In the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace.

“The formation of public opinion is out of control because of the way the internet is forming groups and dispersing information freely,” Robert C. Post, a Yale law professor and former dean, said in an interview.

Before the advent of the internet, Post noted,

People were always crazy, but they couldn’t find each other, they couldn’t talk and disperse their craziness. Now we are confronting a new phenomenon and we have to think about how we regulate that in a way which is compatible with people’s freedom to form public opinion.

Trump has brought into sharp relief the vulnerability of democracy in the midst of a communication upheaval more pervasive in its impact, both destructive and beneficial, than the invention of radio and television in the 20th Century.

In making, embracing and disseminating innumerable false statements, Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain.

In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech.

Richard Hasen, at the University of California-Irvine Law School, described some of the more radical reform thinking in an email:

There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.

Hasen argues:

Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.

Those challenging the viability of applying free speech jurisprudence to political speech face a barrage of criticism from legal experts who contend that the blame for current political crises should not fall on the First Amendment.

Robert Post, for example, contends that the amendment is essential to self-governance because

a functioning democracy requires both that citizens feel free to participate in the formation of public opinion and that they are able to access adequate accurate information about public matters. Insofar as it protects these values, the First Amendment serves as a crucial tool of self-governance. In the absence of self-governance, government is experienced as compulsion, as being told what to think and what to do. That’s not a desirable situation.

Post added: “As we try to adapt the First Amendment to contemporary issues, we have to be clear about the values we wish to protect, so that we don’t throw the baby out with the bath water.”

Toni M. Massaro, a law professor at the University of Arizona, who with Helen L. Norton, a law professor at the University of Colorado, co-authored a December 2020 paper “Free Speech and Democracy: A Primer for 21st Century Reformers,” makes a related point in an email:

Free speech theorists have lots to be anxious about these days as we grapple with abiding faith in the many virtues of free expression while coping with the undeniable reality that it can — irony runs deep — undermine free expression itself.

Massaro added:

Those who believe in democracy’s virtues, as I do, need to engage the arguments about its threats. And those who believe in the virtues of free speech, as I also do, need to be cleareyed about the information distortions and gross inequalities and other harms to democratic and other public goods it produces. So our generation absolutely is up at bat here. We all need to engage the Wu question ‘is free speech obsolete?’ lest it become so through inattention to the gravity of the threats it faces and poses.

Helen Norton, in a separate email, expanded on the different vantage points in the legal community. On one side are those “who privilege democratic self-governance” and who are more likely to be concerned “about whether and when speech threatens free speech and democracy.” On the other side are

the many, past and present, who privilege individual autonomy and are more comfortable with the premise that more speech is always better. I’d describe it as a difference in one’s preferred theory of and perspective on the First Amendment.

Other legal scholars emphasize the inherent difficulties in resolving speech-related issues:

Rebecca Tushnet, a law professor at Harvard, wrote by email:

Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.

Tushnet described the questions raised by those calling for major reform of the interpretation and application of the First Amendment as “legitimate,” but pointed out that this“doesn’t mean they’ll get taken seriously by this Supreme Court, which was constituted precisely to avoid any ‘progressive’ constitutional interpretation.”

In certain respects, the divide in the American legal community reflects some of the differences that characterize American and European approaches to issues of speech, including falsehoods and hate speech. Noah Feldman, a law professor at Harvard, described this intercontinental split in a March 2017 column for Bloomberg,

U.S. constitutional tradition treats hate speech as the advocacy of racist or sexist ideas. They may be repellent, but because they count as ideas, they get full First Amendment protection. Hate speech can only be banned in the U.S. if it is intended to incite imminent violence and is actually likely to do so. This permissive U.S. attitude is highly unusual. Europeans don’t consider hate speech to be valuable public discourse and reserve the right to ban it. They consider hate speech to degrade from equal citizenship and participation. Racism isn’t an idea; it’s a form of discrimination.

The underlying philosophical difference here is about the right of the individual to self-expression. Americans value that classic liberal right very highly — so highly that we tolerate speech that might make others less equal. Europeans value the democratic collective and the capacity of all citizens to participate fully in it — so much that they are willing to limit individual rights.

Tim Wu, a law professor at Columbia and a contributing opinion writer for The Times, is largely responsible for pushing the current debate onto center stage, with the 2018 publication in the Michigan Law Review of his essay, “Is the First Amendment Obsolete?”

“The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today’s,” Wu wrote. The basic presumption then was “that the greatest threat to free speech was direct punishment of speakers by government.” Now, in contrast, he argued, those, including Trump, “who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding’ tactics.”

Instead of protecting speech, the First Amendment might need to be invoked now to constrain certain forms of speech, in Wu’s view:

Among emerging threats are the speech-control techniques linked to online trolling, which seek to humiliate, harass, discourage, and even destroy targeted speakers using personal threats, embarrassment, and ruining of their reputations.

