The King is dead, long live The King!
—Traditional expression, uttered on the passing of the monarch
OF COURSE, IT isn’t really dead. In some ways the First Amendment has never been more alive. If you want to produce videos depicting animal cruelty, parade around with homophobic signs at the funerals of dead soldiers, or donate your vast wealth to elect someone to a job that pays $150,000, the First Amendment has embraced you in its loving arms in recent years and held you tight. All of those cases have come to the Supreme Court in recent times, and every time the court has jumped to the defense of those claiming a right to express themselves. And even in more pedestrian ways the First Amendment remains central to our culture. It is the fertile ground on which every Facebook post is planted and every tweet comes to blossom, to be cast into the cyber winds of the internet.
I see that. I have spent 16 years as The New York Times’s newsroom lawyer. I have overseen dozens of libel suits, filed more FOIA suits than any other mainstream media attorney in the country, and stood up to countless legal threats by people unhappy with the things we have said about them. Did the First Amendment make that easier for me? Every day.
But over those 16 years I have come to see how silent the First Amendment has been on so many of the real challenges that journalists face today in covering a dangerous world and a blisteringly divided country. The great awakening of press freedom occurred in this country 50 years ago. In a country torn by racism and administrations that had lied their way from Vietnam to Watergate, the First Amendment responded, interpreted by a Supreme Court that understood that courageous and important journalism would be possible only if the press felt free from legal peril. Times v. Sullivan, in 1964, revolutionized libel law, throwing significant obstacles in the way of those public officials who wanted to use libel suits to silence criticism. But context mattered: it was a case about the right of civil rights leaders in the South to be heard and a decision designed to protect the right of Northern reporters to travel into Mississippi and Alabama and the rest of the Deep South to expose injustice. Seven years later, in 1971, in the Pentagon Papers, the court drew the line on prior restraints, effectively reining in the power of the government to go to court and stop the press from reporting. But context again mattered. It was not just a sensitive story, but a story about the duplicity of the government in conducting the war in Vietnam. There was a story that needed to be told, and the First Amendment made it possible to hear the voices of those journalists courageous enough and enterprising enough to go after the secrets that the government held close.
Today, the existential threats to the press—the mainstream media that remains democracy’s best hope of delivering the truth and checking the inevitable overreach of the powerful—are of a different scope and shape: the proliferation of fake news, an administration that devotes a breathtaking amount of time to delegitimizing a free press (“the enemy of the American people”), the unchecked reach of government surveillance programs that threaten reporters’ ability to have sources, the failure of the law to provide meaningful protection to confidential sources for the most sensitive and most important stories that the press does, the perilous reality faced by foreign correspondents in large stretches of the world, and the fractured media environment that has created two realities, a red reality and a blue reality, Fox and Breitbart over there, The Times and The Post over here, a divergence that makes sensible democracy regularly impossible. And in the background these past 16 years has been a technological revolution that disrupted the economic model that supported journalism and the singularity of voice that gave news organizations their authority and power. The First Amendment has largely nothing to say about how to fix any of that. A press threatened, a democracy in need of truth. Five decades ago, press freedom was an indelible part of the solution. Five decades later, the press has often failed to respond meaningfully, and in some ways it has fostered the very problems that now threaten our democracy.
Still … this has been a love story. A story about what it has been like to experience all that change as a lawyer and—to use the throwback term of a different era—as a Timesman, to find in the law and in lawyering a way to protect a journalism that is worth protecting. As a small boy, I started my morning reading the Decatur Herald alongside my father. It spoke to Decatur, Illinois—an impossibly exotic place 30 miles away from my tiny town—but also to the possibilities of an unimaginable world far beyond our lives deep in the Illinois heartland.
And it has been a love story about the First Amendment, filled as any good love story is with a nostalgia for the bright shiny moments of the past and a hope, without naivety and without illusion, for some future in which it will be part of the answer.
I never once lost sight of the fact that it was a privilege to call myself a lawyer for The New York Times. I have been there, behind the scenes, as The Times reported and wrote stories that changed so much about who we are as a nation: the aftermath of 9/11, WikiLeaks, the war on terrorism, the Arab Spring, the mayhem in Iraq and Syria and Afghanistan, the rise of Trump, the tsunami of sexual reckoning loosed by the Harvey Weinstein revelations.
But as much as we celebrate that deep and consequential reporting and know intuitively that it would not be possible in a place without press freedom, there is that gnawing other reality that we can’t easily ignore: that the First Amendment also gives succor to those who spew hate speech online, who use the internet as a high-powered weapon of revenge, who actively work to distract an already unsteady nation, who obscure the line between truth and falsity, and who rally Twitter mobs to diminish the lives of those they find different, unacceptable, too outspoken, or even just too homely. Tim Wu, a Columbia law professor, published an essay in The Times in October 2017 called “How Twitter Killed the First Amendment.” It began: “You need not be a media historian to notice that we live in a golden age of press harassment, domestic propaganda and coercive efforts to control political debate.” Meanwhile, way over on the other side of the political spectrum, a president declares all unpleasant truths “fake news” and invites the parts of America that follow him to close their eyes and turn their hatred toward a press that dares to not fall in line.
They are not unrelated, the runaway internet and the anti-press president with autocratic impulses. The genius, stable or otherwise, of Donald Trump is some intuitive knowledge of that relationship. The First Amendment is at base a belief in the idea of a marketplace of ideas where truth and falsity compete and an engaged citizenry can discern the difference without coaching from the government. The internet should be democracy’s engine, breaking down all the barriers that have in the past prevented those who want to speak and those who want to hear from participating meaningfully in that mythical marketplace. Instead, a technology that has the potential to make us smarter, better informed, less isolated, more empathetic regularly achieves precisely the opposite. There has never been a more important moment in history to demand that Americans discern, question, and doubt, but in the cacophony of our breached politics, many people will do the easy opposite: believe and ignore.
That the president should want to hide the truth, and hide from it, should surprise no one. We all have our inconvenient truths. But the surprise is this: how many Americans are willing to stand with him in that dark place. The demonized Other—the dishonest and corrupt mainstream media—is not to be believed. The Other abuses its power, misuses the First Amendment, stands in the way, destroys. It is the enemy.
The reason that sort of demagoguery is so corrosive for democracy is this: the First Amendment story is, in the end, not about law but about hearts and minds. It doesn’t really matter how much freedom journalists have if no one believes them. A discredited press plays no role in shaping democracy and holding power accountable. And a public that finds a press contemptible holds no stake in defending First Amendment values and standing up for press freedom. Why would it? The civic instinct is to do just the opposite. It is a very short half-step from not believing the press to not believing in press freedom.
The national consensus has frayed. It is hard to recognize in the breach of modern democracy that this is a country of people who have historically stood together to protect the free speech rights of those they disagreed with. And it is understandable that those who seek to shut down hate speech, end bullying online, and curtail the power of falsity on the internet see the First Amendment as an impediment, part of the problem, not part of the solution.
But, as I said, this is a love story. It is about the love for an idea. The authors of the First Amendment were not naive. They understood from hard-edged experience that lies were inevitable, the urge to deceive grounded in human nature. But democracy’s remedy was an informed citizenry that, in the fullness of time, would pull the lever for truth over falsity. The alternative—a government that used its power to decide who spoke and who was silent, what was real and what was fake—was untenable. We come closer and closer to learning that every day.
The First Amendment is not really dead but it will live long only if the American people fall in love with it again. It is no effortless romance. It requires hard work: to not just embrace the right of everyone to speak, but to care about the truth, to listen and hear, to discern as best we can, and to believe that, for all of its gobsmacking craziness in our digital present and future, the marketplace of ideas is still a better idea than anything anyone else has dreamed up. None of this is to say that The Times and everyone else in the news business get it right every day. We don’t. Journalism is more art than science. But were we to actually nail it day after day, get it perfectly right, that alone would still not be enough to make democracy great again. The only path to that sort of greatness runs through the hearts and minds of the American public.
It is impossible not to wonder about whether the First Amendment can find a new life, can embolden a flagging democracy, can be to our current troubles what it was to civil rights and Vietnam and Watergate. Despite everything, I still believe it can and it should. The belief carries on. That is how it is with love.