Amicus With Dahlia Lithwick | "First Amendment Fallacies"

Episode Date: February 27, 2021
Guest: Jameel Jaffer, Executive Director, Knight First Amendment Institute

Overview

This episode of Amicus delves into the evolving challenges and misconceptions surrounding the First Amendment in the digital age. Host Dahlia Lithwick and guest Jameel Jaffer explore how First Amendment doctrine interacts with technological platforms, private regulation of speech, and global considerations. The conversation challenges the notion of the “marketplace of ideas,” scrutinizes the expanding and contracting scope of First Amendment protections, and discusses potential legislative and regulatory solutions for digital public discourse.

Main Themes

• The Paradox of the First Amendment’s Scope
• Private Platforms as Speech Regulators
• Political Complexity and Inconsistent Application
• Case Studies: Trump, Twitter, and Section 230
• Facebook’s ‘Supreme Court’ and Governance Gaps
• The Failing ‘Marketplace of Ideas’ Metaphor
• Legislative and Global Perspectives

Key Discussion Points & Insights

1. First Amendment: "Everywhere and Nowhere"

[05:07 – 09:34]

• Jaffer highlights the odd dynamic where the Supreme Court increasingly expands what counts as "speech" and thus receives First Amendment protection, but core democratic speech (protests, whistleblowing) sees little protection.
• Example: Commercial activities like data mining (Sorrell case) now called "speech," making regulation almost impossible.
• Quote:
  "The more and more you interpret the First Amendment very, very broadly ... you have really disabled legislatures from enacting laws that many people ... think are necessary to protect individual privacy and ... the integrity of public discourse, which is supposed to be what the First Amendment is all about." — Jaffer [07:14]

2. Private Platforms as De Facto Speech Gatekeepers

[10:12 – 12:07]

• As most speech takes place on privately owned platforms (FB, Twitter), free speech regulatory power shifts from government to corporations.
• Lithwick: “We keep falling into this habit of thinking of them as First Amendment problems. They're entirely separate. But whatever they're doing is sort of happening in some other universe..." [11:40]
• Current doctrine excludes First Amendment constraints for private companies, yet companies invoke First Amendment rights when regulated by governments (e.g., Clearview, ISPs challenging privacy laws).

3. Political Complexity and 'Cancel Culture' Rhetoric

[15:47 – 18:40]

• Jaffer notes inconsistent political alliances: left and right both champion and criticize certain regulatory approaches depending on context.
• Example: Calls for a "Fairness Doctrine" on social media now come from the right, though it’s traditionally a left-wing position.
• Section 230 debate often serves as a cultural wedge, not necessarily a sincere policy fix.
• Quote:
  "Section 230 has become a kind of flag to wave in a cultural war ... I don’t think anybody who’s genuinely concerned about the health of public discourse would think that repealing section 230 is the solution." — Jaffer [17:23]

4. Case Study: Trump, Twitter, and Public Forums

[20:11 – 24:01]

• Jaffer distinguishes between Trump blocking critics on Twitter (state action, clear First Amendment violation) and Twitter deplatforming Trump (private action, within rights).
• He supports Twitter’s ultimate removal of Trump after Jan 6, given the immediacy and danger, even if it’s not "incitement" under First Amendment doctrine.
• Quote:
  “Twitter was justified in shutting down the president's speech when it became First Amendment incitement adjacent, even if it wasn't incitement under the First Amendment standard.” — Jaffer [24:53]

5. Facebook’s ‘Supreme Court’: Appearance of Accountability

[28:23 – 32:20]

• Lithwick and Jaffer discuss Facebook’s content moderation "Oversight Board"—functionally narrow, focused on takedown appeals rather than systemic, structural issues (algorithms, business model).
• Jaffer:
  “Part of what Facebook is looking for here is the appearance of constraint... There is a little bit of a disconnect between the oversight that the oversight board is engaged in and the oversight that I think we need governments doing to be engaged in.” [28:31]
• True solutions require governmental action for privacy, transparency, antitrust, and interoperability.

6. Critiquing the "Marketplace of Ideas"

[34:12 – 36:00]

• Lithwick challenges the traditional metaphor; Jaffer agrees the digital sphere doesn’t function as a true marketplace of ideas.
• Social platforms' algorithms insulate users, preventing "good speech" from counteracting "bad speech" as the metaphor promises.
• Quote:
  "What happens on social media platforms doesn't resemble the marketplace of ideas as usually described." — Jaffer [35:36]

7. Solutions: Regulation, National and Global Perspectives

[36:00 – 39:30]

• Jaffer recommends focusing on privacy regulation, antitrust, and transparency over content moderation.
• The U.S. debate is too myopically First Amendment-centric; other countries face similar issues and may have better legal frameworks.
• Solutions must fit local/national institutional contexts rather than assume a global template.
• Quote:
  "It's not obvious that the First Amendment is offering us better solutions to these problems than Section 2B in Canada... There are many other countries ... some seem to have come up with better solutions than we have." — Jaffer [37:26]

Notable Quotes & Memorable Moments

• On the First Amendment’s reach:
  “The First Amendment is everywhere in the sense that the courts are extending the First Amendment's application to more and more kinds of activity. But it's also ... absent in some places where we really should want it to be present.” — Jaffer [08:37]
• On social media’s filter bubbles:
  "They insulate, or they can insulate people from views that are different from their own ... the structure of the social media platforms sometimes interferes with that possibility [of good speech correcting bad speech]." — Jaffer [34:36]

Timeline of Key Segments

• [05:07] – The expanding/contracting scope of First Amendment protection
• [10:12] – Private platform regulation and the First Amendment
• [15:47] – The tangled politics of speech regulation (Fairness Doctrine, Section 230)
• [20:11] – The Trump Twitter cases and public forum doctrine
• [24:53] – Distinguishing incitement, impeachment, and platform action
• [28:23] – Facebook's Oversight Board: limits and optics
• [34:12] – Critique of "marketplace of ideas"
• [36:00] – Legislative fixes and global perspectives

Conclusion

Jaffer and Lithwick stress that digital free speech questions can’t be answered by the First Amendment alone. With private corporations now acting as primary speech regulators, the limits of current doctrine, the inadequacy of existing metaphors, and the necessity for legislative and structural regulatory innovations were all laid bare. The episode closes on the reminder that the debate is complex and rapidly evolving — and that simplistic invocations of "cancel culture" or “my rights are being suppressed” are increasingly unhelpful.

“It’s all really complicated and it’s changing faster than we can get our heads around it ... what isn’t useful ... is to continue to stand up and say, cancel culture, cancel culture, my right to speech. ... None of those ... flavors of speech conversation are useful.” — Lithwick [39:30]

Host: Dahlia Lithwick
Guest: Jameel Jaffer
Podcast: Amicus (Slate)
Episode Date: February 27, 2021