Is the First Amendment Killing or Saving Democracy?

By David Howard King

June 16, 2021

Is the First Amendment Killing or Saving Democracy?


By David Howard King

While Gail Ehrlich has heard misinformation referred to as a tsunami, she prefers to think of it as a fire.

Rather, “it is a spark that turns a small fire into a bigger one when strong winds blow and spread it out of control, destroying everything in its path,” said Ehrlich, chair of the Committee on Law, Youth & Citizenship.

Five months removed from the Capitol Insurrection sparked by conspiracy theories stoked on social media platforms and online forums, panelists discussed ways to combat the growing threat of misinformation on the CLE webinar, “Stopping the Spread of Misinformation: First Amendment Considerations From Classroom to Courtroom.”

In his welcoming remarks, NYSBA President T. Andrew Brown stressed the impact of the degradation of local media on the spread of misinformation and noted that social media has allowed misinformation to fill the void that reporting once occupied.

“Misinformation spreads faster than correct information. Someone can use unreliable information to do damage much more quickly,” said Brown. “The voice of lawyers is needed now more than ever. This is not the time for less speech, it is the time for more.”

Moderator Al-Amyn Sumar, a counsel at The New York Times, challenged his panel to evaluate the First Amendment. In light of recent events and the influence of social media on the public discourse, should the First Amendment be tinkered with? Is it obsolete?

Panelist Ian Rosenberg, counsel for ABC News and author of “The Fight for Free Speech: 10 Cases That Define Our First Amendment Freedoms,” said that the First Amendment is far from obsolete. He pointed to the reporting that challenged the actions of the “previous administration” and the “resurgent” Black Lives Matter movement as proof the amendment continues to protect democracy.

Think of it this way, Rosenberg suggested: “Americans are driving a car called democracy and the First Amendment airbag protects us from some potentially fatal crashes over the last four years. Should we tinker with it to make it more effective? Absolutely! Is it time to throw out the First Amendment airbag and find something better? I think that would be a tremendous victory for anti-democratic forces.”

Suggestions for how to, perhaps, tinker with the First Amendment centered around precedent set by the Supreme Court and how that precedent does not necessarily reflect how citizens consume information now.

Ramya Krishnan, a staff attorney at the Knight First Amendment Institute and lecturer in law at Columbia Law School, noted that the once-traditional maxim that the best counter to false speech is more true speech is outdated.

“There might not be time for counter speech,” said Krishnan, who used the example of the spreading of misinformation about polling places on the eve of an election. “The government has an interest in securing that election,” she said, suggesting perhaps there would be room to legally ensure social media users are presented with factual information as a counter.

RonNell Anderson Jones, professor of law and associate dean of faculty and research at the S.J. Quinney College of Law at Utah, agreed with Krishnan. She suggested that the Supreme Court’s assumptions about audiences and how they consume speech may have been incorrect even before the paradigm shift of social media. Further, she questioned whether Chief Justice John Roberts’ court had any appetite for such a discussion.

Another panel looked at the challenges of educating people to spot misinformation. John Silva, senior director of education and training at the News Literacy Project, said that media literacy should be taught starting in third grade, and that educators need to discuss credibility and teach concrete ways to identify legitimate sources.

Jacquelyn Schell, associate at Ballard Spahr and co-chair of NYSBA’s Committee on Media Law, led a panel discussion of how defamation law helps or hinders in the fight against disinformation. The conversation was framed around how lawsuits by Dominion and Smartmatic against promoters of the lie that the 2020 election was stolen by hacked voting machines impact the spread of misinformation.

Daniel Novack, senior counsel at Penguin Random House, and co-chair of the Committee on Media Law, discussed how defamation law can be abused, as each state has its own law and mandates. Those looking to use defamation suits as an intimidation against reporters can venue shop to find a sympathetic arena.

Lyrissa Lidsky, dean of the University of Missouri School of Law, and Judge C.A. Leedy, professor of law, said that the changing media landscape raises questions about the standards by which malice is judged in a defamation case. Journalists may not have the time or capacity to fact check the wealth of claims made during campaigns.

She said that the problem goes further than media that is under-equipped, but that in the case of the falsehoods about the election being stolen, outlets like Fox News and Newsmax presented allegations as facts.

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