The idea that the First Amendment should, and even can, adapt to a new moment like this is jarring—it feels like an everlasting edict. But as Wu pointed out, what Americans think of as the First Amendment tradition dates only to the mid-20th century. Seven years after the ratification of the Bill of Rights, the government jailed a U.S. congressman under the Sedition Act because he had accused President John Adams of an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
Almost exactly 100 years ago, Eugene Debs gave a speech in Canton, Ohio, criticizing American engagement in World War I and the draft. He was charged, convicted, and sentenced to 10 years in prison, with the punishment upheld unanimously by the Supreme Court. As late as the 1930s and ’40s, people were imprisoned for advocating communism. It was only after World War II that the current free-speech doctrines came into play.
That is both frightening and heartening. On the one hand, the shallow roots of today’s traditions show how easily the recent gains could be erased. Yet it also shows the First Amendment tradition can be flexible and adaptable to new moments. If Wu’s diagnoses are intriguing, however, his prescriptions are less satisfying.
“We have to start talking not just about the duty to prevent government from censoring speakers, but the duty of government to protect the main channels of expression,” he said. “There is a tradition in American constitutional law that says that the First Amendment creates not just rights but certain duties. Among those duties is the duty to protect speakers.”
Just as police must protect speakers threatened by a moblol, Wu thinks prosecutors need to do more to prevent threats and attacks on speakers, and especially journalists. That wouldn’t require new law—the criminal statutes are already on the books—just different prosecutorial choices under current law.
“Anybody who makes it their business to go around making death threats to journalists who don’t agree with them should be imprisoned,” Wu said. “That should become an enforcement priority. It’s not right now.”
It’s open for debate how effective that could be. The Internet Research Agency trolls may find their travel restricted by their indictment, but they are unlikely to ever see the inside of an American court room, much less a prison. Other nefarious actors foment threats without ever actually making them themselves, and could sidestep accountability that way.
If enforcement priorities go some way to answering the troll form of reverse censorship, Wu has fewer answers for how First Amendment jurisprudence can rise to the challenge of those who pursue the Chinese zone-flooding model. Wu, like other commentators, argues that tech giants like Facebook need to acknowledge that they are now media companies. With that burden, they need to work to stem the flow of fake news and to adopt journalistic ethics about spreading rumors and libel. That recommendation is good as far as it goes: There’s an increasing consensus that tech companies ought to act. Whether and how they will is a different question.
When I asked Wu what the government could do to stop zone flooding—independent of private companies doing the right thing—he acknowledged that many possible solutions quickly run into complications. “Almost all of the ideas are horrible,” he told me. Slippery slopes abound. Even without solid answers, though, the work of pushing to modernize the First Amendment to address an age of reverse censorship, rather than old-fashioned censorship, is an urgent one.