What is the role of “trusted communicators” in disseminating knowledge to the public? The trigger for this question, which is the topic of this set of chapters, is the widely shared belief that one of the most notable, and noted, consequences of the spread of the internet and social media is the collapse of sources of information that are broadly trusted across society, because the internet has eliminated the power of the traditional gatekeepers1 who identified and created trusted communicators for the public. Many commentators argue this is a troubling development because trusted communicators are needed for our society to create and maintain a common base of facts, accepted by the broader public, that is essential to a system of democratic self-governance. Absent such a common base or factual consensus, democratic politics will tend to collapse into polarized camps that cannot accept the possibility of electoral defeat (as they arguably have in recent years in the United States). I aim here to examine recent proposals to resurrect a set of trusted communicators and the gatekeeper function, and to critique them from both practical and theoretical perspectives. But before we can discuss possible “solutions” to the lack of gatekeepers and trusted communicators in the modern era, it is important to understand how those functions arose in the pre-internet era.

Constitutional rights lie at the heart of how modern Americans define themselves. And no rights are more significant in this regard than the rights protected by the First Amendment to the United States Constitution, especially freedom of speech and free exercise of religion. That is as it should be – the First Amendment is and always has been a key structural pillar supporting our society and form of government. In recent decades, however, we as a people have largely forgotten key portions of the First Amendment. More fundamentally, we have forgotten why First Amendment rights are as important as they are. The purposes of this book are first, to rediscover those lost rights and their history, and second, to show why the real First Amendment remains entirely relevant to modern American society.

This chapter explores the historical roots and purposes of the Free Speech and Freedom of the Press Clauses of the First Amendment. It shows that the most of the early conflicts in this area concerned press freedoms. Disagreements over these issues came to a head over the Sedition Act of 1798, which was used by the Federalist Party to jail its Republican opponents. Ultimately, out of this conflict the Republicans articulated a new model of citizenship, rooted in principles of popular sovereignty, which remains central to our system of government today. Freedom of speech, on the other hand, played a very limited role in early history. Regardless of its humble origins, however, the Framing generation agreed that Free Speech, like Freedom of the Press, was an essential element of democratic government. Unfortunately, these rights have often been ignored by our government and the judiciary during times of stress such as the Red Scare and the McCarthy era. Today, however, thanks to the influence of pioneering arguments by Justices Oliver Wendell Holmes, Jr. and Louis Brandeis, there is broad agreement that these rights are essential to democracy and so must be protected.

Chapter 7 discusses the continuing relevance and importance of the assembly and petition rights in the modern, online era. Regarding assembly, it notes that large gatherings of citizens such as the 2017 Women’s March (modeled on the 1963 March on Washington lead by Dr. Martin Luther King, Jr.) continue to play a critical role in enabling ordinary citizens to participate in democratic governance. Even in the Internet era, physical assemblies have a unique ability to express the strength and popularity of political positions, as well as to galvanize the participants in such events. The Internet has for that reason not displaced physical assembly, though it has simplified the organizing of such assemblies and permitted individuals who cannot physically assemble to jointly develop and express shared views. The chapter also explores and criticizes legal barriers to the exercise of assembly rights. Finally, the chapter argues in favor of reviving the traditional right of petition, and in particular the use of physical, hand-delivered petitions as a means to restore contact between citizens and public officials. It closes by demonstrating how the 1965 Selma March illustrates the continuing value of assembly and petition in our democracy.

Chapter 6 examines the evolution of associational freedoms from the time of de Tocqueville through the modern era. It begins by discussing the myriad ways in which even nonpolitical associations, organized around a vast variety of topics and causes, helped shape our democracy from the nineteenth through much of the twentieth centuries. Such groups helped politically marginalized individuals such as women and minorities to develop the organizational and leadership skills needed to participate in political life. They also were vehicles that, given a push, could evolve to pursue political objectives. And importantly, such associations permitted citizens possessing a diversity of social and political views to mingle and exchange thoughts. Recently, however, as Robert Putnam has extensively shown, civil society in the United States has collapsed. Instead of participating in broad associations, people are increasingly siloed into narrow groups with shared political and social values, a process that the Internet and social media have vastly exacerbated. The chapter concludes by exploring how certain surviving associations – notably book clubs and beer groups – might present a pattern for how we might bring about an associational revival, and how the Internet might become a tool rather than a barrier in that quest.

