Marvin Ammori is internationally recognized as a leader in Internet law and public policy, combining first-rate legal analysis with creative political strategies. In 2012, Fast Company named Ammori one of the 100 Most Creative People in Business in 2012 (#32) for his role in helping to defeat the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) bills. He served as the head lawyer of Free Press, as a technology advisor to the 2008 Obama Campaign and Transition, and now represents some of the nation’s largest companies.
The debate over SOPA and PIPA should be a turning point in the way people think about the First Amendment, which forbids government officials from abridging the freedom of speech and press.
Traditionally, for perhaps 100 years, people tended to think of the First Amendment as something judges enforce. It is a part of the Constitution and a limit on what Congress, the executive branch agencies, and states and cities could do. In this First Amendment mythology, an official in a “political” branch of government (the mayor, the governor, the President) tries to silence someone (the dissenter, the flag burner, the hate speaker). Then the heroic judge strikes down the law, sets free the prisoner, or refuses to impose a fine.
It was seen, in short, as a judicial right. As a judicial right, the public had little involvement. Judges are not elected. They do not count votes. They accept amicus briefs, but they also simply adjudicate issues. Unlike Congress, they are somewhat insulated from politics.
Increasingly, however, the most important decisions determining our freedom to speak to one another here (and around the world) are those that will shape the emerging architecture of the Internet. Judges do not make these decisions. For many decades, scholars told a joke that that freedom of the press belonged to those who owned one. The Internet changed all of that. The Internet is our most important speech medium today—because it enables anyone to reach a wide audience without relying on a newspaper editor or broadcast producer. The Internet has an open architecture for speech and innovation—that promotes greater levels of commerce and communication.
The Internet has been an effective popular speech medium not primarily because of judicial decisions. We have not relied on speech heroes wearing black robes but on engineering decisions in technical standard-setting bodies, on decisions made by lawyers at technology companies over whether to take down videos or keep them up, on decisions made at federal agencies, and those made at Congress, including the notice-and-takedown provisions of the Digital Millennium Copyright Act of 1998, which protects websites like YouTube, Facebook, and Twitter from copyright infringement suits based on their users’ posts—so long as these companies follow simple takedown procedures.
If judges are not the key players, does that mean the First Amendment is irrelevant? No. Judges are bound to uphold the Constitution—but so is Congress. So are members of federal agencies. So are state government officials. So is the President. They all took an oath to uphold the Constitution, and so they should all be guided by the principles in the First Amendment. They have sworn not to restrict freedom of speech. The decisions that govern our basic communications infrastructure—from broadcast TV rules to cable, phone, and Internet rules—are all subject to that requirement.
Once we determine the obvious—but overlooked—role that Congress and popular branches play in shaping our free speech universe, we still have to ask, what should the First Amendment’s guarantee of “freedom of speech” mean? Should it mean that we protect the largest corporations, the largest cable companies, the largest billionaire campaign funders in federal elections? Or does it mean that we adopt a vision that all Americans should have a voice in advocating their viewpoints, in having an ability to persuade other Americans, and being able to associate and organize with others online and in person. Once we have to debate the meaning of freedom of speech not before a judge, but before popular branches of government, then it’s the American people who give meaning to the words of the Constitution through elections, through debates, and through reaching out to elected officials and making their voices heard.
In our democracy, the First Amendment should be read to empower the speech of the little person, the Everyman, not just the billionaire and the cable TV executive. It should not be on the side of the copyright holder, the large media company that claims to have broad “property” rights in storylines, characters, songs, and movies. While they have a claim to their original creations, for limited times under the Constitution, they should not be able assert “property” rights that limit the average American’s ability to speak and communicate with other Americans. But I am just one voice among many. With a First Amendment centered not on judicial opinions but on the very future of the Internet, the public’s voice is what matters most.
The SOPA and PIPA debates were an example of millions of Americans engaging in an important free-speech debate. Lawyers for the copyright industries tried to suggest the debate should turn on technocratic, difficult legal questions reserved for constitutional legal experts who understand the law and 200 years of legal precedents (like me!). But the questions underlying those laws are fit for any citizen. Any American that uses the Internet can have an informed opinion of how the Internet should evolve. SOPA and PIPA were particularly problematic. Those laws would have censored some websites without adequate due process based on the new legal standards of whether they facilitated copyright infringement. The impact of the law would have been to punish companies like Twitter, YouTube, Google, Facebook, Tumblr, WordPress. All these companies enable people to speak and to share. Because people can speak through these sites into the Internet, they can also “facilitate copyright infringement.” Copyright industries wanted all of these companies to be “on the hook” whenever any of their individual users (up to one billion people) shared copyright-infringing material on those platforms.
It is very expensive and dangerous to be on the hook for the potential infringement of one billion people. It would be dangerous to be a platform for others’ speech. The entire Internet would’ve moved increasingly towards controlled spaces, and spaces for corporate speech. Only someone who could afford a copyright lawyer would be willing to take on the risk of opening up their own platforms for others’ speech. At stake was the “social” Internet.
The American public rebelled at this thought of crippling social platforms. Rather than writing a brief to a court, they made their voices known to the political branches of the U.S. governments, branches that are also bound by the Constitution and bound by the First Amendment. That massive public outcry resulted in pro-free speech outcome—one that benefited the speech of all Americans whose creativity and passions have made the Internet the world’s greatest medium for free and democratic discourse.