One of my favorite moments from the recent PFF Aspen Summit was hearing from Harvard Professor and noted First Amendment expert Lawrence Tribe. PFF posted the transcript of his keynote today. This was well timed. Read the full speech by downloading the PDF here. And, read his conclusion below...
The broad lesson of this discussion of television violence is the centrality of the First Amendment's opposition to having government as big brother regulate who may provide what information content to whom, whether or not for a price. The large problem that this exposes is that especially in a post-9/11 world, where grownups understandably fear for themselves and for their children and worry about the brave new world of online cyber reality that their kids can navigate more fluently than they can, it is enormously tempting to forget or to subordinate the vital principles of constitutional liberty. Even if, after years of litigation and expenditure, the First Amendment prevails, it can be worn down dramatically by having to wage that fight over and over and over.
So it is essentially a cultural problem. It's a problem of persuading politicians and the public that the vital principles of freedom of speech do not lose their vitality, do not lose their centrality to who we are as a nation, who we are as a people, simply because we live in a scary, brave new world.
Sixteen years ago now—and it's sort of scary for me to realize it was that long ago because it feels like it was a few months ago—in a keynote address that I gave to the Electronic Frontier Foundation entitled “The Constitution in Cyberspace,” I proposed a set of axioms about the interaction of freedom of speech and privacy with new technology that I think still holds. One of those axioms was this: The Constitution's norms need to be so understood that they are invariant under merely technological transformations.
As a kind of thought experiment I proposed a possible constitutional amendment that would read as follows: "The Constitution's protections for the freedoms of speech, press, religion, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivations of life, liberty, and property without due process of law shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled.”
But the truth is: We don't really need that amendment. We need to remember that this is what the Constitution already means. And an important thing that the proposed amendment omitted was that all of these constitutional protections should be construed as fully applicable without regard to the fears that modernity thrusts upon us.
It was about seven decades ago that Franklin Roosevelt famously said, "The only thing we have to fear is fear itself." I think a similar point needs to be emphasized today. We need to focus not on all of the scary things that could befall us or our children or our grandchildren unless we give up our freedom to an all powerful government. We need instead to focus on all of the hopeful things that we can accomplish if we put our minds and our energies to the task of empowering individuals and families to protect themselves and pursue their own dreams for a better life.
That's why the information technology sector that you represent is so exhilarating, because of what it promises, what it can do, the way it can transform the world. Sure, there are things that might be scary about it but you've got a selling job to do. You've got to convince the people with the power to make your lives difficult and the First Amendment costly that it is really worth preserving what makes this nation special.