Today’s Free Speech Lawyers

I have been invited to write an article for Harvard Law Review‘s 2014 symposium on freedom of the press. I’m honored for the opportunity to contribute.

The symposium will coincide with the 50th anniversary of the pivotal Supreme Court case New York Times v. Sullivan.

What interests me, fifty years after Sullivan, is how much the life of a free-speech lawyer has changed. The archetypical First Amendment lawyers of that era represented newspapers like the New York Times against libel suits like Sullivan’s in the US. The archetypical First Amendment lawyers of today, it seems, represent speech platforms like YouTube, Twitter, Tumblr, Wikipedia, and Automattic/Wordpress.com on a range of matters, from usage policies and privacy to copyright, and regularly address global issues.

Much of the leading thinking on freedom of press in the Internet age comes from academics like Jack Balkin, Yochai Benkler, Edwin Baker, Larry Tribe, Larry Lessig, Susan Crawford, Eugene Volokh, Greg Magarian, Danielle Citron, and many others. At the same time, alumni and current lawyers at the Office of Communication of the United Church of Christ, Media Access Project, Free Press, ACLU, the Electronic Frontier Foundation, CDT, PK, and many others, have helped to steer the future of free speech.

But corporate lawyers spearheaded the free speech triumph of New York Times v. Sullivan and I’ve been thinking how today’s lawyers at Google/YouTube, Twitter, etc. are their heirs in many ways. In this article, I’m hoping I can shed some light on if, how, and why that is. Or, as I often do while writing, I may change my mind.

Tech companies like Google and Twitter aren’t perfect, just as The New York Times and Wall Street Journal aren’t perfect. Yet, just as large corporate newspapers often have economic incentives to support freedom of press principles, so do today’s speech platforms. The unofficial tagline of Twitter is “The tweets must flow.” Journalists have profiled several of its speech lawyers as speech “defenders.” Google often hires lawyers with a background in free speech to design usage policies and address speech-threats abroad. Some of the most important free-speech controversies over the past few years have included hate speech on Facebook, the Innocence of Muslims on YouTube, the “blocking” of pro-choice text messages on Verizon, controversies over network neutrality and discrimination against speech technologies, proposed copyright legislation like SOPA/PIPA affecting Internet users and search engines, and the private/public blockading of Wikileaks. One difference between newspapers and speech platforms, of course, is that companies like WordPress.com and Google generally carry the speech of others, not the speech journalists who work there. Other differences include varying areas of law, the myriad judicial bodies at home and abroad that are more likely to affect global tech companies than city-based newspapers, and today’s potentially different norms and concepts that shape the field.

At this point, I plan to contrast and compare the role of tech lawyers in the development of free-expression doctrine with that of newspapers a half-century ago. I will probably focus on companies for whom I do legal work (or that employ friends who will speak with me). I also plan to interview lawyers at traditional publications like The New York Times, the Washington Post, and The Atlantic–partly because these traditional publications have a new set of challenges in the Internet age.

This is a topic I’ve discussed in my book (here) and something that Jeff Rosen has written admirably about, most recently in a New Republic article called the Delete Squad. Rosen once interviewed me for an article and called a legal case I handled “a model for the free-speech battles of the future,” so I’m guessing this article will give me the chance to interview him back.

Oh, and I should note, the companies I do some work for include Google and Dropbox, among others. And my work for them tends to focus on public policy and freedom of speech.

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