1
00:00:01,480 --> 00:00:04,960
Speaker 1: Welcome to Crash Course, a podcast about business, political, and

2
00:00:05,000 --> 00:00:08,320
Speaker 1: social disruption and what we can learn from it. I'm

3
00:00:08,360 --> 00:00:14,400
Speaker 1: Tim O'Brien. Today's Crash Course Free Speech Versus Censorship. I'll

4
00:00:14,400 --> 00:00:16,919
Speaker 1: take a leap and say that speech has probably never

5
00:00:16,960 --> 00:00:20,880
Speaker 1: been freer in the world than it is today. Multiple venues,

6
00:00:21,160 --> 00:00:25,439
Speaker 1: especially social media, allow people's perspectives to take flight fluently

7
00:00:25,960 --> 00:00:32,159
Speaker 1: globally and frequently. Pick your format print, audio, video, and images,

8
00:00:32,200 --> 00:00:35,240
Speaker 1: for example, and you can easily put ideas in front

9
00:00:35,280 --> 00:00:39,720
Speaker 1: of an audience huge audiences. Potentially, the culture of free

10
00:00:39,720 --> 00:00:44,400
Speaker 1: speech is also under steady and ever more sophisticated assaults,

11
00:00:45,040 --> 00:00:48,320
Speaker 1: perhaps because its ubiquity is threatening to any person or

12
00:00:48,360 --> 00:00:52,199
Speaker 1: institution that holds an opposing viewpoint. The very thing that

13
00:00:52,240 --> 00:00:55,720
Speaker 1: makes speech so free right now, ease of motion, is

14
00:00:55,840 --> 00:00:59,840
Speaker 1: perhaps what also makes it more threatening. And I'll say

15
00:00:59,840 --> 00:01:04,360
Speaker 1: that if speech feels threatening, the solution isn't to bottle

16
00:01:04,360 --> 00:01:08,200
Speaker 1: it up, as Supreme Court Justice Lewis brandeis once advised

17
00:01:08,200 --> 00:01:12,000
Speaker 1: almost a century ago, and I quote, the remedy to

18
00:01:12,000 --> 00:01:17,560
Speaker 1: be applied is more speech, not enforced silence. But we

19
00:01:17,600 --> 00:01:20,760
Speaker 1: are awash in efforts to enforce or encourage silence in

20
00:01:20,800 --> 00:01:25,199
Speaker 1: our current chaotic era. Everything from education and public health

21
00:01:25,440 --> 00:01:29,640
Speaker 1: to political opinion, religion, and art have offered fodder for

22
00:01:29,720 --> 00:01:34,200
Speaker 1: attempted censorship. Joining me today to discuss free speech and

23
00:01:34,240 --> 00:01:37,680
Speaker 1: efforts to corral it is Jamille Jaffer, an attorney who

24
00:01:37,760 --> 00:01:40,880
Speaker 1: is also the director of the Night First Amendment Institute

25
00:01:41,000 --> 00:01:45,160
Speaker 1: at Columbia University. The institute deploys what it describes as

26
00:01:45,520 --> 00:01:50,560
Speaker 1: strategic litigation, research and public education to defend free speech

27
00:01:50,880 --> 00:01:54,520
Speaker 1: in a digitally driven world. Welcome to Crash course.

28
00:01:54,360 --> 00:01:58,280
Speaker 2: Jamil, thanks so much, happy to be here. So just

29
00:01:58,320 --> 00:01:59,120
Speaker 2: start us off.

30
00:01:59,000 --> 00:02:02,120
Speaker 1: A little bit, talk about how it came to pass

31
00:02:02,200 --> 00:02:05,760
Speaker 1: that free speech has become the focal point of your

32
00:02:05,800 --> 00:02:06,960
Speaker 1: own professional life.

33
00:02:07,440 --> 00:02:10,720
Speaker 2: Well, I was a lawyer at the ACLU for almost

34
00:02:10,760 --> 00:02:14,680
Speaker 2: fifteen years starting in two thousand and two, and I

35
00:02:14,800 --> 00:02:19,800
Speaker 2: focused mostly on national security cases. So this was obviously

36
00:02:20,200 --> 00:02:22,120
Speaker 2: right after nine to eleven, and we were doing a

37
00:02:22,160 --> 00:02:28,480
Speaker 2: lot of work relating to detention and interrogation surveillance, and

38
00:02:28,520 --> 00:02:31,440
Speaker 2: it turned out that a lot of those cases were

39
00:02:32,240 --> 00:02:37,240
Speaker 2: incidentally First Amendment cases or free speech cases. So in

40
00:02:37,280 --> 00:02:40,400
Speaker 2: the course of doing work on national security issues, I

41
00:02:40,480 --> 00:02:43,280
Speaker 2: ended up litigating a lot of transparency cases where we

42
00:02:43,320 --> 00:02:46,120
Speaker 2: were trying to get information about, for example, what was

43
00:02:46,160 --> 00:02:49,480
Speaker 2: going on in the CIA's black sites. That litigated a

44
00:02:49,520 --> 00:02:53,360
Speaker 2: bunch of cases involving the denial of visas to foreign

45
00:02:53,480 --> 00:02:56,760
Speaker 2: citizens who had been invited to speak inside the United States,

46
00:02:57,160 --> 00:02:59,639
Speaker 2: and those two turned out to be First Amendon cases.

47
00:03:00,320 --> 00:03:03,320
Speaker 2: A lot of cases involving access to the courts, and

48
00:03:03,360 --> 00:03:06,240
Speaker 2: then some cases involving the free speech and freedom of

49
00:03:06,280 --> 00:03:11,000
Speaker 2: association implications of government surveillance. And so I was approaching

50
00:03:11,000 --> 00:03:14,919
Speaker 2: all those cases as cases about national security and human rights,

51
00:03:14,919 --> 00:03:18,200
Speaker 2: but they all ended up turning on these questions about

52
00:03:18,240 --> 00:03:21,280
Speaker 2: the First Amendment, or at least free speech. And so

53
00:03:21,560 --> 00:03:25,679
Speaker 2: I became a First Amendment lawyer almost by accident. And

54
00:03:25,840 --> 00:03:27,880
Speaker 2: I'd been at these you a long time again, almost

55
00:03:27,919 --> 00:03:31,040
Speaker 2: fifteen years, and I got a call from Columbia, which

56
00:03:31,080 --> 00:03:35,000
Speaker 2: had decided with the Knight Foundation to set up this

57
00:03:35,280 --> 00:03:39,560
Speaker 2: institute here to focus on digital age free speech questions.

58
00:03:40,240 --> 00:03:43,640
Speaker 2: That was twenty sixteen. Now we've been doing this for

59
00:03:43,680 --> 00:03:46,520
Speaker 2: seven years and it's now a real organization. We have

60
00:03:46,600 --> 00:03:50,960
Speaker 2: about twenty five people, including thirteen or fourteen litigators. We

61
00:03:51,080 --> 00:03:55,240
Speaker 2: bring strategic litigation, We host and commission research, and we

62
00:03:55,360 --> 00:04:00,000
Speaker 2: have a growing public education program as well, so did I.

63
00:04:00,000 --> 00:04:03,840
Speaker 1: They sort of over sell or improperly describe the dynamic

64
00:04:04,360 --> 00:04:06,960
Speaker 1: that's a foot in our lives right now. You know

65
00:04:07,040 --> 00:04:10,360
Speaker 1: this idea that the digital revolution, and with it, the

66
00:04:10,400 --> 00:04:15,640
Speaker 1: advent of social media, has made free speech freer perhaps

67
00:04:15,680 --> 00:04:19,920
Speaker 1: than ever before, while at the same time making it

68
00:04:19,960 --> 00:04:23,320
Speaker 1: so front and center in people's lives that it appears

69
00:04:24,160 --> 00:04:27,240
Speaker 1: to people with opposing viewpoints also be more threatening than

70
00:04:27,279 --> 00:04:29,320
Speaker 1: ever before. Or is that the wrong way to think

71
00:04:29,320 --> 00:04:29,720
Speaker 1: about it.

72
00:04:30,520 --> 00:04:32,680
Speaker 2: I think that's a legitimate way of thinking about it.

73
00:04:32,680 --> 00:04:34,440
Speaker 2: It's not the only way of thinking about it. So

74
00:04:34,480 --> 00:04:37,279
Speaker 2: it might depend what you mean by free speech, right.

75
00:04:37,680 --> 00:04:39,479
Speaker 1: Just to clear that up, I guess I would say

76
00:04:39,520 --> 00:04:42,560
Speaker 1: the ability to speak freely and the ability to speak

77
00:04:42,600 --> 00:04:43,560
Speaker 1: without being censored.

78
00:04:44,240 --> 00:04:46,680
Speaker 2: You know, I think it also depends what you mean

79
00:04:46,720 --> 00:04:49,039
Speaker 2: by censorships. Let me tell you why I'm sort of

80
00:04:49,080 --> 00:04:53,280
Speaker 2: resisting this frame. So you're definitely right that social media

81
00:04:53,320 --> 00:04:57,120
Speaker 2: in particular has democratized speech so that now anybody who

82
00:04:57,440 --> 00:05:01,120
Speaker 2: wants to comment on matters of publica or for that matter,

83
00:05:01,200 --> 00:05:04,000
Speaker 2: matters of private concern, can do it without the kinds

84
00:05:04,000 --> 00:05:06,880
Speaker 2: of gatekeepers that were always in the way twenty years ago. Right,

85
00:05:06,880 --> 00:05:10,320
Speaker 2: You no longer need the permission of CBS or New

86
00:05:10,400 --> 00:05:12,480
Speaker 2: York Times to speak to a broad audience. There are

87
00:05:12,480 --> 00:05:14,440
Speaker 2: lots of people who are doing that right now on

88
00:05:14,480 --> 00:05:18,680
Speaker 2: social media without any mediation at all, and in many

89
00:05:18,760 --> 00:05:21,840
Speaker 2: ways that's been an amazing thing for free speech. You know.

90
00:05:21,880 --> 00:05:25,240
Speaker 2: It means that we can hold government officials and other

91
00:05:25,279 --> 00:05:28,920
Speaker 2: powerful private actors to account much much more easily. So

92
00:05:29,120 --> 00:05:31,920
Speaker 2: you know, in that sense, yes, absolutely, speech is freer

93
00:05:32,080 --> 00:05:34,599
Speaker 2: now than it's ever been. On the other hand, we

94
00:05:34,720 --> 00:05:38,640
Speaker 2: do have these new gatekeepers, the social media companies themselves,

95
00:05:38,920 --> 00:05:42,040
Speaker 2: that play a very large role in determining what speech

96
00:05:42,080 --> 00:05:45,800
Speaker 2: gets heard online, which ideas get traction, which speakers are

97
00:05:45,839 --> 00:05:49,760
Speaker 2: allowed to speak. All sorts of new technologies pose new

98
00:05:49,920 --> 00:05:52,760
Speaker 2: kinds of threats to free speech. We have a case

99
00:05:52,800 --> 00:05:57,280
Speaker 2: against spyware manufacturer whose technology was used to hack the

100
00:05:57,279 --> 00:06:01,400
Speaker 2: phones of Central American journalists. That's the kind of threat

101
00:06:01,480 --> 00:06:04,679
Speaker 2: to press freedom that nobody even contemplated ten or twenty

102
00:06:04,760 --> 00:06:07,240
Speaker 2: years ago. So I would say it's complicated. There's a

103
00:06:07,279 --> 00:06:09,719
Speaker 2: sense in which you're certainly right, but that's not the

104
00:06:09,760 --> 00:06:11,279
Speaker 2: only way to look at the facts here.

