This is becoming a bit of a recurring theme here.
So, the first amendment… what ontological commitments are invested in the first amendment? what material-historical values regarding rhetoric? what understanding of media technologies is embedded here?
Let’s start with the last question. Obviously there was writing and the printing press. Far less than half of Americans were literate when the Constitution was written, and even if they were literate their access to printed and distributed texts would have been further curtailed. E.g., if you lived in Boston and you could read and you could get access to something printed in town, could you also get access to something printed in Philly? Sure, probably, maybe. Could you use writing (not printing) to organize a conspiracy or a revolution? Sure, though not easily. Free speech was mostly about speaking. And this is the essence of the point I’m making here: mediation is not just a quantitative difference (more people hear your speech); it is a qualitative difference (it changes what “speech” is).
That already starts answering the question about the material historical values of rhetoric in the first amendment. I would contend that in the emphasis on speaking, there’s an assumption that you are offering your opinion (or spouting off) on the village green, in your pub, or at a town hall. Something like that. There are plenty there who disagree. When it comes down to any substantive, deliberative body, it’s embedded in a shared discourse community. Let’s not deify these folks. Yes, they rejected monarchy, but their shared discourse community was white supremacist and theocratic, and they legitimated slavery. Nevertheless they never imagined something like QAnon.
In any event, the key points I want to carry forward are that the Constitution imagined neither the media we have nor the rhetorical situation. And, really, how could the people who wrote it have been expected to?
But before we start addressing this understandable lack, I also need to address the ontological commitments. This could go on for a very long time I suppose, but I just want to point to one significant point. The “freedom of speech” is meant to assert the freedom to speak one’s mind. It imagines an ontological condition in which thought is internal. If, however, thought is distributed and an emergent condition/event of material-historical processes, then it is always already involved/inveigled with others. So what happens to the freedom of speech/expression when it is no longer “of the self” but “of the network”? What happens when actors/speakers are those who are made to act/speak? Well, as we see with social media, operationally “free speech” becomes the freedom to like, share, and/or retweet someone else’s speech.
What is the effect of this? The short answer, in democratic/political terms is “I don’t know.” In scholarly terms, the answer is that we can investigate those events.
As I’ve already written on this site, we can distinguish between speech and media. We can distinguish between having a right to say stupid things with your mouth and having a right to disseminate stupid things on the Internet. Maybe we don’t want to make a legal distinction, but we can make a distinction. More poignantly from my perspective, we should be asking what “free” speech means. When conspiracy theorists keep repeating the same messages, how “free” were they? If we understand cognition as distributed then where does the ontological possibility of “free speech” arise?
We’ve already begun to see this pseudo-legal defense arise among the Jan 6th insurrectionists: a weak version of the Nuremberg defense. There’s a parody of Gorgias here: I didn’t do it; if I didn’t it, then I was exercising my right to free speech; if it wasn’t free speech then I did it because Trump told me. In the posthuman worldview, “free speech” is vexed. It’s not as doomed as it was in the postmodern dissolution of agency, but it must be carefully constructed.
So we have a double problem. The first is understanding the ontological/cognitive/agential basis for free speech of any kind. The second is understanding the material-historical relationship between the physical act of speaking and various technological acts of mediation.