Madison’s burden

Defining free expression Guest writer

In the era in which it was proposed, the First Amendment to the U.S. Constitution protected really primitive forms of publication familiar to the founding fathers. When Thomas Jefferson, who was addicted to the idea of press freedom, urged James Madison to create a Bill of Rights, only print media existed, and most newspapers, magazines and political leaflets were highly partisan and had minimal circulation.

At the time, it probably was intellectually quite simple to jot down, “Congress shall make no law … abridging the freedom of speech, or of the press” because back in 1789, speech and press content often took days, weeks or months to reach their very limited audiences. And only a small number of people in the colonies controlled such content.

Today, social media such as Facebook, Instagram, Snapchat, Twitter and YouTube instantaneously transmit the words of millions around the world to potentially billions of listeners and viewers.

Of course, the development of the Internet and social media begs the question: “Would Madison have enhanced the wording of the First Amendment’s speech and press clause had he been confronted with social media?”

Think about it for a moment in the context of the trouble faced today by Facebook, just one of the major social media outlets. This hugely successful Internet giant has been criticized for supposedly transmitting hate speech, as well as fake news and disinformation related to election interference; creating privacy issues and copyright issues; failing to disclose truth in advertising; inciting terrorism and rape; misusing user data; and monitoring personal Facebook activity with intent to target users with advertising relevant to that activity.

Whew. That’s a lot of alleged legal and ethical deviation. In fact, however, on June 13, 2019, the online version of CNBC reported representatives from the Standard & Poors Dow Jones Indices “announced that the social network [Facebook] no longer will be part of the S&P 500

ESG Index. The gauge follows companies that S&P says engage in responsible environmental, social and governance practices, a growing part of the market as investors seek out more ethical ways to put their money to work.”

“In making the move, S&P cited the privacy concerns that lowered Facebook’s total score used in deciding which companies will be included in the ESG Index. While Facebook received a high score in environmental issues—82 out of a possible 100, not unusual for a tech company—its social and governance scores were much lower at 22 and 6, respectively.”

Ignoring how First Amendment law has evolved legally and ethically though court decisions in the last century (the first U.S. Supreme Court decision addressing the First Amendment’s speech and press clause occurred in 1919), picture James Madison pressing his quill pen to parchment and writing a speech and press clause that considers what we know about social media.

It might have looked something like this: “Congress shall make no law abridging the freedom of speech, or of the press, but certain speech and press activities, as enumerated below, are not protected by this amendment.

“These activities include …” (this is where Madison goes insane, as he tries to include all of the punishable activities that we now know exist, without using more words than those in the original Constitution itself). The enhanced amendment concludes, “and those responsible for developing uncontrollable social media, including the Winklevoss twins,” thus confirming his insanity.

Naturally, the amendment is voted down by the states, as members of their state legislatures are addicted to social media.