1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you inside an analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

5
00:00:16,280 --> 00:00:19,880
Speaker 1: and on Bloomberg dot com slash podcasts. This year marks

6
00:00:19,880 --> 00:00:24,160
Speaker 1: the one anniversary of First Amendment jurisprudence. It wasn't until

7
00:00:24,239 --> 00:00:27,680
Speaker 1: nineteen nine, in response to the government's repression of critics

8
00:00:27,680 --> 00:00:30,560
Speaker 1: of World War One, that the Supreme Court began to

9
00:00:30,600 --> 00:00:34,560
Speaker 1: decide cases that would shape First Amendment doctrine. Two First

10
00:00:34,600 --> 00:00:38,720
Speaker 1: Amendment scholars, Lee Bolinger, the president of Columbia University, and

11
00:00:38,800 --> 00:00:42,200
Speaker 1: Jeffrey Stone, a professor at the University of Chicago Law School,

12
00:00:42,520 --> 00:00:45,400
Speaker 1: have brought together some leading scholars in a new book

13
00:00:45,400 --> 00:00:49,200
Speaker 1: of essays that explores the evolution of First Amendment doctrine.

14
00:00:49,520 --> 00:00:53,040
Speaker 1: It's called the Free Speech Century. They join me now,

15
00:00:53,560 --> 00:00:56,200
Speaker 1: Lee tell us about the premise of the book. The

16
00:00:56,360 --> 00:01:00,800
Speaker 1: idea is that this is one years old. That is

17
00:01:00,800 --> 00:01:04,959
Speaker 1: the First Amendment jurisprudence, and most people don't realize that.

18
00:01:05,000 --> 00:01:07,560
Speaker 1: They think that it goes back at least to the

19
00:01:07,600 --> 00:01:10,720
Speaker 1: beginning of the country. And while the first Amendment was there.

20
00:01:10,760 --> 00:01:13,640
Speaker 1: There are no cases until n So everything we have

21
00:01:13,760 --> 00:01:17,200
Speaker 1: today is the product of the last one hundred years,

22
00:01:17,280 --> 00:01:21,240
Speaker 1: and it's an amazing journey to see that. So I

23
00:01:21,280 --> 00:01:24,640
Speaker 1: think if you start with Vince Blasi's essay, you get

24
00:01:24,680 --> 00:01:29,600
Speaker 1: the deep, deep sense of how complex this is doctrinally, theoretically,

25
00:01:30,160 --> 00:01:33,680
Speaker 1: and then you go through a whole series of essays

26
00:01:33,760 --> 00:01:38,560
Speaker 1: about particular doctrines, and then you end with the future

27
00:01:38,720 --> 00:01:43,000
Speaker 1: and him wu Emily Bell and so on. So I

28
00:01:43,040 --> 00:01:45,759
Speaker 1: think sort of as a whole, it tries to tell

29
00:01:45,760 --> 00:01:48,920
Speaker 1: the story of the last one years. Jeff, what do

30
00:01:49,000 --> 00:01:52,280
Speaker 1: you want readers to get from this collection of essays?

31
00:01:52,920 --> 00:01:55,320
Speaker 1: I think the most important thing to get out of

32
00:01:55,360 --> 00:01:59,320
Speaker 1: this set of essays is first an understanding of the

33
00:01:59,320 --> 00:02:03,200
Speaker 1: complexity and the challenges posed and giving meaning to the

34
00:02:03,240 --> 00:02:06,360
Speaker 1: First Amendment. That the simple language of Congress will make

35
00:02:06,400 --> 00:02:08,200
Speaker 1: no law bridge in the freedom of speech or of

36
00:02:08,200 --> 00:02:10,919
Speaker 1: the press doesn't tell us very much, and that it's

37
00:02:10,960 --> 00:02:13,280
Speaker 1: taken the Court literally a century to get where we

38
00:02:13,320 --> 00:02:16,720
Speaker 1: are today, and where we are today does not by

39
00:02:16,760 --> 00:02:19,200
Speaker 1: any means resolve lots of the questions we have to

40
00:02:19,200 --> 00:02:21,400
Speaker 1: face in the future. So I think part of what

41
00:02:21,440 --> 00:02:24,240
Speaker 1: the book does is to demonstrate that this is an

42
00:02:24,240 --> 00:02:27,840
Speaker 1: extraordinarily difficult task, that there are alternative universes one could

