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October 17, 2019 Feature

Taking Liberties: The Challenges for Free Speech Advocates in a Time of Turmoil

Lawyers must consider not only the viability of their legal positions but the public’s reaction to their arguments.

By Jeff Hermes

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Deep political division and the institutional press tarred as a partisan weapon. Outrage directed toward online platforms over the content they permit and the content they block. Pervasive international regulation of speech bleeding into the United States. Attorneys representing the media in the current social and political environment face a convergence of challenges that require them not only to represent skillfully the specific interests of their clients but also to advocate for fundamental principles of freedom of speech.

I spent a fair amount of time contemplating these challenges during the summer of 2018, when I had the opportunity (courtesy of a grant from the Knight Foundation) to travel across the United States to teach fundamentals of media law to reporters at journalism conferences. I spent quite a while in airport waiting lounges, and every so often I’d strike up a conversation with another passenger. The far side of an airport security checkpoint being perhaps the one place where someone might discuss issues touching on politics with some sense of physical safety, I would even occasionally talk about my work as a media lawyer.

Most expressed some degree of dissatisfaction with the news and other media that they were consuming; I heard frustration with particular news outlets, with social media, and with the practice of journalism as a whole. A few wondered how things had changed so much in what seemed like a few years, while others were quick to place blame on the president’s Twitter habit, corporate greed or bias, or any of a range of other perceived ills or villains. A couple of fellow passengers presumed that my own political orientation differed from theirs based on our flight’s origin or destination, despite the fact that we were all going to the same place.

I generally responded by talking about my work for media clients all along the political spectrum and explaining my firm belief that freedoms of speech and press are a nonpartisan issue. While I’d like to think that I helped a few people to think about the First Amendment as embodying a principle over and above the rancor of this particular moment, it was dispiriting how often the response was an instinct from both the left and the right to propose limitations on speech as a method for curing the ills of the nation.

Unfortunately, this urge toward censorship is more than the subject of a few pre-flight chats; my colleagues and I have also seen it in the course of our day-to-day work, which entails surveying developments and emerging trends in media law. It is a fact, though perhaps not an obvious one, that political polarization automatically presents potential threats to freedom of expression. After all, what is polarization if not the failure of debate—a rising intolerance for statements with which you do not agree, a refusal to listen, and a desire for the silence of opposing voices? As the divide widens, those on either side start to view free speech less as a vital principle and more as a tool for the battleground of the moment.

And if one’s opponents use that tool, it becomes a target for attack. The Trump administration repeats the mantra of “fake news” to take the sting out of critical news coverage. The liberal wing of the U.S. Supreme Court accuses the conservative wing of “weaponizing” the First Amendment in compelled speech cases. Everyone takes aim at social media platforms for how they exercise their editorial functions, conservatives for perceived suppression of extreme right-wing speakers and liberals for perceived tolerance of hateful and abusive speech.

Lest I fall prey to the very phenomenon I am attempting to describe, let me clarify that I am not intending to comment here on the substantive validity of criticisms from right or left. I also recognize that the interactions of different parties’ rights to speak in these examples have considerable complexity to them. But it is enough for now to note that in a polarized environment, people tend to react to disfavored ideas by criticizing the existence or applicability of First Amendment rights rather than engaging with the ideas themselves.

On one level, the instinct to suppress speech under such conditions is not surprising. Justice Holmes wrote in his dissent in Abrams v. United States (1919): “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” Yet, for almost a century, we have heeded the caution embodied in the more famous passage that followed those words:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. . . . While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

A resurgent and bipartisan impulse toward censorship (albeit differing with respect to preferred targets) would suggest that our political discourse has become so fractured as to lose sight of these principles.

This presents a significant challenge for attorneys representing the press or asserting First Amendment rights. Even at the best of times, the First Amendment rarely makes for an emotionally sympathetic defense before juries or even judges. After all, to be meaningful, freedoms of speech and press must protect the trade in ideas even when it causes significant injury to other interests; we would not need the First Amendment if speech were harmless. First Amendment lawyers often must remind judges and juries that those who have suffered considerable harm from our clients’ speech must sometimes be denied relief in order to serve the greater good.

