WEBVTT - A Century of First Amendment Law

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you inside an analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. This year marks

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<v Speaker 1>the one anniversary of First Amendment jurisprudence. It wasn't until

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<v Speaker 1>nineteen nine, in response to the government's repression of critics

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<v Speaker 1>of World War One, that the Supreme Court began to

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<v Speaker 1>decide cases that would shape First Amendment doctrine. Two First

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<v Speaker 1>Amendment scholars, Lee Bolinger, the president of Columbia University, and

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<v Speaker 1>Jeffrey Stone, a professor at the University of Chicago Law School,

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<v Speaker 1>have brought together some leading scholars in a new book

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<v Speaker 1>of essays that explores the evolution of First Amendment doctrine.

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<v Speaker 1>It's called the Free Speech Century. They join me now,

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<v Speaker 1>Lee tell us about the premise of the book. The

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<v Speaker 1>idea is that this is one years old. That is

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<v Speaker 1>the First Amendment jurisprudence, and most people don't realize that.

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<v Speaker 1>They think that it goes back at least to the

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<v Speaker 1>beginning of the country. And while the first Amendment was there.

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<v Speaker 1>There are no cases until n So everything we have

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<v Speaker 1>today is the product of the last one hundred years,

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<v Speaker 1>and it's an amazing journey to see that. So I

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<v Speaker 1>think if you start with Vince Blasi's essay, you get

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<v Speaker 1>the deep, deep sense of how complex this is doctrinally, theoretically,

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<v Speaker 1>and then you go through a whole series of essays

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<v Speaker 1>about particular doctrines, and then you end with the future

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<v Speaker 1>and him wu Emily Bell and so on. So I

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<v Speaker 1>think sort of as a whole, it tries to tell

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<v Speaker 1>the story of the last one years. Jeff, what do

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<v Speaker 1>you want readers to get from this collection of essays?

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<v Speaker 1>I think the most important thing to get out of

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<v Speaker 1>this set of essays is first an understanding of the

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<v Speaker 1>complexity and the challenges posed and giving meaning to the

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<v Speaker 1>First Amendment. That the simple language of Congress will make

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<v Speaker 1>no law bridge in the freedom of speech or of

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<v Speaker 1>the press doesn't tell us very much, and that it's

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<v Speaker 1>taken the Court literally a century to get where we

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<v Speaker 1>are today, and where we are today does not by

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<v Speaker 1>any means resolve lots of the questions we have to

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<v Speaker 1>face in the future. So I think part of what

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<v Speaker 1>the book does is to demonstrate that this is an

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<v Speaker 1>extraordinarily difficult task, that there are alternative universes one could

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<v Speaker 1>imagine in which the Supreme Court might be given very

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<v Speaker 1>different meaning to the First Amendment, and that it's largely

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<v Speaker 1>a product of logic and history and reason and how

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<v Speaker 1>things have evolved over time. So I think that's the

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<v Speaker 1>most important thing to me that the reader we get

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<v Speaker 1>out of this is that this is an ongoing challenge

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<v Speaker 1>that continues into the future, and that begins in a

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<v Speaker 1>fairly difficult and challenging time, which was World War One.

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<v Speaker 1>Let's talk about the legal issues raised by the social

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<v Speaker 1>media giants Facebook, Twitter, and Google. In her essay, Columbia

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<v Speaker 1>journalism professor Emily Bail rights, the global technology companies are

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<v Speaker 1>reshaping our concepts of what we mean by mass media,

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<v Speaker 1>the independent press, and the public sphere. Tell us more

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<v Speaker 1>about that. This is I think one of the major

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<v Speaker 1>questions of the time and of the future. So you

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<v Speaker 1>start with the fact that the Internet is the most

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<v Speaker 1>recent new communications technology that's been invented and implemented. One

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<v Speaker 1>of the things that's happening is that it has undermined

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<v Speaker 1>the business model of the traditional press. The newspapers and

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<v Speaker 1>radio and TV, but especially daily newspapers, and this is

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<v Speaker 1>a major question for the country. How we're going to

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<v Speaker 1>sustain a fourth branch of government, as we like to

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<v Speaker 1>call it, an independent, free journalistic enterprise. So that's number one. Secondly,

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<v Speaker 1>as you have more and more people talking and receiving

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<v Speaker 1>news and thinking in the context of social media, a

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<v Speaker 1>number of questions then follow. How much control do the

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<v Speaker 1>company that are really now semi they are monopolies have

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<v Speaker 1>over who is speaking and what is said on that.

