The Irrelevant First Amendment
Despite its cultural prominence and the Roberts’ Court’s broad interpretations and vigorous enforcement of it, in today’s world the First Amendment provides little or no protection for free expression in the most contested areas for a number of reasons. First and foremost, the vast majority of public discourse today occurs on privately-owned internet platforms, yet the state action doctrine means that the First Amendment does not constrain content moderation and/or censorship by these platforms. In addition, in recent years the Supreme Court has greatly expanded the government’s power to exercise control over speech internal to the government itself, free of First Amendment constraints. These developments have effectively immunized from First Amendment scrutiny such things as Florida’s “Don’t Say Gay” law aggressively restricting speech by classroom teachers, or the current wave of bans on books discussing race discrimination and sexual orientation in public school (and sometimes public) libraries. Finally, under current law the First Amendment also does not touch upon ideological conformity imposed by private employers, including private universities supposedly committed to academic freedom, as illustrated by the recent fiascos at Hamline University and Harvard’s Kennedy School. So, what is to be done? Should First Amendment doctrine be altered to extend First Amendment protection to platform users, government employees, and private university students and employees? Or are we to acknowledge that the Golden Age of the First Amendment is over?