That is a harsh truth. Fortunately, in stating their case, media lawyers have long enjoyed the support of Supreme Court decisions and well-developed case law from lower courts on issues such as defamation and privacy. Cases like New York Times v. Sullivan and its progeny embody the delicate and sometimes painful balancing of personal injury and public good. We do not have to persuade a trial court of the Supreme Court’s reasoning; we just have to cite the case.

But mere citations ring hollow when powerful voices devalue freedom of speech itself as a shibboleth and the damaging rhetoric of politics finds its way into the courtroom. More than a few defamation cases filed over the last two years have explicitly involved reporting on political affairs, but regardless of the context, plaintiffs’ attorneys in such cases now routinely describe defendants as the purveyors of “fake news.” Cynicism about the First Amendment and exploitation of that cynicism make it more important than ever for practitioners to get behind the case law and engage with judges and juries on why these rules exist in the first place. (And as a practice note, defense attorneys in these cases might seriously consider filing motions in limine to block use of the term “fake news” before a jury, given its prejudicial connotations beyond the facts of a given case.)

Emergent Threats

A return to first principles also helps in responding to emergent threats to freedom of expression. First Amendment law is very well developed but tends to be siloed into particular doctrines. This is partially the result of the Supreme Court’s “excluded categories” approach to the First Amendment, which has trained counsel to argue about whether a particular statement constitutes defamation, obscenity, or some other conceptually distinct category of unprotected speech. But it also results from the fact that the media—the most frequent repeat players in First Amendment cases—tend to encounter free speech issues in a handful of common fact patterns: a lawsuit asserting liability for publishing particular content; a government-backed demand for news-gathering materials or the identity of confidential sources; denial of access to government records, events, or facilities; and laws or court orders prohibiting the publication of certain information. There are, of course, harder cases and easier cases within these categories, but courts and attorneys clearly understand the First Amendment arguments.

In the last few years, however, we have encountered with greater frequency other forms of interference with speech that require First Amendment attorneys to extend the logic of well-known law. Recent high-profile examples of cases grappling with such issues include the lawsuit brought by the Knight First Amendment Institute at Columbia University against President Trump for blocking Twitter users, the lawsuit by PEN America against the president for threatening disfavored media outlets with revocation of broadcast licenses and other sanctions, and the lawsuit by CNN and correspondent James Acosta against the White House for revocation of Acosta’s press pass in alleged violation of the First and Fifth Amendments. These scenarios are not limited to the president or the federal government; we have seen similar fact patterns at the state and municipal levels as well. Such suits require counsel to demonstrate a strong facility with First Amendment theory as well as familiarity with precedent.

The recent cases involving the White House also highlight another challenge. Lawsuits between the press and the government, whether they are of a novel type such as those listed above or a more traditional dispute such as a Freedom of Information Act lawsuit, by definition place the press in opposition to the state on a particular issue. More generally, the press’s role as the “fourth branch” of government places it in opposition to the executive, legislative, and judicial branches, much as the three branches can find themselves structurally opposed to each other in the ordinary course of checks and balances. But it is important that media attorneys distinguish the institutional role of the press from an antagonistic relationship with the president or any other individual politician.

The president has demonstrated a pattern of identifying particular media outlets as his enemies (and, indeed, as the “enemies of the people”). An outlet that accepts such a characterization by a politician both consigns itself to the opposite side of the political divide and identifies the inimical relationship with the politician as a defining factor of its business. For some explicitly partisan media outlets, that might be acceptable. For most news organizations, however, the primary relationship is with the audience, not with the subjects of coverage; the essential function of the organization is to serve the needs of its readers, viewers, or listeners, not to carry on a feud.

This is not only a matter of maintaining trust. The public perception of the press as a nonpartisan watchdog also provides significant protection against prosecution for news-gathering activity. For example, leaks to the press from government insiders have historically been a vital channel to alert the public about corruption and malfeasance. Media outlets can, however, run a significant legal risk when reporting on such information, particularly classified information potentially subject to the Espionage Act. Although the U.S. Supreme Court rejected prior restraints against the press with respect to publication of classified information in the Pentagon Papers case, New York Times Co. v. United States (1971), it left open the question of whether a news organization could be criminally prosecuted for publishing such information. And while the Supreme Court did recognize that the First Amendment forestalls criminal charges against the press for publishing information illegally obtained or disclosed by a source in Bartnicki v. Vopper (2001), the balance of First Amendment rights and government interests has not been tested in an Espionage Act case or other case involving national security.

