What is the First Amendment’s Place in the Modern Era?

Alexander Cohen – The Founding Fathers’ establishment of the right to freedom of speech in the Bill of Rights was pivotal for American’s civil liberties. The purpose of creating a clear and unambiguous right to free speech was clear, as the Founding Fathers understood that freedoms of thought, expression, and speech formed the foundation of a democratic republic. The existence or nonexistence of the right to free speech is what distinguishes a democratic nation that protects individual liberties from totalitarian and authoritarian regimes. It is no coincidence that the Founding Fathers placed this freedom in the First Amendment of the Bill of Rights, as they understood that freedom of expression is the bedrock of a free society.

The importance and strength of the First Amendment is obvious; however, when it was established, there were not clear rules on what kinds of speech were free. It took the United States Judiciary to set limits on protections established by the First Amendment. For example, asking a guest to leave one’s home because the owner is offended by the guest’s speech is clearly not a violation of the guest’s First Amendment rights, because speech is only protected against interreference from a public entity. Similarly, this right to free expression does not protect speech that is likely to cause direct harm to another, like yelling “fire” in a crowded theater. Freedom of speech was designed to have the greatest force in so called “public squares” so that citizens could debate the most controversial and impactful political and philosophical viewpoints. This guaranteed a space in which citizens could disagree fervently through non-physical speech, and although many people today prefer to stay out of such sensitive debates, passionate and informed political disagreement is necessary for a fully functioning democracy.

While the “public square” was a physical place in the 18th Century, the drastic sociological, economic, and technological changes that have occurred since then have made the “public square” more difficult to define. Defining this term is most difficult in the context of social media, as it is ubiquitous and pervasive in virtually every aspect of today’s world. Social media presents many First Amendment questions, such as: Are public social media pages the legal equivalent of  the “public square” wherein free speech is most protected? Do private social media pages restrict this freedom, and if so, to what degree? These issues become even more complicated, and concerning, due to the fact that these social media sites are non-government corporate entities, and therefore have the right and ability to govern their platforms in the way the officers and directors see fit. Essentially, this means that speech on these social media platforms is being regulated by the internal corporate policies. These companies have stated that they use carefully designed algorithms to determine which speech goes beyond the First Amendment’s protection and which speech falls within it. However, this begs the question: Does the public really wants private companies to do the job of the government in enforcing the United States Constitution?

This question is beginning to be addressed by lawmakers. There is great debate about how this situation should be dealt with, but the Legislature and Judiciary have not yet proposed solutions to the issue. Congress has recognized the seriousness of the issue, and there is great bipartisan agreement that something needs to be done. That said, there is intense disagreement in Congress about what this something actually should be. Most legislators agree regulation is part of the solution, but the complex nature, extent, and potentially negative consequences that could result from such regulation make it incredibly difficult for any bill to survive and reach the President’s desk. Also, the courts have not yet made a definitive ruling on what today’s equivalent of the “public square” is, or if social media falls within it. The few cases addressing the topic have very narrow holdings, which were arrived at through a very fact intensive, case specific, “totality of the circumstances” legal analysis.

Decisive and thoughtful action needs to be taken with regard to how the First Amendment affects the hundreds of millions of Americans using social media. The First Amendment’s role in today’s age has been, and continues to be, eroded and clouded.  It is essential that we ensure there is a clearly defined space in which freedom of expression is most strongly protected, in accordance with the intent of the Founding Fathers. Without this precisely defined sphere of protection for free expression, the First Amendment—the most crucial pillar supporting the foundation that is our democratic republic—will come crashing down, putting the foundation itself in jeopardy.

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