First Amendment Challenges in the Digital Age

Next Friday, February 10, the Stanford Technology Law Review is holding its annual symposium, and this year's topic is an important one: First Amendment Challenges in the Digital Age. Of the three panels, one is devoted to privacy and another to copyright. The third is devoted to a long, ambitious law review article ... written by me. The panel participants joining me to discuss the article are two of the nation's great free speech scholars--Harvard's Yochai Benkler and the University of Virginia's Lillian BeVier. The article is called First Amendment Architecture. In it, I argue that the First Amendment plays an important role in ensuring adequate physical and digital spaces for speech, and that this role is not some exceptional outgrowth of First Amendment doctrine but is central to understanding what the First Amendment "means." While I submitted the paper for publication in February 2011, the subsequent events of the Arab Spring, the Occupy Movement, and the fight over SOPA/PIPA have all highlighted the significance to democratic speech of open physical and digital spaces.

I am using the occasion of this symposium panel to blog about First Amendment Architecture. Law review "articles" generally add up to 30,000 words, or 60 pages, and have hundreds of footnotes and use semi-colons; this article is definitely a creature of that genre. My language in the piece is simple I think, but the blog genre is better for discussing the same arguments in bite-sized, digestible pieces. Several people have already blogged about my article briefly (saying nice things even), such as law professors Tim Wu (calling it "important work") and Susan Crawford (calling it "a terrific article"), as well MSNBC host Dylan Ratigan (saying it addresses "important ... First Amendment questions") .

This first post is more about the amazing panel and about why I chose to research and write this article. The next pieces will present the article's arguments more fully.{C}

First, the amazing panel. I am so nerd-excited that two of the nation's leading First Amendment scholars will critique and respond to the arguments I have been marking.  Harvard's Yochai Benkler may agree with me at points and Lillian BeVier of UVA will likely disagree with me at many points. For those unfamiliar with Benkler, Larry Lessig calls him "the leading intellectual of the information age," and he is a leading free speech theorist. He was also my professor and paper advisor when I was in law school. (That had a major effect on the trajectory of my life.) He is also one of the kindest people I've ever met. BeVier is also a giant in First Amendment scholarship, having made important contributions to constitutional law on impenetrable topics ranging from the state action doctrine to the public forum doctrine. I have learned a lot from her work. It's an honor that she will take the time out of her schedule to disagree with me on the  panel. In a phone call, she has kindly called my article "um... ambitious." I'll take that.

Second, why I wrote this paper. My mom knows that I have led something of a double life over the past few years, with one foot in public policy and one in academia. (I now keep toes in policy and the think tank world.) But a lot of people from one world don't realize I have worked in the other. For example, last week, I had lunch with technology lawyers in Washington, DC. These lawyers knew me from my work to help advance network neutrality and to help defeat the Stop Online Piracy Act (SOPA), etc. These lawyers asked me if I had ever heard of the Space and Cyberlaw Program at the University of Nebraska. I had indeed heard of it—while a law professor for a few years, I was a co-founder of the program and helped build it into a program educating many of the US Air Force's cyber-lawyers and educating some of DC's rising legal stars in tech. Similarly, years ago, while at Nebraska, on the day the DC Circuit struck down the FCC’s Comcast/BitTorrent order in April 2010, several of the other law professors on my faculty noticed the headlines on the front pages of the, the, and even the Huffington Post, which had run the ominous banner headline “The Day the Internet Lost.” While several students offered me condolences on the decision, three of my colleagues on the faculty asked me, “Hey, have you heard about this Internet case everyone is talking about?” I had indeed heard of—I had brought the case before the FCC and argued it (and lost) before the DC Circuit.

I saw the need for this article because of that double life. Much of my work strikes me as pretty unified: as a lawyer, working in several areas, I have thought about how to promote freedom of speech broadly for everyone. To me, freedom of speech and debate are necessary inputs in solving any of our nation's problems, from homelessness and economic inequality to banking, the environment, and national security. Freedom of speech is what Larry Lessig would call a "root" issue; working on free speech is striking at a root issue.

Thinking about free speech brought me to media regulation, as Americans access so much of their political and cultural speech through mass media. That led me to work on the FCC's media ownership rules beginning in 2005 to fight media consolidation, working with those at Georgetown's IPR, Media Access Project, Free Press and others. I then turned to the Internet as the core speech tool of our age, and in 2006 worked on Congress's first network neutrality bills, addressing an issue that people often called the foremost First Amendment issue of our time. It was through this work that I worked with Stanford's Barbara van Schewick and Columbia's Tim Wu, among others in academia. I also worked on unlicensed spectrum and privacy and copyright, including recently on SOPA, and wrote about national security and civil liberties, and global free speech matters. All of these were unified by free speech concerns.

But the policy arguments were not enough ...  we needed to articulate a compelling constitutional framework. The media, telecom, and studio giants, and many speech scholars, assumed and advanced First Amendment framework that would render unconstitutional media ownership caps, network neutrality rules, and many other rules designed to promote individuals' access to spaces to speak to receive diverse sources of speech. Just as Citizens United privileged the free speech rights of powerful corporations over the speech of average Americans, in my opinion, some common views of the First Amendment privilege giant telecom, cable, and media corporations over average Americans.

That is, even if Congress or the FCC did adopt the pro-free-speech rules or laws for which we advocated, the Supreme Court would be the next hurdle, as suggested by several industry lawyers and even prominent constitutional scholars. For example, while Harvard Professor Laurence Tribe and I agreed on the unconstitutionality of SOPA, we disagreed on the constitutionality of network neutrality.

So my scholarship has attempted to articulate a framework for advancing freedom of speech in our time--and my advocacy has worked, in a small way, to advance that same goal. In my scholarship, particularly in a series of three articles (here, here, and in Architecture), I try to build on the important work of C. Edwin Baker, Yochai Benkler, Jerome Barron, Jack Balkin, Owen Fiss, Joshua Cohen, and many many scholars in my generation (Greg Magarian, among others, comes to mind). I have tried to help build a framework that recaptures the First Amendment as a principle to empower all Americans, politically and personally, through access to plentiful, diverse communications spaces.

Architecture is my biggest contribution to that project, a project that many of us are working on from different angles.

So, over the next weeks, I will aim to post a few bite-sized blog pieces setting out its arguments.

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