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. With respect to any given issue, speech was scarce, and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore,...

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Bibliographic Details
Published in:Michigan law review 2018-12, Vol.117 (3), p.547-581
Main Author: Wu, Tim
Format: Article
Language:English
Subjects:
20th century
American history
Analysis
Constitutional amendments
Debates and debating
Deception
ESSAY
Evaluation
Federal court decisions
First Amendment-US
Fraud
Freedom of speech
Influence
Internet
Jurisprudence
Law and legislation
Law enforcement
Laws, regulations and rules
Political aspects
Politics
Propaganda
Punishment
Social media
Social networks
Speeches, addresses, etc., American
U.S. states
Citations: Items that cite this one
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Summary:The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today's. With respect to any given issue, speech was scarce, and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government. Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those 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. This Essay identifies the core assumptions that proceeded from the founding era of First Amendment jurisprudence, argues that many of those assumptions no longer hold, and details the new techniques of speech control that are used by governmental and nongovernmental actors to censor and degrade speech. It concludes by arguing that protection of free speech may now depend on law enforcement recognizing its role in the protection of the American speech environment.
ISSN:0026-2234
1939-8557
DOI:10.2139/ssrn.3096337