The Washington Post and The Guardian shocked the world in the summer of 2013 when they pulled back the curtain on a global spying machine orchestrated in part by the U.S. government.
The immediate legal blowback for the disclosures was mostly directed at Edward Snowden, the NSA contractor responsible for the leaks, who fled to Russia to avoid trial on espionage charges.
But what if the U.S. Department of Justice had sued The Washington Post to prevent the publication of the Snowden revelations? Would precedent from the landmark Pentagon Papers case, decided nearly a half-century ago, be upheld in the age of mega-leaks and digital whistleblowers? Or would the court have decided in favor of the government, in the interests of national security?
Lee Bollinger, the president of Columbia University, doesn’t know for sure. But he ultimately expects a Supreme Court test on issues as primary as those presented in the Pentagon Papers case and wants First Amendment advocates to be prepared when that happens.
"This is going to be, at some point, a major decision of the Supreme Court," Bollinger said. "Preparing for that — thinking through how the First Amendment should be applied to this new reality — whether it should be changed from the Pentagon Papers, whether it should be expanded — this is not something that should be decided during a particular moment. There should be background and research and thinking about it as well as litigation."
That's why Columbia University and The Knight Foundation are teaming up to create the First Amendment Institute at Columbia University, a $60 million initiative dedicated to thinking through the thorny questions of First Amendment case law in the digital age — and going to court if necessary to preserve the right to free speech.
The institute, which will be housed at Columbia university, will help shape the interpretation of "privacy, information access, libel and press freedom" laws, according to a press release. In the information age, when applications for First Amendment case law is still murky, the institute hopes to provide some much-needed clarity.
These questions will be especially urgent in the coming decades, said Alberto Ibargüen, the president and CEO of the Knight Foundation. As lawsuits are resolved, will courts ultimately treat the internet like broadcast news, owned by the public and regulated like a utility? Or will it treat the internet like newsprint, unbounded by licensing requirements and more stringent decency standards?
"It's not broadcast," Ibargüen said. "It's not print. It's not individual speech. It's the internet. And it's not something that we only use for speech, it's something we use for just about everything."
The joint initiative will see the Knight Foundation and Columbia University each contribute $5 million in operating funds and $25 million in endowment funds to the institute, which will be a nonprofit organization. Bollinger says he hopes to double the institute's initial $60 million endowment with fundraising over the next five to 10 years to create a sustainable organization with a $5 million annual budget.
The First Amendment needs a champion now more than ever because some of the institutions that used to litigate in favor of press freedoms are diminished, Bollinger said. While many newspapers are still vital, some aren't as healthy as they used to be. Meanwhile, companies like Google and Facebook — which have amassed vast audiences — don't have the historical ethos of free speech ingrained into newspapers.
"These are very, very new phenomena, here, and there's got to be a First Amendment answer to this," Bollinger said. "And we want that First Amendment answer to be funded."