2018 Tanner Lectures, Part 2

I

In this lecture, I have three general areas I want to cover. 

The first is to consider what needs to be done with First Amendment jurisprudence in light of contemporary conditions, to adapt it and make it better for the future.  In this context, I also want to talk a bit about what I think is fairly obvious, namely the fact that we appear to have entered another period of grave intolerance and we need to consider the implications for freedom of speech and press. 

The second area involves the newest technology of communication—namely, the Internet and its component elements.  There is an enormous amount of attention now being devoted to the problems arising out of social media platforms, and I would like to offer some observations on how we might frame those debates. 

The third area concerns the phenomenon of globalization and how we should be thinking about freedom of speech and press in this moment where the world as we know it is being transformed.  Without question, the peoples of the world are becoming more inter-connected and more inter-dependent, which is the result of many powerful forces (economic, technological (especially with communications), as well as by the incredibly powerful drive of human curiosity and the impulse for improving one’s life), all of which is easier to fulfill than ever before.  Issues and problems generated by these forces (as well as those that arise out of actions of individual nations with consequences and effects on the global public commons) require some form of global collective action.  Yet, as has been widely noted, the institutions, or the public goods, needed to cope with this seemingly irreversible process of integration and its attendant issues (irreversible, I would say, despite new attempts in the United States and, for a time preceding that, in some parts of the world, to impede or reverse its development) lag far behind.  Nevertheless, despite the weakness of existing international institutions of governance, there are still ways in which global decisions are being taken, as has now been shown by the Paris agreement on climate change.

All of this means that we now have to conceive of something quite new, namely a global public forum in which issues can be addressed and knowledge pursued.  Clearly, the most recent and manifest component of the new global public forum is the Internet.  This new communications technology both contributes to the globalization phenomenon and provides the means of addressing its issues.  But there is a lack of agreement in the world about what norms of free speech and press should apply to this medium, and that means that its usefulness as a public forum will be impaired, unless we take action, since now effectively censorship anywhere is censorship everywhere.  (This is true both in the sense that, though I may live in a country that recognizes my right to say something, whatever I say there will instantly be published globally, and I may be “censored” or chilled from speaking by laws in other nations that forbid my speech; and in the further sense that censorship in other nations will stop speakers from speaking, speakers whom I may want to, and need to, hear.) In this century, sorting all this out will be a defining problem and central to the shape of our lives. 

But establishing norms of openness is not the only thing to be done. The theme of knowledge production I have spoken about also has a critical role to be in a more inter-dependent world.  The system of institutions devoted to the development of knowledge we have built up, mainly with universities, must also be preserved and protected as an international forum for the exchange of ideas.

II

As I look at the jurisprudence and experiences of the First Amendment over the past century, and think about what should be done now, there are several changes I would make.  The most important, of course, as I suggested in the preceding talk, is to expand the vision underlying the First Amendment.  But here are several more specific revisions:   

From my perspective, it is a pity that the Court did not bring the same enthusiasm to the idea of a public and press right of access to information that it did to expanding the protection of expression against various forms of censorship.  The key decisions (mostly in the 1970s) were narrowly decided (by a simple majority of justices), and they reflected almost a kind of weariness from the heady expansion of rights that occurred in the preceding decade.  To be sure, conceiving of a robust right of access requires living with an incredible array of fact-specific situations, where the government needs for secrecy vary enormously in strength, as does the public interest in knowing what is going on.  It is reasonable to fear a flood of cases.  It also probably requires some differentiation between the rights of the “press” and of others, which makes many nervous and especially so now, when anyone, it seems, can claim to be a “journalist,” which makes drawing that line more elusive than it was before.  Still, in this one area, the United States has been far less venturesome than many other nations, where the idea of a right of access to information has flourished.  At the very least, it would be good if the Court were to take some cases where the public’s interest is strong and the government’s interest weak and invoke the First Amendment.  This would help to change the calculus more towards openness, which as a general proposition would be all for the good. 

Then there is the horizontal dimension.  Here the extension of First Amendment protection to extremist speech (e.g., advocacy of illegal acts, hate speech) continues to be very controversial.  (See, for example, Professor Catharine MacKinnon’s essay in The Free Speech Century, “The First Amendment:  An Equality Reading.”)   In my earlier remarks, I made what I believe is a stronger case for this interpretation of the First Amendment than the typical rationales offered, which tend to point to the problems of drawing lines between acceptable and unacceptable ideas and of needing to avoid creating opportunities for governments, judges, and juries simply to use any exception created in order to suppress unpopular speech.  (I have never been persuaded by either of Mill’s arguments in On Liberty that such speech should not be censored because it might be true or because even if not true we acquire a “livelier” sense of the truth by confronting falsehoods.”)  In general, I see this as an admirable effort to come to terms with bad impulses revealed in the act of censorship (as I think people like Holmes and Brandeis saw), which is why we feel a sense of pride, not reluctant acquiescence, in extending protection this far. 