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<v Speaker 1>Some people think today that too much is allowed, too

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<v Speaker 1>much hate speech, foreign manipulation of speech, and so on.

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<v Speaker 1>Other people, as Emily points out, are concerned that the

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<v Speaker 1>companies are exercising too much censorship of speech. So you have,

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<v Speaker 1>as its most elementary level, a question from the First Amendment.

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<v Speaker 1>If you think about the public forum in which public

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<v Speaker 1>issues are discussed and debated, how willing are we as

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<v Speaker 1>a society to allow that to be so controlled by

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<v Speaker 1>private companies? And then if you are troubled about that,

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<v Speaker 1>what can be done about it? Jeff, there's a lot

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<v Speaker 1>of talk today about trying somehow to regulate the social

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<v Speaker 1>media platforms. What's your take on whether they'll be regulation

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<v Speaker 1>in the future and whether there should be regulation. What's

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<v Speaker 1>happened with the effect to the social media platforms is

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<v Speaker 1>that when they first came into existence, Congress decided that

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<v Speaker 1>they should be treated very differently than newspapers or television

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<v Speaker 1>shows or book publishers. The conventional forms of communication are

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<v Speaker 1>all liable for allowing publications or allowing speakers to express

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<v Speaker 1>views that otherwise would be the basis for civil liability

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<v Speaker 1>or criminal liability. So the New York Times published as

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<v Speaker 1>something which is defamatory or something which is a threat,

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<v Speaker 1>then not only is the author liable, but the New

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<v Speaker 1>York Times and liable. And when social media came into existence,

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<v Speaker 1>and these platforms came into existence, Congress decided to treat

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<v Speaker 1>them quite differently. And the idea was that they would

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<v Speaker 1>be neutral opportunities to enable private individuals to utilize these

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<v Speaker 1>sources of communication, um without having anyone screen what they

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<v Speaker 1>can say in the way that that newspapers and TV

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<v Speaker 1>and radio and someone do that screening. And therefore the

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<v Speaker 1>platforms would be you and from any liability for whatever

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<v Speaker 1>you or I put on Facebook or Twitter. And the

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<v Speaker 1>idea then was that this would be an opportunity for

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<v Speaker 1>individual citizens to communicate directly with fellow citizens with no

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<v Speaker 1>intermediary but even though they themselves could be liable for

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<v Speaker 1>violating the law. But the problem there, I think is

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<v Speaker 1>that is that what we've seen is is so many

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<v Speaker 1>people are engaging in speech that other people find deeply

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<v Speaker 1>problematic and that bringing lawsuits against them is not realistic.

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<v Speaker 1>That there's increasing pressure on the part of these social

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<v Speaker 1>media platforms to engage in the kind of screening that

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<v Speaker 1>originally was conceived that they wouldn't do, and that that

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<v Speaker 1>poses a very serious question because we want to give

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<v Speaker 1>these private entities the kind of power to decide what

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<v Speaker 1>ideas what points of view can be expressed and which

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<v Speaker 1>one can't when social media has now become so powerful.

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<v Speaker 1>On the other hand, having government involved in dictating to

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<v Speaker 1>them what can be said and what can't be said

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<v Speaker 1>is equally problematic because we don't generally trust the government

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<v Speaker 1>in this regard. So it's created a real challenge to

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<v Speaker 1>going forward to figure out how we deal with this,

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<v Speaker 1>and I think that's one of the great challenges of

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<v Speaker 1>social media as we look to the future. The movie

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<v Speaker 1>The Post brought the Pentagon Papers case to a new generation.

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<v Speaker 1>David Strouss, a professor at the University of Chicago Law School,

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<v Speaker 1>writes about it in his essay and he brings in

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<v Speaker 1>the contrast with the massive leak by Edward Snowden tell

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<v Speaker 1>us more about that. So. Pentagon Papers is one of

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<v Speaker 1>the landmark cases of the First Amendment, of course from

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<v Speaker 1>the nineteen seventies, and the majority of the court held

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<v Speaker 1>that the government could not enjoin The New York Times

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<v Speaker 1>at the Washington Post from publishing the classified information in

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<v Speaker 1>the Pentagon Papers. This was a landmark case because it

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<v Speaker 1>established as a general principle the independence of the press

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<v Speaker 1>and its role in informing the public about the government.

