such a demonstration could well spark debates and discussions among students and faculty members, prompting editorials, op-eds, and letters to the editor of the university newspaper all of which could “generate new ways of thinking, discredit obsolete ideas, and alter priorities of inquiry” and encourage everyone involved “to develop their faculties.” It could well be a teachable moment, even holding out the possibility that some of the students who participated in the demonstration would come to better understand the social, legal, and ethical boundaries surrounding sexual activity. Unfortunately, Post does not begin to seriously grapple with any of these important issues.
Next, The Free Speech Century turns to the question of government secrecy and whistle-blowing in the essay “Keeping Secrets” by David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School. He revisits (with disastrous consequences) the historic Pentagon Papers decision, upholding the First Amendment rights of The New York Times and the Washington Post to publish excerpts from a secret US Department of Defense report that had been leaked to the press by Daniel Ellsberg. Strauss questions “whether the First Amendment principles that the Pentagon Papers case established should still govern issues about the disclosure of government secrets and, if not, what should replace those principles.” He concludes that the First Amendment should be radically reinterpreted to allow the criminal prosecution not just of leakers but of those who publish the leaks.
In brief, Strauss postulates that unlike the era of the Pentagon Papers when “responsible” newspapers like The New York Times and the Washington Post, run by people who shared “the general outlook of government officials in many respects” and acted with “self-restraint and public spiritedness,” made sensible editorial judgments to publish leaked government secrets, today that “satisfactory equilibrium may no longer exist.” As Strauss sees it, “it is much easier now to acquire secret information,” which anyone can post on the internet, “making leaks more likely, more extensive, more highly publicized, and potentially more damaging.” Even assuming leaks are more likely, extensive, and highly publicized, Strauss doesn’t present any evidence that it is “much easier” to acquire secret information today or that leaks are potentially “more damaging.”
Strauss recognizes that “there is an important role for media upstarts who will publish information that might otherwise not see the light of day.” He acknowledges that for “less well-established outlets, the threat of a criminal prosecution is a death threat.” He also recognizes that “the point of a constitutional protection like the First Amendment is that one cannot always trust the government not to overreact or act in less than good faith,” and that having “the government distinguish between responsible and irresponsible speakers seems antithetical to the First Amendment.” But in the end, Strauss concludes that “it might be necessary for the government to operate with a distinction between responsible media outlets that are committed in some way to journalistic professionalism and other outlets that are not — and to be more willing to take enforcement actions against the latter.”
This is a very dangerous proposition. It would shatter long-standing First Amendment principles, predating the Pentagon Papers case, to treat leakers and those who publish leaked information the same when it comes to criminal prosecution. In addition, to allow government prosecutors to distinguish between “responsible” and “irresponsible” outlets would hand local, state, and federal officials with unbridled power to censor and intimidate critics and political opponents, while overwhelming the courts and juries with complicated and expensive litigation, inevitably imposing not merely a chilling but a freezing effect on the role of a free press in a constitutional democracy. Strauss’s naïve ivory tower musings seem oblivious to the real-world consequences of his ideas, which if ever adopted could cripple freedom of the press. Hopefully, President Trump and his lawyers won’t use Strauss’s essay as a blueprint to silence the “Fake News” and prosecute the “enemies of the American people.”
A final essay worth noting in this section of The Free Speech Century is written by Catherine A. MacKinnon, Elizabeth A. Long Professor of Law at the University of Michigan and James Barr Ames Visiting Professor at Harvard Law School (since 2009). She argues that “[o]nce a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful.” What was “a shield for radicals, artists and activists, Socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.” She accuses the First Amendment of being “firmly ensconced within the liberal tradition,” which she claims increasingly sides with “dominant status and power.” For MacKinnon, the culprit is the cornerstone First Amendment principle of “content neutrality,” namely that the government cannot judge the wisdom and worth of the ideas that may be spoken or published, choosing to censor some and allow others. Or as Justice Robert Jackson put it in West Virginia State Board of Education v. Barnette (1943), if “there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
In deciding what speech is protected by the First Amendment, MacKinnon would eliminate what she calls the “formal equality straightjacket” imposed by the doctrine of content neutrality and replace it with “substantive equality,” a notion she never fully defines, but which sounds like speech that in her opinion furthers equality and tends to eliminate discrimination on the basis of sex, race, and other characteristics. But there are several problems with MacKinnon’s analysis.
In the first place, she fails to support her premise that over the span of the Free Speech Century, the First Amendment has increasingly sided with “dominant status and power.” On the contrary, the First Amendment has consistently protected those outside the mainstream who hold controversial and unorthodox views. A small sample includes: the makers of the short film “The Miracle,” condemned as “sacrilegious” (Burstyn v. Wilson ); a theater manager convicted of obscenity for exhibiting Louis Malle’s award-winning film The Lovers (Jacobellis v. Ohio ); recipients of material sent in the mail deemed “communist political propaganda” (Lamont v. Postmaster General ); public school teachers forced to sign a loyalty oath (Keyishian v. Board of Regents ); students wearing black arm bands in school protesting the Vietnam War (Tinker v. Des Moines ); a protestor who wore a jacket in a courthouse hallway bearing the message “Fuck the Draft” (Cohen v. California ); members of SDS seeking recognition of their student chapter (Healy v. James ); a protestor who burned the American flag (Texas v. Johnson ); a homeowner who put a sign in their bedroom widow reading, “Say No the War in the Persian Gulf, Call Congress Now!” (City of Ladue v. Gilleo ); a Christian evangelical student group seeking funding on a par with other student groups (Rosenberger v. University of Virginia ); government-funded legal services agencies seeking to advocate for changes in welfare laws (Legal Services Corp. v. Velazquez ); charities and AIDS organizations opposed to affirming a government imposed message about prostitution which would interfere with their international efforts to reduce HIV rates (Agency for International Development v. Alliance for Open Society International, Inc. ); an anti-abortion group seeking the right to display billboard messages during an election campaign (Susan B. Anthony List v. Driehaus ); protestors seeking to protest within 35 feet of a reproductive health facility (McCullen v. Coakley ); non-union health care workers who objected to paying union security fees (Harris v. Quinn ); and public employees demoted on the mistaken belief that they were supporting a challenger to the city’s mayor (Heffernan v. City of Paterson ).
Not only do these cases show that the First Amendment is alive and well in protecting those who do not enjoy “dominant status and power,” but most of these decisions were decided by applying the “content neutrality” doctrine, which MacKinnon would eliminate. There’s no telling how these claimants would have fared under her vague “substantive equality” standard.
Furthermore, MacKinnon ignores the fact that when courts support the First Amendment rights of Nazis to conduct a nonviolent march in Skokie (Smith v. Collin ) or members of the Westboro Baptist Church to peacefully protest outside the funeral of a US Marine with hateful homophobic signs (Snyder v. Phelps ), they are setting important precedents that protect the First Amendment rights of many others whose messages MacKinnon would find more in keeping with her “substantive equality” standard. Smith and Snyder are the very precedents that courts cite when facing government attempts to restrict civil rights protestors and antiwar activists from exercising their First Amendment rights, invoking the “content neutral” doctrine. And the opposite can also be true. Were the courts to deny the free speech rights of Nazis, homophobes, and others who do not qualify for protection under MacKinnon’s “substantive equality” doctrine, then courts would be on safe ground to later cite those precedents in denying free speech rights to those whose messages MacKinnon does favor.
Finally, MacKinnon underestimates the strength and resilience of our courts and our society to extend constitutional protection to offensive and hateful messages while simultaneously condemning those messages and actively marginalizing those messengers from the governance of our country. Or in the words of Justice Holmes, the Constitution protects “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
In upholding the First Amendment rights of Nazis to march in Skokie, the Seventh Circuit Court of Appeals said this:
The ability of American society to tolerate the advocacy even of the hateful doctrines espoused by the plaintiffs without abandoning its commitment to freedom of speech and assembly is perhaps the best protection we have against the establishment of any Nazi-type regime in this country.
The third part of The Free Speech Century presents three intriguing essays on the international implications of the First Amendment. All told, these writers agree that the bold, robust, and ambitious protection for freedom of expression guaranteed by the US Constitution has served as an inspiring model around the world. However, these essays also warn that in the current political climate several foreign governments are pursuing laws and policies which would undermine the existing consensus that views freedom of expression as a fundamental human right.
Albie Sachs, former Justice of the Constitutional Court of South Africa, observes that in his country, while “freedom of expression is given great constitutional amplitude and attended to with unusual detail,” it is not accorded the “firstness” that the First Amendment receives in the United States. While the South African constitution explicitly protects freedom of the press, freedom to receive and impart information or ideas, freedom of artistic creativity, and academic freedom and freedom of scientific research, it expressly provides that these rights do not extend to “propaganda for war,” incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender, or religion that constitutes incitement to cause harm. Furthermore, as with all rights in the South African Bill of Rights, freedom of expression may be limited by laws of general application to the extent the limitation is “reasonable and justifiable” in “an open and democratic society based on human dignity, equality, and freedom.” Sachs discusses how these protections and limitations have played out in a variety of cases in South African courts.
