Opinion | The First Amendment Is Out of Control

The First Amendment was written in the 18th century with the noble and vitally important goal of ensuring robust political debate and a free press.For much of American history, First Amendment cases involving speech typically concerned political dissenters, religious outcasts, intrepid journalists and others whose ability to express their views was threatened by a powerful and sometimes overbearing state.

The First Amendment was a tool that helped the underdog.But sometime in this century the judiciary lost the plot.Judges have transmuted a constitutional provision meant to protect unpopular opinion into an all-purpose tool of legislative nullification that now mostly protects corporate interests.

Nearly any law that has to do with the movement of information can be attacked in the name of the First Amendment.Monday’s Supreme Court decision in the two NetChoice cases greatly adds to the problem.The cases concern two state laws, one in Florida and one in Texas, that limit the ability of social media platforms to remove or moderate content.

(Both laws were enacted in response to the perceived censorship of political conservatives.) While the Supreme Court remanded both cases to lower courts for further factual development, the court nonetheless went out of its way to state that the millions of algorithmic decisions made every day by social media platforms are protected by the First Amendment.It did so by blithely assuming that those algorithmic decisions are equivalent to the expressive decisions made by human editors at newspapers.Even if one has concerns about the wisdom and questionable constitutionality of the Florida and Texas laws (as I do), the breadth of the court’s reasoning should serve as a wake-up call.

The judiciary needs to realize that the First Amendment is spinning out of control.It is beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.How did we get h...