Protest, the Press and the First Amendment Imperiled

The events of recent days have brought the nation to a terrible precipice. The senseless killing of black men and women by police continues unabated. When citizens outraged by the killings take to the streets, they are met by officers who are outfitted for war. Journalists who cover the protests are attacked and arrested, even as they report live on television. The president says he intends to designate a U.S.-based activist group a terrorist organization, though he lacks legal authority to do so. He also declares his intent to “close down” social media and issues an executive order to try to achieve that end. All of this against the grim backdrop of a pandemic that has already felled more than 300,000 people globally, a third of them in the United States, and that is certain to result in the deaths of many more.

Nothing more vividly illustrates the threat this moment poses to democratic freedoms than the violence that has been leveled against peaceful protesters and the assaults and arrests of members of the media covering the demonstrations. On Monday, citing the events of the past week, we at the Knight First Amendment Institute called on public officials at all levels to reaffirm their commitment to these freedoms of speech and the press, and to take responsibility for safeguarding and promoting those freedoms. “History will judge the president harshly,” we wrote, “but it will also judge every elected and law enforcement official around the country for the actions they take—or refuse to take—at this critical moment.”

But the right to free expression was being tested even before the police killing of George Floyd. The pandemic exposed not only serious weaknesses in the country's public health and social welfare systems, but it also revealed deep problems in the laws and norms that shape the public's capacity to gather and access information, distinguish facts, think creatively, participate in debates and collective decision making, evaluate results and navigate novel questions surrounding data collection and sharing, surveillance and privacy.

Over the last few months, the Knight Institute has challenged rules that restrict public health officials from speaking out, in their private capacities, about the pandemic and the government’s response to it. We have called attention to the implications of some contact-tracing proposals for privacy and freedom of association, and we have explored proposals that would give the public greater access to public health data in private hands.

The dangerous assaults on First Amendment freedoms that we are seeing in the street need to end immediately. But once the country pulls back from the precipice, all of us who are committed to a First Amendment that serves democracy will still have a great deal of work to do.

Jameel Jaffer is the Executive Director of the Knight First Amendment Institute at Columbia University. Under his leadership, the Institute has filed precedent-setting litigation, undertaken major interdisciplinary research initiatives and become an influential voice in debates about the freedoms of speech and the press in the digital age. This column is editorially independent of Columbia News.