Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you inside an analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. This year marks
Speaker 1: the one anniversary of First Amendment jurisprudence. It wasn't until
Speaker 1: nineteen nine, in response to the government's repression of critics
Speaker 1: of World War One, that the Supreme Court began to
Speaker 1: decide cases that would shape First Amendment doctrine. Two First
Speaker 1: Amendment scholars, Lee Bolinger, the president of Columbia University, and
Speaker 1: Jeffrey Stone, a professor at the University of Chicago Law School,
Speaker 1: have brought together some leading scholars in a new book
Speaker 1: of essays that explores the evolution of First Amendment doctrine.
Speaker 1: It's called the Free Speech Century. They join me now,
Speaker 1: Lee tell us about the premise of the book. The
Speaker 1: idea is that this is one years old. That is
Speaker 1: the First Amendment jurisprudence, and most people don't realize that.
Speaker 1: They think that it goes back at least to the
Speaker 1: beginning of the country. And while the first Amendment was there.
Speaker 1: There are no cases until n So everything we have
Speaker 1: today is the product of the last one hundred years,
Speaker 1: and it's an amazing journey to see that. So I
Speaker 1: think if you start with Vince Blasi's essay, you get
Speaker 1: the deep, deep sense of how complex this is doctrinally, theoretically,
Speaker 1: and then you go through a whole series of essays
Speaker 1: about particular doctrines, and then you end with the future
Speaker 1: and him wu Emily Bell and so on. So I
Speaker 1: think sort of as a whole, it tries to tell
Speaker 1: the story of the last one years. Jeff, what do
Speaker 1: you want readers to get from this collection of essays?
Speaker 1: I think the most important thing to get out of
Speaker 1: this set of essays is first an understanding of the
Speaker 1: complexity and the challenges posed and giving meaning to the
Speaker 1: First Amendment. That the simple language of Congress will make
Speaker 1: no law bridge in the freedom of speech or of
Speaker 1: the press doesn't tell us very much, and that it's
Speaker 1: taken the Court literally a century to get where we
Speaker 1: are today, and where we are today does not by
Speaker 1: any means resolve lots of the questions we have to
Speaker 1: face in the future. So I think part of what
Speaker 1: the book does is to demonstrate that this is an
Speaker 1: extraordinarily difficult task, that there are alternative universes one could
Speaker 1: imagine in which the Supreme Court might be given very
Speaker 1: different meaning to the First Amendment, and that it's largely
Speaker 1: a product of logic and history and reason and how
Speaker 1: things have evolved over time. So I think that's the
Speaker 1: most important thing to me that the reader we get
Speaker 1: out of this is that this is an ongoing challenge
Speaker 1: that continues into the future, and that begins in a
Speaker 1: fairly difficult and challenging time, which was World War One.
Speaker 1: Let's talk about the legal issues raised by the social
Speaker 1: media giants Facebook, Twitter, and Google. In her essay, Columbia
Speaker 1: journalism professor Emily Bail rights, the global technology companies are
Speaker 1: reshaping our concepts of what we mean by mass media,
Speaker 1: the independent press, and the public sphere. Tell us more
Speaker 1: about that. This is I think one of the major
Speaker 1: questions of the time and of the future. So you
Speaker 1: start with the fact that the Internet is the most
Speaker 1: recent new communications technology that's been invented and implemented. One
Speaker 1: of the things that's happening is that it has undermined
Speaker 1: the business model of the traditional press. The newspapers and
Speaker 1: radio and TV, but especially daily newspapers, and this is
Speaker 1: a major question for the country. How we're going to
Speaker 1: sustain a fourth branch of government, as we like to
Speaker 1: call it, an independent, free journalistic enterprise. So that's number one. Secondly,
Speaker 1: as you have more and more people talking and receiving
Speaker 1: news and thinking in the context of social media, a
Speaker 1: number of questions then follow. How much control do the
Speaker 1: company that are really now semi they are monopolies have
Speaker 1: over who is speaking and what is said on that.
