Knight Institute Director Jameel Jaffer and Staff Attorney Ramya Krishnan last week took part in a wide-ranging discussion on the Lawfare podcast, Arbiters of Truth, about how First Amendment doctrine is struggling to adapt to new technologies.
During the hour-long program, part of a series on online information ecosystems, the pair addressed several topics, including the recent decision by the Supreme Court to end the Institute’s lawsuit challenging then-President Trump’s practice of blocking critics from his social media account, as well as the lawsuits revolving around controversial facial recognition startup Clearview AI that bring to the fore the rising tension between privacy and free speech.
Jaffer and Krishnan touched on the much-discussed concurring opinion by Justice Clarence Thomas in Knight Institute v. Trump. While both said they shared Justice Thomas’s concerns about the degree of power held by platforms to deplatform speakers such as Trump, Krishnan added that where she parts ways with Justice Thomas is the policy prescription he lands on, that of treating platforms as common carriers.
“He’s advocating for laws that would basically prevent the platforms from excluding users from their platforms,” said Krishnan. “And I’m not sure that’s the right sort of solution.”
Podcast host evelyn douek also wondered how current First Amendment doctrine copes with the reality of new, digital technologies. Noted Jaffer: “It’s not a surprise that the law we’ve got is mismatched with the challenges we’re facing. But the First Amendment is reinvented each generation. And we need to figure out what the First Amendment needs to look like, given the challenges that we’re confronting now.”
Added Jaffer: “I’m optimistic about our collective ability to come up with a new set of rules that is faithful to the values the First Amendment was supposed to serve.”
A. Adam Glenn was a writer/editor at the Knight First Amendment Institute.