Reimagining the First Amendment in the Digital Age

Its litigation efforts address more conventional First Amendment battles as well as the cases involving new technology. For example, while the Institute doesn’t get involved in fighting for every Freedom of Information Act request, it does look for cases that can be transformative. 

“We try to bring cases that will have the effect of changing government policy with respect to transparency,” Jaffer said. 

One of its biggest wins, so far, has been an effort to force to light opinions issued by the Office of Legal Counsel, an office of the U.S. Justice Department that issues legal opinions setting disclosure and other legal policies for federal agencies. Often characterized as ​“the Supreme Court of the executive branch,” the agency is responsible for the memos authorizing torture during the George W. Bush administration and memos on the use of drones during the Obama presidency, for example. 

Most of the Office of Legal Counsel’s opinions are secret, and it historically has operated on an assumption of nonpublication, beating back FOIA requests by invoking a privilege that protects government deliberations. The lawsuit was aimed at flipping the presumption, essentially arguing that the OLC should proactively release its opinions and withhold them only when it can justify, on a specific basis, keeping information from the public.

“This is a body of secret law that has evolved over the years, invisibly shaping the government’s conduct and the government’s policies,” Jaffer said. ​“All of that has been inaccessible to the public, and deeply so.”

Last year, the Institute reached a settlement with OLC. Under that agreement, the OLC agreed to release lists of all unclassified opinions between 1945 and 1994, which the institute has published and made available on its website.

Additionally, the Institute has made available to the public a searchable database of the 1,400 memos that the OLC has already agreed to make public (even building a Twitter bot — @OLCforthepeople — that automatically alerts followers anytime a new memo gets published). The case has opened a window for historians and journalists to examine opinions that have played a role in the most influential issues of the modern era. 

“The Justice Department’s positions are informed by decades of OLC opinions, and while we have been able to see the government policy above the water, we’ve never been able to see the opinions that are the basis for policies – until now,” Jaffer said.

A Changing Landscape for Free Expression

In addition to its litigation involving the OLC, the Institute has also filed lawsuits aiming to establish case law around government officials and their use of social media.

“Social media is a tool of great promise and personal expression. But you immediately run up against very complicated questions about who controls that space,” said Larry Siems, the Institute’s chief of staff, who has worked in human rights and free expression advocacy, including 17 years with PEN, the international writers’ organization. ​“This is the first time in human history that suddenly every person on Earth essentially has the tools to be a published writer and to be heard internationally.”

In 2017, the Institute sued then-President Donald Trump and his aides for blocking critics on Twitter. A federal district court ruled in the Institute’s favor. (The suit was later dismissed as moot by the U.S. Supreme Court when Trump left office and was subsequently banned from Twitter.)

In a similar case, the Institute teamed up with the ACLU of Texas in a suit against the state’s attorney general, Ken Paxton, who blocked nine people from his Twitter account after they criticized him and his policies. As in the Trump case, the Institute claimed that blocking people on a government official’s Twitter account violated their First Amendment rights by stifling free speech. Paxton later unblocked the plaintiffs in a move that the Institute declared a victory in securing First Amendment rights.

The challenge, Jaffer said, is that while everyone has a megaphone, there’s a small number of companies that have become the gatekeepers to this digital public square.

“They have an immense amount of power over which voices get heard, who can speak and which ideas get traction in the public sphere,” he said. ​“We spend a lot of time thinking about how the government should respond to that kind of power, because one core principle of First Amendment jurisprudence is that we don’t want the government to decide which ideas are good ones and which voices get heard.”

Most Americans don’t want the technology giants making those decisions without accountability, either, which is why Jaffer contends a new regulatory framework may be necessary.

That raises another First Amendment issue related to social media — the policies and business practices of the gatekeeper companies that enable them to wield so much power over public forums.

“They acquire that power, in part, by collecting huge amounts of information about our activities online, including our expressive activities and our associational activities,” Jaffer said. ​“Facebook knows not only that you read a specific New York Times article, but that you spent five minutes reading it and that you scrolled down to a certain point on the page, and then you went to this other article.”

Facebook tracks not only its own users, but millions of non-users as well. This widespread information-gathering poses a challenge to freedoms of inquiry, speech and association, not to mention privacy, Jaffer said.

“We’re just starting to grapple with the implications of that kind of surveillance,” he said. ​“We don’t want legislators telling anyone what can and can’t be said on Facebook,” Jaffer said. ​“But at the same time, we don’t want Facebook or Google or YouTube adopting business practices that have these profoundly distorting implications for public discourse and therefore democracy.”

What’s more, most social media companies depend on advertising for much of their revenue, which requires them to keep readers engaged by promoting content that is often sensational, extreme and even false. Such content can distort public discourse, Jaffer said, a trend that has only amplified in the past two years as disinformation and misinformation campaigns helped fuel lies about the pandemic and precautionary measures and spurred falsehoods that coalesced in the Jan. 6 insurrection at the capitol.

Public Questions

The Institute’s public education programs are designed to connect their litigation efforts with the public, so that people have a better understanding of the First Amendment and how it affects them. This is particularly true for issues about social media and surveillance.

Part of that education process is done through the Institute’s research operation, which publishes scholarly papers and hosts symposia on many of the same issues the Institute is litigating. Given the digital influence over free speech today, the Institute’s research also incorporates input from experts such as computer scientists, who understand how the public discourse is being shaped not just by other people, but also by artificial intelligence and algorithms.

All of these efforts support the Institute’s basic mission to redefine how the First Amendment applies to an increasingly interconnected and online information system. It’s a distinct area that the Institute believes they are uniquely positioned to address.

“The issues that we are working on — how personal information should be protected and safeguarded, how online space gets shaped and regulated — these are the defining debates in the courts, in Congress, in state legislatures and public opinion. And we intend to be involved in as many of these matters as we can,” Jaffer said.