Chapter 5 examines the impact of the Internet and social media on how the speech and press rights discussed in Chapter 1 operate in the context of our modern democracy. New technology has had two primary consequences: to democratize public debate by permitting any and all citizens to reach potentially vast audiences, and to disintermediate public debate by reducing the role of the mainstream media and political leadership as gatekeepers of the flow of information and ideas to citizens. In the early Internet era it was hoped that these developments would revitalize democracy. Instead, their actual impact has been to produce cacophony, political polarization, and a collapse of social consensus regarding even basic facts. The balance of the chapter proposes possible solutions to address these pathologies. Importantly, the chapter does not suggest that a return to elite intermediaries such as media entities is plausible. Instead, it explores ways in which the democratizing potential of the Internet can be harnessed to create new institutions that might be broadly trusted, at least as to factual matters, and so might help ease political polarization.

Chapter 3 examines the Petition Clause of the First Amendment. Petitioning is the oldest of the rights of the Democratic First Amendment, with roots in pre-Norman England and given explicit protection in the Magna Carta in 1215. It originated as a means for individuals to seek redress from the king for private harms. During the seventeenth and eighteenth centuries, however, it evolved into a means for citizens, generally acting in groups, to seek changes in public policy from the legislature. As such, petitioning was an essential element of democratic governance in America during the colonial era and the early Republic. It was a crucial means for citizens to bring their concerns to the attention of their elected representatives in between elections, and the only means for citizens who could not vote – which during this period meant the majority of citizens — to influence their government. Furthermore, during this period American legislatures felt an obligation to respond to properly filed petitions. Petitioning declined during the years leading up to the Civil War, however, and in our modern democracy it unfortunately plays a relatively trivial role.

Chapter 2 discusses the First Amendment right to peaceably assemble and the related right to form associations. In their original proposed constitutional amendments, George Mason and James Madison both included a right “peaceably to assemble to consult for the common good.” Historically the assembly right was a powerful one, entitling the people to gather in public places without prior permission from government officials.Furthermore, even disruptive assemblies were tolerated so long as they did not cross into violence because assembly was recognized as an essential element of popular sovereignty. After all, in an era before electronic communications, physical gatherings were the only way ordinary citizens could exchange and jointly formulate their political beliefs. For similar reasons, the First Amendment has also been long interpreted to protect the right to form permanent associations. This right emerged from efforts during the Washington Administration to suppress the Democratic-Republican Societies, founded to support the French Revolution. Today, the Supreme Court accepts that meaningful citizen participation in government requires stringent protection for associations because it is only through joining groups that individual citizens are able to influence policymaking. The hard question that remains is whether to tolerate discriminatory associations.

American democracy finds itself in a strange place in the first quarter of the twenty-first century. On the one hand, the country suffers from bitter, partisan divisions as reflected in the fact that adults who identify themselves with a political party increasingly demonstrate strong loyalty to their own party, and even stronger distaste for the other party. A 2017 Gallup poll reveals, astonishingly, that large majorities of self-identified Democrats and Republicans strongly prefer that their children marry someone from their political party – while a similar majority support same-sex marriage, and a much larger majority accept interracial marriage.2 At the same time, huge numbers of Americans are utterly disengaged from politics, so much so that they do not even bother to vote.

Chapter 4 ties the themes of the first three chapters together and develops a theory of how the rights discussed in those chapters operate together to advance a particular form of active, participatory citizenship championed in the early Republic by the Republican Party of Thomas Jefferson and James Madison. The chapter’s first key point is that the rights of the Democratic First Amendment are distinct but, to use the Supreme Court’s word, “cognate.” They operate together and share a common purpose of advancing democratic self-governance. In particular, these rights are generally most effective and most important when exercised in tandem, such as through speech and petitions advanced jointly by associations. Second, these rights together were meant to create a new form of democratic citizenship. In particular, during the great battles of the 1790s between the Federalist and Republican parties, especially over the Democratic Republican Societies, the Republicans came to appreciate why the principle of popular sovereignty that drove the American Revolution necessitated a wholly new and more active role for citizens vis-à-vis their elected officials than the more hierarchical and passive model championed by the Federalists, and how the First Amendment supported that model.