But I also see this idea of extending our societal capacities for tolerance as ultimately dependent on the presence of distinctive social conditions that make that meaning possible.  In other words, it has always struck me as important that, in every case where extremist speech is protected, the courts in their opinions have made it perfectly clear that the ideas being protected are bad, which is also always reinforced by similar pronouncements by other leaders in the society.  This is one key reason why it was so shocking, and potentially consequential for freedom of speech, when President Trump said of the march in Charlottesville, Virginia, by the White Supremacists and neo-Nazis, that there were “very fine people” in those groups.  This remarkable statement sent shock waves through the society, bringing added denunciations of the speakers and of the President’s comment.  But the President’s statement, along with many others like it, have put in doubt how the society is thinking about evil ideas, which then has potential consequences for what tolerance and protections will mean.  The larger point here is that we have to see the application of free speech to bad and dangerous ideas as linked to the ways in which the private sphere is thinking and interacting with these ideas.  This is why, for example, a neo-Nazi march in Skokie, Illinois, is a very different matter from one in Munich, Germany, where for obvious reasons the significance of protection is fundamentally different and why because of that Germany has chosen a different path.  The scope of free speech, at least at the extremes, is dependent on how it will interact with what is condoned or condemned in the private sphere. 

There are some areas of the jurisprudence that will require substantial revision in light of new conditions.  Perhaps the most noteworthy is the Pentagon Papers case.  I have already described its unique and pragmatic resolution of an eternal and perplexing problem of government secrecy versus public knowledge.  But there are now three changes in the world that make this arguably wise resolution problematic (each of which has to do with the developments I will focus on in a moment, namely new communications technologies and globalization).  These are: (1) the rise of new players who are likely to gain access to government secrets and who have little or no interest in drawing a responsible balance between the competing interests involved (e.g., Wikileaks and Julian Assange); (2) the ability of leakers to disseminate exponentially greater quantities of government secrets, which they cannot possibly vet in making a decision whether theft and publication will enhance the public good; and (3) the increase in the government’s capacity to identify and then prosecute leakers (because of the ability to trace leaks through myriad forms of communications leaders now utilize, from texts and emails to phone calls and in-person conversations).  The last change cuts in favor of expanding the right of access I mentioned a moment ago.  The first two indicate that we can no longer count on the professional (and patriotic) judgments of the traditional press (e.g., Ben Bradlee and Katharine Graham of The Washington Post at the time of Pentagon Papers) to strike the right balance.  (In The Free Speech Century, Professor David Strauss discusses this new problem in his essay “Keeping Secrets.”)  For myself, I am in favor of preserving the Pentagon Papers regime, but on a sliding scale of First Amendment protections that would depend upon the editorial character and journalistic quality of the institutions in possession of the classified information.  The obvious objection to this approach is that the courts should not be drawing distinctions between “responsible” and other publishers, but I see no practical alternative given (a) a need to counteract what will always be a problematic reality of excessive government secrecy and (b) no meaningful right of access doctrine at this point to combat that excessive secrecy. 

Beyond all of these refinements, there is the big question that looms before us:  Will the First Amendment stand up to the next wave of intolerance and oppression and what can and should be done to shore up its fortitude?  I pointed out in the first lecture how the modern idea of freedom of speech and press was largely formed in the distinctive societal crucible of the 1960s.  Since that time, there has not been a level of national fear that would generate the magnitude of intolerance seen in the eras of World War I and its aftermath and of McCarthyism in the late 1940s and 50s.  That is, until now.  The sudden rise of demagoguery, authoritarian-style leaders, and so-called populism in the United States and around the world forebodes a return to those earlier periods.  The tactics of this strand of politics are well-trod: a call for a particular identity (e.g., religious, ethnic, racial, nationalistic); a claim that this identity is under threat, especially from “foreigners” and immigrants; fanciful ideas about possible policies and hyperbolic claims of achievements; disregard of the truth so that one can believe whatever one wishes; demonization of opponents; legitimization of private violence; and a bundle of other totalitarian strategies.  In the United States, President Trump is deploying all of these methods.  He has called for the jailing of his opponent (reminiscent of what happened to presidential candidate Eugene Debs); indicated he might not accept the election results if he lost; made false claims about the results of the popular vote in the election; asserted that media regularly and deliberately engage in purveying falsehoods and has repeatedly labeled them the “enemies of the people;” has himself, as counted by The Washington Post, engaged in over 5000 falsehoods and lies; exaggerated his own accomplishments; demonized foreigners and immigrants; mocked and ridiculed opponents; approved of and incited violence against journalists; shown disregard for the rule of law; and endorsed, implicitly and even explicitly, violence towards certain groups.  In a deep sense, the only thing that currently stands between full authoritarianism in the United States and where we are at the moment is the Rule of Law, which fortunately for now remains strong. 

For the time being, at any rate, as Professor Tim Wu points out in his essay in The Free Speech Century, “Is the First Amendment Obsolete?,” the ways in which censorship is now being manifested are taking nontraditional forms and not official assaults on freedom of speech and press.  As any sophisticated observer knows, unofficial and private intolerance can be just (or even more) censorial than the official varieties, so there is little comfort to be taken in where we stand at the present moment in time.  If it were to change, however, and become official, how would the jurisprudence fare?  I am not optimistic.  It seems to me that, if we have learned anything in the last one hundred years, it is that in times of heightened insecurity and fear, which is especially true in times of war, the pervasive unwillingness to tolerate dissent, opposition, and nonconformity is an almost irresistible force for judges.  Perhaps the fact that we have now lived long enough with the modern jurisprudence of free speech and press, and have often professed to be ashamed and embarrassed by the fever pitch of intolerance and its devastatingly unjust consequences in the two earlier low points in the evolution of the First Amendment, this will be enough to resist now or in the future.  Some, like Professor Fred Schauer whose essay in The Free Speech Century entitled “Every Possible Use of Language?” argues that the extension of the First Amendment beyond the “core” of political expression (e.g., for commercial speech) jeopardizes its capacity to resist censorship in periods of crisis. 

But, besides the possibility that there may actually be strength in greater complexity, I worry that every new era of repression sees itself as unique in its own way and, therefore, unbound by prior teachings and lessons.  (One thing that might be done, though, would be finally to overrule several of the Court decisions that defined the collapse of First Amendment resistance and that are widely understood to be implicitly discredited (e.g., Debs and Dennis).  An editing, as it were, of the jurisprudence every one hundred years seems like a good principle).

Of course, speaking out is the thing to do to help reduce the slide into yet another deep pit of censorship.  I believe there is an important role for universities to play in this process.  The academic mission is compromised by becoming political, but the qualities of mind that characterize that mission cannot survive a world or a nation that loses respect for truth, in a profound sense, and that falls so far below the norms of civil public discourse as to be dysfunctional.  This becomes an existential and not a political issue for the university. 

Small things might also be done to help.  I would just note the recent establishment at Columbia of the Knight First Amendment Institute, which we launched with a $50M endowment and the mission of advancing research, teaching, public education, and—more to the point—litigation on freedom of speech and press.  This is the result of a collaboration between Alberto Ibargüen, president of the Knight Foundation, and me to lodge in a relatively secure and independent institution (namely, a university) an organization that will be engaged in helping secure the First Amendment of the last century in as meaningful a role in the society in this next century (and beyond).  For the past century, a benefit of what was effectively a monopoly status for much of the press, which combined both wealth and a strong journalistic ethos, was that there would always be an advocate with the desire and the financial endurance to see through to the end any challenge to government abuse of power.  In today’s world, however, because of the effects of the Internet, the wealth of the traditional media has been depleted, and the new media (e.g., social media platforms), while they have abundant wealth, lack the ethos.  Our hope is that the Knight Institute will be there to fill the gap.  It is now up and running, with one notable success in obtaining a judicial injunction against President Trump for excluding people from his Twitter account on the basis of the content of their comments.  A District Court held that this violates the Public Forum Doctrine.  (The government has appealed the decision.)

III

I now want to turn to the very complex and controversial subject of the Internet, the potential for public interventions or regulations, and the First Amendment. 

I would start by observing that there has been an extraordinary change in the general view of the Internet and its consequences for the public forum.  At the beginning, it was hailed as the ideal form of what freedom of speech and press were intended to create.  It would equalize opportunities to participate in the forum, allow instant communication and universal access to all knowledge, and provide the first ever truly global communications system.  That it would undermine the financial model of the traditional press was regarded as a boon for freedom of the press, not a threat.  Today, in contrast, it is difficult to find anyone willing to extoll its virtues.  Instead, there are regular cries about the destruction of the public mind: citizens can choose to avoid public issues altogether and do as a matter of practice.  When citizens do choose to confront public issues, they tend to be highly selective in what they encounter, which means they succumb to the natural human wish to be around only opinions that reaffirm their own, a practice which over time tends to make a person more intolerant towards and angry about opposing views.  Meanwhile, we now are keenly aware that the global characteristics of the Internet (about which I will speak more in a moment) make Americans more vulnerable to propaganda, manipulation, and falsehoods propagated by foreign governments and malicious actors.  Exhibit one of this risk materializing is the consensus view of the United States intelligence agencies that the Russian government took the extraordinary step of actively trying to influence the 2016 presidential election and to discredit the democracy.  Finally, there is (1) a deep concern that the monopolistic status of social media and their remarkable user base gives these for-profit companies undue control over the distribution of information and ideas, however much they profess to be “neutral” in exercising this power; and (2) an equal concern that the business model of these companies relies on their being able to control massive amounts of personal data. 

One of the things that is most striking is how few actual, concrete proposals there are right now for dealing with many of these issues.  In The Free Speech Century, we have three essays that together reveal just how vexing these problems are and how novel.  (Professor Emily Bell, “The Unintentional Press: How Technology Companies Fail as Publishers.”  Monika Bickert, the Head of Policy Management at Facebook, “Defining the Boundaries of Free Speech on Social Media.”  And Professor Tim Wu, noted earlier.)  (I am putting aside for the moment the issues around privacy of information, which I think are proving more amenable to a regulatory regime.) 

The outline of a policy response to these problems will focus largely, I anticipate, on warnings and notations about information being inaccurate or misleading.  Banning foreign government involvement in elections will no doubt continue (although even this can become complicated very quickly), and certainly there will need to be a new framework developed in international law for illegal intrusions, and highly aggressive efforts to influence public opinion, that will draw red lines and indicate appropriate national responses, just like the world has over centuries developed with respect to traditional violations of sovereignty, such as with physical invasions of territory.  But providing more information about speakers and their messages when they have been designated as false and propagandistic will be the heart of the first round of remedies for the present concerns about manipulation of public opinion.

Given all this, here is how I would think about where we stand. 

In one sense, I am not at all troubled by thinking about creating some kind of public regulatory oversight for the development of these technology companies. The fact that it is too early in our experience with this new communications technology to weigh its potential benefits and harms to our public thought process, and to devise specific public interventions to enhance the first and limit the second, does not seem to me automatically to foreclose government, or public, involvement.  We have been through this before.  In fact, this is more or less exactly the situation we found ourselves in with broadcasting beginning in the first half of the last century, with similar concerns, as I indicated in the first lecture.  The response at the time and carried through to this day was to create a government agency with a very general mandate to figure out regulations that would serve the “public interest, convenience, and necessity.”  (Censorship, as such, was explicitly prohibited.)  And the Federal Communications Commission did so with regulations such as the Fairness Doctrine, requiring broadcasters to cover public issues and to do so fairly in representing different viewpoints on those issues. That system, as I have noted, was upheld by the Supreme Court.  I know that the conventional view on this is to see the broadcast model as a unique and inappropriate precedent for this application, but I do not share that view.  So, from my interpretation of the First Amendment, there is a model readily available in the existing First Amendment jurisprudence.  The government, under continuous oversight by the courts, might be a partner with private industry in the evolution of this new technology of communications. 

Still, with all that said, I would not be inclined to pursue this course at the moment.  I think it is still too early, and we would benefit from thinking through other alternative approaches to dealing with the problems we are beginning to perceive.  Here it is important to recall the lesson I take from First Amendment experience that we always tend to overrate the risks with new communications technologies.  That also happened centuries ago with the printing press, and it happened in the last century with some regulations of broadcasting and films. 

I say this only as a preliminary caution, and cognizant that current events are fueling a competing view that the need for government intervention or other regulatory oversight is not premature, but urgent, and perhaps already late.  At a minimum, we must entertain the possibility that we could be in the midst of an aberrant advance in communications technology that breaks the historical mold with respect to our ability to count on a benign result.  The digital revolution and social media have affected personal introspection, the experience of childhood, availability of solitude, sexual habits, expectations of privacy, public discourse, and democratic governance—not to mention communal recognition of the truth—in the space of little more than a decade.  They also have demonstrated a capacity to magnify our worst human tendencies, a view espoused not two weeks ago by Apple CEO Tim Cook in an important speech he delivered in Brussels, where he sounded an alarm about “rogue actors and even governments [who] have taken advantage of user trust to deepen divisions, incite violence and even undermine our shared sense of what is true and what is false.”  Perhaps the current round of society-shaping technological advances is the one that will finally overmatch our ability to bend the technology to our will because its prevailing impact is corrosive of the very qualities and characteristics that society has fallen back upon to manage previous advances.

The presence of these competing views is, if nothing else, proof of the benefit to be gained from: (1) watching how the tech companies respond to the criticisms about their platform; (2) watching how citizens themselves respond to the proliferation of bad speech; and (3) conducting deeper research and analysis of what we are actually facing.  (It can be helpful to step back and take a comprehensive perspective on what we have created.  Remember, for example, that, when the Court declared that all streets and parks had to be open to speech without regard to viewpoint, that also enabled the Klan and neo-Nazis to push their messages more effectively than before.)

It seems to me there are also many things we could institute or enhance that would be beneficial in themselves and also respond to problems we perceive now.  For example, in my view one of the greatest risks we are encountering today is the financial undermining of the traditional press.  We need different ways of getting and receiving ideas and information, and we need—as I have suggested several times already—institutions, which are more than the sum of individual actors.  The print and broadcast media are among the institutions we need to fortify.  While I know in the current state of American politics this is an idea unlikely to succeed, I would greatly increase public support for our public broadcasting system, and even provide such funding for the press generally.  With any public funding mechanism, there are always risks of providing leverage for censorship, but there are well-known ways to minimize that risk and bring it to an acceptable level, in my view. 

Finally, I would also hope that universities and colleges would be prepared to become greater participants in the public forum.  About two-thirds of high school graduates go onto some form of higher education.  That number could be much higher with more public funding.  How we educate and train each new generation, in light of the changing nature of the public forum, will be important.  In many ways, it is by far our most important “social” and “political” “platform.” Meanwhile, we need more and better journalism schools and, in public education, a curriculum that, from an early age, develops in every rising generation a new form of digital literacy, which prepares our citizens to be more intelligent and wise consumers of news in an increasingly complex online environment.  And we would all benefit—universities as well as the public—if universities became more engaged with practical issues facing the society and the world. 

(To this end, we have launched at Columbia an important initiative called Columbia World Projects, which commits the university to work with outside partners in solving significant societal problems, in limited time periods.)  And, finally, I would say all this provides yet another reason why it would be good for the Court to articulate how the system of knowledge preservation and development, which I set forth in the first lecture, also is part of the “central meaning of the First Amendment.”  We should be focused on the broad ways in which we advance knowledge and art, which have value independent of our political culture yet are also intimately connected to it—undergird it, in fact.  Looking at all this as a whole also makes us more aware of the potential for a positive role of the state, since the system of knowledge is significantly suffused with and sustained by public funding (e.g., the National Institutes of Health, the National Science Foundation, and the National Endowments for the Arts and Humanities).

We are early in the development of these new media and still very much finding our way.  The technology companies themselves have evolved out of a vision of simply providing a means, a platform, for people to communicate, along the lines of a public utility.  The legal upshot of this vision is reflected in the early law absolving them of any liability for harmful and illegal speech distributed on their platforms.  (i.e., Section 230 of the Communications Decency Act of 1996).  The more they have been transformed into a major, perhaps even dominant, public forum in the society (and the world), the more they have come under enormous pressure to limit speech.  From a free speech perspective, this is both good and bad.  The more dominant and monopolistic their control of public thought and discussion becomes, the more their restrictions on speech effectively become the equivalent of government censorship.  On the other hand, the First Amendment is often absolutely dependent on the private sphere being more restrictive than the constitution permits.  (This is one of the lessons of extremist speech.)  All this produces a kind of paradox.  The government is increasingly wary of the power of these companies and we now see it using soft power (e.g., congressional hearings at which tech executives are brought in to testify) as a kind of tacit regulation.  The tech companies are clearly very worried about an onset of regulation and negative public reactions and are increasing efforts to control speech content on their platforms.  But the more they do that the more they are putting in jeopardy their initial vision of neutrality and the legal benefits of protection against liability.  Fundamentally, we are on a course where these technology companies are moving inexorably to becoming curators, editors, of information, knowledge, and opinion, however much they resist going there.  The fact is that algorithms are a form of human editing, but they are very limited as editors; and, in the end, algorithms will not be able to do all we will expect of these institutions.

IV

I would now like to turn to the enormously complex and important issues surrounding the development of a system of freedom of speech and press in a new globalized world.  Of course, this is a hugely difficult matter, not least because the views about this vary so greatly around the world and because we have no simple way of resolving those differences of perspective.  But the fact of increasing inter-dependency driven largely by markets and economic activity (e.g., trade, foreign direct investment), the new global communications technologies, and the movements of peoples (whether caused by human curiosity, ambition for a better life, or physical and political need), is very, very real.  And so is the fact there are major problems that have to be dealt with because of these phenomena, problems that require collective action of some form because they cannot be solved otherwise (the consequences of global warming being the primary example here).  That we are in a period of rising hostility towards “globalization,” which not coincidentally is often being expressed and manifest in social and political movements that are also threatening to freedom of speech and press, does not, I think, mean these forces of globalization will be reversed completely.  On the contrary, it seems to me, this is more proof about the overwhelming power and strength of the process of integration.  As with the Internet, the swing in attitudes about globalization—from Panglossian idealism a little more than a decade ago to outright denunciation and pessimism now—from Davos to Detroit, as one might describe it—has been dramatic.  Meanwhile, as the foundations of the world continue to shift towards inter-dependency, the need for attending to the system of freedom of expression to support it will continue to grow in importance. 

I see the general problem as having two dimensions.  One is that every individual nation will have to decide for itself how it will arrange for its citizens to relate to the rest of the world, both in speaking to the world and in hearing from it.  My immediate interest is with how to shape our thinking about the First Amendment in the United States in this regard. 

The other dimension is how we will evolve a “global” set of norms about freedom of expression.  In an important sense, there will be a dialogue among nations, explicitly or implicitly, as each one separately grapples with its own solutions and approaches.  In a deeper sense, there will be a serious question over how much individual nations will be prepared to give up, or adjust, their own sovereignty over the realm of “speech” to a more international or multinational system.  We are building on an existing foundation, created in that seminal period following the Second World War, when most of the current international system was created.  Article 19 of the 1947 Universal Declaration of Human Rights provides a vigorous international version of the First Amendment to the U.S. Constitution, declaring: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  This is now widely accepted as constituting international law, and it has been embedded further in the International Covenant on Civil and Political Rights (1966) and in various regional charters around the world (e.g., American Convention on Human Rights (1969)). 

So much always depends upon our basic understanding about what we are trying to do, and here again we see the need for a shift in our basic mentality.  When the Universal Declaration of Human Rights was drafted and signed onto, the world was trying to recover from two devastating world wars and to reduce the ways this might be repeated.  The idea of “human rights” was thought about in that context.  Governments that denied basic human rights to its citizens were believed to be more inclined to be aggressive towards other nations and thus to ignite yet another conflagration.  Respect for human rights, and free speech and press most especially, was thought to be important to preserving peace through halting the tendencies of totalitarian regimes. 

This logic still has relevance today, but there is a new reality that brings into focus a new rationale.  That new reality is made up of the forces of globalization and its resulting issues, and the new rationale for freedom of speech and press is the need for the capacity to solve these issues and to advance knowledge so that the world can be a good place to live.  It is critically important that we envision the international norm of freedom of expression with this new purpose in mind.    

A.

Let me turn to an examination of how the United States should think about the First Amendment in light of the modern world of globalization.  Here, too, we need to begin to develop a new mind-set, built on an awareness of how the United States cannot continue to think of itself, in this area of free speech and press, as existing in isolation, in a bubble separated from the necessity of developing global knowledge and public opinion.  That does not necessarily mean that Justices should somehow become “liberal internationalists,” or think of themselves as acting on behalf of world citizens.  One can accept and embrace the realities of a global system of expression for addressing global problems and still think about it solely from the standpoint of what the First Amendment must guarantee in order for American citizens to be able to participate effectively in that system.

What is actually involved here is really just an extension of what we went through in the last century, represented most significantly by what the Court did in New York Times v. Sullivan, which imposed strong limits on what individual states could do—and had been doing since the birth of the country—in the way of protecting individual reputations at the expense of open and free discussion of public officials and public figures.  As the nation became more inter-connected—with a national as opposed to a local economy, with an expanding national consciousness about issues like segregation and discrimination, the environment, and war, and with a new inherently national communications technology (again) both contributing to this new national reality and enabling national decision making about these issues—it had to develop national standards for free speech and press.  The spirit of that necessity pervades New York Times v. Sullivan.  Now this same process is happening on a worldwide scale, and we will need in this century to devise ways of coming to terms with this change, which, of course, will be far more difficult since there is not a “Supreme Court” to appeal to for enforceable international law. 

With this in mind, you can quickly see that there are a host of very specific and concrete areas and problems that will have to be addressed over time.  Here are some of them: 

1. With the reality now that virtually anything said on the Internet will be instantaneously transmitted around the world, we will have to decide to what degree will we weigh in limiting free speech within the United States the effects the speech will have outside of the country.  This could be either in inciting violence or in causing violent reactions because of its perceived offensiveness.  A prime illustration of this problem was, in 2012, the publication on YouTube of a purported trailer for a privately produced “film” about the Prophet Muhammad, which led to riots in the Middle East.  How should the classic “hostile audience” doctrine developed in the domestic context be applied here?

2. United States citizens might wish to participate in helping foreign actors in their political activities.  To what extent should the principles developed for protection of domestic political activities apply abroad?  In Humanitarian Law Project v. Holder, a U.S. activist group sought to provide legal assistance to the Turkish PPK, which in federal law is designated a foreign terrorist organization and thus is prohibited from receiving any “material support.”  The Supreme Court, expressing deference to Congress and the executive branches over matters involving foreign policy, held that a different, and minimal, standard of protection should be applied in such cases.  Whatever one thinks about the particular circumstances in this case, the lowered First Amendment protections for speech activity outside the United States seem badly out-of-step with the need for a global public forum. This will have to be reviewed and the gap closed.

3. The corollary problem is this: To what extent can foreign actors—governments, organizations, and individuals—be prohibited and prevented from participating in the U.S. public forum?  In the United States now, of course, there is heightened concern about Russian government “meddling” in the 2016 U.S. election.  This involved hacking into the Democratic National Committee computers, stealing emails, and publishing those emails (through Wikileaks); using fake accounts to distribute false information and inflammatory opinions; and hacking into the voting systems in several states.  The U.S. intelligence community has warned that these actions have taken the general spying regime to a completely new level, perhaps even threatening American democracy.  Currently, foreign states are forbidden from using money to influence our elections, and anyone who represents a foreign government in the U.S. political system must register with the federal government.  Of course, hacking computers is illegal.  But what “speech” by foreign governments and actors should be prohibited as well? 

4. A related problem is when cable operators, which are generally regulated because of their natural monopoly status, refuse to allow foreign state broadcasters (such as Al Jazeera or RT) to distribute their content to cable customers.  Should this be allowed and the public deprived of access to foreign media, because those media are regarded as offensive, or propagandistic, or mouthpieces of bad state actors? 

5. A major point of contention for this new global system is the border.  Traditionally, as with foreign policy, the courts have been extremely deferential to the government in deciding how to go about admitting and denying entrance to foreigners and treatment of U.S. citizens.  The recent so-called travel ban of the Trump Administration is an example.  The purported rationale was national security, but it was challenged on the ground that it represented invidious religious discrimination (against Muslims).  Academic institutions filed amicus briefs providing the courts with information about the importance of free movement of students and scholars to research and education, but they stopped short of claiming the ban violated the First Amendment.  (Another example would be a policy, reportedly under consideration by the Administration, to deny visas to Chinese nationals to study and work at universities in the United States, as a way of protecting U.S. intellectual and research property from being stolen or taken.)  If we envision the First Amendment as protecting the system of knowledge production I recommended earlier, a key component of which is the exchange of ideas through interactions with scholars and students internationally, should a strong First Amendment interest be weighed in the balance here? 

There are many more examples of border decisions that evoke these large questions: visas denied to foreign citizens on the basis of viewpoints, special visas required of foreign media to operate within the United States, and restrictions on U.S. citizens leaving and coming back to the country based on their beliefs and expressive activities.  Recently, the government is reportedly considering giving customs officials the power to require any prospective entrant to disclose all of their Internet identities, addresses, and handles.  In this heretofore largely First Amendment-free zone, what should be the role of the First Amendment?

6. Still another illustration is whether U.S. courts will or should enforce judgments against U.S. citizens obtained in foreign courts involving restrictions on speech that would not be permitted under First Amendment law.  This is especially problematic in the area of defamation actions secured in foreign courts.  This will test and require amendment of the custom of reciprocity in the recognition of foreign judgments.

I do not have the time here to resolve each of these problems.  But I would suggest several recommendations for how we (the Court) should approach solving them.   Here, as always, everything should start with an open recognition of what we are trying to do and why. 

1. The key is to acknowledge that we now have an interest under the First Amendment in building a framework of general principles and specific doctrines that will enable U.S. citizens to participate in the global public forum, and to receive and hear voices from around the world.  This also applies to the system of preserving and growing knowledge.

2. This means, of necessity, that we must at the very least reduce the deference paid to government actions in the foreign policy and foreign affairs arena and in immigration and customs. 

3. While there is a long tradition in comparative law of taking note of legal doctrines and decisions in other countries, today’s world requires that our courts at the very least be conscious of how their decisions will be received abroad and realize that we have an interest in other nations becoming more protective of speech and press and, therefore, in understanding what we are trying to do and why.  We need to think about how we speak to them, as well as ourselves.  (See, e.g., Professor Sarah Cleveland’s essay “Hate Speech at Home and Abroad” in The Free Speech Century.) 

4. In that process of persuasion, we should recognize and openly address the facts of our own history and how it is marred by bad decisions, too.  We did not come to where we are either quickly or in a straight line.  We have a century of experience and it is important to draw on it in all its parts, good and bad.   

5. In this realm, enlarging the vision of the First Amendment from serving democracy to the development of knowledge and the myriad benefits of that will be better received in a world in which other forms of government prevail.  The idea of freedom of speech serving the Madisonian conception of citizen sovereignty is necessarily limited on the global stage.  The advancement of knowledge is far more compatible with a reality of multiple systems of government.

B.

Lastly, let me turn to the massive problem of developing global norms on freedom of speech and press around the world.  This can occur at two levels: Just as with changes within the United States, it can be within each nation.  But it can also be at the regional or global level, where national sovereignty is sacrificed in return for a system deemed to advance the public good, and where in fact we already have a foundation of articulated principles and a variety of international and UN institutions that engage in reporting on, investigating violations of, and issuing reports on freedom of speech and press in countries.  There are many matters we could inquire into.  I could speak about strengthening these international institutions and their capacities to issue and enforce judgments (much of the movement in the last century has been at the regional level, in Europe, Latin America, and now Africa); or about using other areas of international agreements and institutional mechanisms to enforce free speech and press standards (of particular interest to me has been the potential of international trade law, and the WTO and of Foreign Direct Investment treaties, to press for greater free speech and press rights; or about preserving the complex governance structure of the Internet so that this critical communications system is not balkanized; or about how to expand the use of laws in nations with strong free speech and press cultures to do things like restrict visas or freeze financial assets of leaders of countries that violate freedom of speech and press norms (as happens in the United States); or about how these nations could put more pressure on other violating countries  (e.g., the recent Khashoggi case); or about exploring the periods in every civilization when there was respect for tolerance and openness of expression and the development of knowledge, so that every nation can find for itself a model to build on for today, rather than creating the false sense that these freedoms and values are really just American or Western notions.  These are all interesting and crucial subjects, but I would like to focus for just a moment on what seem to me to be two very important factors in the development of free speech norms in the coming century.  One is an overarching observation; the other is more tactical about building out a legal system.

The first has to do with China.  We all know that China is well on its way to becoming a global superpower and, because of that, what it becomes will have a profound influence on our world in this century. But China’s evolution into a world superpower is more than an economic and political reality.  China is also creating a bundle of values that will affect the rest of the world, or at least contend for influence. 

It is important that we understand, in this regard, that among those values, is a view of freedom of expression and knowledge that is strikingly at odds with that of the First Amendment and with Western Enlightenment and liberal values.  This has to be taken very seriously.  In fact, it may be said there are now two conflicting philosophies about free speech and press emergent in the world today, each contending for influence and ultimate dominance.  Any serious discussion about the future of freedom of expression in the world in this century must start with this contest of perspectives.  (In The Free Speech Century, Professor Tom Ginsburg discusses this in “Freedom of Expression from Abroad: The State of Play.”)

Until recently, the general view among sophisticated observers of China has been that either of two possibilities would unfold.  One view was that once a threshold of modern development of the economy and social system had been reached (e.g., when the vast migration from rural to urban areas had taken place, the economy had shifted from an export-driven system to an internal, consumer-driven system, and the average standard of life had improved significantly), the country would of necessity and choice become more open in terms of free expression—a fact the government would have to accept.  This would follow the course of history of other developed nations and would be consistent with the rising expectations of its increasingly educated, affluent, and travelled population, as well meeting the needs of an economy more and more dependent on knowledge and creativity.  The other view was darker, though equally favorable toward an evolution of greater openness: namely, that modern China had been created out of an inherent contradiction (an open market economy and a closed authoritarian political regime) that would at some point inevitably implode, or come into conflict. And, when that happened, this latter view held, the forces of openness would likely emerge victorious. 

Today neither of these theories seems any longer descriptive of reality, nor of the path China is likely to take.  As China has become more and more successful economically, it has also become more and more confident in its overall system, which includes rising levels of repression of dissent and general censorship.  In fact, in China today there is now a much more direct and open challenge to the view about free speech and press that has defined the United States.  That challenge argues that the U.S. political and social system will itself implode because of the extreme positions we have taken under the First Amendment.  By the new Chinese view, protecting extremist speech, allowing radical dissent to flourish, denying protections to the government against attacks and falsehoods, and so on, all have contributed to a steady decline in social and political cohesion and the necessary trust in the government and the state.  For this view, the election of Donald Trump is proof of theory.

How should we think about this challenge?  One can start by understanding whether what we are facing today in the United States, and in other democracies that are turning illiberal, is a sign of the failure of the free speech experiment or a downward cycle that is inevitable, given our understanding of human nature, and one we know we must continually work against and offer alternatives to, by creating strong and enduring institutions built on the idea of open and free inquiry.  Not surprisingly, I believe the latter.  But we cannot prove these ideas, except through the quality of life we witness over the long term.  We can, however, make our case more effectively than we have.

Looked at with the perspective of one hundred years of First Amendment jurisprudence, what we see today in the U.S. is, in a profound sense, not surprising at all, nor proof of a failure of the interpretations we have given to the First Amendment.  Every society will face these political and intellectual recessions periodically.  The success of the nation over time will be in its acquired capacity to recognize the sources and to minimize the effects of these regressions. 

For us to do that and to play a more effective role on the world stage and advocate for a robust principle of freedom of speech and press, however, we have to change ourselves, beginning with how we organize our knowledge and expertise.  I know this from my own work in the First Amendment.  As I have indicated, I came of age, as a scholar, in the period of this last century in which the tectonic plates of free speech came together to form a single national system of principles and doctrines defining freedom of speech and press.  My scholarly expertise encompassed that range.  But in the new globalized and inter-connected world, I know too little about the developments across the world, outside the United States.  In my field of law, I took the United States and the rest of the world was assigned to those who did international law and international human rights.  Given current realities, of the world we are heading into, that separation of knowledge will not work.  We all need to know more than our fields have led us to know. 

In the last decade, I have tried to change this, for myself and for my field.  At Columbia, I established a project on Global Freedom of Expression.  One of its functions is to do something quite simple, namely, collect in one place, on a website, all of the decisions about freedom of speech and press in nations around the world.  We also give special prominence to those decisions that refer to international norms.  The idea is that over time (a long time, to be sure) we will create more of a sense of community—of common law—around these issues than exists today, since courts and commentators can easily look in one place and see what is happening there, comparisons can be made, and materials can be assembled for courses to educate the next generations of students.  As a result, their knowledge will not be so limited as mine, and they will be much better prepared to apply that knowledge, both in their professional lives and in the way they exercise their rights and duties as citizens.

This is basically what many law professors did in the United States in the last century in various areas of common law (contracts, torts, etc.), when for the first time they collected decisions in individual states and then wrote treatises about the emerging “common law” they were helping to create from scratch.  By bringing together these formerly separate and discrete cases, they created something new—a “common” and shared effort and a zeitgeist for seeing everything as a whole rather than as discrete parts.

In this next century, seeing the development of freedom of speech and press around the world as a whole is the vision we must seek.  Then in such a world we would all know about recent cases such as Okuta v. Kenya (2017), in which the High Court of Kenya held that criminal defamation laws were unconstitutional; or Primedia Broadcasting v. Speaker of the National Assembly (2016), in which the Supreme Court of Appeal of South Africa struck down Parliament’s rules prohibiting live broadcasting of incidents of disorder in Parliamentary sessions; or Alestra v. Mexican Industry of Musical Property, in which the Mexican Supreme Court struck down a government agency’s suspension of public access to a particular website; or the NorthKoreaTech.org case in which a South Korean Court of Appeals held that a website could be blocked only in exceptional circumstances, that blocking of the named website by the South Korean intelligence services unduly limited the Korean public’s right to know, and that foreign website operators (NorthKoreaTech.org was operated from the UK) have standing in South Korea by extension of the right to freedom of expression of Koreans; or the decision of the Kerala High Court in India to dismiss a petition claiming that a magazine cover depicting a woman breastfeeding her child was obscene and a violation of laws that protect women and children; or the case of Tufik Softić, in which the Constitutional Court of Montenegro, for the first time in Montenegro, recognized that states have positive obligations to protect journalists from attacks and threats on their life; or the very recent decision of the Supreme Court of Brazil to protect the rights of university students and faculty to express political views (saying, memorably, that “The only force that must enter universities is the force of ideas”); and many, many other judicial decisions that extend and apply the globally emerging principles of freedom of speech and freedom of the press.      

The first one hundred years of free speech in the United States is instructive as an experiment in the evolution of “human values,” the broad subject of the Tanner Lectures project.  At this point, it is a jurisprudential beehive of cases, opinions, and doctrines that bring a kind of order to a realm of human activity and its relationship with the State.  Given its starting premises about human nature and government, what it has aimed for is nothing short of wondrous.  It asks of us something deeply counter-intuitive, against the grain of our inclinations, all in the name of sheltering our quest for knowledge and of realizing our democratic choice for self-government.  It has itself not always succeeded by its own terms, and now it is being tested again by new threats arising from the natural “logic,” as Holmes described it, of “persecution,” by a transformative new technology of communications, by global power struggles, and a shrinking world that needs all the discussion and understanding it can muster.  There is nothing simple about any of this, and it has been one of my purposes in these lectures to highlight some of the key complexities.  At the same time, our ignorance about critical elements of what needs to be done now will make things harder than they should be to sort out. The hope is that, after a century of free speech, we will be able to learn from our experiences and do even better in this next century.