Confronting the First Amendment’s dark history

Donald Trump’s election win, aided in part by online disinformation, has reignited the debate over whether the First Amendment’s protections are adequate in today’s digital age. The contemporary understanding of the First Amendment’s free speech clause is anchored in the "marketplace of ideas" theory, but this notion is under severe strain in an era where information is filtered through algorithms engineered to prioritize profit over truth. Professor Mary Anne Franks argues that our ideas of free speech have never truly aligned with reality; throughout American history, the struggle for free speech has fundamentally been a fight for access, with the clause often used to subordinate the perspectives of women and minorities. “The First Amendment has actually played a very small role in defending the rights of those who have spoken out most radically against oppression,” Franks says, adding that in order to confront contemporary threats to democracy, we must first reckon with this history of suppression. Ultimately, “the First Amendment belongs to us,” she says.