An opinion piece by Columbia University law professor Tim Wu and former special assistant to President Biden sparked a lot of backlash on social media, with figures like Elon Musk and Sen. Mike Lee criticizing its stance on free speech.
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The essay "The First Amendment Is Out Of Control" argues that the courts have twisted the First Amendment, which was meant to protect the underdog and unpopular opinions, into a tool that mostly benefits big corporations. Wu says this change makes it harder for the government to keep the country safe and protect people’s privacy — "The judiciary needs to realize that the First Amendment is spinning out of control. It is beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens."
In a unanimous decision on Monday, the Supreme Court said that lower courts didn’t correctly examine the First Amendment issues in these cases. Because of this, the cases will be returned to their respective Circuit Courts of Appeals for further review.
Here’s what the Court had to say about it in their opinion: "Today, we vacate both decisions for reasons separate from the First Amendment merits because neither Court of Appeals properly considered the facial nature of NetChoice's challenge. The courts mainly addressed what the parties had focused on. The parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social media platforms — as if each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed."
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Wu argues that the Supreme Court’s approach to the Florida and Texas laws, which limit how social media companies can moderate content, is problematic. He believes that by treating algorithmic decisions made by these companies as protected free speech, similar to how newspapers make editorial decisions, the Court is making it harder for the government to regulate tech platforms.
Critics, including Elon Musk, say The New York Times attacks free speech by supporting Wu’s view. Musk tweeted that the Times is attacking everyone’s freedom of speech. Sen. Mike Lee tweeted, "Surely The New York Times doesn't want the First Amendment repealed or narrowed — unless it's granted special privileges others don't have."
Greg Lukianoff from the Foundation for Individual Rights and Expression responded to Wu’s piece by saying that the First Amendment was created to prevent the government from controlling the flow of information: "Fear of government power over the free flow of information was a big part of the reason why ‘Congress shall make no law.' Indeed, that’s also a big part of why the founders included ‘the press' in 1A, by which they didn’t mean institutional journalism. They meant the literal biggest information-moving technology of the day: the printing press."
This debate shows the ongoing struggle to balance free speech with the need for regulation in the digital age, as Big Tech companies continue to have a major impact on public conversation.
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