Tom Ginsburg, Leo Spitz Professor of International Law at the University of Chicago Law School, presents a highly informative and empirical picture of the constitutional protection of freedom of speech and press around the world to support his thesis that these rights “are the most popular found in national constitutions” and “so prevalent as to be considered almost definitional to the form.” Together with his colleagues at the Comparative Constitutions Project, Ginsburg studied 791 constitutions. Given that the US Constitution dates back to 1789, it’s fascinating to note that 181 constitutions were adopted before 1900, 118 new constitutions were adopted between 1900 and 1945, 328 new constitutions between 1946 and 1989, and 164 new constitutions from 1990 to the present.
Ginsburg reports that while the guarantee of equality (at 86 percent) and the right to property and freedom from expropriation (at 81 percent) top the list of core rights found in the 791 constitutions, freedom of speech and expression is next in line with 80 percent and freedom of the press with 58 percent. Other rights associated with our First Amendment also receive substantial recognition including freedom of religion (76 percent), freedom of assembly and association (75 percent and 73 percent, respectively), the right to privacy (73 percent), freedom of opinion and conscience (65 percent), and the right to petition (57 percent).
Ginsburg then canvasses the actual application of these written protections by looking, with mixed results, at South Korea, Israel, Japan, Hungary, and Europe in general. He is most alarmed by the challenges posed to freedom of expression in “backsliding” democracies. In Hungary, freedom of expression is “under significant threat today, and the tight link required by a test like clear and present danger is nowhere to be found.” Turkey “has gone further and seen a complete slide into dictatorship as far as freedom of expression is concerned.” Poland’s “government has sought to limit journalists’ access to parliament, and to take direct control of the hiring of chiefs of state broadcasting organizations.” In Japan, “there is a tremendous amount of self-censorship” and in June 2017, the legislature passed a controversial “anti-conspiracy” law that the Japanese Bar Association says “may curb civil liberties across the country.” And the government of Israel is using “national security concerns to promote a distinctive nationalist vision of society” by limiting criticism in the public sphere, making it a civil offense to call for a boycott against the country, criminalizing the advocacy of military desertion and any commemoration of the Palestinian Day of Independence, banning certain books from school curricula, and imposing a “code of conduct” to prevent academics from expressing certain views in the classroom on public issues. These moves have prompted the Economist Intelligence Unit to rank Israel as a “flawed democracy,” chiefly on the basis of its poor score on civil liberties, placing it 85th clustered around lower-ranked countries such as Sri Lanka and Malaysia. Ginsburg warns that the “constraint of freedom of expression should be troubling, and suggests there is a continuing need for vigilance to protect and preserve this core constitutional right in the core constitutional democracies.”
In the last of the essays in this section, Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School and a Member of the United Nations Human Rights Committee, observes that “whether admired for its purity and idealism or dismissed as naive and sui generis, the United States’ approach to free speech is globally examined, critiqued, and debated,” informing “the drafting of foreign constitutions, statutes, and judicial interpretations, and undergirding the protection for freedom of expression in the international and regional human rights systems.” Cleveland thoroughly traces the development, adoption, and protections for free speech and free press contained in the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1976).
She concludes that
while the international community has been much more willing to restrict expression that is hateful and discriminatory in the name of protecting other rights, the United States’ commitment to free expression in a democracy and its suspicion of government regulation have vitally shaped global norms regulating hate speech.
Even “in this contested realm, the United States’ commitment to free speech has helped secure freedom of expression as a fundamental human right, shaped negotiations over the content of that right, and informed ongoing global interpretations of freedom of expression.” She is optimistic that the United States’s First Amendment “continues to exert a constraining influence on treaty interpretation and jurisprudence, and it continues to serve as a magnetic force in countering global political and social currents that would erode protections for freedom of expression.”
The final group of essays in The Free Speech Century takes a hard look at social media, new technologies, and the First Amendment of the future. Emily Bell, director of the Tow Center for Digital Journalism at the Columbia Journalism School, frames this challenge in stark terms: “The rapid concentration of economic and cultural power among a small set of private companies is the most pressing question facing the free press in the United States and potentially the world.” Ironically, the delivery of vast amounts of information, opinions, and ideas over new communications networks literally into the hands of billions of people every day, which would have been an unimaginable dream to James Madison and Thomas Jefferson, “leaves us at a dangerous point in democracy and freedom of the press,” according to Bell.
She estimates that as of 2017 there were over two billion Facebook accounts and that two-thirds of all advertising expenditures globally goes to just five private companies: 50 percent to Google and Facebook and 15 percent shared by ascendant technology companies in the East — Alibaba, Baidu, and Tencent. To complicate this severe concentration of media among a handful of private companies, Monika Bickert, head of Global Policy Management at Facebook, in her essay “Defining the Boundaries of Free Speech on Social Media,” notes that Facebook is available in more than 100 languages with 85 percent of its users residing in countries outside the United States.
