Americans of all political persuasions fear that “free speech” is under attack. This may seem strange at a time when legal protections for free expression remain strong and overt government censorship minimal. Yet a range of political, economic, social, and technological developments have raised profound challenges for how we manage speech. New threats to political discourse are mounting—from the rise of authoritarian populism and national security secrecy to the decline of print journalism and public trust in experts to the “fake news,” trolling, and increasingly subtle modes of surveillance made possible by digital technologies.
The Perilous Public Square brings together leading thinkers to identify and investigate today’s multifaceted threats to free expression. They go beyond the campus and the courthouse to pinpoint key structural changes in the means of mass communication and forms of global capitalism. Beginning with Tim Wu’s inquiry into whether the First Amendment is obsolete, Matthew Connelly, Jack Goldsmith, Kate Klonick, Frederick Schauer, Olivier Sylvain, and Heather Whitney explore ways to address these dangers and preserve the essential features of a healthy democracy. Their conversations with other leading thinkers, including Danielle Keats Citron, Jelani Cobb, Frank Pasquale, Geoffrey R. Stone, Rebecca Tushnet, and Kirsten Weld, cross the disciplinary boundaries of First Amendment law, internet law, media policy, journalism, legal history, and legal theory, offering fresh perspectives on fortifying the speech system and reinvigorating the public square.
- Table of Contents
- Introduction, by David E. Pozen
- 1. Is the First Amendment Obsolete?, by Tim Wu
- Reflections on Whether the First Amendment Is Obsolete, by Geoffrey R. Stone
- Not Waving but Drowning: Saving the Audience from the Floods, by Rebecca Tushnet
- 2. From the Heckler’s Veto to the Provocateur’s Privilege, by David E. Pozen
- The Hostile Audience Revisited, by Frederick Schauer
- Unsafe Spaces, by Jelani Cobb
- Heading Off the Hostile Audience, by Mark Edmundson
- Costing Out Campus Speaker Restrictions, by Suzanne B. Goldberg
- Policing, Protesting, and the Insignificance of Hostile Audiences, by Rachel A. Harmon
- 3. Straining (Analogies) to Make Sense of the First Amendment in Cyberspace, by David E. Pozen
- Search Engines, Social Media, and the Editorial Analogy, by Heather Whitney
- Of Course the First Amendment Protects Google and Facebook (and It’s Not a Close Question), by Eric Goldman
- The Problem Isn’t the Use of Analogies but the Analogies Courts Use, by Genevieve Lakier
- Preventing a Posthuman Law of Freedom of Expression, by Frank Pasquale
- 4. Intermediary Immunity and Discriminatory Designs, by David E. Pozen
- Discriminatory Designs on User Data, by Olivier Sylvain
- Section 230’s Challenge to Civil Rights and Civil Liberties, by Danielle Keats Citron
- To Err Is Platform, by James Grimmelmann
- Toward a Clearer Conversation About Platform Liability, by Daphne Keller
- 5. The De-Americanization of Internet Freedom, by David E. Pozen
- The Failure of Internet Freedom, by Jack Goldsmith
- The Limits of Supply-Side Internet Freedom, by David Kaye
- Internet Freedom Without Imperialism, by Nani Jansen Reventlow and Jonathan McCully
- 6. Crisis in the Archives, by David E. Pozen
- State Secrecy, Archival Negligence, and the End of History as We Know It, by Matthew Connelly
- A Response from the National Archives, by David S. Ferriero
- Rescuing History (and Accountability) from Secrecy, by Elizabeth Goitein
- Archiving as Politics in the National Security State, by Kirsten Weld
- 7. Authoritarian Constitutionalism in Facebookland, by David E. Pozen
- Facebook v. Sullivan, by Kate Klonick
- Meet the New Governors, Same as the Old Governors, by Enrique Armijo
- Newsworthiness and the Search for Norms, by Amy Gajda
- Profits v. Principles, by Sarah C. Haan
- Contributors
- Index
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