Indeed, until this year, federal prosecutors have not openly charged any news organization or journalist with violations of the Espionage Act. This reluctance on the part of federal prosecutors is not because the First Amendment defense has been clearly established, but because, as one judge explained,

[e]ven if juries could ever be found that would convict those who truly expose governmental waste and misconduct, the political firestorm that would follow prosecution of one who exposed an administration’s own ineptitude would make such prosecution a rare and unrealistic prospect.

United States v. Morison, 844 F.2d 1057, 1084 (4th Cir. 1988) (Wilkinson, J., concurring).

Leak Prosecutions

That reluctance is now evaporating. We have seen a remarkable spike in prosecutions of government leakers under the Obama and Trump administrations. More troubling, in May 2019 the United States filed Espionage Act charges against WikiLeaks founder Julian Assange for the publication of leaked documents. Federal prosecutors likely decided that such charges against Assange are politically feasible precisely because public opinion tends to doubt the validity of WikiLeaks as a journalistic organization. In a similar way, successful characterization of the press as partisans attempting to undermine the president by any means necessary would reduce the political barrier to prosecutions for publication of leaked material.

Of course, avoiding such characterization largely depends on editorial choices that are beyond the purview of media counsel. Nevertheless, media attorneys have a role to play in advising on the wisdom of bringing any particular claim, and this is a context in which it is essential to pick one’s battles carefully. George Freeman, the executive director of the Media Law Resource Center, has been repeating this point since the 2016 presidential election: The media will lose credibility and be seen as antagonists rather than guardians of the people if a lawsuit is filed every time the president snubs a reporter or fails to alert the media when he changes his mind about going to a particular restaurant.

Thus, despite many provocations, media attorneys have undertaken First Amendment lawsuits against the executive branch reluctantly and rarely (at least outside the special context of Freedom of Information Act enforcement lawsuits, where the improper withholding of public records by executive agencies is an endemic problem). The Knight Institute, PEN America, and CNN filed their lawsuits only after lengthy consideration of long-running patterns of behavior by the executive branch, demonstrating recurring and obvious First Amendment problems. These or other media organizations could have filed colorable claims earlier, but it was equally essential that the public understand that these lawsuits matter and touch on important issues. In particular, the complaint filed by PEN America is basically a running list of First Amendment violations by the White House; it is clearly intended not only as a statement of claims but as an explanation of why matters have reached a tipping point requiring legal action.

Digital Platforms

Political polarization can also exacerbate other significant issues facing media attorneys. The most prominent of these is an escalating controversy over online communication and the role of privately operated digital platforms in filtering and moderating speech. Public attention to the management of social media sites is reaching unprecedented levels, as Congress and the country as a whole grapple with the essential role of these sites in civic discourse and the issues of privacy and censorship that arise when private entities process so much personal information. This crisis would arguably exist independently of the political divide, but the politically charged context—in particular, the use of social media by foreign actors to interfere with U.S. elections and recurring allegations of partisan censorship of conservative content—has ratcheted up the urgency to address the issue.

The instinctive response on the part of legislators is to propose laws saying “you must block this” or “you cannot block that,” or their equivalents. For example, we have seen proposals to limit protection against liability under 47 U.S.C. § 230 (the 1996 law protecting digital platforms, among others, against liability for user-generated content) to “neutral” platforms, and lawsuits asserting that content-based decisions by website operators violate their users’ speech rights. More moderate approaches have involved heightened record-keeping and disclosure requirements with respect to politically related content. While these reactions are perhaps understandable, they tend to discount website operators’ own First Amendment rights.

Resolving the competing speech interests of platforms and their would-be users is not easy, from either a legal or a policy perspective. Courts that have considered the issue in the past have compared the moderation decisions of website operators to the editorial decisions of newspapers and have usually held that the Supreme Court’s First Amendment ruling in Miami Herald Publishing Co. v. Tornillo (1974) protects websites against being compelled to carry content. On the other hand, a recent series of lawsuits has argued that the proper comparison is instead to the shopping center in PruneYard Shopping Center v. Robins (1980), a privately owned space opened to the public. In PruneYard, the Supreme Court held that the shopping center’s owner would not be identified with speech by third parties on his property and could therefore be compelled by state law to allow third parties to speak without violating his own First Amendment rights.

To date, arguments under Tornillo have met with widespread success, while arguments under PruneYard have gained little if any traction. But as always in the game of precedents, neither comparison is perfect. Unlike the shopping center in PruneYard, digital platforms are in the business of providing information and thus the public is far more likely to judge them by content they carry. But unlike the newspaper publisher in Tornillo, digital platforms do not face the same issues of limited space in which to carry third-party content. And as pressure regarding moderation practices increases, courts might become more likely to reconsider the frameworks that they apply.

That said, it would be a mistake to believe either that the First Amendment “gets in the way” of necessary regulation of digital platforms or that requiring social media sites to abide by the First Amendment as if they were government actors would be a quick fix. Simple solutions tend to disregard the fact that communication on social media is very different from communication in offline spaces. In particular, social media exponentially expand the reach of users’ speech in a manner that allows for the validation of ideas well outside the mainstream. When one person in a city of 100,000 speaks from a soapbox in the park, we tend to dismiss that person as a lone voice in the wilderness; but when 3,000 users out of 300 million on Twitter form a vocal bloc, they can have a significant effect. The special dynamics of social media allow messages that would otherwise be weeded out by the traditional marketplace of ideas to survive and flourish instead.

This cuts both ways. If social media have allowed the proliferation of hateful content and conspiracy theories from the lunatic fringe, they have also given geographically isolated individuals suffering from oppression or discrimination the opportunity to find one another and to unite their voices. While platforms’ moderation practices may be flawed, allowing these sites to function as privately moderated spaces at least permits experimentation with different approaches to preserve the positive aspects of this online environment while filtering out the bad. Regulatory approaches, in contrast, are likely to chill experimentation and interfere with the context-specific moderation decisions that platforms routinely face.

Allowing platforms to find their own answers is a slow process inconsistent with the current demand for solutions, and it understandably frustrates those who are innocent casualties of moderation decisions. There is nothing wrong with the expression of that dissatisfaction, of course; it is important that digital platforms hear the voices of those who are affected by their decisions. But this can place media attorneys in the challenging position of ensuring that public frustration does not result in solutions that are ultimately more damaging to public discussion than the problems they seek to solve.

Complicating matters is the fact that other nations are more than willing to regulate online platforms. The most widely known of these efforts originate from the European Union (EU), such as the right to delisting, also known as the “right to be forgotten,” pursuant to which citizens of the European Union have the right to demand that search engines remove search results that are “inadequate, irrelevant or no longer relevant or excessive” in light of the passage of time. The EU’s General Data Protection Regulation imposes a comprehensive regulatory scheme on online services with respect to how they collect, store, and process personal information. Digital platforms operating in Europe also enjoy significantly less protection against liability for content created by their users, while also dealing with significantly broader categories of unlawful material due to the EU’s expansive concepts of privacy and hate speech.

Notwithstanding their origin beyond our borders, such legal regimes have created additional headaches for attorneys defending freedom of expression in the United States. Attempts by European nations to impose EU law on the activities of digital platforms in the United States give rise to direct conflicts between different concepts of free speech. This conflict has been particularly acute when European countries have attempted to compel companies such as Google to block users outside the European Union from viewing particular content. Meanwhile, legislators in the United States who are under pressure to cure perceived problems with online speech have looked to EU law as a model for regulation, despite the fact that these approaches are often incompatible with the First Amendment. Lawyers representing digital platforms or the creators of content threatened by such measures must not only advocate the U.S. vision of freedom of speech but also deal with foreign courts and lawmakers who do not share that vision.

This is not an easy time to represent the media and litigate cases on their behalf. The situations discussed above require the media bar to delve not only into case law but into the theory and policies behind freedom of speech. More than ever, it is necessary for us to consider not only the technical viability of our legal positions but also the public’s reaction to our arguments. Fortunately, media attorneys tend to see these situations as an opportunity. Lawyers do not typically practice media law unless they have a deep interest in freedom of speech as a central tenet of our society. We tend to enjoy novel situations that allow us to advocate this fundamental principle in new ways—even (or perhaps especially) to skeptical audiences. Even if this is a challenging time for the media bar, it is a fascinating one as well.

Jeff Hermes

The author is a deputy director of the Media Law Resource Center, New York City.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).