Free Expression: Five Questions with Jack Balkin

This is the fifth in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment. Follow me @jonathanwpeters on Twitter. 

Jack Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, where he directs the Information Society Project, an interdisciplinary center that studies law and new information technologies. He is a member of the American Academy of Arts and Sciences and writes political and legal commentary at the blog Balkinization. Balkin has published scholarly articles in leading law journals, and he has written for a variety of popular media, including the New York Times, the Boston Globe, the Los Angeles Times and Slate. Among his 11 books are “Living Originalism,” “Constitutional Redemption: Political Faith in an Unjust World,” “Cultural Software: A Theory of Ideology” and “Cybercrime: Digital Cops in a Networked Environment.”  

What’s the most serious threat today to free speech?

There are many different threats, and I’ll give you three. Globally, the biggest threat is the structure of the Internet—how governments regulate it and how governments use it to engage in surveillance, not to mention issues regarding filtering systems and control of the Domain Name System. Those are the central problems concerning the architecture of the Internet, which today is the main conduit for many forms of expression. The Internet is a significant target of regulation, and that raises all sorts of free-speech problems.

Domestically, municipalities have moved in the last 20 years toward restrictive policies for demonstrations and press access to them. We’ve seen evidence of this evolution at political conventions and most recently at the Occupy Wall Street protests. The law of time, place and manner regulation has changed in a government-friendly way, and many of the controversies we’re seeing today, at least the ones about demonstrations and press access, are the result of those changes.

The third key issue is distinctly American, and it relates to the way we pick our political leaders. There’s an ongoing conflict, dating back to the 1970s and Watergate, about how the First Amendment intersects with democracy. That fight is still raging. Whether you call that a threat to free expression or an unresolved problem depends on your point of view.

Circle back to the global problem you mentioned—the Internet’s infrastructure. Do you have any concerns about weak links in the chain? A month ago, the Electronic Frontier Foundation created an interface to show that speech on the Internet requires a series of intermediaries to reach its audience, each one vulnerable to pressure from people who want to silence the speaker. The intermediaries are the web hosting services, the upstream providers, the Domain Name System, the Internet service provides, and so on.

I don’t think you can answer that question in the abstract. A technological arms race is always going on with respect to issues of government control. The earliest attempts to control the Internet focused on the service providers. Now the Stop Online Privacy Act goes after the Domain Name System. You can’t really say that one element is weaker than the other in general. You have to look at current and developing technologies, and then you have to look at the government’s targets of opportunity at any given time. The targets always are moving.

Also, it’s important to understand that when you talk about those services, which connect you with other people on the Internet, you need to think about subsidiary services, too. You need to think about services related to identification, services related to financial transactions, and so on. They allow free speech outlets and applications to operate. When we think about freedom of speech in a digital era, we’re thinking about a complex of institutions and technologies that make expression possible. For example, I’m calling you on Skype, which has relationships with financial intermediaries. They make it possible for me to purchase credits so I can talk with you. As a result, if someone wanted to limit our speech, that person could target Skype’s financial intermediaries.

What’s your take on the Stop Online Piracy Act?

SOPA is problematic in three different ways. First, it gives the U.S. attorney general the ability to obtain injunctions against “foreign infringing sites.” This term is defined very broadly to include any site whose domain name is registered outside the U.S. and ”facilitates” copyright infringement. That term could mean a lot of different things; it might apply, for example, to platforms like Facebook or YouTube whose customers upload or link to infringing content. In some cases, the U.S. attorney general can get an injunction without an adversary hearing, which, all by itself, is contrary to the basic presumption against prior restraints. Then, armed with the injunction, the attorney general can order ISP’s to keep customers from reaching the site’s domain name, search engines from linking to the site, online advertisers from advertising on the site, and payment processors (e.g., credit card companies) from transacting business between U.S. citizens and the site. All of these businesses face government lawsuits if they object, but are given immunity if they go along. Basically, the statute creates strong incentives for key elements of the Internet infrastructure to assist the government in blocking U.S citizens’ access to foreign sites, and in theory it can all be done ex parte.