Speaker 1: Some people think today that too much is allowed, too
Speaker 1: much hate speech, foreign manipulation of speech, and so on.
Speaker 1: Other people, as Emily points out, are concerned that the
Speaker 1: companies are exercising too much censorship of speech. So you have,
Speaker 1: as its most elementary level, a question from the First Amendment.
Speaker 1: If you think about the public forum in which public
Speaker 1: issues are discussed and debated, how willing are we as
Speaker 1: a society to allow that to be so controlled by
Speaker 1: private companies? And then if you are troubled about that,
Speaker 1: what can be done about it? Jeff, there's a lot
Speaker 1: of talk today about trying somehow to regulate the social
Speaker 1: media platforms. What's your take on whether they'll be regulation
Speaker 1: in the future and whether there should be regulation. What's
Speaker 1: happened with the effect to the social media platforms is
Speaker 1: that when they first came into existence, Congress decided that
Speaker 1: they should be treated very differently than newspapers or television
Speaker 1: shows or book publishers. The conventional forms of communication are
Speaker 1: all liable for allowing publications or allowing speakers to express
Speaker 1: views that otherwise would be the basis for civil liability
Speaker 1: or criminal liability. So the New York Times published as
Speaker 1: something which is defamatory or something which is a threat,
Speaker 1: then not only is the author liable, but the New
Speaker 1: York Times and liable. And when social media came into existence,
Speaker 1: and these platforms came into existence, Congress decided to treat
Speaker 1: them quite differently. And the idea was that they would
Speaker 1: be neutral opportunities to enable private individuals to utilize these
Speaker 1: sources of communication, um without having anyone screen what they
Speaker 1: can say in the way that that newspapers and TV
Speaker 1: and radio and someone do that screening. And therefore the
Speaker 1: platforms would be you and from any liability for whatever
Speaker 1: you or I put on Facebook or Twitter. And the
Speaker 1: idea then was that this would be an opportunity for
Speaker 1: individual citizens to communicate directly with fellow citizens with no
Speaker 1: intermediary but even though they themselves could be liable for
Speaker 1: violating the law. But the problem there, I think is
Speaker 1: that is that what we've seen is is so many
Speaker 1: people are engaging in speech that other people find deeply
Speaker 1: problematic and that bringing lawsuits against them is not realistic.
Speaker 1: That there's increasing pressure on the part of these social
Speaker 1: media platforms to engage in the kind of screening that
Speaker 1: originally was conceived that they wouldn't do, and that that
Speaker 1: poses a very serious question because we want to give
Speaker 1: these private entities the kind of power to decide what
Speaker 1: ideas what points of view can be expressed and which
Speaker 1: one can't when social media has now become so powerful.
Speaker 1: On the other hand, having government involved in dictating to
Speaker 1: them what can be said and what can't be said
Speaker 1: is equally problematic because we don't generally trust the government
Speaker 1: in this regard. So it's created a real challenge to
Speaker 1: going forward to figure out how we deal with this,
Speaker 1: and I think that's one of the great challenges of
Speaker 1: social media as we look to the future. The movie
Speaker 1: The Post brought the Pentagon Papers case to a new generation.
Speaker 1: David Strouss, a professor at the University of Chicago Law School,
Speaker 1: writes about it in his essay and he brings in
Speaker 1: the contrast with the massive leak by Edward Snowden tell
Speaker 1: us more about that. So. Pentagon Papers is one of
Speaker 1: the landmark cases of the First Amendment, of course from
Speaker 1: the nineteen seventies, and the majority of the court held
Speaker 1: that the government could not enjoin The New York Times
Speaker 1: at the Washington Post from publishing the classified information in
Speaker 1: the Pentagon Papers. This was a landmark case because it
Speaker 1: established as a general principle the independence of the press
Speaker 1: and its role in informing the public about the government.