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<v Speaker 1>It dealt with what is an abiding dilemma for any society,

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<v Speaker 1>but focus on American society. The government has to have

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<v Speaker 1>some degree of sequency in order to operate. That's just

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<v Speaker 1>a practical reality. On the other hand, it tends to

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<v Speaker 1>and it's inclined over protect information from the public, and

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<v Speaker 1>the public needs that information in order to exercise its

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<v Speaker 1>sovereign powers of self government. How you draw that balance

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<v Speaker 1>is one of the great questions of any free society.

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<v Speaker 1>Britain draws it in one way. If you publish classified information,

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<v Speaker 1>you're automatically criminally responsible. In the United States, we allow

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<v Speaker 1>the press who published this under certain conditions. The problem

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<v Speaker 1>is that today, as David Strauss points out and Jeff

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<v Speaker 1>and I pointed out, we may have different facts than

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<v Speaker 1>we had in the time of the Pentagon Papers case.

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<v Speaker 1>So number one in that case involved the Washington Post

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<v Speaker 1>of the New York Times. Trustworthy institutions. Today it's Wiki leaks,

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<v Speaker 1>which is hardly an institution that takes the interests of

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<v Speaker 1>the United States into consideration as it publishes things. Secondly,

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<v Speaker 1>the amount of information that can now be released, the

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<v Speaker 1>Snowdon type of hundreds of thousands of pages of classified

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<v Speaker 1>information is so much greater than Daniel Elsberg going to

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<v Speaker 1>a xerox machine and putting out the Pentagon paper. So

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<v Speaker 1>the risk of bad things, that is, bad things from

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<v Speaker 1>the standpoint of US security being released is much higher today.

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<v Speaker 1>So these are new facts. Jeff can add to this

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<v Speaker 1>because he's been very involved in thinking about this at

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<v Speaker 1>the national level. But it is a deep, abiding and

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<v Speaker 1>puzzling slemma. So I mean Lee has described quite well

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<v Speaker 1>David Strouss's essay here, and uh Strouss puts his finger

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<v Speaker 1>at a really important point, which is that the capacity

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<v Speaker 1>of an individual leaker to reveal far more information, much

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<v Speaker 1>more easily than was ever possible in the past because

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<v Speaker 1>of changes in technology, is very different than it's ever been,

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<v Speaker 1>and the ability of the United States to rely upon

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<v Speaker 1>responsible media to exercise good judgment in deciding what to

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<v Speaker 1>publish is no longer available because there are so many

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<v Speaker 1>other ways, as in wiki leaks, for example, the publishers

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<v Speaker 1>information and make it available. That creates a real challenge.

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<v Speaker 1>There is, in fact a major problem of over classification

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<v Speaker 1>within the government, and I think the government could help

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<v Speaker 1>itself if it could focus much more on what exactly

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<v Speaker 1>it needs to classify and what it doesn't, and then

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<v Speaker 1>I could focus better on keeping certain information confidential in

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<v Speaker 1>secret and reduced the opportunities for leaks. But I do

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<v Speaker 1>think that the vulnerability that we now face is much greater.

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<v Speaker 1>The damage done by Edward Snowden to the national security

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<v Speaker 1>was far greater than anything that Danie Elsberg did, and

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<v Speaker 1>I know that created real concerns within the national security

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<v Speaker 1>part of the government. Nonetheless, interestingly, no effort was made

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<v Speaker 1>to punish any of the entities that published the information.

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<v Speaker 1>Although obviously Snowden is subject to possible criminal prosecution. But

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<v Speaker 1>I think this poses a serious challenge for the future

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<v Speaker 1>because it is important for the government to be able

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<v Speaker 1>to keep certain things confidential, and they need to figure

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<v Speaker 1>out how to do that more effective courts. Eventually, we'll

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<v Speaker 1>have to figure out whether there's a need for greater

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<v Speaker 1>intervention than the Pentagon paper suggested. I'm very nervous about

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<v Speaker 1>doing that, but at the same time, I do see

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<v Speaker 1>the dangers that can arise with unrestricted leaks and unrestricted publications.

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<v Speaker 1>Thank you both for being on Bloomberg Law. That's Lee Bolinger,

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<v Speaker 1>the president of Columbia University, and Jeffrey Stone, a professor

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<v Speaker 1>at the University of Chicago Law School. Their book is

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<v Speaker 1>called The Free Speech Century. Thanks for listening to the

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<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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<v Speaker 1>slash podcast. I'm June Brosso. This is Bloomberg