43
00:02:27,840 --> 00:02:30,600
Speaker 1: imagine in which the Supreme Court might be given very

44
00:02:30,600 --> 00:02:33,880
Speaker 1: different meaning to the First Amendment, and that it's largely

45
00:02:34,040 --> 00:02:38,200
Speaker 1: a product of logic and history and reason and how

46
00:02:38,240 --> 00:02:40,680
Speaker 1: things have evolved over time. So I think that's the

47
00:02:40,680 --> 00:02:42,760
Speaker 1: most important thing to me that the reader we get

48
00:02:42,760 --> 00:02:45,120
Speaker 1: out of this is that this is an ongoing challenge

49
00:02:45,200 --> 00:02:48,040
Speaker 1: that continues into the future, and that begins in a

50
00:02:48,120 --> 00:02:51,079
Speaker 1: fairly difficult and challenging time, which was World War One.

51
00:02:51,280 --> 00:02:54,160
Speaker 1: Let's talk about the legal issues raised by the social

52
00:02:54,200 --> 00:02:58,520
Speaker 1: media giants Facebook, Twitter, and Google. In her essay, Columbia

53
00:02:58,600 --> 00:03:02,960
Speaker 1: journalism professor Emily Bail rights, the global technology companies are

54
00:03:03,000 --> 00:03:06,120
Speaker 1: reshaping our concepts of what we mean by mass media,

55
00:03:06,440 --> 00:03:09,639
Speaker 1: the independent press, and the public sphere. Tell us more

56
00:03:09,639 --> 00:03:11,600
Speaker 1: about that. This is I think one of the major

57
00:03:11,720 --> 00:03:14,840
Speaker 1: questions of the time and of the future. So you

58
00:03:14,919 --> 00:03:17,720
Speaker 1: start with the fact that the Internet is the most

59
00:03:17,800 --> 00:03:23,239
Speaker 1: recent new communications technology that's been invented and implemented. One

60
00:03:23,280 --> 00:03:25,960
Speaker 1: of the things that's happening is that it has undermined

61
00:03:26,000 --> 00:03:29,280
Speaker 1: the business model of the traditional press. The newspapers and

62
00:03:29,480 --> 00:03:33,280
Speaker 1: radio and TV, but especially daily newspapers, and this is

63
00:03:33,360 --> 00:03:37,040
Speaker 1: a major question for the country. How we're going to

64
00:03:37,320 --> 00:03:40,120
Speaker 1: sustain a fourth branch of government, as we like to

65
00:03:40,160 --> 00:03:45,880
Speaker 1: call it, an independent, free journalistic enterprise. So that's number one. Secondly,

66
00:03:46,080 --> 00:03:50,680
Speaker 1: as you have more and more people talking and receiving

67
00:03:50,720 --> 00:03:55,080
Speaker 1: news and thinking in the context of social media, a

68
00:03:55,160 --> 00:03:59,280
Speaker 1: number of questions then follow. How much control do the

69
00:03:59,320 --> 00:04:03,920
Speaker 1: company that are really now semi they are monopolies have

70
00:04:04,280 --> 00:04:07,600
Speaker 1: over who is speaking and what is said on that.

71
00:04:07,840 --> 00:04:10,560
Speaker 1: Some people think today that too much is allowed, too

72
00:04:10,640 --> 00:04:14,000
Speaker 1: much hate speech, foreign manipulation of speech, and so on.

73
00:04:14,360 --> 00:04:18,039
Speaker 1: Other people, as Emily points out, are concerned that the

74
00:04:18,080 --> 00:04:22,400
Speaker 1: companies are exercising too much censorship of speech. So you have,

75
00:04:22,960 --> 00:04:26,960
Speaker 1: as its most elementary level, a question from the First Amendment.

76
00:04:27,440 --> 00:04:30,560
Speaker 1: If you think about the public forum in which public

77
00:04:30,600 --> 00:04:35,360
Speaker 1: issues are discussed and debated, how willing are we as

78
00:04:35,400 --> 00:04:39,479
Speaker 1: a society to allow that to be so controlled by

79
00:04:39,920 --> 00:04:42,880
Speaker 1: private companies? And then if you are troubled about that,

80
00:04:43,360 --> 00:04:45,880
Speaker 1: what can be done about it? Jeff, there's a lot

81
00:04:45,920 --> 00:04:51,239
Speaker 1: of talk today about trying somehow to regulate the social

82
00:04:51,279 --> 00:04:55,760
Speaker 1: media platforms. What's your take on whether they'll be regulation

83
00:04:55,800 --> 00:04:59,280
Speaker 1: in the future and whether there should be regulation. What's

84
00:04:59,320 --> 00:05:01,760
Speaker 1: happened with the effect to the social media platforms is

85
00:05:01,800 --> 00:05:04,919
Speaker 1: that when they first came into existence, Congress decided that

86
00:05:04,920 --> 00:05:08,640
Speaker 1: they should be treated very differently than newspapers or television

87
00:05:09,040 --> 00:05:13,680
Speaker 1: shows or book publishers. The conventional forms of communication are

88
00:05:13,720 --> 00:05:20,040
Speaker 1: all liable for allowing publications or allowing speakers to express

89
00:05:20,120 --> 00:05:23,640
Speaker 1: views that otherwise would be the basis for civil liability

90
00:05:23,720 --> 00:05:27,000
Speaker 1: or criminal liability. So the New York Times published as

91
00:05:27,080 --> 00:05:30,360
Speaker 1: something which is defamatory or something which is a threat,

92
00:05:30,839 --> 00:05:32,840
Speaker 1: then not only is the author liable, but the New

93
00:05:32,880 --> 00:05:35,920
Speaker 1: York Times and liable. And when social media came into existence,

94
00:05:35,960 --> 00:05:39,040
Speaker 1: and these platforms came into existence, Congress decided to treat

95
00:05:39,080 --> 00:05:41,599
Speaker 1: them quite differently. And the idea was that they would

96
00:05:41,640 --> 00:05:47,960
Speaker 1: be neutral opportunities to enable private individuals to utilize these

97
00:05:48,040 --> 00:05:52,920
Speaker 1: sources of communication, um without having anyone screen what they

98
00:05:52,960 --> 00:05:55,400
Speaker 1: can say in the way that that newspapers and TV

99
00:05:55,520 --> 00:05:58,640
Speaker 1: and radio and someone do that screening. And therefore the

100
00:05:58,839 --> 00:06:02,679
Speaker 1: platforms would be you and from any liability for whatever

101
00:06:02,960 --> 00:06:05,880
Speaker 1: you or I put on Facebook or Twitter. And the

102
00:06:05,960 --> 00:06:08,480
Speaker 1: idea then was that this would be an opportunity for

103
00:06:08,520 --> 00:06:11,760
Speaker 1: individual citizens to communicate directly with fellow citizens with no

104
00:06:11,880 --> 00:06:14,800
Speaker 1: intermediary but even though they themselves could be liable for

105
00:06:14,880 --> 00:06:17,440
Speaker 1: violating the law. But the problem there, I think is

106
00:06:17,480 --> 00:06:19,440
Speaker 1: that is that what we've seen is is so many

107
00:06:19,480 --> 00:06:22,480
Speaker 1: people are engaging in speech that other people find deeply

108
00:06:22,520 --> 00:06:26,120
Speaker 1: problematic and that bringing lawsuits against them is not realistic.

109
00:06:26,480 --> 00:06:28,880
Speaker 1: That there's increasing pressure on the part of these social

110
00:06:28,880 --> 00:06:32,600
Speaker 1: media platforms to engage in the kind of screening that

111
00:06:33,000 --> 00:06:36,240
Speaker 1: originally was conceived that they wouldn't do, and that that

112
00:06:36,320 --> 00:06:39,400
Speaker 1: poses a very serious question because we want to give

113
00:06:39,440 --> 00:06:42,599
Speaker 1: these private entities the kind of power to decide what

114
00:06:42,720 --> 00:06:45,080
Speaker 1: ideas what points of view can be expressed and which

115
00:06:45,080 --> 00:06:48,440
Speaker 1: one can't when social media has now become so powerful.

116
00:06:48,839 --> 00:06:52,000
Speaker 1: On the other hand, having government involved in dictating to

117
00:06:52,080 --> 00:06:54,120
Speaker 1: them what can be said and what can't be said

118
00:06:54,600 --> 00:06:57,240
Speaker 1: is equally problematic because we don't generally trust the government

119
00:06:57,240 --> 00:06:59,840
Speaker 1: in this regard. So it's created a real challenge to

120
00:06:59,839 --> 00:07:02,360
Speaker 1: going forward to figure out how we deal with this,

121
00:07:02,400 --> 00:07:04,880
Speaker 1: and I think that's one of the great challenges of

122
00:07:05,000 --> 00:07:07,960
Speaker 1: social media as we look to the future. The movie

123
00:07:08,040 --> 00:07:11,440
Speaker 1: The Post brought the Pentagon Papers case to a new generation.

124
00:07:11,920 --> 00:07:15,440
Speaker 1: David Strouss, a professor at the University of Chicago Law School,

125
00:07:15,760 --> 00:07:18,400
Speaker 1: writes about it in his essay and he brings in

126
00:07:18,440 --> 00:07:21,760
Speaker 1: the contrast with the massive leak by Edward Snowden tell

127
00:07:21,840 --> 00:07:24,480
Speaker 1: us more about that. So. Pentagon Papers is one of

128
00:07:24,520 --> 00:07:27,400
Speaker 1: the landmark cases of the First Amendment, of course from

129
00:07:27,400 --> 00:07:31,040
Speaker 1: the nineteen seventies, and the majority of the court held

130
00:07:31,120 --> 00:07:34,880
Speaker 1: that the government could not enjoin The New York Times

131
00:07:34,880 --> 00:07:38,840
Speaker 1: at the Washington Post from publishing the classified information in

132
00:07:38,960 --> 00:07:42,960
Speaker 1: the Pentagon Papers. This was a landmark case because it

133
00:07:43,160 --> 00:07:46,600
Speaker 1: established as a general principle the independence of the press

134
00:07:46,800 --> 00:07:49,440
Speaker 1: and its role in informing the public about the government.

135
00:07:49,760 --> 00:07:54,200
Speaker 1: It dealt with what is an abiding dilemma for any society,

136
00:07:54,320 --> 00:07:57,680
Speaker 1: but focus on American society. The government has to have

137
00:07:57,800 --> 00:08:00,480
Speaker 1: some degree of sequency in order to operate. That's just

138
00:08:00,520 --> 00:08:03,000
Speaker 1: a practical reality. On the other hand, it tends to

139
00:08:03,240 --> 00:08:06,880
Speaker 1: and it's inclined over protect information from the public, and

140
00:08:06,920 --> 00:08:10,000
Speaker 1: the public needs that information in order to exercise its

141
00:08:10,000 --> 00:08:13,720
Speaker 1: sovereign powers of self government. How you draw that balance

142
00:08:13,920 --> 00:08:17,480
Speaker 1: is one of the great questions of any free society.

143
00:08:17,520 --> 00:08:20,920
Speaker 1: Britain draws it in one way. If you publish classified information,

144
00:08:20,960 --> 00:08:25,520
Speaker 1: you're automatically criminally responsible. In the United States, we allow

145
00:08:25,640 --> 00:08:29,960
Speaker 1: the press who published this under certain conditions. The problem

146
00:08:30,240 --> 00:08:33,720
Speaker 1: is that today, as David Strauss points out and Jeff

147
00:08:33,760 --> 00:08:36,800
Speaker 1: and I pointed out, we may have different facts than

148
00:08:36,840 --> 00:08:39,040
Speaker 1: we had in the time of the Pentagon Papers case.

149
00:08:39,400 --> 00:08:42,400
Speaker 1: So number one in that case involved the Washington Post

150
00:08:42,440 --> 00:08:46,280
Speaker 1: of the New York Times. Trustworthy institutions. Today it's Wiki leaks,

151
00:08:46,320 --> 00:08:49,719
Speaker 1: which is hardly an institution that takes the interests of

152
00:08:49,760 --> 00:08:53,920
Speaker 1: the United States into consideration as it publishes things. Secondly,

153
00:08:54,280 --> 00:08:58,080
Speaker 1: the amount of information that can now be released, the

154
00:08:58,120 --> 00:09:01,719
Speaker 1: Snowdon type of hundreds of thousands of pages of classified

155
00:09:01,760 --> 00:09:05,760
Speaker 1: information is so much greater than Daniel Elsberg going to

156
00:09:05,960 --> 00:09:09,400
Speaker 1: a xerox machine and putting out the Pentagon paper. So

157
00:09:09,520 --> 00:09:13,719
Speaker 1: the risk of bad things, that is, bad things from

158
00:09:13,720 --> 00:09:17,800
Speaker 1: the standpoint of US security being released is much higher today.

