Open AccessIs the First Amendment Obsolete?
Author(s) -
Tim Wu
Publication year - 2018
Publication title -
michigan law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.41
H-Index - 51
eISSN - 1939-8557
pISSN - 0026-2234
DOI - 10.36644/mlr.117.3.first
Subject(s) - commercial speech , free speech , presumption , law , private speech , first amendment , politics , jurisprudence , newspaper , government (linguistics) , direct speech , enforcement , political science , law and economics , sociology , supreme court , psychology , developmental psychology , linguistics , philosophy
The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of “troll armies,” the fabrication of news, or “flooding” tactics. This Essay identifies the core assumptions that proceeded from the founding era of First Amendment jurisprudence, argues that many of those assumptions no longer hold, and details the new techniques of speech control that are used by governmental and nongovernmental actors to censor and degrade speech. It concludes by arguing that protection of free speech may now depend on law enforcement recognizing its role in the protection of the American speech environment.