The techniques used to silence opponents “rely on the low cost of speech to punish speakers.”

Wu’s conclusion:

The emerging threats to our political speech environment have turned out to be different from what many predicted — for few forecast that speech itself would become a weapon of state-sponsored censorship. In fact, some might say that celebrants of open and unfettered channels of internet expression (myself included) are being hoisted on their own petard, as those very same channels are today used as ammunition against disfavored speakers. As such, the emerging methods of speech control present a particularly difficult set of challenges for those who share the commitment to free speech articulated so powerfully in the founding — and increasingly obsolete — generation of First Amendment jurisprudence.

I asked Wu if he has changed his views since the publication of his paper, and he wrote back:

No, and indeed I think the events of the last four years have fortified my concerns. The premise of the paper is that Americans cannot take the existence of the First Amendment as serving as an adequate guarantee against malicious speech control and censorship. To take another metaphor it can be not unlike the fortified castle in the age of air warfare. Still useful, still important, but obviously not the full kind of protection one might need against the attacks on the speech environment going on right now.

That said, Wu continued, “my views have been altered in a few ways.” Now, Wu said, he would give stronger emphasis to the importance of “the president’s creation of his own filter bubble” in which

the president creates an entire attentional ecosystem that revolves around him, what he and his close allies do, and the reactions to it — centered on Twitter, but then spreading onward through affiliated sites, Facebook & Twitter filters. It has dovetailed with the existing cable news and talk radio ecosystems to form a kind of seamless whole, a system separate from the conventional idea of discourse, debate, or even fact.

At the same time, Wu wrote that he would de-emphasize the role of troll armies which “has proven less significant than I might have suggested in the 2018 piece.”

Miguel Schor, a professor at Drake University Law School, elaborated Wu’s arguments in a December 2020 paper, “Trumpism and the Continuing Challenges to Three Political-Constitutionalist Orthodoxies.”

New information technologies, Schor writes,

are the most worrisome of the exogenous shocks facing democracies because they undermine the advantages that democracies once enjoyed over authoritarianism.

Democracies, Schor continued, “have muddled through profound crises in the past, but they were able to count on a functioning marketplace of ideas” that gave the public the opportunity to weigh competing arguments, policies, candidates and political parties, and to weed out lies and false claims. That marketplace, however, has become corrupted by “information technologies” that “facilitate the transmission of false information while destroying the economic model that once sustained news reporting.” Now, false information “spreads virally via social networks as they lack the guardrails that print media employs to check the flow of information.”

To support his case that traditional court interpretation of the First Amendment no longer serves to protect citizens from the flood tide of purposely false information, Schor cited the 2012 Supreme Court case United States v. Alvarez which, Schor wrote, “concluded that false statements of fact enjoyed the same protection as core political speech for fear that the government would otherwise be empowered to create an Orwellian ministry of truth.”

In the Alvarez case, Justice Anthony Kennedy wrote that

the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.

Kennedy added at the conclusion of his opinion:

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.

Kennedy cited Oliver Wendell Holmes Jr.’s famous 1919 dissent in Abrams v. United States:

The best test of truth is the power of the thought to get itself accepted in the competition of the market.

In practice, Schor argued, the Supreme Court’s Alvarez decision

stood Orwell on his head by broadly protecting lies. The United States currently does have an official ministry of truth in the form of the president’s bully pulpit which Trump has used to normalize lying.

Along parallel lines, Sanford Levinson, a law professor at the University of Texas, argued in an email that “today, things are remarkably different” from the environment in the 20th century when much of the body of free speech law was codified: “Speech can be distributed immediately to vast audiences. The ‘market of ideas’ may be increasingly siloed,” Levinson wrote, as “faith in the invisible hand is simply gone. The evidence seems overwhelming that falsehood is just as likely to prevail.”

In that context, Levinson raised the possibility that the United States might emulate post-WWII Germany, which “adopted a strong doctrine of ‘militant democracy,’ ” banning the neo-Nazi and Communist parties (the latter later than the former):

Can/should we really wait until there is a “clear and present danger” to the survival of a democratic system before suppressing speech that is antagonistic to the survival of liberal democracy. Most Americans rejected “militant democracy” in part, I believe, because we were viewed as much too strong to need that kind of doctrine. But I suspect there is more interest in the concept inasmuch as it is clear that we’re far less strong than we imagined.

Lawrence Lessig, a law professor at Harvard, was outspoken in his call for reform of free speech law:

There’s a very particular reason why this more recent change in technology has become so particularly destructive: it is not just the technology, but also the changes in the business model of media that those changes have inspired. The essence is that the business model of advertising added to the editor-free world of the internet, means that it pays for them to make us crazy. Think about the comparison to the processed food industry: they, like the internet platforms, have a business that exploits a human weakness, they profit the more they exploit, the more they exploit, the sicker we are.

All of this means, Lessig wrote by email, that

the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.

Lessig dismissed fears that reforms could result in worsening the situation:

How dangerous is it to “tinker” with the First Amendment? How dangerous is it not to tinker with the doctrine that constitutes the First Amendment given the context has changed so fundamentally?

Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.”

Kennedy described one specific reform he had in mind:

A key distinction in the law now has to do with the state action doctrine. The First Amendment is triggered only when state action censors. The First Amendment protects you from censorship by the state or the United States government. The First Amendment, however, does not similarly protect you from censorship by Facebook or The New York Times. To the contrary, under current law Facebook and The New York Times can assert a First Amendment right to exclude anyone whose opinions they abhor. But just suppose the audience you seek to reach is only reachable via Facebook or The New York Times?

The application of First Amendment protection from censorship by large media companies could be achieved by following the precedent of the court’s abolition of whites-only primaries in the Deep South, Kennedy argued:

Not so long ago, political parties were viewed as “private” and thus outside the reach if the federal constitution. Thus, up until the late 1940s the Democratic Party in certain Deep South states excluded any participation by Blacks in party primaries. The white primary was ended when the courts held that political parties played a governmental function and thus had to conduct themselves according to certain minimal constitutional standards — i.e., allow Blacks to participate.

Wu, Schor and others are not without prominent critics whose various assertions include the idea that attempts to constrain lying through radical change in the interpretation of the First Amendment risk significant damage to a pillar of democracy; that the concerns of Wu and others can be remedied through legislation and don’t require constitutional change; that polarization, not an outdated application of the First Amendment, is the dominant force inflicting damage on the political system.

In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that,

We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.” Tribe added: “to the limited degree those laments were ever warranted, the reason was a persistent misunderstanding of how constitutional law properly operates and needs to evolve.

The core principles underlying the First Amendment, Tribe wrote, “require no genuine revision unless they are formulated in ways so rigid and inflexible that they will predictably become obsolete as technological capacities and limitations change,” adding that

occasions for sweeping revision in something as fundamental to an open society as the First Amendment are invariably dangerous, inviting as they do the infusion of special pleading into the basic architecture of the republic.

In this light, Tribe argued

that the idea of adopting a more European interpretation of the rights of free speech — an interpretation that treats the dangers that uncensored speech can pose for democracy as far more weighty than the dangers of governmentally imposed limitations — holds much greater peril than possibility if one is searching for a more humane and civil universe of public discourse in America.

Tribe concluded his email citing his speech at the First Annual Conference of the Electronic Freedom Foundation on Computers, Freedom and Privacy in San Francisco in March 1991, “The Constitution in Cyberspace”:

If we should ever abandon the Constitution’s protections for the distinctively and universally human, it won’t be because robotics or genetic engineering or computer science have led us to deeper truths but, rather, because they have seduced us into more profound confusions. Science and technology open options, create possibilities, suggest incompatibilities, generate threats. They do not alter what is “right” or what is “wrong.” The fact that those notions are elusive and subject to endless debate need not make them totally contingent upon contemporary technology.

Jack Balkin, a law professor at Yale, takes a different tack. In an email, he makes a detailed case that the source of the problems cited by Wu and others is not the First Amendment but the interaction of digital business practices, political polarization and the decline of trusted sources of information, especially newspapers.

“Our problems grow out of business models of private companies that are key governors of speech,” Balkin wrote, arguing that these problems can be addressed by “a series of antitrust, competition, consumer protection, privacy and telecommunications law reforms.”

Balkin continued:

The problem of propaganda that Tim Wu has identified is not new to the digital age, nor is the problem of speech that exacerbates polarization. In the United States, at least, both problems were created and fostered by predigital media.

Instead, Balkin contended:

The central problem we face today is not too much protection for free speech but the lack of new trustworthy and trusted intermediate institutions for knowledge production and dissemination. Without these institutions, the digital public sphere does not serve democracy very well.

A strong and vigorous political system, in Balkin’s view,

has always required more than mere formal freedoms of speech. It has required institutions like journalism, educational institutions, scientific institutions, libraries, and archives. Law can help foster a healthy public sphere by giving the right incentives for these kinds of institutions to develop. Right now, journalism in the United States is dying a slow death, and many parts of the United States are news deserts — they lack reliable sources of local news. The First Amendment is not to blame for these developments, and cutting back on First Amendment protections will not save journalism. Nevertheless, when key institutions of knowledge production and dissemination are decimated, demagogues and propagandists thrive.