159
00:09:17,840 --> 00:09:20,520
Speaker 1: So these are new facts. Jeff can add to this

160
00:09:20,640 --> 00:09:24,440
Speaker 1: because he's been very involved in thinking about this at

161
00:09:24,480 --> 00:09:27,760
Speaker 1: the national level. But it is a deep, abiding and

162
00:09:27,960 --> 00:09:32,040
Speaker 1: puzzling slemma. So I mean Lee has described quite well

163
00:09:32,200 --> 00:09:36,440
Speaker 1: David Strouss's essay here, and uh Strouss puts his finger

164
00:09:36,480 --> 00:09:39,439
Speaker 1: at a really important point, which is that the capacity

165
00:09:39,640 --> 00:09:44,800
Speaker 1: of an individual leaker to reveal far more information, much

166
00:09:44,840 --> 00:09:47,360
Speaker 1: more easily than was ever possible in the past because

167
00:09:47,360 --> 00:09:50,839
Speaker 1: of changes in technology, is very different than it's ever been,

168
00:09:51,120 --> 00:09:54,120
Speaker 1: and the ability of the United States to rely upon

169
00:09:54,200 --> 00:09:57,880
Speaker 1: responsible media to exercise good judgment in deciding what to

170
00:09:57,880 --> 00:10:00,600
Speaker 1: publish is no longer available because there are so many

171
00:10:00,640 --> 00:10:03,600
Speaker 1: other ways, as in wiki leaks, for example, the publishers

172
00:10:03,679 --> 00:10:06,480
Speaker 1: information and make it available. That creates a real challenge.

173
00:10:06,760 --> 00:10:09,559
Speaker 1: There is, in fact a major problem of over classification

174
00:10:09,880 --> 00:10:12,240
Speaker 1: within the government, and I think the government could help

175
00:10:12,280 --> 00:10:15,640
Speaker 1: itself if it could focus much more on what exactly

176
00:10:15,640 --> 00:10:17,719
Speaker 1: it needs to classify and what it doesn't, and then

177
00:10:17,720 --> 00:10:21,000
Speaker 1: I could focus better on keeping certain information confidential in

178
00:10:21,080 --> 00:10:24,720
Speaker 1: secret and reduced the opportunities for leaks. But I do

179
00:10:24,800 --> 00:10:27,800
Speaker 1: think that the vulnerability that we now face is much greater.

180
00:10:27,880 --> 00:10:31,280
Speaker 1: The damage done by Edward Snowden to the national security

181
00:10:31,760 --> 00:10:35,280
Speaker 1: was far greater than anything that Danie Elsberg did, and

182
00:10:35,360 --> 00:10:38,880
Speaker 1: I know that created real concerns within the national security

183
00:10:38,960 --> 00:10:42,760
Speaker 1: part of the government. Nonetheless, interestingly, no effort was made

184
00:10:42,760 --> 00:10:46,439
Speaker 1: to punish any of the entities that published the information.

185
00:10:46,600 --> 00:10:50,680
Speaker 1: Although obviously Snowden is subject to possible criminal prosecution. But

186
00:10:50,720 --> 00:10:52,920
Speaker 1: I think this poses a serious challenge for the future

187
00:10:53,120 --> 00:10:55,120
Speaker 1: because it is important for the government to be able

188
00:10:55,120 --> 00:10:58,560
Speaker 1: to keep certain things confidential, and they need to figure

189
00:10:58,600 --> 00:11:01,400
Speaker 1: out how to do that more effective courts. Eventually, we'll

190
00:11:01,440 --> 00:11:03,880
Speaker 1: have to figure out whether there's a need for greater

191
00:11:03,920 --> 00:11:07,760
Speaker 1: intervention than the Pentagon paper suggested. I'm very nervous about

192
00:11:07,760 --> 00:11:10,000
Speaker 1: doing that, but at the same time, I do see

193
00:11:10,080 --> 00:11:15,120
Speaker 1: the dangers that can arise with unrestricted leaks and unrestricted publications.

194
00:11:15,400 --> 00:11:18,160
Speaker 1: Thank you both for being on Bloomberg Law. That's Lee Bolinger,

195
00:11:18,240 --> 00:11:21,520
Speaker 1: the president of Columbia University, and Jeffrey Stone, a professor

196
00:11:21,559 --> 00:11:24,560
Speaker 1: at the University of Chicago Law School. Their book is

197
00:11:24,600 --> 00:11:30,040
Speaker 1: called The Free Speech Century. Thanks for listening to the

198
00:11:30,040 --> 00:11:33,440
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

199
00:11:33,440 --> 00:11:37,360
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

200
00:11:37,440 --> 00:11:41,600
Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg