“The First Amendment is spinning out of control,” Columbia law professor Tim Wu warns in a New York Times essay. While Wu ostensibly objects to Supreme Court decisions that he thinks have interpreted freedom of speech too broadly, his complaint amounts to a rejection of the premise that the principle should be applied consistently, especially when it benefits speakers and messages he does not like.
The immediate provocation for Wu’s diatribe is yesterday’s Supreme Court decisions in two cases challenging Florida and Texas laws that aimed to restrict content moderation on social media. Although the justices remanded both cases for further consideration by the lower courts, Justice Elena Kagan’s majority opinion in Moody v. NetChoice made it clear that the “editorial discretion” protected by the First Amendment extends to the choices that social media platforms make in deciding which content to host and how to present it, even when those decisions are inconsistent, biased, or arguably unfair. And that discretion, she said, includes the use of algorithms that reflect such value judgments.
Although Wu has reservations about “the wisdom and questionable constitutionality of the Florida and Texas laws,” he thinks “the breadth of the court’s reasoning should serve as a wake-up call.” He faults the justices for “blithely assuming” that “algorithmic decisions are equivalent to the expressive decisions made by human editors at newspapers.” The ruling, Wu says, reflects a broader trend in which “liberal as well as conservative judges and justices have extended the First Amendment to protect nearly anything that can be called ‘speech,’ regardless of its value or whether the speaker is a human or a corporation.”
As Wu sees it, freedom of speech should hinge on the “value” of the ideas that people express. It is hard to imagine a broader license for government censorship.
Hellbound and Down 