This situation poses two fundamental problems regarding freedom of expression. First, within the United States, because the First Amendment only provides protections against censorship imposed by the government, the decisions made by Facebook, Twitter, Instagram, and other platforms as to what messages users may or may not post are not subject to the rigors of the First Amendment. Secondly, outside the United States, social media platforms may be subject to the censorship of foreign governments. Bickert points out that this threat may come from democracies as well as dictatorships. In Google Inc. v. Equustek Solutions Inc. (2017), “the Canadian Supreme Court ruled that the Supreme Court of British Columbia has the authority to require Google to globally remove search results for violating Canadian law.” The Electronic Frontier Foundation said in a statement, “Issuing an order that would cut off access to information for U.S. users would set a dangerous precedent for online speech,” and OpenMedia, a Canadian group advocating online freedom of expression, said, “There is great risk that governments and commercial entities will see this ruling as justifying censorship requests that could result in perfectly legal and legitimate content disappearing off the web because of a court order in the opposite corner of the world.”
Bell, Bickert, and Tim Wu, Isidor and Seville Sulzbacher Professor at Columbia Law School, in an essay ominously entitled “Is the First Amendment Obsolete?” each delve deeply into these provocative questions and offer some tentative remedies. In the end, as Bell sees it, there needs to be “a renewed focus on the importance of a strong system of public media” fostering “collaborations and institutional alliances aimed at reconstructing a truly public sphere, through schools, universities, libraries, philanthropic foundations, public media, and similarly aligned institutions of knowledge,” driving progress “in a direction that improves the general news environment, supports journalism, and strengthens democracy.”
The Free Speech Century is a rich buffet of intellectual delicacies, which need not be gorged in one sitting but can be enjoyably sampled at leisure. These essays will appeal to anyone interested in the development of American political and legal thought over the last hundred years, the influence the First Amendment is having around the world, as well as the complex issues posed by social media and new technology. Whether one agrees or disagrees with the reasoning, perspectives, and theories offered by this wide array of contributors, readers will enjoy the dialogue and debate they foster.
The book might more appropriately have been entitled The Free Expression Century since it sets out to cover both freedom of speech and freedom of the press. More than a semantic quibble, given that Schenck and Frohwerk dealt with the publication of fliers and newspapers, freedom of the press figured prominently in the awakening of this century and deserves greater attention in this collection. Despite the revolutionary impact of New York Times v. Sullivan (1964), one of the most important First Amendment decisions in Supreme Court history, it is only briefly mentioned. It could have been the fruitful subject of an entire chapter.
Likewise, by focusing almost entirely on political speech, the book largely overlooks the extraordinary expansion in First Amendment protection for literature, drama, art, motion pictures, and radio and television broadcasting, over the last hundred years. At the dawn of the Free Speech Century, the country was living in a national climate of literary and artistic censorship. Anthony Comstock and his New York Society for the Suppression of Vice had successfully persuaded Congress to adopt sweeping legislation making it illegal to deliver by US mail “obscene, lewd, or lascivious” material as well to publish information pertaining to birth control and contraception. Interpreting the law as broadly as possible, Comstock went after suffragist Victoria Woodhull, women’s rights advocate Margaret Sanger, and political activist Emma Goldman. By his death in 1915 (after which his successor John S. Sumner would zealously continue the work until 1950), Comstock would boast that he had made 4,000 arrests and destroyed 15 tons of books, 4,000,000 pictures, and 284,000 pounds of “objectionable” material.
In a series of groundbreaking court challenges over the span of the next 60 years, beginning with the landmark 1933 decision holding that James Joyce’s Ulysses was not obscene, First Amendment protection would be afforded to all works which were not utterly without literary, artistic, political, or scientific value. These developments have not been without controversy, with opposition mounted across the political spectrum, from feminists on the left seeking greater regulation of sexually explicit material on the grounds of the harms caused to women and society, to the challenges in the 1980s and 1990s from the right to government funding for the arts sparked by the public exhibition of controversial works by Robert Mapplethorpe and Andres Serrano. It would have behooved The Free Speech Century to include one or more essays exploring these fascinating topics to ensure that the collection exposed readers to the broad scope of constitutional protection guaranteed by the First Amendment.
Of course, book reviewers are always fond of imagining books which others should write. Editors Bollinger and Stone faced a daunting challenge in having to select key issues worthy of attention from 100 years of First Amendment jurisprudence. Putting aside questions of what might have been included, what has been included makes for a remarkable contribution to understanding the vital role freedom of speech and freedom of the press have played — and continue to play — in the development and enrichment not only of our constitutional democracy but also to societies around the world struggling to navigate a path forward that honors the inalienable right of free people to freely express themselves.