When Ben Lee was at Columbia Law School in the 1990s, he spent three months as a summer associate at the law firm then known as Lord, Day & Lord, which had represented the New York Times in New York Times Co. v. Sullivan. During those months, Lee listened to the firm’s elder partners recount gripping tales of the Sullivan era and depict their role in the epic speech battles that shaped the future of free expression. Hearing these stories, a young Lee dreamed that one day he too would participate in the country’s leading speech battles and have a hand in writing the next chapter in freedom of expression.
When I met with Lee in August 2013, forty-nine years after Sullivan, he was working on freedom of expression as the top lawyer at Twitter. Twitter and other Internet platforms have been heralded for creating the “new media,” what Professor Yochai Benkler calls the “networked public sphere,” for enabling billions around the world to publish and read instantly, prompting a world where anyone — you and I included — can be the media simply by breaking, recounting, or spreading news and commentary. Today, freedom of the press means freedom not just for an institutional press but freedom for all of us. The core business functions of Twitter, YouTube, and other platforms turn on expression — no less than the New York Times’s. The lawyers working for these companies have business reasons for supporting free expression. Indeed, all of these companies talk about their businesses in the language of free speech. Google’s official mission is “to organize the world’s information and make it universally accessible and useful.” WordPress.com’s corporate mission is to “democrati[z]e publishing.” Facebook’s is to “give people the power to share and make the world more open and connected.”
Perhaps even more than other Internet platforms, Twitter thinks of itself as a medium for free speech: its former general counsel calls Twitter “the free speech wing of the free speech party,” its CEO calls it the “global town square,” its cofounder set out as a default principle against blocking speech that “[t]he [t]weets [m]ust [f]low,” and the company instituted a “church-state divide” reminiscent of newspapers separating employees engaged in content from those selling advertising. Lee told me, “I don’t know what others think with the phrase ‘town square,’ but I think about free expression cases.”
Had Lee been born fifty years earlier, his dream of influencing the future of free speech likely would have inspired him to take a job representing the New York Times or some other leading newspaper at a law firm like Lord Day. Instead, being born to a different time, Lee followed his dream by first taking a job working on free expression at Google, a company with 100 times the market cap of the New York Times and arguably 100 times the influence. While at Google, he worked on free expression alongside other well-known free speech lawyers, including Alex Macgillivray and Nicole Wong, whose influence has been documented in major news profiles. These lawyers must address difficult and novel cases concerning the speech of hundreds of millions of users. They have grappled with these questions on everything from the Occupy Wall Street movement to the publication of WikiLeaks. They have navigated issues from UK local law enforcement measures to Chinese state censorship. These lawyers have earned lots of praise, with reporters hoping their practices would become the “industry standard” and claiming that Twitter “beta-tested a spine.” Many reporters credited Twitter’s actions to its speech lawyers. Professor Jeffrey Rosen opined that Google’s lawyers and executives “exercise far more power over speech than does the [U.S.] Supreme Court” and called an administrative law case (that I worked on) involving the blocking of Internet speech “a model for the free-speech battles of the future.”
Whether or not Rosen is right that Google lawyers somehow outrank Chief Justice John Roberts, no one should doubt that lawyers like Lee are shaping the future of free expression worldwide. While they have been criticized for some of their decisions, the lawyers at companies like Google and Twitter are reminiscent of newspaper lawyers of old in their conscious thinking about and focus on freedom of expression. Their companies are not perfect, just as the New York Times is not perfect. Fifty years from now, though, we will remember these lawyers and their impact on how millions of people experience freedom of expression. And their paradigmatic decisions already have played significant roles in some of the most important freedom of expression episodes in modern times, including the leaking of classified documents to WikiLeaks and The Guardian, the sharing of anti-Islamic videos on YouTube, and the legislative debate over telecommunications and copyright rules such as “network neutrality” and “SOPA.”
This Essay’s primary thesis is that some of the most important First Amendment lawyering today is happening at top technology companies. If the decisions of these lawyers and their companies further freedom of expression, decades from now we may be celebrating them as we celebrate those who handled Sullivan. This Article relies on interviews and discussions with many of the top lawyers at these companies to reveal some of the striking influences shaping our digital-speech environment. While First Amendment lawyers at leading technology companies must of course reckon with decisions of the U.S. Supreme Court — and these decisions may shape these lawyers’ mental frameworks — they must also contend with their own corporate and community objectives, with extremely important speech rules promulgated by acts of Congress, and with the laws and traditions of foreign nations that govern so many of their users. A First Amendment practice thrives in the offices of Silicon Valley as it does in the offices of the world’s leading newspapers and organs of opinion. In order to fully understand it, however, we need to look not only to judicial opinions but also to legal sources that many might consider nontraditional.