Speaker 1: It dealt with what is an abiding dilemma for any society,
Speaker 1: but focus on American society. The government has to have
Speaker 1: some degree of sequency in order to operate. That's just
Speaker 1: a practical reality. On the other hand, it tends to
Speaker 1: and it's inclined over protect information from the public, and
Speaker 1: the public needs that information in order to exercise its
Speaker 1: sovereign powers of self government. How you draw that balance
Speaker 1: is one of the great questions of any free society.
Speaker 1: Britain draws it in one way. If you publish classified information,
Speaker 1: you're automatically criminally responsible. In the United States, we allow
Speaker 1: the press who published this under certain conditions. The problem
Speaker 1: is that today, as David Strauss points out and Jeff
Speaker 1: and I pointed out, we may have different facts than
Speaker 1: we had in the time of the Pentagon Papers case.
Speaker 1: So number one in that case involved the Washington Post
Speaker 1: of the New York Times. Trustworthy institutions. Today it's Wiki leaks,
Speaker 1: which is hardly an institution that takes the interests of
Speaker 1: the United States into consideration as it publishes things. Secondly,
Speaker 1: the amount of information that can now be released, the
Speaker 1: Snowdon type of hundreds of thousands of pages of classified
Speaker 1: information is so much greater than Daniel Elsberg going to
Speaker 1: a xerox machine and putting out the Pentagon paper. So
Speaker 1: the risk of bad things, that is, bad things from
Speaker 1: the standpoint of US security being released is much higher today.
Speaker 1: So these are new facts. Jeff can add to this
Speaker 1: because he's been very involved in thinking about this at
Speaker 1: the national level. But it is a deep, abiding and
Speaker 1: puzzling slemma. So I mean Lee has described quite well
Speaker 1: David Strouss's essay here, and uh Strouss puts his finger
Speaker 1: at a really important point, which is that the capacity
Speaker 1: of an individual leaker to reveal far more information, much
Speaker 1: more easily than was ever possible in the past because
Speaker 1: of changes in technology, is very different than it's ever been,
Speaker 1: and the ability of the United States to rely upon
Speaker 1: responsible media to exercise good judgment in deciding what to
Speaker 1: publish is no longer available because there are so many
Speaker 1: other ways, as in wiki leaks, for example, the publishers
Speaker 1: information and make it available. That creates a real challenge.
Speaker 1: There is, in fact a major problem of over classification
Speaker 1: within the government, and I think the government could help
Speaker 1: itself if it could focus much more on what exactly
Speaker 1: it needs to classify and what it doesn't, and then
Speaker 1: I could focus better on keeping certain information confidential in
Speaker 1: secret and reduced the opportunities for leaks. But I do
Speaker 1: think that the vulnerability that we now face is much greater.
Speaker 1: The damage done by Edward Snowden to the national security
Speaker 1: was far greater than anything that Danie Elsberg did, and
Speaker 1: I know that created real concerns within the national security
Speaker 1: part of the government. Nonetheless, interestingly, no effort was made
Speaker 1: to punish any of the entities that published the information.
Speaker 1: Although obviously Snowden is subject to possible criminal prosecution. But
Speaker 1: I think this poses a serious challenge for the future
Speaker 1: because it is important for the government to be able
Speaker 1: to keep certain things confidential, and they need to figure
Speaker 1: out how to do that more effective courts. Eventually, we'll
Speaker 1: have to figure out whether there's a need for greater
Speaker 1: intervention than the Pentagon paper suggested. I'm very nervous about
Speaker 1: doing that, but at the same time, I do see
Speaker 1: the dangers that can arise with unrestricted leaks and unrestricted publications.
Speaker 1: Thank you both for being on Bloomberg Law. That's Lee Bolinger,
Speaker 1: the president of Columbia University, and Jeffrey Stone, a professor
Speaker 1: at the University of Chicago Law School. Their book is
Speaker 1: called The Free Speech Century. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg