The best books on The First Amendment

Before we get to the books, the First Amendment to the United States Constitution is our topic. Adopted in 1789 as one of ten amendments that compromise America’s Bill of Rights, it reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Some characterize the First Amendment as the most honored but least understood facet of the Bill of Rights, what’s your view?

The First Amendment is deeply ingrained in our psyche as the premier guarantee of freedom of speech. But although knowledge about the First Amendment may be broad, it is not deep. Few seem to know what the First Amendment protects and what it does not.

President Trump demonstrates one common misunderstanding when he tweets that his free speech rights are being violated by Twitter. The First Amendment applies to state action; private companies are not bound by the First Amendment. Likewise, a professor at a private college who is fired for using a racial slur in the classroom is not protected by the First Amendment. Banning speech is not prevented by the First Amendment, as long as it’s not being done by the government. That’s one element.

The range of freedoms protected is also commonly misunderstood. The First Amendment protects freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the freedom to petition government for the redress of grievances. The range moves from the most individual, the freedom to believe, to the most common, the freedom to urge the state to incorporate those beliefs.

“So many threats to free speech today…are not from laws or courts or government authorities”

A third overlooked element of the First Amendment is the drastic change in its interpretation over time. For a long time our courts permitted all kinds of government constraints on speech, whether it was in schools or to suppress sedition. Justice Oliver Wendell Holmes created a broader understanding of the scope of speech that the First Amendment should protect a hundred years ago, which is relatively recent in the history of the Constitution.

Even though the courts are now more speech protective, the First Amendment is not absolute. Categories of speech—such as libel, defamation, false advertising, and sexual harassment—can be prohibited. Notwithstanding the First Amendment, the courts interpret the Constitution to make space for these and other exceptions.

Thomas Jefferson said dissent is the highest form of patriotism. In the first book you’ve selected, The Soul of the First Amendment, Floyd Abrams explains the historical roots of America’s faith in free expression.

Floyd Abrams litigated some of the most important First Amendment cases in America. This book offers an erudite and passionate explanation of how central and fundamental the First Amendment is to our culture, our legal system and the vibrancy of our intellectual life. He makes the case that robust protections for free speech are essential to democracy. It’s a book that celebrates the First Amendment and imparts why we need to cherish the First Amendment.

Abrams outlines his courtroom battles to shield speech related to national security from censorship. Were clashes between publishers and national security government officials one among the main foci of First Amendment friction in the twentieth century?

National security rationales, historically, have been at or near the top of the list of the justifications that government uses to impinge upon speech. This is not just limited to the United States. We see it all over the world. For instance, Chinese dissidents are often arrested for state subversion. It makes sense that speech a government wants to suppress is portrayed as threatening to the state. For example, during World War One, Americans were prosecuted for distributing pamphlets encouraging desertion under a national security rationale. But the idea that national security justified punishing speech changed. By the Vietnam War, attacking U.S. policy and advocating draft resistance was protected speech. But this sort of speech is by no means secure. We just submitted an amicus brief to support former National Security Advisor John Bolton’s efforts to publish a book that President Trump sued to have suppressed, using national security as a rationale.

The Free Speech Century—a collection of essays by leading First Amendment scholars, edited by two titans of American Constitutional Law, Lee Bollinger and Geoffrey Stone—is the next book you’ve chosen.

These essays trace how the interpretation of the First Amendment has evolved. It’s very useful, because it goes through many different categories of speech and many different legal theories about speech. There’s a great essay by Catherine McKinnon about how First Amendment doctrine fails to protect lesser heard voices from being shouted down.

Lawrence Lessig’s essay about election finance and free speech seems particularly interesting.

It’s a very contested issue. The Supreme Court recently ruled that campaign donations are a form of political speech and that to put strict limits on donations impinges on speech. The Court has also held that corporations have speech rights and are free to invest in a politician’s election or reelection. The result of these holdings has been a flood of money which pollutes open discourse and drowns out the voices of average citizens.

At issue is whether we construe free speech as simply a right that attaches to individuals or as a social good which should be cultivated by, in some instances, curtailing the rights of individual speakers? American jurisprudence includes examples of both those views; there is a tension between them.

At PEN America, we increasingly think of ourselves as guardians of open discourse. A lot of noxious speech has a corrosive effect on open discourse. Take disinformation and online harassment. It’s generally not illegal to lie in politics or use menacing language, but both undermine the open discourse that ensures the health of a democracy. Preserving open and healthy discourse may involve some voluntary measures to restrict harmful content in certain forums and social media platforms.

Corrosive speech seems to be a central concern of the next of the books you’ve chosen about the First Amendment. Please tell me about Words that Wound by law professors Mari J. Matsuda, Richard Delgado, Charles R. Lawrence III and Kimberlè Williams Crenshaw.

Words that Wound was written in the early nineties by a group of law professors who were part of the critical race studies movement. They focused on an issue that we’re grappling with to this day: How do you deal with the impacts of damaging and degrading speech, racist speech, sexist speech, bigoted speech and slurs. A few minutes ago, we spoke about libel, defamation and false advertising—three types of speech that are subject to sanction, despite the First Amendment. These scholars recognized that hostile speech can cause real harms too. So, they set out an interpretation of the First Amendment that permits the inhibition of hateful speech.

“Few seem to know what the First Amendment protects and what it does not”

The anti-racist movement is bringing more forceful and frequent calls to handle the hazards of speech with new prohibitions. My personal view is that more must be done to mitigate the impacts of noxious speech, but expanding the authority of government to suppress speech is counterproductive. Dialogue, education, condemnation, social taboos and other types of counter speech are healthier for our democracy.

How does hateful speech erode democracy, according to Words that Wound? 

The idea is that if people are persistently heckled, ridiculed and otherwise victimized by hateful speech, their ability to participate in politics, their freedom of assembly and their access to all the rights of citizenship is compromised. I stress, in my book, that we have to take this seriously. I disagree with the defenders of free speech who downplay the harms of speech, for fear of opening the door to suppression. To keep the landscape for speech as free as possible, we must acknowledge the harms of speech forthrightly and robustly curb the damaging impacts of speech through measures other than legal constraints, otherwise it’s hard to counter arguments for censorship.

Speech Police: The Global Struggle to Govern the Internet by David Kaye, is your next recommendation.

Speech Police, which came out about a year ago, deals with the pitched debates over the role of internet companies and social media platforms in regulating speech. So much of our public discourse now takes place on social media and the internet. Whether it’s Facebook, Twitter, Google, YouTube, or Tik Tok, these companies are not subject to the First Amendment. They set their own rules regarding what is permissible on their platforms and what is not. Each one has a different set of precepts and standards, which shift all the time. Speech Police examines the complex role of these platforms in shaping the parameters of modern discourse. These companies are now arbitrators of our public forums. The rules that they set can determine whether an idea sees the light of day or is buried in the deep dark web.

On the one hand, some consumers and governments are demanding that these platforms prohibit harmful speech. Whether it’s cyber-bullying, terrorist recruitment, white supremacist ideology or the expression of any idea that can translate into violence in the physical world, there is tremendous pressure for internet and social media companies to find a fix. But there’s also a worry that if they aggressively police their platforms, enormous swaths of speech will be suppressed without public knowledge. As Speech Police details, the rules they apply and the mechanism they use to implement those rules, which are heavily dependent on algorithms and artificial intelligence, have abundant unintended results which may wind up suppressing content that does not meet their definition, or anyone’s definition, of what ought to be out of bounds in a free society.

As the head of PEN America, an organization dedicated to protecting writers’ and human rights, how do you see these forums, which insist that they’re not publications and shouldn’t be treated as such? Should they retain the special shields that prevent individuals from suing them for the damages which flow from speech that they platform?

Section 230 of the Communications Decency Act does shield the platforms from liability for the vast bulk of user content that is posted on them. So, if someone posts something and it’s illegal, in American courts you can go after the individual, but not the platform itself. The notion behind that provision, as you’ve touched on, is that these platforms are not the equivalent of publications, which fact check content; they’re closer to a bulletin board in a public square. If people put up a notice that is offensive or solicits illegal activity, you wouldn’t expect the bulletin board to be liable for the harms caused.

Defenders of Section 230 say that its liability shield enabled the internet to develop into the broad freewheeling participatory platform it is today. Internet freedom advocates are concerned that companies will overzealously police content if they face liability by taking down any speech that might seem offensive or touch on illegal activity in any way, because their corporate counsel will warn they might face liability for all kinds of content. Even the process of having to vet and scrutinize everything posted on Twitter and Facebook would fundamentally alter the nature of those platforms.

On the flip side, this idea is gaining momentum. President Trump is urging the Justice Department to consider curbing Section 230 and legislation to do just that has been introduced with a good deal of bipartisan support. Eliminating liability in one fell swoop could recast the internet in ways that are hard to predict. But some reform proposals would simply subject these companies to a good faith standard, to encourage them to undertake some responsibility over content. I think that’s something to be pursue, but with caution.

In your book, Dare to Speak, you ask whether free speech can survive in our diverse, divided, digitized culture and suggest ways to reconcile concerns about equality with robust protections for expression.

This book is my effort to explain the importance of free speech in the struggle to make society more equitable and inclusive. Over the last few years, I’ve grown concerned that young Americans are alienated from the principles of free speech. They’ve come of age in an era when the First Amendment seems to be invoked most often to protect bigoted, noxious speech. So, it’s natural that they are questioning the value of free speech.

“The First Amendment is not absolute”

I detail how the First Amendment and the doctrine of free speech protected dissidents and people who challenged authority throughout the last century, to remind the rising wave of progressive Americans of the value of free speech to their cause. Ultimately, free speech is as— if not more—important to the advocates of social justice as to anyone else. Whether you’re pushing the boundaries of police reform or climate change or LGBT rights or gun safety, you need to offer edgy ideas, challenge conventional wisdom and confront the government through free speech.

But we need an enlightened conception of freedom of speech. Presently, public forums are hardly level playing fields. For the marketplace for ideas to truly flourish, we must urgently act to amplify lesser heard voices, mitigate the impact of hateful speech and foster a more conscientious use of speech to offset the hazards of unfettered speech.

As we speak, the norms surrounding free speech are facing unprecedented pressure from the right and the left. The American President is denigrating protesters from his bully pulpit, while American institutions seem to be increasingly willing to sanction offensive speech. Are norms as important as the First Amendment itself to the protection of free speech in the United States?

So many threats to free speech today, whether it’s the power wielded by online platforms or the censorious force of cancel culture, are not from laws or courts or government authorities. That is why it’s vital for ordinary citizens to recognize why free speech is important in our society, in our economy, and in our culture. We must coalesce around defending free speech in a way that is consistent with the drive for a more equal and inclusive society. Laws have little to do with our fractious and debased public discourse, judges can’t protect us from harassment online and censorious backlash against political differences of opinion. Courts can’t fix our civic life. My book tries to show how we can do that together. And why we must.