But SOPA doesn’t stop there. It also enables a system of private prior restraint. If a private party notifies an online advertiser or a payment processor that the latter are doing business with a website “dedicated to the theft of U.S. property,” then advertisers and payment processors have five days to stop dealing with the site or face potential sanctions. On the other hand, if they pull the plug, they’re held harmless. What’s remarkable is that the private party—the one complaining—doesn’t actually have to prove anything in court to set all this in motion; it just has to make the allegation. And the kicker is that the term “dedicated to the theft of U.S. property” is defined very broadly. It includes any business that either “facilitates” infringement or “avoid[s] confirming a high probability” of infringing activity on its site. The statute makes most businesses that rely on user-created content potentially vulnerable, and the chilling effect on Internet intermediaries could be pretty significant.

The third and perhaps more basic problem with SOPA is that it goes after the Domain Name System, which translates numerical Internet addresses into the domain names we all know. The integrity of this system is crucial not only to effective worldwide communication but also to cybersecurity. SOPA throws a monkey wrench into the DNS in a misguided attempt to further a worthy cause—the protection of intellectual property rights. What SOPA does, in effect, is to try to insert government regulations into the basic architecture of the Internet in order to facilitate blocking and filtering of foreign sites. Although the nominal targets are sites devoted to piracy, the actual statute sweeps far more broadly to reach a wide range of websites and online platforms.

This throws the baby out with the bathwater. Freedom of speech also means that Americans have the right to hear what people in other countries are saying. Certainly our own State Department has been highly critical of other countries, like Iran or China, for re-engineering their Internet and putting pressure on intermediaries to block and filter sites from other countries, wrecking the Internet in the process. The basic point is simple: If you build censorship requirements into the infrastructure of free expression, you shouldn’t be surprised if governments start using them more expansively and more frequently. That’s because, to put it bluntly, government officials can almost always find a good reason to limit access, to filter and to block. We’re not China or Iran, but that’s all the more reason not to start going down the same road.

Shifting gears a bit to broadcast regulation, the Supreme Court this term will decide the case FCC v. Fox Television Stations, which puts the agency’s indecency regime up against the First and Fifth Amendments. Do you think broadcast indecency regulation makes sense on a media landscape dotted by online and streaming entertainment options? In other words, have they eroded the two main bases of the Pacifica case?

Pacifica is based on the pervasiveness of television as a medium and the fact that it’s uniquely available to children. Those bases were eroded as soon as you had significant penetration by cable. In some sense, then, the horse has been out of the barn for many years. We haven’t caught up to the problem yet. The interesting issue related to the Fox case is that the entire regulatory apparatus for broadcast television—forget about Pacifica—is becoming irrelevant. Networks and channels are becoming less important because of the way people receive information. The whole way we talk about broadcast regulation is now up for grabs.

Some say the Roberts Court is a friend of free speech, others say it’s a foe, and many say it’s somewhere between those extremes. What’s your take?

To talk about whether it’s a friend or foe begs an important question: What conception of freedom of expression are we talking about? Back in 1990, I wrote an article for the Duke Law Journal and predicted that there’d be a significant shift in the way conservatives thought about freedom of expression. I said they’d become strongly libertarian on a number of issues, all of them tied to the protection of interests that conservatives find important. Today, you have a conservative majority on the Supreme Court, and in many cases it has adopted that libertarian vision of freedom of expression on questions related to commercial speech, campaign finance, the balance between free expression and antidiscrimination law, and the access of religious organizations to government facilities.

In all of those cases, the Roberts Court and the Rehnquist Court adopted what we might call special-purpose libertarianism. It’s special in the sense that it protects things that are important to conservatives, and basically it’s an anti-regulatory agenda. Once you depart, however, from those key questions—commercial speech, campaign finance—the conservative majority often is divided on free-expression issues. Just take two examples: the Snyder case, in which most of the conservatives followed a libertarian line but Alito didn’t; and the Stevens case, in which you see the same kind of thing.

The challenge today is not deciding whether the Roberts Court is pro-speech or anti- speech. The challenge is trying to figure out the best conception of freedom of expression in a very complicated society. We have new forms of property that affect our practical ability to speak. We don’t live in the world of the 1960s, when so many of the landmark speech cases came down. The economy has changed, the relationship between money and politics is different, and the social institutions are different—all of those changes shape the way we think of freedom of expression.

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