The First Amendment is now missing the point, if it’s not irrelevant altogether
In the Washington Post Jonathan Capeheart has a very thought-provoking audio interview, accompanied by a report that includes an interesting quotation from the interview. That reportbegins:
“We’re in a period analogous, truly analogous, to the time in Europe just after Gutenberg mechanized the Chinese invention of the printing press,”Alberto Ibargüen, president of the John S. and James L. Knight Foundation, told me. “After Gutenberg, any Tom, Dick or Martin Luthercould print whatever they want, and it took a hundred years to figure out, to sort it all out.”
The 11th episode of “Cape Up” is all about the state of journalism in the age of social media. “Confused,” is how Ibargüen describes it. The former publisher of the Miami Herald and El Nuevo Herald pointed out that while two Supreme Court decisions have shaped our present-day understanding of the First Amendment as it pertains to newspapers and broadcast television, “The law of First Amendment as to Internet … simply isn’t settled.”
In an effort to “help shape First Amendment law” in the digital age, the Knight Foundation and Columbia University announced in May the creation of the Knight First Amendment Institute at the Ivy League school in New York. Ibargüen told me that when such cases come before the court, “I want somebody at the table, somebody at the courthouse that is saying, ‘Let’s err on the side of transparency. Let’s err on the side of free speech.’ ” But what he said next highlighted the unanswered legal questions facing all of us: Congress, companies, courts and consumers.
That’s not to say that everything is black-and-white. We know it isn’t. The First Amendment itself isn’t. Although, the First Amendment is fairly clear. It says, “Congress shall make no law abridging the freedoms of speech, press, religion, assembly, a redress of grievance.” Five phenomenal rights. But they also don’t say, well, what happens if it is not Congress? What happens if it’s Google? … Think about it. Google, Apple, Amazon, Microsoft and Facebook have more ability to control what we know or think we know than anything in history. Than anyone in history. Than any government has ever had.
We talked about the power of search-engine programmers to mold what we accept as facts. “Even algorithms have parents,” Ibargüen said, “and the parents, the programmers, imbue the algorithm, consciously or not consciously, with some kind of values.” He went on to talk about what happened when you typed “thug” into Google. The ensuing controversy forced changes, so now when you type the word in you get an array of “thug” choices to search. “Somehow that algorithm knows what it is supposed to present,” Ibargüen told me, “and that affects what we think and what we think we know.”
And read this as well: how corporations are programming you—that sounds like corny science-fiction, but it’s behavioral design: it’s here now and it works. On you, and me.