Erwin Chemerinsky, dean of the law school at Berkeley, responded to my inquiry by email, noting that the “internet and social media have benefits and drawbacks with regard to speech.”

On the plus side, he wrote,

the internet and social media have democratized the ability to reach a large audience. It used to be that to do so took owning a newspaper or having a broadcast license. Now anyone with a smartphone or access to a library can do so. The internet provides immediate access to infinite knowledge and information.

On the negative side, Chemerinsky noted that:

It is easy to spread false information. Deep fakes are a huge potential problem. People can be targeted and harassed or worse. The internet and social media have caused the failure of many local papers. Who will be there to do the investigative reporting, especially at the local level? It is so easy now for people to get the information that reinforces their views, fostering polarization.

Despite these drawbacks, Chemerinsky wrote that he is

very skeptical of claims that this makes the traditional First Amendment obsolete or that there needs to be a major change in First Amendment jurisprudence. I see all of the problems posed by the internet and social media, but don’t see a better alternative. Certainly, greater government control is worse. As for the European approach, I am skeptical that it has proven any better at balancing the competing considerations. For example, the European bans on hate speech have not decreased hate and often have been used against political messages or mild speech that a prosecutor doesn’t like.

Geoffrey Stone, a professor at the University of Chicago Law School, voiced his strong support for First Amendment law while acknowledging that Wu and others have raised legitimate questions. In an email, Stone wrote:

I begin with a very strong commitment to current First Amendment doctrine. I think it has taken us a long time to get to where we are, and the current approach has stood us — and our democracy — in very good stead. In my view, the single greatest danger of allowing government regulation of speech is that those in power will manipulate their authority to silence their critics and to solidify their authority. One need only to consider what the Trump administration would have done if it had had this power. In my view, nothing is more dangerous to a democracy that allowing those in authority to decide what ideas can and cannot be expressed.

Having said that, Stone continued,

I recognize that changes in the structure of public discourse can create other dangers that can undermine both public discourse and democracy. But there should be a strong presumption against giving government the power to manipulate public discourse.

The challenge, Stone continued,

is whether there is a way to regulate social media in a way that will retain its extraordinary capacity to enable individual citizens to communicate freely in a way that was never before possible, while at the same time limiting the increasingly evident risks of abuse, manipulation and distortion.

In an email, Nathaniel Persily, a law professor at Stanford, declared flatly that “The First Amendment is not obsolete.” Instead, he argued, “the universe of speech ‘issues’ and speech ‘regulators’ has expanded.”

While much of the history of the First Amendment has “been focused on government suppression of dissenting speech,” Persily continued,

most speech now takes place online and that raises new concerns and new sources of authority. The relationship of governments to platforms to users has not been fleshed out yet. Indeed, Facebook, Google and Twitter have unprecedented power over the speech environment and their content moderation policies may implicate more speech than formal law these days.

But, Persily warned, “government regulation of the platforms also raises speech concerns.”

The complex and contentious debate over politicians’ false claims, the First Amendment, the influence of the internet on politics and the destructive potential of new information technologies will almost certainly play out slowly over years, if not decades, in the courts, Congress and state legislatures. This is likely to make the traditionalists who call for slow, evolutionary change the victors, and the more radical scholars the losers — by default rather than on the merits.

The two weeks between now and the inauguration will reveal how much more damage Trump, in alliance with a Republican Party complicit in a deliberate attempt to corrupt our political processes, can inflict on a nation that has shown itself to be extremely vulnerable to disinformation, falsehoods and propaganda — propaganda that millions don’t know is not true.

As Congress is set to affirm the outcome of the 2020 presidential election, the words of Hannah Arendt, who fled Nazi Germany after being arrested in 1933, acquire new relevance.

In 1967, Arendt published “Truth and Politics” in The New Yorker:

The result of a consistent and total substitution of lies for factual truth is not that the lies will now be accepted as truth, and the truth defamed as lies, but that the sense by which we take our bearings in the real world — and the category of truth vs. falsehood is among the mental means to this end — is being destroyed.

The fragility of democracy had long been apparent. In 1951, in “The Origins of Totalitarianism,” Arendt wrote:

Never has our future been more unpredictable, never have we depended so much on political forces that cannot be trusted to follow the rules of common sense and self-interest — forces that look like sheer insanity, if judged by the standards of other centuries.

Totalitarianism required first blurring and then erasing the line between falsehood and truth, as Arendt famously put it:

In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true ….

Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow.

And here’s Arendt in “Truth and Politics” again, sounding like she is talking about contemporary politics:

Freedom of opinion is a farce unless factual information is guaranteed and the facts themselves are not in dispute.

America in 2021 is a very different time and a very different place from the totalitarian regimes of the 20th Century, but we should still listen to what Arendt is saying and heed her warning.

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