Free speech has been an experiment from the start—or at least that’s what Justice Oliver Wendell Holmes suggested nearly a century ago in his dissent in Abrams v. United States, one of the first decisions to interpret and shape the doctrine that would come to occupy a nearly sacred place in America’s national identity.
Since then, First Amendment jurisprudence has stirred America in novel ways, forcing deep introspection about democracy, society and human nature and sometimes straddling the political divide in unexpected fashion. In the past 100 years, free speech protections have ebbed and flowed alongside America’s fears and progress, adapting to changing norms but ultimately growing in reach.
And now, this piece of the American experiment faces a new set of challenges presented by the ever-expanding influence of technology as well as sharp debates over the government’s role in shaping the public forum.
That’s why Geoffrey R. Stone, the Edward Levi Distinguished Service Professor at the University of Chicago Law School, and Lee Bollinger, the president of Columbia University, two of the country’s leading First Amendment scholars, brought together some of the nation’s most influential legal scholars in a new book to explore the evolution—and the future—of First Amendment doctrine in America.
The Free Speech Century (Oxford University Press) is a collection of 16 essays by Floyd Abrams, the legendary First Amendment lawyer; David Strauss, the University of Chicago’s Gerald Ratner Distinguished Service Professor of Law; Albie Sachs, former justice of the Constitutional Court of South Africa; Tom Ginsburg, the University of Chicago’s Leo Spitz Professor of International Law; Laura Weinrib, a University of Chicago Professor of Law; Cass Sunstein, a professor at Harvard Law School; and others.
“Lee and I were law clerks together at the Supreme Court during the 1972 term,” Stone said. “I was with Justice Brennan and Lee was with Chief Justice Burger. We have both been writing, speaking and teaching about the First Amendment now for 45 years. This was a good time, we decided, to mark the 100th anniversary of the Supreme Court’s first decision on the First Amendment with a volume that examines four basic themes: The Nature of First Amendment Jurisprudence, Major Critiques and Controversies over Current Doctrine, The International Impact of our First Amendment Jurisprudence, and the Future of Free Speech in a World of Ever-Changing Technology. Our hope is that this volume will enlighten, inspire and challenge readers to think about the role of free speech in a free and democratic society.”
Stone, JD’71, has spent much of his career examining free speech—a topic he first became passionate about as a University of Law School student.
The University has a long tradition of upholding freedom of expression. UChicago’s influential 2015 report by the Committee on Freedom of Expression, which Stone chaired, became a model for colleges and universities across the country.
The collection takes on pressing issues, such as free expression on university campuses, hate speech, the regulation of political speech and the boundaries of free speech on social media, unpacking the ways in which these issues are shaping the norms of free expression.
One essay, for instance, explores how digital behemoths like Facebook, Twitter and Google became “gatekeepers of free expression”—a shift that contributor Emily Bell, a Columbia University journalism professor, writes “leaves us at a dangerous point in democracy and freedom of the press.” Her article examines foreign interference in the 2016 election and explores some of the questions that have emerged since, such as how to balance traditional ideas of a free press with the rights of citizens to hear accurate information in an information landscape that is now dominated by social media.
Technology, the editors write, has presented some of the most significant questions that courts, legal scholars, and the American public will face in the coming decades.
“While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news,” Stone writes in the introduction. “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?”
In another essay, Strauss, an expert in constitutional law, examines the principles established in the 1971 Pentagon Papers case, New York Times Co. v. United States. The landmark ruling blocked an attempt at prior restraint by the Nixon administration, allowing the New York Times and Washington Post to publish a classified report that reporters had obtained about America’s role in Vietnam. The threat to national security wasn’t sufficiently immediate or specific to warrant infringing on the papers’ right to publish, the Court said at the time.
But today’s world is different, Strauss argues. It is easier to leak large amounts of sensitive information—and publication is no longer limited to a handful of media companies with strict ethical guidelines. What’s more, the ease with which information can be shared—digitally as opposed to carefully sneaking papers in batches from locked cabinets to a photocopier, as military analyst Daniel Ellsberg did when leaking the Pentagon Papers—means that a larger number of people can act as leakers. That can include those who don’t fully understand the information they are sharing, which many have argued was the case when former IT contractor Edward Snowden allegedly leaked millions of documents from the National Security Agency in 2013.
“[T]he stakes are great on both sides,” Strauss writes, “and the world has changed in ways that make it important to rethink the way we deal with the problem.”
Ultimately, the health of the First Amendment will depend on two things, Bollinger writes: a continued understanding that free speech plays a critical role in democratic society—and a recognition that the judicial branch doesn’t claim sole responsibility for achieving that vision. The legislative and executive branches can support free speech as well.
What’s more, modern-day challenges do not have to result in an erosion of protections, Bollinger argues.
“[O]ur most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise,” he writes. “Freedom of speech and the press taps into the most essential elements of life—how we think, speak, communicate, and live within the polity. It is no wonder that we are drawn again and again into its world.”
—Adapted from an article that first appeared on the University of Chicago Law School website.
—Prof. Jacqueline Stewart
