Week 2 - What is the First Amendment?

Welcome back Free Speakers!

Last week, I explained Garcia v. Character Technologies, introduced to you the First Amendment, then left you a little brain treat to nibble on until I got back. Well here I am, ready to satiate your hunger and answer all our questions.

Firstly: What is the First Amendment?

That’s a pretty big question, so we’re going to limit the scope to the “free speech” clause (“Congress shall make no law… abridging the freedom of speech.”). The clause was first drafted by James Madison, presented to the House of Representatives on June 8, 1789. The first draft was longer, and emphasized that the press was “one of the great bulwarks of liberty,” proclaiming that the right “shall be inviolable.” The language reflected in the amendment we know today is simpler, though the intent behind how protected this right should be still stands. Our modern, complex understanding of free speech can date back to philosopher John Stuart Mill. Mill mainly argues that the free expression of ideas will bring people closer to understanding subjective “truth,” while—in the same vein—censoring speech will prohibit people from attaining that truth. It’s important that the ideas we share (whether we agree with them or not) are all shared. Mill states that in the marketplace of ideas, the subjective truths which we believe to be more meritable should be more desirable.

“The beliefs which we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded”

We’ll put more stock into the ideas we agree with, and in turn, those ideas should flourish, while the ideas we don’t agree with shall naturally wither. The tension between ideas that we do and don’t agree with will synthesize and result in a truth about the world that we can conclusively adopt. And the only way that we can attain this truth, is through the free dissemination of ideas, making freedom of speech one of the most important liberties we are afforded (there’s a reason it’s number one!). 

(If you want to read more about Mill’s argument, I’ve linked a blog post below that does a phenomenal job of explaining his ideas. You can also go straight to the source, and check out Mill’s essay On Liberty.)

What we should take away from Mill’s argument is that, in order for the free marketplace of ideas to function as our framers envisioned, we must protect all types of expression. While that principle is admirable on its face, we must ask ourselves: if expression threatens the safety of American citizens, or unduly harms members of our community, should it really be protected? Does upholding the principle of free speech really do more good than harm? And where do we draw the line?

Thankfully, we have the Supreme Court to answer all these questions for us.

Because the role of the judiciary is to interpret laws and check the other branches of government, we see the Court answer our questions through the rules they create in their cases. The cases come before the court as a result of the government creating a law, and someone subsequently suing the government, on the grounds that that law violates their constitutional right(s). The Court first determines the scrutiny by which they should examine the law. There are three different types of scrutiny, but when core first amendment protections are triggered, we’re only going to be focusing on two: strict and intermediate scrutiny. Strict scrutiny is applied when a law affects speech based on its content, while intermediate scrutiny is applied when a law is content neutral, (i.e. when the law affects speech based on its time, place, or manner). Strict scrutiny requires the government to prove to the court that their restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” While, intermediate scrutiny requires the government to prove a law is substantially related to an important government interest. The Court is generally expansive with First Amendment protections, as seen in Brandenburg v. Ohio. There, the Court ruled that KKK leader Brandenburg had First Amendment rights to give a speech, so long as his speech did not “incite imminent lawless action” under a two-pronged test. In New York Times v. Sullivan, an advertisement was published with a number of minor, factual inaccuracies. Still, the Court ruled in favor of the newspaper company, declining to impose liability to prevent a chilling effect on speech. With tests like these, and standards such as strict and intermediate scrutiny, the judiciary weighs the principles our founders envisioned with the gravity our words carry in the real world.

The case of Garcia v. Character Technologies doesn’t involve a governmental entity, as the two parties are a private individual and a private corporate entity. The plaintiff asks the Court for injunctive relief, seeking to halt Character.AI’s conduct as a corporation. Under our real legal regime, the Courts wouldn’t subject this request to any type of scrutiny, as the constitution only limits government action (note the language “congress shall” in the amendment). Instead, the analysis would follow that found in section D of the Court’s order on the defendant’s motion to dismiss and the order on the defendant’s interlocutory appeal. While I will be using this order and other court documents to inform my analysis, that will not be the question I am answering in this project. 

I’d like us to imagine a world where the government—in the interest of protecting citizens like Sewell—creates a law or file for injunctive relief. If the government attempted to regulate Character.AI’s speech in this way, would the First Amendment permit it? In what ways may the government regulate that speech? And what scrutiny may it survive?

And I’ll explore these questions next week. See you then, Free Speakers!

Mill and Free Speech Blog Post:  https://philosophicaldisquisitions.blogspot.com/2018/11/mills-argument-for-free-speech-guide.html 

On Liberty by John Stuart Mill: https://www.gutenberg.org/files/34901/34901-h/34901-h.htm

Historical Background on Free Speech Clause: https://constitution.congress.gov/browse/essay/Amdt1-7-1/ALDE_00013537 

Strict Scrutiny Case : https://supreme.justia.com/cases/federal/us/576/155/#tab-opinion-3422819

Intermediate Scrutiny: https://supreme.justia.com/cases/federal/us/491/781/, https://www.law.cornell.edu/wex/intermediate_scrutiny

Brandenburg v. Ohio: https://supreme.justia.com/cases/federal/us/395/444/#tab-opinion-1948083

Judge’s Ruling on Defendant’s Motion to Dismiss (Document 115, Main Document): https://www.courtlistener.com/docket/69300919/115/garcia-v-character-technologies-inc/

Motion for Immediate Appeal: https://www.courtlistener.com/docket/69300919/130/garcia-v-character-technologies-inc/