A couple of weeks ago, I came across a provocative article by Tim Wu, a media historian who teaches at Columbia University, titled “Did Twitter Kill the First Amendment?” He began with the question:
You need not be a media historian to notice that we live in a golden age of press harassment, domestic propaganda and coercive efforts to control political debate. The Trump White House repeatedly seeks to discredit the press, threatens to strip broadcasters of their licenses and calls for the firing of journalists and football players for speaking their minds. A foreign government tries to hack our elections, and journalists and public speakers are regularly attacked by vicious, online troll armies whose aim is to silence opponents.
In this age of “new” censorship and blunt manipulation of political speech, where is the First Amendment?
Where, indeed? As Wu notes, the First Amendment was written for a different set of problems in a very different world, and much of the jurisprudence it has spawned deals with issues far removed from the ones that bedevil us today.
As my students are all too often surprised to learn, the Bill of Rights protects us against government misbehavior–in the case of our right to free speech, the First Amendment prohibits government censorship. For the most part, in this age of Facebook and Twitter and other social media, the censors come from the private sector–or in some cases, from governments other than our own, through various internet platforms.
The Russian government was among the first to recognize that speech itself could be used as a tool of suppression and control. The agents of its “web brigade,” often called the “troll army,” disseminate pro-government news, generate false stories and coordinate swarm attacks on critics of the government. The Chinese government has perfected “reverse censorship,” whereby disfavored speech is drowned out by “floods” of distraction or pro-government sentiment. As the journalist Peter Pomerantsev writes, these techniques employ information “in weaponized terms, as a tool to confuse, blackmail, demoralize, subvert and paralyze.”
It’s really difficult for most Americans to get our heads around this new form of warfare. We understand many of the negative effects of our fragmented and polarized media environment, the ability to live in an information bubble, to “choose our news”–and we recognize the role social media plays in constructing and reinforcing that bubble. It’s harder to visualize how Russia’s infiltration of Facebook and Twitter might have influenced our election.
Wu wants law enforcement to do more to protect journalists from cyber-bullying and threats of violence. And he wants Congress to step in to regulate social media (lots of luck with that in this anti-regulatory age.) For example, he says much too little is being done to protect American politics from foreign attack.
The Russian efforts to use Facebook, YouTube and other social media to influence American politics should compel Congress to act. Social media has as much impact as broadcasting on elections, yet unlike broadcasting it is unregulated and has proved easy to manipulate. At a minimum, new rules should bar social media companies from accepting money for political advertising by foreign governments or their agents. And more aggressive anti-bot laws are needed to fight impersonation of humans for propaganda purposes.
When Trump’s White House uses Twitter to encourage people to punish Trump’s critics — Wu cites the President’s demand that the N.F.L., on pain of tax penalties, censor players — “it is wielding state power to punish disfavored speech. There is precedent for such abuses to be challenged in court.”
It is hard to argue with Wu’s conclusion that
no defensible free-speech tradition accepts harassment and threats as speech, treats foreign propaganda campaigns as legitimate debate or thinks that social-media bots ought to enjoy constitutional protection. A robust and unfiltered debate is one thing; corruption of debate itself is another.
The challenge will be to craft legislation that addresses these unprecedented issues effectively–without inadvertently limiting the protections of the First Amendment.
We have some time to think about this, because the current occupants of both the White House and the Congress are highly unlikely to act. In the meantime, Twitter is the weapon and tweets are the “incoming.”