This piece is the ninth installment of a biweekly series written by David A. Foster (Center bias), based on his new book, Moderates of the World, Unite! Read the first post in the series.

When the Bill of Rights was written, we had newly freed ourselves from the oppressive control of an overseas monarchy, and our Founders sketched out an enterprising new system of popular sovereignty. It was, though, in a world much different from our own today, in many ways. Over two centuries later, our population has increased a hundredfold. We’ve advanced to the Industrial Age, and then to the Information Age, and then the Internet. The Founders would be astounded.

Today we rely upon a for-profit media system that’s desperate for eyeballs, we have social media and extreme polarization, and we are drowning in cheap speech. Professional techniques of public relations, mass persuasion, and propaganda have migrated into the political world. In contrast to the Founders’ assumptions about individual rationality, our present knowledge of human cognition and social psychology paints a very different picture of how citizens reason about the world.

Tim Wu has enumerated three early assumptions about public speech that no longer hold today: (1) that information is scarce and there are few public speakers; (2) that listeners have abundant time to hear them; and (3) that the marketplace of ideas will function well if government stays out of it. That has all changed.

Further, it is important to for us to realize that echo chambers and filter bubbles are not some passing technological episode. They are permanent. First Amendment jurisprudence is now operating with an obsolete logic. Yet, in the past three decades, the trend towards widening protection of speech by the Supreme Court has only intensified, further limiting Congress’s ability to promote the common good.

We can only speculate what the Founders would think about the way their First Amendment is applied today. Perhaps they’d wonder why we have been taking their original language so literally, so uncritically, so zealously. I believe they would concur with Alexander Meiklejohn’s formulation: that the main purpose of free speech and press is to facilitate self-governance, to ensure a well-functioning democracy. Not to weigh equally every ridiculous statement. Not as an end in itself. Not with the hope of crowdsourcing truth from a daily public cacophony of millions of voices.

It Needs to Be Amended

We need to do something to break out of the stranglehold of current First Amendment jurisprudence. The First Amendment needs an upgrade. The Supreme Court needs our help. Neither the internet, hyperpolarization, disinformation, nor the information environment are mentioned in the Constitution, and thus we cannot expect our judiciary branch to concern itself with those things.

There’s no need for anyone to think of a new amendment as a belligerent action or a repudiation of the First Amendment. Rather, it is an opportunity for improvement. The overhang of the Supreme Courts’ increasingly weird interpretation of the First Amendment compels us to proactively steer it towards what the Founders wanted it to accomplish. It would ensure that Congress could initiate reasonable legislation—such as the proposals I have outlined in this series—without a paralyzing skepticism about their chances in court.

Problems with our Constitution generally and with the First Amendment specifically are widely recognized in the community of legal scholarship. Unfortunately, however, amendments to our Constitution are extremely difficult to achieve. Some writers (e.g. Chemerinsky; Pierson and Schickler; Levinson) advocate wholesale constitutional reform or revision. Others (including: Hasen; Redish and Pereyra; Sunstein; and Minow) have attempted to sketch legislative actions that might conceivably fit within modern First Amendment jurisprudence. None of these efforts have borne fruit so far.

As I examined in a previous article, meanwhile, the public tends to regard the First Amendment as sacrosanct. Certainly, any amendment relating to the First Amendment would be written in a way that avoids the possibility of abuse, such as a president shutting down a media outlet that has been criticizing them. Regardless, though, unless the public understands the benefits of such an amendment, it is not going to be taken up by politicians.

So, I admit that we will not see such an amendment ratified during our lifetimes. Yet, we should try to visualize it now, if only to open our minds to the better world that we could have. And even if we can’t have such an amendment anytime soon, visualizing it could help motivate our ambitions to do now whatever smaller things we can do to correct our current system’s failures.

For the public, an amendment proposal also would also have the psychological benefit of simplicity. The complicated nips around the jurisprudential edges that have been proposed by legal experts could never get the attention of the public. But if circumstances shift and the public no longer wants to tolerate the status quo, a decisive, forceful solution like a constitutional amendment could have a greater ability to generate broad appeal.

The Democratic Discourse Amendment

For reference, here is the complete text (with emphasis added) of the First Amendment to the Constitution:

AMENDMENT I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(Yes, that’s all it says!)

Here, then, is the suggested text of the new Amendment, again with emphasis added:

So, restating: the First Amendment remains in force, with a specific new exception granting Congress a little wiggle room. There is further analysis of this proposed Amendment in my book.

This Amendment frees Congress to take actions to design a better national speech environment. It may not abridge speech, but it can shape the environment. The Amendment allows laws “promoting constructive democratic discourse”—not laws “censoring ‘non-constructive’ discourse.”

This Amendment would also enable Congress to regulate campaign finance in a sensible way. Recent Supreme Court rulings such as Citizens United v. FEC have interpreted the First Amendment in ways that enable money from superrich individuals and corporations to dominate the public sphere, drowning out the speech of everyone else.

I admit that I intentionally crafted the Democratic Discourse Amendment to be as brief as possible. Certainly, if legal experts believed that the above formulation would create undue risks of particular government abuses or censorship, additional sections could be added that specifically prohibit the most likely or dangerous such risks.

If some form of the Democratic Discourse Amendment were ratified, I believe Alexander Meiklejohn would look down from heaven and smile approvingly. And the Founders would breathe a sigh of relief.

The Common Good, So Much More Easily Achieved

Such an Amendment would clear the way for actions to quell today’s madness in public discourse. In this series, I have previously detailed five specific proposals for action, summarized here:

These proposals are designed for scale, in order to match the scope of the problems. Aside from the fifth proposal, none involve any kind of censorship.

All would be fully enabled by the Democratic Discourse Amendment; although, technically, most can be launched without it. #3 and #4 have no First Amendment issues whatsoever. #1 (Bust Open the Silos) might see a First Amendment challenge which, as I previously explained, could probably be defeated. #2 (the Schoolmarm) might also be challenged even though it is only adding speech; however, social media companies, based on their own self-interest, might not resist.

Proposal #5, described in the previous article, most certainly could not proceed without a Democratic Discourse Amendment. Accordingly, I’ve presented both proposals only as aspirations for the longer term.

Given the rapidly-developing crisis generated by the “full flowering” of our for-profit media system, it’s time to think big. The six proposals that I have laid out might not be perfect, but I hope they illustrate the kinds of reforms and initiatives that are possible.

Again, of course, given our popular free speech ideology, a Democratic Discourse Amendment may not be taken up soon. The public is not ready for such a conversation. However, the community of legal scholarship is ready, capable, and well aware of the problems. It must work harder at creating and promoting solutions. If the Democratic Discourse Amendment is not the solution, this community must tell us what is.

Read the rest of the series: