Jeff Rosen is the president and chief executive officer of the National Constitution Center, as well as a professor at The George Washington University Law School, a contributing editor for the Atlantic and a nonresident senior fellow at the Brookings Institution. He gave the opening address on Sept. 26 for the Center for the Study of American Democracy’s “Free Speech, Civil Discourse” conference.
What is the work you do as president and CEO of the National Constitution Center and how has your work changed, if at all, under the Trump administration?
The Constitution Center is a very unique place. It’s a beautiful museum on Independence Mall in Philadelphia across from Independence Hall with the rarest early drafts of the Constitution and the Bill of Rights. But it is also this inspiring center for education and debate. It was created by the U.S. Congress during the bicentennial of the Constitution to be the only non-partisan education center about the Constitution in America. Has our work changed since the 2016 election? There is a heightened understanding in this country of the urgency of learning about the Constitution, of who is staying in civil conversations about it so that citizens can understand important issues in the news.
How has your work as a journalist influenced your thoughts on free speech?
I certainly gained a huge appreciation for the tremendous power of words to transform debates and change hearts and minds, and the importance of complete freedom of thought, conscience and opinion to write truthfully about public affairs. The media landscape has changed so much since I started being a journalist in the early ’90s, and right now, Google and Facebook have more power over who can speak and who can be heard than the government does. Writing online — and understanding the power of readers to react to pieces and even to exert pressure over what is written through Twitter mobs or Facebook comments — is helping [to] understand John Stewart Mills’s notion that public opinion may be as strong an inhibitor of total free speech as the government can [be]. Free speech requires courage on behalf of journalists. It’s not always easy to write about unpopular topics, and there is tremendous pressure from partisans on both sides of the divide to enforce ideological conformity.
How do you think technology, particularly sites like Facebook, has shaped the limits of free speech and our understanding of the limits of free speech online?
At the moment, Facebook’s hate speech policies have more influence over what can be said and what can be heard than Supreme Court opinions do, and Facebook’s policies don’t exactly track the First Amendment. They allow the criticism of religious leaders but not of religions, for example. We need a robust debate in this country, and we are having one now, about what Facebook and Google and Twitter’s policies are and should be and [if] should they track the First Amendment more closely. As private companies, they are free to suppress even more speech than they do. At the same time, there is this really important debate around the world where countries in Europe and elsewhere are pressuring Facebook and Google to suppress even more speech than they do because they prefer dignity to liberty; how to negotiate those pressures is something the Facebook people are struggling with.
What do you think the corporate responsibilities are for a company like Facebook in suppressing speech?
I believe that although Facebook is not legally obligated to obey the First Amendment, it is ethically bound to do so. As a company dedicated to the promotion of knowledge and the free exchange of ideas, it would be good for democratic deliberation if Facebook allowed as much free speech as possible and resisted claims to ban hate speech and other speech that comes short of being intended to incite violence. But Facebook faces conflicting pressures. On the one hand, it wants to promote the free exchange of ideas, but on the other hand, it wants to maximize shareholder value and therefore is choosing to strike a balance in a different way.
Do you have any thoughts on what that future looks like and what way it will turn?
Perhaps it will be bad for the future of online free speech because consumer pressures are not pressures in favor of the free exchange of ideas. People, users and consumers may prefer avoiding emotional injury to confronting ideas with which they disagree. Avoiding offense is something that maximizes shareholder value, and public opinion, as Mill recognized, is not necessarily favorable to the free marketplace of ideas. There is no obvious solution because government regulation requiring Facebook to respect free speech raises First Amendment problems of its own and is also unlikely to pass. So this is one of the great challenges of our digital age, and it is not clear what the solution is.