What the First Amendment Actually Means Online

Probably not what you think.

Having a debate about the First Amendment in law school was never something that interested me. For some reason, everyone else was always energized by the idea of debating the contours of permissible expression, or what constituted the prior restraint on the press, but I always preferred structure and process-driven questions about federalism, the Administartive Procedure Act, or the Federal Rules of Civil Procedure. If you’re wondering if that meant I was considered a weirdo law nerd even among other weirdo law nerds, then I encourage you to re-read the first two sentences of this paragraph to get your answer.

My professors, after I would ask literally any question.

Ah, but how the times have changed. Okay, they haven’t; I’m pretty much the same way now. But after such a long amount of time focused on the internet, privacy, and appropriate uses of data online as part of my practice, the First Amendment and related concepts are square in the middle of much of what I do. I cut my teeth as a litigator doing work on the Digital Millennium Copyright Act, and I advise on Section 230, the CFAA, and the SCA all the time.

So you can imagine how thrilled I am that the current debates around expression online have turned to a particular area of focus for me, and that everyone is having reasoned, thoughtful discussions about what it means to regulate speech in a non-governmental forum that nonetheless has public policy implications.

The ostrich actually knows a lot about the Free Exercise Clause.

The First Amendment Defies Easy Explanation, Except When it Doesn’t

So let’s make one thing clear — the hot takes you’re reading about what the First Amendment means are almost always wrong, because even among lawyers there’s a huge knowledge gap. Most people on Twitter are saying things like “you can’t shout ‘fire’ in a crowded theater’” and smiling about how much they understand the law. Except that phrase — which comes from an awful, and overruled, Supreme Court decision — hasn’t been the law for more than half a century, and fundamentally misses the important developments of the internet age.