- Helen Norton is a professor and the Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado Law School.
- She was deputy attorney general for civil rights at the U.S. Department of Justice during the Clinton administration.
- Norton was the leader of the Obama transition team’s review of the Equal Employment Opportunity Commission in 2008.
- Her academic interests include constitutional law, civil rights and employment discrimination.
Colorado Politics: In all of your time spent teaching and writing about the First Amendment, what is the biggest misperception that people have about what it does or does not do?
Helen Norton: Many folks don’t realize that the First Amendment (along with the rest of the Bill of Rights) prohibits only the government — not anybody else — from unjustifiably interfering with speech or other protected rights. So, for example, if you work for a private company or a nonprofit or some other nongovernmental employer, and if that employer fires you for your speech, the First Amendment does not apply.
Your speech may or may not be protected from your employer’s punishment by statutory or common law depending on the circumstances — but the First Amendment itself provides no protection.
CP: You wrote about lies told during or about elections — and this was before the last presidential election, I should say. Interestingly, you said that sometimes the First Amendment protects these lies and other times, it doesn’t. Can you help me understand what kinds of lies (or liars) are constitutionally problematic, and why?
Norton: To be sure, it’s complicated. First, some lies may deserve First Amendment protection because they can be valuable. Think, for example, of lies to protect privacy or lies to comfort the sick or frightened. And, second, sometimes the government’s regulation of lies threatens to chill valuable speech in violation of the First Amendment. In other words, some government regulations over-deter speech by punishing, for example, accidental falsehoods in ways that make folks reluctant to speak at all on certain important topics.
A third First Amendment concern about the government’s regulation of lies has to do with the very real potential for government overreach. This was the thrust of the Supreme Court’s decision in United States v. Alvarez, which involved a First Amendment challenge to a federal law that criminalized lies about receiving certain military honors (like the Congressional Medal of Honor).
There a divided Court held that the law violated the First Amendment — voting to strike down the law based on its concerns about the government’s overreaching, concerns that focus less on whether and when speech is valuable, but instead on how the government is too often scary or clumsy.
So in Alvarez, a majority of the Court agreed that the First Amendment protects harmless lies. At the same time, all nine justices agreed that the First Amendment does not protect certain harmful lies — only to disagree about whether intentional lies about receiving military honors are harmful.
CP: Again, you published your essay in 2018, but you quoted Donald Trump’s statements that he won the 2016 popular vote if you didn’t count “illegal” votes. You wrote, “If such lies lead to legal changes that effectively disenfranchise certain voters, they threaten especially pernicious harms.” After the 2020 election, we did, in fact, see Republican-led states introduce restrictive voting laws at the same time Trump complained about election fraud.
If you were to rethink the American legal system’s approach to free speech, how would you balance freedom of expression with the desire to protect against the harms that arise from some forms of expression?
Norton: Although the First Amendment has multiple purposes, I think its primary purpose, when push comes to shove, is to ensure a healthy democracy. This is why the First Amendment protects, for example, political dissent and criticism of government officials.
In a recent paper, my co-author Toni Massaro and I urged that when we’ve got a hard First Amendment problem — in other words, when we’re struggling to decide whether we should understand the First Amendment to permit the government to restrict certain speech or not — the tiebreaker should be the choice that maximizes democracy. In our opinion, this means permitting the government to restrict speech that interferes with a healthy democracy at the occasional expense of speakers who are determined to undermine democracy.
So for example, we support an understanding of the First Amendment that permits the government to regulate foreign speakers’ influence over the outcome of U.S. elections by prohibiting foreign entities’ campaign contributions, that permits state efforts to combat extreme partisan gerrymandering through voter-approved initiatives to prevent party insiders from serving on state redistricting commissions, and that permits the regulation of lies about the mechanics of voting — like lies about who is eligible to vote, where and when.
CP: You’ve also thought about the right to free speech for robots. What robots are we talking about, and why does it matter that they have First Amendment rights?
Norton: It’s not that robots themselves might have First Amendment rights. Instead, it’s that the First Amendment sometimes protects speech that robots produce because that speech can be valuable to human listeners.
There are a lot of similarities between a great deal of robotic speech and the human speech that we already protect, especially when we remember that First Amendment law often focuses on expression’s value to listeners, rather than on its source.
But this has never meant absolute protection for speech. For example, First Amendment law sometimes permits government to regulate speech to protect listeners from coercion, deception, and other harm. And the same can and should be true of robots’ speech.
CP: If we regulate the speech of bots, aren’t we really regulating the expression of the people who created the bots? How do we separate the rights of the human creator from the text that the bots post?
Norton: You’re absolutely right: under current technology, we can always trace bots’ speech to a human creator, such that we can’t and shouldn’t separate them for First Amendment purposes.
But some technologists wonder whether, at some time in the future, computers with enhanced emotional intelligence and other features may narrow the gap between the capacities of human and computer speakers in ways that might make it plausible to say that the speech they produce is theirs, not some human creator’s.
It’s not at all clear that this will ever happen — but if it were to happen, current First Amendment law might well cover those as-yet-hypothetical speakers because today’s First Amendment law increasingly focuses not on protecting speakers as speakers but instead on providing value to listeners and on constraining the government from abusing its power when regulating speech.
CP: We are seeing Republican-led states pass bans on the instruction of critical race theory, which people commonly misinterpret as something that discriminates against white people. How should we be thinking about the constitutionality of those prohibitions, and the government’s ability to regulate its own speech?
Norton: Public schools’ and public universities’ curricular choices are generally considered the government’s own speech, and in most cases, the Supreme Court has held that government has the constitutional power to choose for itself what to say or not to say.
But there are exceptions. The exceptions most relevant here include the fact that public universities and their faculty members generally have First Amendment rights to academic freedom that enable them to decide for themselves what and how to teach without legislative interference. Whether public K-12 schools and their teachers have First Amendment rights to academic freedom is considerably less clear, but even so, depending on the background facts, laws that prohibit those schools and teachers from teaching certain ideas may also face First Amendment challenges if they don’t give clear notice about what they prohibit.
And they may face Equal Protection Clause challenges if the evidence suggests that the lawmakers were motivated by racial hostility.
CP: Is this similar to the debate about teaching “intelligent design” in schools alongside evolution?
Norton: One of the differences is that “intelligent design” debates raise questions about whether a government’s choice to require the teaching of intelligent design is motivated by a desire to promote a certain religious viewpoint in violation of a separate constitutional provision that forbids the government’s “establishment” of religion.
The Supreme Court considered related issues in the 1980s, in a case called Edwards v. Aguillard, that involved a constitutional challenge to Louisiana’s Creationism Act, which prohibited public elementary and secondary schools from teaching the theory of evolution unless they also taught the theory of “creation science.” In striking down the law, the Court concluded that Act violated the Establishment Clause because the law’s primary purpose was to “change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety.”
CP: What do you see as among the major challenges now facing the U.S. Supreme Court and its interpretation of the First Amendment?
Norton: Speech now works in ways unimaginable both to the First Amendment’s framers and also to the Supreme Court justices who worked throughout the 20th century to develop our current framework for thinking about First Amendment law.
As technology law scholar Tim Wu and others have pointed out, current First Amendment law developed during a long stretch of time where listeners had virtually unlimited time and attention, and where government was considered the only real threat to free speech. But now, of course, contemporary technologies mean that speech is plentiful, that listeners’ time and attention are thus in scarce supply, and that powerful private parties (and not just government) may pose threats to free speech.
The Court has not yet figured out whether (and, if so, how) these changes should affect its interpretation of the First Amendment.