105
00:06:11,640 --> 00:06:13,600
Speaker 1: I'm sure it's not the only way to think about it.

106
00:06:13,640 --> 00:06:15,039
Speaker 1: Jimil That's why I wanted to kind of do a

107
00:06:15,040 --> 00:06:18,919
Speaker 1: reality check with you. And as it happens, the Supreme

108
00:06:18,920 --> 00:06:23,000
Speaker 1: Court itself is wrestling right now with trying to understand

109
00:06:23,000 --> 00:06:27,560
Speaker 1: this interplay between digital platforms and free speech and then

110
00:06:27,560 --> 00:06:31,279
Speaker 1: the intervention of opposing parties and how that speech is

111
00:06:31,320 --> 00:06:36,479
Speaker 1: conducted essentially, And there's a couple of imminent Supreme Court

112
00:06:36,520 --> 00:06:39,479
Speaker 1: hearings afoot. Those actually might have taken place by the

113
00:06:39,520 --> 00:06:41,720
Speaker 1: time we air, but I wanted to talk to you

114
00:06:41,760 --> 00:06:44,760
Speaker 1: about those. In the first one of them, a California

115
00:06:44,839 --> 00:06:50,680
Speaker 1: school board blocked parents on their own Facebook page because

116
00:06:50,800 --> 00:06:55,240
Speaker 1: the parents had left posts complaining about racism at the school.

117
00:06:56,040 --> 00:06:59,280
Speaker 1: And in that specific case, the court is trying to

118
00:06:59,600 --> 00:07:02,800
Speaker 1: come out on whether or not the school board has

119
00:07:02,800 --> 00:07:06,920
Speaker 1: a right essentially to limit parents speech if the parents

120
00:07:06,960 --> 00:07:09,960
Speaker 1: are criticizing the institution. I think that's a sort of

121
00:07:10,360 --> 00:07:13,120
Speaker 1: a thumbnail of what's at stake here. Tell me how

122
00:07:13,120 --> 00:07:15,720
Speaker 1: you view that particular case and what's in play there.

123
00:07:15,840 --> 00:07:19,040
Speaker 2: So these are representative of a broader class of cases

124
00:07:19,160 --> 00:07:23,000
Speaker 2: involving the use of social media by public officials, and

125
00:07:23,480 --> 00:07:27,240
Speaker 2: as you know, public officials now use social media often

126
00:07:27,280 --> 00:07:30,240
Speaker 2: as their principal means of communicating with the public and

127
00:07:30,240 --> 00:07:33,800
Speaker 2: with their constituents in particular, and the result is that

128
00:07:34,000 --> 00:07:39,000
Speaker 2: some public officials social media accounts have become really important

129
00:07:39,080 --> 00:07:43,920
Speaker 2: public forums, like forums for discussion of public policy. I mean,

130
00:07:44,000 --> 00:07:47,480
Speaker 2: Trump's account, I think was the paradigm here. People used

131
00:07:47,480 --> 00:07:50,440
Speaker 2: to go to Trump's Twitter account to hear the views

132
00:07:50,440 --> 00:07:53,360
Speaker 2: of the president, to engage with those views, to engage

133
00:07:53,400 --> 00:07:56,640
Speaker 2: with other citizens about what the president had said. There's

134
00:07:56,680 --> 00:07:59,560
Speaker 2: a lot that you could learn from President Trump's Twitter

135
00:07:59,560 --> 00:08:02,560
Speaker 2: account you couldn't learn anywhere else. And so that Twitter

136
00:08:02,600 --> 00:08:07,280
Speaker 2: account took on this democratic significance kind of like you know,

137
00:08:07,320 --> 00:08:10,360
Speaker 2: a city council meeting or a school board meeting, or

138
00:08:10,400 --> 00:08:13,880
Speaker 2: a legislator's town hall, but you know, on steroids, almost

139
00:08:13,960 --> 00:08:15,920
Speaker 2: like Trump was standing at the front of the room

140
00:08:16,000 --> 00:08:18,880
Speaker 2: and there are millions of citizens assembled in front of

141
00:08:18,960 --> 00:08:22,200
Speaker 2: him who were listening to him, talking back to him,

142
00:08:22,280 --> 00:08:24,640
Speaker 2: talking to one another. You know, that's one way to

143
00:08:24,680 --> 00:08:28,160
Speaker 2: think of what that social media account was. And you know,

144
00:08:28,200 --> 00:08:31,640
Speaker 2: Trump is unique in many different respects, but many other

145
00:08:31,680 --> 00:08:35,600
Speaker 2: public officials now use their social media accounts in basically

146
00:08:35,679 --> 00:08:39,080
Speaker 2: the same way. And so this question of what status

147
00:08:39,120 --> 00:08:41,960
Speaker 2: these accounts have under The first Amendment is a really

148
00:08:42,000 --> 00:08:44,840
Speaker 2: important one. If there's a school board meeting, you can't

149
00:08:44,840 --> 00:08:47,200
Speaker 2: get kicked out of it just because you disagree with

150
00:08:47,240 --> 00:08:49,640
Speaker 2: what the school board thinks. And if you go to

151
00:08:49,679 --> 00:08:53,199
Speaker 2: a city council meeting and you complain about racism at

152
00:08:53,200 --> 00:08:56,200
Speaker 2: city schools, the city council can't kick you out just

153
00:08:56,200 --> 00:08:58,640
Speaker 2: because they don't like what you're saying. And so the

154
00:08:58,720 --> 00:09:02,760
Speaker 2: question is what happens if a public official effectively kicks

155
00:09:02,800 --> 00:09:05,320
Speaker 2: you out of his or her social media account, you know,

156
00:09:05,360 --> 00:09:08,880
Speaker 2: blocks you from accessing the account. I think that when

157
00:09:08,920 --> 00:09:10,760
Speaker 2: people first come to this set of questions, they they

158
00:09:10,840 --> 00:09:14,440
Speaker 2: go this is trivial, but given the significance that these

159
00:09:14,480 --> 00:09:17,640
Speaker 2: accounts now have to our democracy, it's actually a really

160
00:09:17,679 --> 00:09:21,760
Speaker 2: important question. When can a public official block a citizen

161
00:09:22,200 --> 00:09:25,679
Speaker 2: from participating in that democratically important space? And that's the

162
00:09:25,760 --> 00:09:26,760
Speaker 2: question this before the court.

163
00:09:26,880 --> 00:09:28,440
Speaker 1: Wait, but before you go on here, because I think

164
00:09:28,480 --> 00:09:32,400
Speaker 1: we should clarify something. Is you mentioned that school officials

165
00:09:32,440 --> 00:09:35,920
Speaker 1: have their own, say, personal accounts. They may also have

166
00:09:36,280 --> 00:09:39,840
Speaker 1: individual accounts as a representative of the local government or

167
00:09:39,880 --> 00:09:42,600
Speaker 1: a local institution, and then there also might be an

168
00:09:42,600 --> 00:09:47,079
Speaker 1: an institutional account. Yes, so there's different classes of accounts

169
00:09:47,160 --> 00:09:50,400
Speaker 1: actually that come into play. I would presume that a

170
00:09:50,440 --> 00:09:53,559
Speaker 1: local official with a personal account is free to let

171
00:09:53,559 --> 00:09:56,320
Speaker 1: anyonet to honor off that personal account that they want

172
00:09:56,360 --> 00:09:58,480
Speaker 1: to if it's in their capacity as an individual.

173
00:09:58,840 --> 00:09:59,000
Speaker 2: Yeah.

174
00:09:59,080 --> 00:10:02,480
Speaker 1: You see members of Progress, for example, expressly saying this

175
00:10:02,559 --> 00:10:05,480
Speaker 1: is my personal account and this is my federal account

176
00:10:05,520 --> 00:10:09,480
Speaker 1: as a politician. In the school board case in California,

177
00:10:09,520 --> 00:10:13,720
Speaker 1: my understanding is the parents were posting on a school

178
00:10:13,720 --> 00:10:17,200
Speaker 1: board account, not an account representing any individual, either in

179
00:10:17,240 --> 00:10:20,439
Speaker 1: their capacity as a local official or as an individual,

180
00:10:20,720 --> 00:10:23,080
Speaker 1: and that they were kicked off the school board account

181
00:10:23,559 --> 00:10:25,960
Speaker 1: or blocked from it. Essentially. Is that correct?

182
00:10:26,040 --> 00:10:29,000
Speaker 2: I mean, all that's correct, And conceptually you're right that

183
00:10:29,360 --> 00:10:32,480
Speaker 2: nobody's saying that the First Amendment should apply to a

184
00:10:32,480 --> 00:10:36,640
Speaker 2: public official's personal account. But what counts as a personal

185
00:10:36,640 --> 00:10:39,840
Speaker 2: account is actually a complicated question, because you know, Trump

186
00:10:39,920 --> 00:10:42,440
Speaker 2: used to say that his account was personal, but he

187
00:10:42,600 --> 00:10:44,520
Speaker 2: used that account to do the work.

188
00:10:44,920 --> 00:10:47,480
Speaker 1: I'm a Trump later because he's very Suey ganeerous in

189
00:10:47,559 --> 00:10:50,760
Speaker 1: a lot of ways and important in this debate and discussion.

190
00:10:51,080 --> 00:10:52,720
Speaker 1: But I want to focus in on what the Supreme

191
00:10:52,760 --> 00:10:55,559
Speaker 1: Court right now is looking at in these two cases.

192
00:10:55,840 --> 00:10:58,200
Speaker 2: Yeah. Even with these two cases, though, you know, the

193
00:10:58,320 --> 00:11:01,760
Speaker 2: question is when does an account reflect the exercise of

194
00:11:01,840 --> 00:11:05,400
Speaker 2: state power? Because when the account reflects the exercise of

195
00:11:05,440 --> 00:11:09,480
Speaker 2: state power, it's subject to the constraints of the First Amendment.

196
00:11:10,200 --> 00:11:13,240
Speaker 2: But you can't answer that question about whether an account

197
00:11:13,320 --> 00:11:17,160
Speaker 2: reflects the exercise of state power without actually looking beyond

198
00:11:17,160 --> 00:11:20,440
Speaker 2: the label. It's not enough that somebody says this is

199
00:11:20,440 --> 00:11:22,240
Speaker 2: a personal account, or you know, I also have an

200
00:11:22,280 --> 00:11:24,800
Speaker 2: official account. You got to look at how the account

201
00:11:24,840 --> 00:11:26,240
Speaker 2: is used. And it's one of the things the Supreme

202
00:11:26,240 --> 00:11:28,360
Speaker 2: Court is going to have to struggle with is how

203
00:11:28,360 --> 00:11:31,079
Speaker 2: do you draw this line? Because on some of these

204
00:11:31,120 --> 00:11:33,760
Speaker 2: accounts you've got a bunch of photographs of cats, and

205
00:11:33,800 --> 00:11:36,320
Speaker 2: then you have, you know, a legislator saying if you

206
00:11:36,400 --> 00:11:39,160
Speaker 2: have comments about my proposal to do X, then please

207
00:11:39,160 --> 00:11:41,960
Speaker 2: write to my office. So it's a combination of things.

208
00:11:41,960 --> 00:11:44,120
Speaker 2: And how do you decide is this subject to the

209
00:11:44,160 --> 00:11:46,600
Speaker 2: constraints for the First Amendment or not? That's a hard question.

210
00:11:47,200 --> 00:11:49,600
Speaker 1: The other case that the Supreme Court's looking at in

211
00:11:49,640 --> 00:11:52,280
Speaker 1: the docket that I've referenced to you right now is

212
00:11:52,280 --> 00:11:56,680
Speaker 1: is a case in Michigan where a resident was blocked

213
00:11:56,720 --> 00:12:00,880
Speaker 1: from the city manager's Facebook page after the resident to

214
00:12:01,040 --> 00:12:05,720
Speaker 1: complained about the locality's response to the COVID nineteen pandemic.

215
00:12:06,679 --> 00:12:10,000
Speaker 1: I'm assuming the same things that we just discussed in

216
00:12:10,040 --> 00:12:12,800
Speaker 1: the school board case in California are at play in

217
00:12:12,840 --> 00:12:17,720
Speaker 1: this Michigan case. Again, Can a local entity block a

218
00:12:17,920 --> 00:12:22,840
Speaker 1: resident from expressing himself or herself on a social media

219
00:12:22,880 --> 00:12:25,840
Speaker 1: platform that's affiliated in some way with the local government.

220
00:12:26,480 --> 00:12:28,760
Speaker 2: Yeah, now that's right. I mean these two cases that

221
00:12:28,800 --> 00:12:32,400
Speaker 2: you just mentioned, the court is really focused on the

222
00:12:32,480 --> 00:12:36,480
Speaker 2: question of whether the accounts reflect the exercise of state power,

223
00:12:36,720 --> 00:12:39,640
Speaker 2: and the court didn't grant cer, so the court hasn't

224
00:12:39,679 --> 00:12:44,360
Speaker 2: agreed to consider the question of what those constraints might be.

225
00:12:44,400 --> 00:12:47,520
Speaker 2: So it's conceivable that the court says in these two cases,

226
00:12:48,160 --> 00:12:51,360
Speaker 2: in both of these cases, the public officials social media

227
00:12:51,360 --> 00:12:55,720
Speaker 2: accounts were exercises of state power, and therefore the first

228
00:12:55,720 --> 00:12:59,120
Speaker 2: amenment applies. But this question what does it mean when

229
00:12:59,160 --> 00:13:02,199
Speaker 2: the first amendent applies is not actually presented by these

230
00:13:02,240 --> 00:13:04,640
Speaker 2: two cases and is going to have to be addressed

231
00:13:04,679 --> 00:13:07,840
Speaker 2: by the lower courts in the first instance, and you

232
00:13:07,880 --> 00:13:11,360
Speaker 2: could imagine a rule that says, well, public officials can

233
00:13:11,480 --> 00:13:14,720
Speaker 2: block their constituents for all sorts of reasons, like, for example,

234
00:13:14,720 --> 00:13:17,920
Speaker 2: for spamming them, but they can't block them based on

235
00:13:18,000 --> 00:13:21,480
Speaker 2: viewpoint alone. Like that would be one possible First Amendment rule,

236
00:13:21,760 --> 00:13:23,440
Speaker 2: but we're not going to get that kind of rule

237
00:13:23,480 --> 00:13:26,160
Speaker 2: out of the Supreme Court this term. It's going to

238
00:13:26,200 --> 00:13:27,920
Speaker 2: be for the lower courts to address that first.

239
00:13:29,000 --> 00:13:31,400
Speaker 1: In this collection of things that the Supreme Court is

240
00:13:31,480 --> 00:13:34,120
Speaker 1: looking at, another one that's intriguing to me is they're

241
00:13:34,160 --> 00:13:38,320
Speaker 1: going to consider a case involving content moderation on social

242
00:13:38,320 --> 00:13:44,400
Speaker 1: media platforms and what protections the platforms themselves, as private entities,

243
00:13:44,640 --> 00:13:48,120
Speaker 1: should enjoy around how they moderate what appears on their

244
00:13:48,160 --> 00:13:51,280
Speaker 1: own sites, whether it's Facebook or Twitter. And we'll talk

245
00:13:51,320 --> 00:13:53,080
Speaker 1: more about this as we go on in the conversation

246
00:13:53,120 --> 00:13:56,040
Speaker 1: because this is also kind of, i think, ground zero

247
00:13:56,160 --> 00:13:59,000
Speaker 1: of our current debate about the new digital world and

248
00:13:59,040 --> 00:14:01,760
Speaker 1: free speech. But talk a little bit about what the

249
00:14:01,840 --> 00:14:05,520
Speaker 1: Supreme Court is looking at in that case, what responsibilities

250
00:14:05,720 --> 00:14:08,560
Speaker 1: private entities have over content moderation.

251
00:14:09,559 --> 00:14:12,880
Speaker 2: Yeah, So the cases we just talked about are cases

252
00:14:12,960 --> 00:14:16,120
Speaker 2: about the government as speaker right, where you have public

253
00:14:16,120 --> 00:14:20,240
Speaker 2: officials wanting to use social media themselves and their speakers

254
00:14:20,240 --> 00:14:23,600
Speaker 2: in that context. These cases that you just brought up

255
00:14:24,000 --> 00:14:28,000
Speaker 2: are cases involving the government as regulator, where the question

256
00:14:28,160 --> 00:14:30,480
Speaker 2: is what limits is the First Amendment place on the

257
00:14:30,480 --> 00:14:35,960
Speaker 2: government's power to control or influence the content moderation policies

258
00:14:36,000 --> 00:14:40,120
Speaker 2: of the platforms, And these two cases involve laws out

259
00:14:40,160 --> 00:14:44,800
Speaker 2: of Florida and Texas, both passed in twenty twenty one.

260
00:14:44,840 --> 00:14:48,240
Speaker 2: Both of the laws impose what are sometimes called must

261
00:14:48,280 --> 00:14:52,320
Speaker 2: carry obligations on the platforms. So the Florida law, for example,

262
00:14:52,440 --> 00:14:57,280
Speaker 2: requires the platforms to carry the speech of political candidates

263
00:14:57,840 --> 00:15:01,160
Speaker 2: as well as prohibits them from taking down the speech

264
00:15:01,240 --> 00:15:04,480
Speaker 2: of media organizations on the basis of the content of

265
00:15:04,520 --> 00:15:08,960
Speaker 2: the media organization's articles. And then the Texas law prohibits

266
00:15:09,000 --> 00:15:12,600
Speaker 2: the platforms from taking down speech on the basis of viewpoint.

267
00:15:13,360 --> 00:15:16,080
Speaker 2: So both of these laws impose again what are called

268
00:15:16,160 --> 00:15:18,760
Speaker 2: must carry obligations on the platforms that require them to

269
00:15:18,760 --> 00:15:21,720
Speaker 2: publish speech that they might not want to publish. And

270
00:15:21,840 --> 00:15:27,280
Speaker 2: both laws also require the platforms to notify users whose

271
00:15:27,280 --> 00:15:31,800
Speaker 2: speech is taken down. So if Facebook decides that one

272
00:15:31,800 --> 00:15:35,200
Speaker 2: of your posts violates a term of service, then Facebook

273
00:15:35,240 --> 00:15:37,840
Speaker 2: is required under these laws to tell you that they've

274
00:15:37,880 --> 00:15:41,200
Speaker 2: taken the speech down and to explain why they've taken

275
00:15:41,240 --> 00:15:44,480
Speaker 2: it down. So those are the laws, and the question

276
00:15:44,520 --> 00:15:48,200
Speaker 2: before the Supreme Court is does the First Amendment permit

277
00:15:48,320 --> 00:15:52,000
Speaker 2: the government to impose those kinds of must carry obligations

278
00:15:52,000 --> 00:15:54,680
Speaker 2: on the platforms? And does it permit the government to

279
00:15:55,080 --> 00:15:59,520
Speaker 2: require the platforms to notify and provide explanations to their

280
00:15:59,640 --> 00:16:01,880
Speaker 2: users in the way I just described. So those are

281
00:16:01,880 --> 00:16:05,479
Speaker 2: the questions, and they turn out to be really complicated

282
00:16:05,680 --> 00:16:08,840
Speaker 2: First Amendment questions, in part because the precedents that we

283
00:16:09,000 --> 00:16:12,160
Speaker 2: have don't involve social media. The precedence we have, you know,

284
00:16:12,200 --> 00:16:15,320
Speaker 2: sometimes involve newspapers, and then there's a question of how

285
00:16:15,320 --> 00:16:18,800
Speaker 2: far do those precedents that were decided in relation to

286
00:16:18,920 --> 00:16:23,040
Speaker 2: newspapers go when we're talking about this very different medium.

287
00:16:23,400 --> 00:16:26,480
Speaker 2: So for that reason, these two cases are complicated.

288
00:16:26,080 --> 00:16:30,080
Speaker 1: And because of the technology platforms themselves have worked mightily

289
00:16:30,200 --> 00:16:33,800
Speaker 1: to claim that they're not publishers, they're merely technology platforms,

290
00:16:33,840 --> 00:16:37,240
Speaker 1: even though in my opinion, they do act as publishers

291
00:16:37,600 --> 00:16:39,760
Speaker 1: in the world we live in right now, and I

292
00:16:39,800 --> 00:16:42,120
Speaker 1: think it's a smoke screen that the tech companies have

293
00:16:42,160 --> 00:16:46,760
Speaker 1: thrown up because to moderate more would be more expensive.

294
00:16:46,840 --> 00:16:49,640
Speaker 1: That's an extra expense they want to take on. Describing

295
00:16:49,680 --> 00:16:52,360
Speaker 1: themselves as a publisher brings them into a different, potentially

296
00:16:52,400 --> 00:16:57,160
Speaker 1: regulatory regime. Describing themselves as publishers puts a different onus

297
00:16:57,240 --> 00:17:00,680
Speaker 1: on them legally and exposes them to new life abilities.

298
00:17:01,120 --> 00:17:05,080
Speaker 1: If they embrace the definition of publisher, it's more expensive

299
00:17:05,359 --> 00:17:08,960
Speaker 1: and more complex to run their businesses. And so they

300
00:17:09,000 --> 00:17:12,399
Speaker 1: insist that they're merely technology platforms and they're simply offering

301
00:17:12,440 --> 00:17:15,000
Speaker 1: people a place to express themselves. But if we've seen

302
00:17:15,800 --> 00:17:19,399
Speaker 1: when technology platforms, I think, hide behind that label to

303
00:17:19,480 --> 00:17:23,000
Speaker 1: a certain extent, they don't perform the kind of gatekeeping

304
00:17:23,119 --> 00:17:26,200
Speaker 1: role you sometimes want in a complicated era in which

305
00:17:26,359 --> 00:17:30,760
Speaker 1: propaganda and disinformation exists alongside free speech and facts.

306
00:17:31,119 --> 00:17:33,240
Speaker 2: Yeah, I think that there's no doubt that you're right

307
00:17:33,320 --> 00:17:36,399
Speaker 2: that the social media companies have tried to have it

308
00:17:36,480 --> 00:17:40,280
Speaker 2: both ways. You know, they sometimes say that we're effectively

309
00:17:40,800 --> 00:17:44,480
Speaker 2: merely conduits for our user's speech, and we can't be

310
00:17:44,560 --> 00:17:47,600
Speaker 2: held responsible for what's on our platforms because all of that,

311
00:17:47,720 --> 00:17:49,720
Speaker 2: you know, has been written by other people and we're

312
00:17:49,760 --> 00:17:53,040
Speaker 2: just kind of the infrastructure they have. I would say,

313
00:17:53,440 --> 00:17:57,640
Speaker 2: if not abandoned that talking point, now they've certainly drifted

314
00:17:57,760 --> 00:18:01,000
Speaker 2: considerably far away from it, and in these cases before

315
00:18:01,000 --> 00:18:03,560
Speaker 2: the Supreme Court, their argument is actually just the opposite.

316
00:18:03,600 --> 00:18:08,800
Speaker 2: Their argument is that the social media platforms are just

317
00:18:08,960 --> 00:18:13,960
Speaker 2: like newspapers for First Amendment purposes. We also exercise editorial

318
00:18:14,080 --> 00:18:17,920
Speaker 2: judgment when we decide what content can be on our platforms.

319
00:18:18,359 --> 00:18:21,880
Speaker 2: You know, when we decide that misinformation needs to be labeled,

320
00:18:22,000 --> 00:18:25,160
Speaker 2: or when we decide that speech that glorifies violence needs

321
00:18:25,160 --> 00:18:28,680
Speaker 2: to be taken down. Those are editorial decisions and their

322
00:18:28,800 --> 00:18:31,439
Speaker 2: editorial decisions within the meaning of the First Amendment. And

323
00:18:31,480 --> 00:18:34,080
Speaker 2: for the same reasons the newspapers are protected, and to

324
00:18:34,200 --> 00:18:38,000
Speaker 2: the same extent the newspapers are protected, we're protected too.

325
00:18:38,359 --> 00:18:40,880
Speaker 2: That's the argument they're making. That's sort of the first

326
00:18:40,920 --> 00:18:43,240
Speaker 2: step of their arguments in these cases, is that we're

327
00:18:43,280 --> 00:18:46,040
Speaker 2: just like newspapers. And the second step is, for the

328
00:18:46,080 --> 00:18:49,919
Speaker 2: same reasons Congress couldn't tell a newspaper to carry speech

329
00:18:49,960 --> 00:18:52,639
Speaker 2: it didn't want to carry, Congress can't tell us, or

330
00:18:52,760 --> 00:18:55,000
Speaker 2: legislators can't tell us in this case, is Florida and

331
00:18:55,040 --> 00:18:57,520
Speaker 2: Texas can't tell us what to carry. And for the

332
00:18:57,560 --> 00:19:03,159
Speaker 2: same reasons that legislators couldn't require newspapers to explain why

333
00:19:03,200 --> 00:19:06,800
Speaker 2: they did or didn't publish any particular article. We can't

334
00:19:06,800 --> 00:19:09,360
Speaker 2: be required to explain to our users why we took

335
00:19:09,400 --> 00:19:13,800
Speaker 2: down their posts. So you're absolutely right that in other contexts,

336
00:19:13,800 --> 00:19:19,359
Speaker 2: the platforms have tried very hard to disavow any responsibility

337
00:19:19,520 --> 00:19:23,159
Speaker 2: for the content on their platforms. In this particular context,

338
00:19:23,440 --> 00:19:27,200
Speaker 2: they're running in exactly the opposite direction and saying that

339
00:19:27,280 --> 00:19:30,080
Speaker 2: we're no different from newspapers and are entitled to the

340
00:19:30,080 --> 00:19:32,760
Speaker 2: same constitutional protection as newspapers are.

341
00:19:33,280 --> 00:19:35,280
Speaker 1: Okay, on that note, I want to take a quick

342
00:19:35,320 --> 00:19:37,520
Speaker 1: break and hear from one of our sponsors, Jamil, and

343
00:19:37,520 --> 00:19:47,320
Speaker 1: then we'll come right back and continue this conversation. We're

344
00:19:47,359 --> 00:19:50,040
Speaker 1: back with Jamil Jaffer, director of the Night First Amendment

345
00:19:50,080 --> 00:19:55,320
Speaker 1: Institute at Columbia University. Jamil is a free speech warrior. Jamie,

346
00:19:55,400 --> 00:19:58,440
Speaker 1: let's step away from the specifics of the Supreme Court

347
00:19:58,480 --> 00:20:01,800
Speaker 1: cases we've been talking about in the prior segment and

348
00:20:01,920 --> 00:20:06,359
Speaker 1: just talk philosophically for a minute about what place the

349
00:20:06,480 --> 00:20:10,440
Speaker 1: values or virtues of free speech have traditionally occupied in

350
00:20:10,520 --> 00:20:14,000
Speaker 1: American life. Why is this thing that we call free

351
00:20:14,000 --> 00:20:18,720
Speaker 1: speech protected in the Constitution, Why is it constantly debated

352
00:20:18,760 --> 00:20:21,280
Speaker 1: in our public life. Why are you and I talking

353
00:20:21,280 --> 00:20:22,120
Speaker 1: about it right now?

354
00:20:22,920 --> 00:20:25,120
Speaker 2: Yeah, I mean, I think that a big part of

355
00:20:25,200 --> 00:20:28,360
Speaker 2: the answer to that question is that free speech and democracy,

356
00:20:28,440 --> 00:20:32,840
Speaker 2: or free speech and self government are very very closely connected, right,

357
00:20:32,920 --> 00:20:36,840
Speaker 2: and democracy is core to our self conception in the

358
00:20:36,920 --> 00:20:39,720
Speaker 2: United States. That's sort of what defines our society is

359
00:20:39,880 --> 00:20:43,320
Speaker 2: it's a democratic character. But if you're going to have

360
00:20:43,680 --> 00:20:49,240
Speaker 2: a government that is answerable to the people, then the

361
00:20:49,280 --> 00:20:52,600
Speaker 2: people need to have the freedom to debate government policy,

362
00:20:52,720 --> 00:20:55,919
Speaker 2: they need to have access to information, and it's the

363
00:20:55,960 --> 00:21:00,600
Speaker 2: First Amendment that guarantees those things. And so one way

364
00:21:00,640 --> 00:21:03,320
Speaker 2: to think about the First Amendment, or the core purpose

365
00:21:03,359 --> 00:21:06,080
Speaker 2: of the First Amendment, is that it's intended to create

366
00:21:06,119 --> 00:21:10,800
Speaker 2: the conditions that are necessary to sustain democracy, and that,

367
00:21:10,880 --> 00:21:14,920
Speaker 2: in fact, is how most free speech theorists have thought

368
00:21:14,960 --> 00:21:17,760
Speaker 2: about it, at least for the last fifty years. You know,

369
00:21:17,800 --> 00:21:19,880
Speaker 2: I think people don't always know this, but the First

370
00:21:19,880 --> 00:21:23,520
Speaker 2: Amendment as we understand it today is actually very young.

371
00:21:23,600 --> 00:21:27,199
Speaker 2: It grew out of opinions that Oliver Wendell Holmes and

372
00:21:27,400 --> 00:21:31,679
Speaker 2: Louis Brandeis wrote beginning in nineteen nineteen, so just a

373
00:21:31,720 --> 00:21:37,160
Speaker 2: century ago, and those opinions were dissents and concurrences initially,

374
00:21:37,200 --> 00:21:39,680
Speaker 2: and then over time they sort of moved over into

375
00:21:39,720 --> 00:21:43,080
Speaker 2: the majority. But most of the rules that we think

376
00:21:43,119 --> 00:21:47,960
Speaker 2: of as fundamental to the First Amendment today were established

377
00:21:48,040 --> 00:21:50,120
Speaker 2: by the Supreme Court in the nineteen sixties and seventies

378
00:21:50,119 --> 00:21:54,080
Speaker 2: through cases like New York Times versus Sullivan, which insulates

379
00:21:54,240 --> 00:22:00,600
Speaker 2: news organizations from most defamation claims, Brandenburg versus Ohio, which

380
00:22:00,800 --> 00:22:05,440
Speaker 2: holds that even extreme forms of political advocacy are protected

381
00:22:05,440 --> 00:22:09,000
Speaker 2: by the First Amendment unless they amount to incitement, or

382
00:22:09,040 --> 00:22:11,800
Speaker 2: cases like the Pentagon Papers case in the nineteen seventy one

383
00:22:11,840 --> 00:22:14,879
Speaker 2: case that held that the government couldn't obtain a prior

384
00:22:14,920 --> 00:22:18,280
Speaker 2: restraint against the newspapers for publishing a secret report about

385
00:22:18,280 --> 00:22:21,760
Speaker 2: the Vietnam War. Like those cases were decided fifty years ago,

386
00:22:21,880 --> 00:22:24,440
Speaker 2: and those cases really defined the First Amendment as we

387
00:22:24,520 --> 00:22:26,920
Speaker 2: understand it today. So all this is very very new,

388
00:22:27,840 --> 00:22:30,719
Speaker 2: but those cases from the nineteen sixties and seventies really

389
00:22:30,840 --> 00:22:33,840
Speaker 2: positioned democracy at the heart of the First Amendment. They

390
00:22:33,920 --> 00:22:37,560
Speaker 2: really saw the purpose of the First Amendment as again

391
00:22:37,720 --> 00:22:40,800
Speaker 2: kind of creating the conditions that would make self government

392
00:22:40,880 --> 00:22:45,000
Speaker 2: and democracy possible. And so now when you think about

393
00:22:45,000 --> 00:22:48,560
Speaker 2: extending the First Amendment to new spheres. One question that

394
00:22:48,640 --> 00:22:52,040
Speaker 2: you might begin with is what would serve our democracy

395
00:22:52,080 --> 00:22:54,639
Speaker 2: in this new sphere. What rules relating to free speech

396
00:22:54,960 --> 00:22:58,359
Speaker 2: would be best for our democracy in this new sphere, like,

397
00:22:58,560 --> 00:23:01,640
Speaker 2: for example, the sphere of SAE social media. So that's

398
00:23:01,680 --> 00:23:03,600
Speaker 2: one way to approach these questions, and I think it's

399
00:23:03,680 --> 00:23:06,040
Speaker 2: the way that's most consistent with the way that the

400
00:23:06,080 --> 00:23:09,240
Speaker 2: Supreme Court approached these questions in this formative period in

401
00:23:09,240 --> 00:23:10,680
Speaker 2: the nineteen sixties and seventies.

402
00:23:11,080 --> 00:23:14,080
Speaker 1: And yet, even with the presidents that you've referred to

403
00:23:14,359 --> 00:23:18,160
Speaker 1: and the sort of legal architecture that's been built around

404
00:23:18,480 --> 00:23:22,919
Speaker 1: free speech, it still gets contested daily and plenty of

405
00:23:23,160 --> 00:23:27,440
Speaker 1: venues outside of courtrooms. You've mentioned Florida already in the podcast.

406
00:23:27,480 --> 00:23:29,719
Speaker 1: Florida has been sort of on the cutting edge of

407
00:23:29,880 --> 00:23:35,160
Speaker 1: asserting I think, state involvement in different forms of speech.

408
00:23:35,320 --> 00:23:37,800
Speaker 1: You know, the state government in Florida has intervened around

409
00:23:37,800 --> 00:23:41,200
Speaker 1: how the history of slavery and the African American black

410
00:23:41,280 --> 00:23:44,280
Speaker 1: experience in the United States should be taught. They've intervened

411
00:23:44,320 --> 00:23:47,080
Speaker 1: in things around what the K through twelve curriculum should

412
00:23:47,080 --> 00:23:52,080
Speaker 1: look like. It's empowered parents at a very microcosmic level,

413
00:23:52,080 --> 00:23:56,199
Speaker 1: to essentially police libraries for texts that are acceptable or

414
00:23:56,280 --> 00:23:59,800
Speaker 1: unacceptable to sometimes just one parent in a community of

415
00:24:01,080 --> 00:24:03,239
Speaker 1: How do you see that, How do you see some

416
00:24:03,280 --> 00:24:05,719
Speaker 1: of these things that have been going on in Florida?

417
00:24:05,920 --> 00:24:09,800
Speaker 1: How do you see that shaping this current battle we're

418
00:24:09,800 --> 00:24:14,240
Speaker 1: having now over defining both the nature free speech and

419
00:24:14,280 --> 00:24:15,679
Speaker 1: the parameter surrounding it.

420
00:24:16,640 --> 00:24:18,879
Speaker 2: Yeah. I would say first that those cases that you

421
00:24:19,080 --> 00:24:24,959
Speaker 2: just described only underscore how important First Amendment protections are.

422
00:24:25,480 --> 00:24:29,639
Speaker 2: There really is a kind of authoritarian impulse behind some

423
00:24:29,680 --> 00:24:33,639
Speaker 2: of those policies. Those policies are intended to restrict the

424
00:24:33,680 --> 00:24:37,920
Speaker 2: ideas that the public has access to. And the point

425
00:24:38,000 --> 00:24:40,400
Speaker 2: of the First Amendment, and the point of a lot

426
00:24:40,440 --> 00:24:42,679
Speaker 2: of the precedents that I just described from the nineteen

427
00:24:42,720 --> 00:24:45,919
Speaker 2: sixties and seventies, is to take that power out of

428
00:24:45,960 --> 00:24:49,320
Speaker 2: the hands of government to make sure that we the

429
00:24:49,359 --> 00:24:52,120
Speaker 2: people get to decide which ideas are worthwhile and which

430
00:24:52,119 --> 00:24:55,520
Speaker 2: ones aren't. And these laws that you just described are

431
00:24:55,560 --> 00:24:58,159
Speaker 2: these kind of regulatory interventions that you just described, I

432
00:24:58,160 --> 00:25:01,800
Speaker 2: think are completely inconsistent with that principle. And so I

433
00:25:01,800 --> 00:25:04,080
Speaker 2: would say that some of these First Amendment protections are

434
00:25:04,080 --> 00:25:08,720
Speaker 2: going to get tested in cases involving those regulatory interventions

435
00:25:08,720 --> 00:25:11,840
Speaker 2: that you just described. But I still have confidence that

436
00:25:11,920 --> 00:25:15,040
Speaker 2: the courts will uphold those principles to sort of define

437
00:25:15,080 --> 00:25:17,679
Speaker 2: the First Amendment. And again, one of those principles is

438
00:25:17,760 --> 00:25:19,960
Speaker 2: just that it's not up to the government to decide

439
00:25:20,000 --> 00:25:23,919
Speaker 2: which ideas are worthwhile that's a power that Constitution gives

440
00:25:23,920 --> 00:25:25,240
Speaker 2: to ordinary citizens.

441
00:25:26,119 --> 00:25:31,440
Speaker 1: What about private entities ability to shape what isn't isn't acceptable? Obviously,

442
00:25:31,440 --> 00:25:35,360
Speaker 1: the First Amendment was erected essentially to protect individuals from

443
00:25:35,400 --> 00:25:38,480
Speaker 1: government censorship. It doesn't stretch with the same kind of

444
00:25:38,640 --> 00:25:42,760
Speaker 1: robust vigor into private enterprises as it does into how

445
00:25:42,800 --> 00:25:47,919
Speaker 1: it moderates and as a watchdog against government censorship. Nonetheless, again,

446
00:25:48,000 --> 00:25:50,639
Speaker 1: this digital era we're in has really put all out

447
00:25:50,680 --> 00:25:53,080
Speaker 1: of this in stark relief, which leads me to Elon

448
00:25:53,160 --> 00:25:56,399
Speaker 1: Musk and Twitter. Musk bought Twitter. When he bought it,

449
00:25:56,600 --> 00:26:00,600
Speaker 1: he described himself as a free speech appsolutist, and he

450
00:26:00,760 --> 00:26:03,320
Speaker 1: said that one of the reasons he was purchasing Twitter

451
00:26:03,359 --> 00:26:07,240
Speaker 1: was because he felt people's free speech, particularly conservative free speech,

452
00:26:07,400 --> 00:26:11,159
Speaker 1: was being circumscribed. Since taking it over, I as a

453
00:26:11,200 --> 00:26:13,679
Speaker 1: Twitter user and a Twitter observer, think it's become this

454
00:26:13,760 --> 00:26:19,359
Speaker 1: sort of carnival less car crash of mismanagement and misinformation,

455
00:26:20,040 --> 00:26:23,280
Speaker 1: And in fact, I think Musk has acted to make

456
00:26:23,320 --> 00:26:26,840
Speaker 1: it easier for disinformation and a kind of hysteria to

457
00:26:26,920 --> 00:26:29,439
Speaker 1: take root on Twitter that wasn't there before. It was

458
00:26:29,680 --> 00:26:32,600
Speaker 1: there in bits and pieces, but it's very center stage now.

459
00:26:33,359 --> 00:26:36,640
Speaker 1: How do you think about the responsibilities that are on

460
00:26:36,840 --> 00:26:40,720
Speaker 1: private owners in this digital era in terms of making

461
00:26:40,720 --> 00:26:43,159
Speaker 1: sure that everyone has access from both sides of the

462
00:26:43,160 --> 00:26:47,200
Speaker 1: aisle politically, and that good factual information, as opposed to

463
00:26:47,280 --> 00:26:52,560
Speaker 1: disinformation and propaganda, don't flow freely across sites.

464
00:26:53,600 --> 00:26:56,520
Speaker 2: I share your view of what's happened to Twitter. I

465
00:26:56,520 --> 00:26:59,320
Speaker 2: think that it's too bad because I think Twitter used

466
00:26:59,320 --> 00:27:04,280
Speaker 2: to play really important role in underwriting public discourse. I

467
00:27:04,359 --> 00:27:06,800
Speaker 2: don't really see it playing that role now, in part

468
00:27:06,840 --> 00:27:10,880
Speaker 2: because of the pathologies that you just described. I would separate, though,

469
00:27:10,880 --> 00:27:15,199
Speaker 2: the question of the social media company's ethical responsibilities, and

470
00:27:15,280 --> 00:27:17,720
Speaker 2: I do think that there are ethical responsibilities in the

471
00:27:17,760 --> 00:27:20,120
Speaker 2: same way that media organizations have, you know, a kind

472
00:27:20,119 --> 00:27:24,280
Speaker 2: of journalistic set of ethics. Social media platforms should also

473
00:27:24,320 --> 00:27:27,879
Speaker 2: be thinking about what their ethical responsibilities are. But I

474
00:27:27,920 --> 00:27:30,639
Speaker 2: would separate that question from the question of what the

475
00:27:30,680 --> 00:27:34,159
Speaker 2: government should be doing to influence or control the content

476
00:27:34,200 --> 00:27:37,399
Speaker 2: moderation policy of the platforms, because it's possible that most

477
00:27:37,400 --> 00:27:40,040
Speaker 2: of the work that we need done here has to

478
00:27:40,080 --> 00:27:43,560
Speaker 2: be done not through regulation, but through the development of

479
00:27:43,720 --> 00:27:48,040
Speaker 2: platform ethics. One concern I have with the cases that

480
00:27:48,119 --> 00:27:49,960
Speaker 2: we were just talking about in the Supreme Court, these

481
00:27:50,000 --> 00:27:52,560
Speaker 2: Florida and Texas cases, is that the laws that these

482
00:27:52,560 --> 00:27:56,040
Speaker 2: two states have passed I think are largely unconstitutional. I

483
00:27:56,080 --> 00:27:58,960
Speaker 2: don't see the Supreme Court coming to the conclusion that

484
00:27:59,000 --> 00:28:02,280
Speaker 2: the social media plot platforms don't have First Amendment rights.

485
00:28:02,560 --> 00:28:06,760
Speaker 2: I don't see the Supreme Court upholding these laws that

486
00:28:06,840 --> 00:28:10,800
Speaker 2: impose quite onerous must carry obligations on the platforms for

487
00:28:10,880 --> 00:28:16,120
Speaker 2: no articulated reason. But I am worried that in struking

488
00:28:16,200 --> 00:28:19,640
Speaker 2: down these laws, the Supreme Court might write those opinions

489
00:28:19,680 --> 00:28:24,439
Speaker 2: so broadly that those opinions foreclose other legislation in the

490
00:28:24,480 --> 00:28:28,919
Speaker 2: future that might be narrower and more justified by legislative

491
00:28:28,920 --> 00:28:33,959
Speaker 2: findings and more closely connected to legitimate democratic goals. I

492
00:28:34,000 --> 00:28:36,720
Speaker 2: do think that there is a role for governments to

493
00:28:36,760 --> 00:28:39,160
Speaker 2: play in this sphere. I think that some form of

494
00:28:39,200 --> 00:28:42,560
Speaker 2: transparency mandate would be a good thing. You know, requiring

495
00:28:42,600 --> 00:28:45,080
Speaker 2: the platforms to be more accountable to the public and

496
00:28:45,120 --> 00:28:48,600
Speaker 2: to researchers and to regulators about the decisions they're making

497
00:28:49,080 --> 00:28:52,920
Speaker 2: would be a good thing. Some version of a notice requirement,

498
00:28:52,960 --> 00:28:54,320
Speaker 2: I think would be a good thing. I think it

499
00:28:54,400 --> 00:28:56,640
Speaker 2: makes sense that, you know, when people are kicked off

500
00:28:56,760 --> 00:29:00,920
Speaker 2: these platforms that have gatekeeper powers or with respect to

501
00:29:00,960 --> 00:29:03,640
Speaker 2: public discourse, it makes sense that they should have to

502
00:29:03,680 --> 00:29:08,160
Speaker 2: explain their decisions. And I worry that Florida and Texas's

503
00:29:08,240 --> 00:29:11,640
Speaker 2: laws will, for good reason be struck down, but struck

504
00:29:11,720 --> 00:29:15,080
Speaker 2: down in terms that are so categorical that the court

505
00:29:15,080 --> 00:29:19,040
Speaker 2: will foreclose much more sensible legislation that might be proposed

506
00:29:19,040 --> 00:29:21,720
Speaker 2: next year or the year after. That's my worry about

507
00:29:21,720 --> 00:29:22,920
Speaker 2: those particular cases.

508
00:29:23,760 --> 00:29:27,080
Speaker 1: The COVID lockdown and the COVID here has also introduced

509
00:29:27,080 --> 00:29:30,680
Speaker 1: an interesting new development I think or highlighted, maybe one

510
00:29:30,680 --> 00:29:34,400
Speaker 1: that pre existed, but this idea around the extent to

511
00:29:34,480 --> 00:29:39,040
Speaker 1: which the government is allowed to police digital platforms for

512
00:29:39,160 --> 00:29:43,040
Speaker 1: bad information around say healthcare and public health that if

513
00:29:43,080 --> 00:29:46,040
Speaker 1: it is false, could be threatening to the well being

514
00:29:46,200 --> 00:29:50,040
Speaker 1: of individuals, but that obviously also can run up against

515
00:29:50,080 --> 00:29:54,440
Speaker 1: individuals desired to present their own views about a public

516
00:29:54,480 --> 00:29:58,600
Speaker 1: health crisis, or the efficacy of government recommendations during a

517
00:29:58,600 --> 00:30:02,160
Speaker 1: public health crisis, whether it's asking for vaccinations, wherever it

518
00:30:02,240 --> 00:30:05,280
Speaker 1: might be. That's also been playing out in a very

519
00:30:05,320 --> 00:30:07,120
Speaker 1: intense way in recent years, in a way that I

520
00:30:07,120 --> 00:30:09,000
Speaker 1: didn't think it had in the past, and I was

521
00:30:09,040 --> 00:30:11,719
Speaker 1: wondering how you think about that issue.

522
00:30:12,080 --> 00:30:15,320
Speaker 2: Yeah, I mean, I guess two things. So one is authority.

523
00:30:15,360 --> 00:30:18,560
Speaker 2: I mean absolutely, you know, the government has information and

524
00:30:18,720 --> 00:30:23,520
Speaker 2: insight that the public lacks on issues relating to public health.

525
00:30:23,960 --> 00:30:27,200
Speaker 2: It's obviously crucial that the CDC be able to share

526
00:30:27,240 --> 00:30:31,960
Speaker 2: that information with the public, important that government agencies be

527
00:30:32,280 --> 00:30:36,360
Speaker 2: generally trusted. I think that the lesson from the last

528
00:30:36,360 --> 00:30:39,720
Speaker 2: few years, though, is not that we need to clamp

529
00:30:39,760 --> 00:30:43,440
Speaker 2: down on misinformation about public health or ensure that only

530
00:30:43,480 --> 00:30:46,360
Speaker 2: the government's views are heard. I think the lesson from

531
00:30:46,360 --> 00:30:48,880
Speaker 2: the last few years is first that the platforms have

532
00:30:48,960 --> 00:30:52,240
Speaker 2: a kind of ethical responsibility to their users to ensure

533
00:30:52,280 --> 00:30:57,240
Speaker 2: that their users are hearing information from trustworthy sources, but

534
00:30:57,480 --> 00:31:01,000
Speaker 2: also that the platforms have an obligation to sure that

535
00:31:01,080 --> 00:31:04,600
Speaker 2: there is space for dissent. You know, the government does

536
00:31:04,720 --> 00:31:07,840
Speaker 2: have this special expertise but that doesn't mean the government

537
00:31:07,880 --> 00:31:11,400
Speaker 2: doesn't get things wrong. Sometimes the government gets things wrong

538
00:31:11,440 --> 00:31:14,800
Speaker 2: in good faith, and sometimes government officials, for whatever reasons,

539
00:31:14,840 --> 00:31:17,600
Speaker 2: decide to mislead the public about something or the other.

540
00:31:18,040 --> 00:31:20,480
Speaker 2: And part of the reason we create space for dissent

541
00:31:20,600 --> 00:31:24,040
Speaker 2: is because the fact that dissenters are allowed to voice

542
00:31:24,080 --> 00:31:27,400
Speaker 2: their views is one of the things that gives legitimacy

543
00:31:27,960 --> 00:31:31,320
Speaker 2: to the government's views. Right. We're willing to trust the

544
00:31:31,360 --> 00:31:35,120
Speaker 2: government in part because dissenters are allowed to have their say,

545
00:31:35,160 --> 00:31:39,520
Speaker 2: and we trust that when dissent is persuasive, it'll eventually

546
00:31:39,640 --> 00:31:42,200
Speaker 2: have the effect of forcing the government to change its

547
00:31:42,200 --> 00:31:44,960
Speaker 2: own views or its own policies. So I think you

548
00:31:45,000 --> 00:31:46,480
Speaker 2: need kind of both of these things. You need the

549
00:31:46,480 --> 00:31:50,040
Speaker 2: platforms to ensure that their users are given access to

550
00:31:50,320 --> 00:31:53,560
Speaker 2: trustworthy speakers, but also they need to make sure that

551
00:31:53,600 --> 00:31:55,480
Speaker 2: there's room for dissent. And I think that the way

552
00:31:55,520 --> 00:31:59,200
Speaker 2: that platforms can do that is by responding to what

553
00:31:59,320 --> 00:32:03,840
Speaker 2: they think of as misinformation with labeling rather than suppression.

554
00:32:04,320 --> 00:32:07,160
Speaker 2: I think labeling is a much much better solution to

555
00:32:07,400 --> 00:32:11,720
Speaker 2: the problem of public health misinformation than suppression. Is much

556
00:32:11,760 --> 00:32:15,800
Speaker 2: better for Facebook to just stick its own speech on

557
00:32:15,880 --> 00:32:18,520
Speaker 2: top of what it believes to misinformation, and it can

558
00:32:18,560 --> 00:32:21,280
Speaker 2: say we don't think this is accurate. If you want

559
00:32:21,320 --> 00:32:24,920
Speaker 2: an accurate view, go to the CDC's website. That is

560
00:32:25,040 --> 00:32:28,200
Speaker 2: an appropriate way for Facebook to respond to speech that

561
00:32:28,280 --> 00:32:32,800
Speaker 2: it thinks of as dangerous misinformation. If Facebook responds with

562
00:32:32,960 --> 00:32:37,080
Speaker 2: suppression rather than labeling, the effect is to give those

563
00:32:37,160 --> 00:32:40,760
Speaker 2: speakers of a kind of monopoly on public discourse, and

564
00:32:40,880 --> 00:32:44,720
Speaker 2: also to disable the kind of descent that for one

565
00:32:44,760 --> 00:32:46,960
Speaker 2: thing you might turn out to be right, but for

566
00:32:47,040 --> 00:32:51,560
Speaker 2: another the kind of descent that actually ends up legitimating

567
00:32:51,640 --> 00:32:54,400
Speaker 2: the government's views. The fact that the descent is there

568
00:32:54,560 --> 00:32:56,560
Speaker 2: is one of the reasons that we are willing to

569
00:32:56,600 --> 00:32:59,400
Speaker 2: trust the CDC, because we know if the CDC gets

570
00:32:59,400 --> 00:33:02,840
Speaker 2: things wrong, people will say so other scientists will say,

571
00:33:03,040 --> 00:33:05,440
Speaker 2: the CDC got this wrong, And here's how I know

572
00:33:05,480 --> 00:33:07,720
Speaker 2: I got it wrong right. So I think that's why

573
00:33:07,720 --> 00:33:10,920
Speaker 2: I favor labeling over suppression. I don't think it would

574
00:33:10,920 --> 00:33:14,080
Speaker 2: make sense to give the government the power to make

575
00:33:14,160 --> 00:33:18,000
Speaker 2: misinformation unlawful. And I say that for a number of reasons.

576
00:33:18,040 --> 00:33:21,320
Speaker 2: One is that what is or isn't misinformation is always

577
00:33:21,360 --> 00:33:23,800
Speaker 2: a contested thing. There's no way to draw that line

578
00:33:23,840 --> 00:33:26,440
Speaker 2: in a way that will be seen as politically legitimate.

579
00:33:26,840 --> 00:33:29,680
Speaker 2: Another is the government often gets things wrong even when

580
00:33:29,720 --> 00:33:31,880
Speaker 2: it's operating in good faith, and still in others of

581
00:33:31,920 --> 00:33:34,920
Speaker 2: the government doesn't always operate in good faith. Those are

582
00:33:35,000 --> 00:33:37,800
Speaker 2: all reasons why it would be a bad idea to

583
00:33:37,840 --> 00:33:41,120
Speaker 2: go down the road of giving government officials the power

584
00:33:41,160 --> 00:33:43,920
Speaker 2: to suppress misinformation. And I will say just one more

585
00:33:43,920 --> 00:33:47,320
Speaker 2: thing about that, which is that when people propose that

586
00:33:47,440 --> 00:33:51,480
Speaker 2: government officials should be given that authority, they always have

587
00:33:51,600 --> 00:33:54,680
Speaker 2: in mind that the government officials who will be exercising

588
00:33:54,760 --> 00:33:59,000
Speaker 2: that authority are people like them. And you cannot have

589
00:33:59,120 --> 00:34:02,120
Speaker 2: any confidence that the people who are going to be

590
00:34:02,160 --> 00:34:06,080
Speaker 2: exercising that governmental authority tomorrow will be people like you,

591
00:34:06,320 --> 00:34:09,000
Speaker 2: even if they are people like you today. So that's

592
00:34:09,040 --> 00:34:13,520
Speaker 2: still another reason to reject that possible purported solution to

593
00:34:13,560 --> 00:34:14,879
Speaker 2: the problem of misinformation.

594
00:34:15,440 --> 00:34:17,680
Speaker 1: Okay, Jamil, let's take another break and then we'll come

595
00:34:17,719 --> 00:34:25,160
Speaker 1: right back. We're back with Jamil Jaffer, and we're talking

596
00:34:25,200 --> 00:34:28,400
Speaker 1: about free speech. Jamil, we talked earlier in the show

597
00:34:28,400 --> 00:34:31,200
Speaker 1: about Donald Trump as a sort of avatar for a

598
00:34:31,200 --> 00:34:33,800
Speaker 1: lot of the issues that have arisen around free speech

599
00:34:34,040 --> 00:34:38,080
Speaker 1: and the uses and potential abuses of social media platforms.

600
00:34:38,080 --> 00:34:41,440
Speaker 1: In the era we're in, Trump has actually made free

601
00:34:41,480 --> 00:34:46,200
Speaker 1: speech a shield for himself. Recently around some of the

602
00:34:46,239 --> 00:34:49,160
Speaker 1: court cases that have been directed against him, he said

603
00:34:49,200 --> 00:34:53,880
Speaker 1: that his involvement in the January sixth insurrection that resulted

604
00:34:53,920 --> 00:34:56,640
Speaker 1: in a violent clash at the Capitol and an attempt

605
00:34:56,680 --> 00:34:59,719
Speaker 1: to overthrow the election result on that day interfere with

606
00:34:59,760 --> 00:35:04,360
Speaker 1: the election counting that efforts to prosecute him our assaults

607
00:35:04,360 --> 00:35:07,320
Speaker 1: on his own free speech. And I think this raises

608
00:35:07,360 --> 00:35:10,759
Speaker 1: an interesting thing in the free speech debate that's worth clarifying,

609
00:35:10,840 --> 00:35:14,480
Speaker 1: which is, you can protect speech in all of its forms,

610
00:35:14,840 --> 00:35:19,239
Speaker 1: even often hate speech is protected legally. But there's a

611
00:35:19,239 --> 00:35:25,040
Speaker 1: difference between speaking freely and inciting violence or inciting a crime,

612
00:35:25,160 --> 00:35:25,600
Speaker 1: isn't there.

613
00:35:26,040 --> 00:35:29,320
Speaker 2: Yeah, No, that's right. It's sometimes hard to separate these things.

614
00:35:29,320 --> 00:35:33,200
Speaker 2: But if you protected all speech, then you know, you

615
00:35:33,239 --> 00:35:36,560
Speaker 2: would presumably protect the person who says attack to their

616
00:35:36,600 --> 00:35:39,640
Speaker 2: attack dog, and that would be self defeating, and so

617
00:35:39,760 --> 00:35:42,200
Speaker 2: you kind of have to separate out speech that is

618
00:35:42,400 --> 00:35:45,920
Speaker 2: part of criminal conduct. I think that if you look

619
00:35:45,960 --> 00:35:49,280
Speaker 2: at the indictments of Trump, there's a lot of speech

620
00:35:49,320 --> 00:35:51,280
Speaker 2: in there, a lot of what the government is relying

621
00:35:51,320 --> 00:35:55,719
Speaker 2: on in accusing Trump of criminal activity is speech. I

622
00:35:55,800 --> 00:35:59,360
Speaker 2: don't think that is in itself a First Amendment problem.

623
00:36:00,120 --> 00:36:05,040
Speaker 2: Are prosecuted for conduct that involves speech all the time.

624
00:36:05,120 --> 00:36:09,920
Speaker 2: Incitement is one example, Fraud is another example. Solicitation of

625
00:36:09,960 --> 00:36:12,399
Speaker 2: criminal conduct is another example. You know, those are all

626
00:36:12,440 --> 00:36:16,000
Speaker 2: situations where all that the person did is speak, but

627
00:36:16,360 --> 00:36:19,520
Speaker 2: they spoke as part of a course of criminal conduct.

628
00:36:20,080 --> 00:36:23,799
Speaker 2: So that's a line that's often difficult to draw. But

629
00:36:24,320 --> 00:36:24,960
Speaker 2: it's the.

630
00:36:24,960 --> 00:36:29,280
Speaker 1: Line between free expression and being a cod in criminal conduct.

631
00:36:29,400 --> 00:36:33,879
Speaker 2: Yeah, exactly, because criminal conduct often involves speech. So that's

632
00:36:33,880 --> 00:36:36,000
Speaker 2: going to be a challenge for the government in these cases.

633
00:36:36,040 --> 00:36:38,799
Speaker 2: But I don't think the mere fact that the indictments

634
00:36:38,920 --> 00:36:42,680
Speaker 2: accuse or list episodes in which Trump is alleged to

635
00:36:42,719 --> 00:36:44,600
Speaker 2: have said this or that, you know, I don't think

636
00:36:44,600 --> 00:36:46,799
Speaker 2: that is in itself a reason to think that these

637
00:36:46,840 --> 00:36:48,839
Speaker 2: indictments are a First Amendment problem.

638
00:36:49,520 --> 00:36:53,319
Speaker 1: Another troubling, poignant issue in the news right now is

639
00:36:53,360 --> 00:36:56,719
Speaker 1: the Gaza conflict that's given rise to all sorts of

640
00:36:56,719 --> 00:37:01,240
Speaker 1: debates around free speech, Muslims accusing Jews of being anti Muslim,

641
00:37:01,400 --> 00:37:05,040
Speaker 1: Jews accusing Muslims of being anti Semitic. This has taken

642
00:37:05,120 --> 00:37:08,359
Speaker 1: root on campuses now around the country. In the US,

643
00:37:08,400 --> 00:37:10,799
Speaker 1: the debate about who's in the right and who's in

644
00:37:10,800 --> 00:37:15,200
Speaker 1: the wrong in this particular conflict, and in some recent incidents,

645
00:37:15,480 --> 00:37:19,560
Speaker 1: students who've either come out as being pro Palestinian or

646
00:37:19,760 --> 00:37:22,960
Speaker 1: have said that they don't have an issue with what

647
00:37:23,000 --> 00:37:25,840
Speaker 1: I think are some of the grotesque measures Hamas took

648
00:37:26,120 --> 00:37:30,240
Speaker 1: and its attack on average Israeli citizens have come under

649
00:37:30,520 --> 00:37:33,719
Speaker 1: sanction from their own universities, from outside owners to the

650
00:37:33,800 --> 00:37:36,560
Speaker 1: universities who think the students have gone beyond the pale.

651
00:37:37,160 --> 00:37:40,319
Speaker 1: My view of this has been that, however wrong some

652
00:37:40,400 --> 00:37:42,359
Speaker 1: of the students might be in the way that they're

653
00:37:42,360 --> 00:37:45,880
Speaker 1: describing what's occurred or what they're advocating for it, they

654
00:37:45,920 --> 00:37:48,760
Speaker 1: are still students on a campus, and if you start

655
00:37:48,800 --> 00:37:53,440
Speaker 1: sanctioning them for their speech, you get into very tender territory. Obviously,

656
00:37:53,520 --> 00:37:55,719
Speaker 1: disagree with me if you want, but I did want

657
00:37:55,760 --> 00:37:58,080
Speaker 1: to put this thing up in front of you because

658
00:37:58,120 --> 00:38:02,839
Speaker 1: I think it's also another very public, poignant reminder of

659
00:38:02,960 --> 00:38:05,920
Speaker 1: some of the fault lines and difficulties that's around free speech.

660
00:38:06,800 --> 00:38:09,719
Speaker 2: Yeah, I do think that there are some difficult free

661
00:38:09,719 --> 00:38:12,000
Speaker 2: speech questions here, but for the most part, they are

662
00:38:12,040 --> 00:38:16,359
Speaker 2: not First Amendment questions, right, They are questions about free

663
00:38:16,360 --> 00:38:20,000
Speaker 2: speech culture. So, for example, when a donor says to

664
00:38:20,400 --> 00:38:23,040
Speaker 2: Harvard University, I used to give you hundreds of millions

665
00:38:23,040 --> 00:38:26,960
Speaker 2: of dollars, and because you haven't condemned the students who

666
00:38:27,280 --> 00:38:31,840
Speaker 2: didn't vociferously enough condemn the Hamas attacks, I'm going to

667
00:38:31,920 --> 00:38:35,440
Speaker 2: withhold future donations. I think that the students had a

668
00:38:35,520 --> 00:38:38,279
Speaker 2: right to say what they said, the university had a

669
00:38:38,360 --> 00:38:40,960
Speaker 2: right to respond in whatever way it did, and the

670
00:38:41,080 --> 00:38:43,960
Speaker 2: donor has a First Amendment right to respond in that

671
00:38:44,000 --> 00:38:47,239
Speaker 2: way too. Now, those are the easy questions. The First

672
00:38:47,280 --> 00:38:51,000
Speaker 2: Amendment questions are easy. Harder questions are about free speech culture.

673
00:38:51,440 --> 00:38:55,000
Speaker 2: It does make me very uncomfortable to see donors putting

674
00:38:55,000 --> 00:38:58,320
Speaker 2: this kind of pressure on universities to condemn their students.

675
00:38:58,760 --> 00:39:03,360
Speaker 2: You know, one prominent headgefund manager was running these billboards

676
00:39:03,400 --> 00:39:06,600
Speaker 2: at campuses around the country accusing some of the students

677
00:39:06,600 --> 00:39:09,719
Speaker 2: of being anti Semitic, plastering their faces and names and

678
00:39:09,760 --> 00:39:13,520
Speaker 2: home addresses on these billboards. Again, I think that those

679
00:39:13,560 --> 00:39:16,279
Speaker 2: actions are probably lawful. I mean, I don't know all

680
00:39:16,320 --> 00:39:18,839
Speaker 2: the details, but based on the description I just gave you,

681
00:39:18,920 --> 00:39:22,759
Speaker 2: the actions are probably lawful, but they do seem inconsistent

682
00:39:22,800 --> 00:39:26,080
Speaker 2: to me with the basic principles of an open, free

683
00:39:26,080 --> 00:39:29,120
Speaker 2: speech culture. I don't see that as, you know, a

684
00:39:29,200 --> 00:39:32,480
Speaker 2: kind of legitimate form of counter speech. Instead, those billboards

685
00:39:32,520 --> 00:39:36,240
Speaker 2: are an attempt to intimidate and coerce students into giving

686
00:39:36,320 --> 00:39:40,960
Speaker 2: up their First Amendment rights, stopping students from participating in

687
00:39:41,000 --> 00:39:45,720
Speaker 2: public discourse about, you know, an issue whose importance everybody recognizes.

688
00:39:45,680 --> 00:39:49,400
Speaker 1: Since we're talking about campus life, Jamil. Some data or

689
00:39:49,440 --> 00:39:53,840
Speaker 1: studies have suggested that faculty members are getting punished or

690
00:39:53,920 --> 00:39:58,680
Speaker 1: fired for speech or expression more frequently in recent years

691
00:39:58,719 --> 00:40:01,080
Speaker 1: than they have historically. It's not clear to me how

692
00:40:01,080 --> 00:40:03,920
Speaker 1: that breaks down if it's faculty members on the left

693
00:40:04,040 --> 00:40:08,200
Speaker 1: getting censured by institutions on the right, or faculty members

694
00:40:08,200 --> 00:40:11,239
Speaker 1: on the right getting it censored by administrations that are

695
00:40:11,239 --> 00:40:14,279
Speaker 1: more left leaning. But it does seem to be increasing

696
00:40:14,480 --> 00:40:17,840
Speaker 1: regardless of where the ideologies line up. And I'm wondering

697
00:40:17,920 --> 00:40:20,080
Speaker 1: what you think about that. Do you think it's actually

698
00:40:20,080 --> 00:40:23,200
Speaker 1: become more ubiquitous and apparent now than it has in

699
00:40:23,239 --> 00:40:24,680
Speaker 1: the past, And what are your thoughts about that?

700
00:40:24,719 --> 00:40:27,920
Speaker 2: If so, Yeah, I don't know the statistics, but it

701
00:40:27,960 --> 00:40:32,880
Speaker 2: does certainly feel like academic freedom is under a special

702
00:40:32,960 --> 00:40:36,640
Speaker 2: threat right now, not just with these sanctions being imposed

703
00:40:36,760 --> 00:40:41,239
Speaker 2: on professors who say controversial things, but there are these

704
00:40:41,280 --> 00:40:46,120
Speaker 2: attempts around the country to restrict the ways that teachers

705
00:40:46,640 --> 00:40:51,080
Speaker 2: public university faculty teach. We have a case in Texas

706
00:40:51,120 --> 00:40:55,680
Speaker 2: where we're challenging a law that restricts public university faculty

707
00:40:55,880 --> 00:41:00,239
Speaker 2: from teaching with TikTok or studying TikTok. There are the

708
00:41:00,400 --> 00:41:04,840
Speaker 2: interventions you mentioned earlier involving critical race theory or motivate

709
00:41:04,880 --> 00:41:07,759
Speaker 2: it anyway, by the perception that critical race theory has

710
00:41:07,840 --> 00:41:09,799
Speaker 2: kind of taken over schools. So there are all these

711
00:41:09,880 --> 00:41:14,680
Speaker 2: efforts to chill the speech of public university faculty. And

712
00:41:14,719 --> 00:41:17,000
Speaker 2: it goes beyond universities as well, you know, high schools

713
00:41:17,000 --> 00:41:20,319
Speaker 2: and elementary schools too. These efforts to really kind of

714
00:41:20,600 --> 00:41:24,960
Speaker 2: narrow the ideas that students are exposed to, and narrow

715
00:41:25,080 --> 00:41:28,560
Speaker 2: the options that teachers have to teach their students, even

716
00:41:28,760 --> 00:41:31,480
Speaker 2: you know, restrict the books that students can read, and

717
00:41:31,600 --> 00:41:33,680
Speaker 2: all of that I think is a matter for real concern.

718
00:41:34,360 --> 00:41:37,080
Speaker 1: You know, the standard here we're talking about is more broadly,

719
00:41:37,120 --> 00:41:40,680
Speaker 1: I think, is that airing contentious views is a virtue,

720
00:41:41,200 --> 00:41:44,719
Speaker 1: and disagreement about those views is healthy, especially on campuses.

721
00:41:45,160 --> 00:41:47,520
Speaker 2: Yes, absolutely, I would say it goes even beyond that.

722
00:41:47,600 --> 00:41:50,880
Speaker 2: The whole point of a university is to create a

723
00:41:50,920 --> 00:41:55,719
Speaker 2: space in which people can really consider ideas freely, can

724
00:41:55,760 --> 00:41:59,640
Speaker 2: pursue ideas to their limits, can explore ideas even if

725
00:41:59,640 --> 00:42:02,800
Speaker 2: they're controversial or unpopular. I mean, that is the point

726
00:42:02,800 --> 00:42:05,600
Speaker 2: of the university. If a university can't do that, then

727
00:42:05,680 --> 00:42:08,360
Speaker 2: you know you've really undermined it's, you know, entire purpose.

728
00:42:09,320 --> 00:42:11,359
Speaker 1: I always like to wind the show up, Jamil by

729
00:42:11,440 --> 00:42:14,720
Speaker 1: asking people what they've learned. What do you know now

730
00:42:15,000 --> 00:42:18,600
Speaker 1: as an attorney and an advocate steeped in issues surrounding

731
00:42:18,640 --> 00:42:22,440
Speaker 1: free speech that you didn't know when you first embarked

732
00:42:22,440 --> 00:42:23,320
Speaker 1: on your legal career.

733
00:42:24,360 --> 00:42:27,000
Speaker 2: I would say that I know that these issues are

734
00:42:27,080 --> 00:42:30,759
Speaker 2: more complicated than they seem at first. You know, you

735
00:42:30,840 --> 00:42:33,480
Speaker 2: come to free speech, or certainly I did, with a

736
00:42:33,520 --> 00:42:37,520
Speaker 2: pretty two dimensional understanding or one dimensional understanding of the

737
00:42:37,560 --> 00:42:39,920
Speaker 2: First Amendment and the concept of free speech, that the

738
00:42:39,920 --> 00:42:42,759
Speaker 2: whole point is to prevent the government from censoring us right.

739
00:42:43,280 --> 00:42:46,359
Speaker 2: And it's not that that's wrong, but it turns out

740
00:42:46,400 --> 00:42:49,600
Speaker 2: to be much more complicated, much more complicated, because there

741
00:42:49,640 --> 00:42:54,080
Speaker 2: are legitimate questions about when something should count as censorship.

742
00:42:54,480 --> 00:42:57,759
Speaker 2: There are legitimate questions about should we be worried only

743
00:42:57,800 --> 00:43:00,000
Speaker 2: about the government or should we be worried about private

744
00:43:00,080 --> 00:43:03,480
Speaker 2: actors too. There are legitimate questions about the purpose of

745
00:43:03,520 --> 00:43:05,400
Speaker 2: the First Amendment. You know, we talked a little bit

746
00:43:05,400 --> 00:43:09,520
Speaker 2: about self government and democracy, but there are also completely

747
00:43:09,600 --> 00:43:13,200
Speaker 2: plausible theories of the First Amendment that center other values

748
00:43:13,320 --> 00:43:18,160
Speaker 2: like individual autonomy or truth seeking or accountability. And if

749
00:43:18,200 --> 00:43:20,320
Speaker 2: you think those are the values that the First Amendment

750
00:43:20,360 --> 00:43:23,239
Speaker 2: should care most about, then your First Amendment is going

751
00:43:23,320 --> 00:43:26,160
Speaker 2: to look a little bit different than a First Amendment

752
00:43:26,239 --> 00:43:30,920
Speaker 2: that is focused principally on democracy. And ultimately, there's no

753
00:43:31,360 --> 00:43:34,480
Speaker 2: right answer to those questions, or maybe a better way

754
00:43:34,520 --> 00:43:36,520
Speaker 2: to say it is that the only way we can

755
00:43:36,520 --> 00:43:39,280
Speaker 2: figure out what's right is to figure out what works.

756
00:43:39,360 --> 00:43:40,920
Speaker 2: We have to think about, you know, what kind of

757
00:43:40,920 --> 00:43:43,279
Speaker 2: society is this going to create? And do we like

758
00:43:43,320 --> 00:43:46,279
Speaker 2: that society? So those are really hard questions, and you

759
00:43:46,360 --> 00:43:48,480
Speaker 2: come to this for the first time you think it's

760
00:43:48,640 --> 00:43:51,840
Speaker 2: just a matter of stopping the government from censoring people,

761
00:43:52,440 --> 00:43:56,479
Speaker 2: and again, not incorrect, but not complete either.

762
00:43:57,880 --> 00:44:00,239
Speaker 1: This has been such a great conversation, Jamil, but we're

763
00:44:00,239 --> 00:44:02,960
Speaker 1: out of time unfortunately. Thank you for joining us today.

764
00:44:03,480 --> 00:44:04,359
Speaker 2: Thank you so much.

765
00:44:05,200 --> 00:44:08,040
Speaker 1: Jamil Jaffer is the director of the Night First Amendment

766
00:44:08,080 --> 00:44:11,400
Speaker 1: Institute at Columbia University. You can find him on Twitter

767
00:44:11,760 --> 00:44:16,360
Speaker 1: at Jamil Jaffer. Here at crash Course, we believe the

768
00:44:16,400 --> 00:44:21,160
Speaker 1: collisions can be messy, impressive, challenging, surprising, and always instructive.

769
00:44:21,440 --> 00:44:24,280
Speaker 1: In today's Crash Course, I learned that the digital revolution

770
00:44:24,640 --> 00:44:28,360
Speaker 1: has upended so many things that even free speech and

771
00:44:28,440 --> 00:44:30,800
Speaker 1: how we define it, enforce it and build our laws

772
00:44:30,800 --> 00:44:34,799
Speaker 1: around it is also in motion. What did you learn?

773
00:44:35,360 --> 00:44:37,640
Speaker 1: We'd love to hear from you. You can tweet at

774
00:44:37,640 --> 00:44:41,239
Speaker 1: the Bloomberg Opinion handle at Opinion or me at Tim

775
00:44:41,280 --> 00:44:45,400
Speaker 1: O'Brien using the hashtag Bloomberg Crash Course. You can also

776
00:44:45,440 --> 00:44:48,000
Speaker 1: subscribe to our show wherever you're listening right now, and

777
00:44:48,120 --> 00:44:50,759
Speaker 1: please leave us a review. It helps more people find

778
00:44:50,800 --> 00:44:55,480
Speaker 1: the show. This episode was produced by the Indispensable Animasarakas,

779
00:44:56,200 --> 00:45:00,680
Speaker 1: Julia Press and Me. Our supervising producer is mo Hendrickson,

780
00:45:00,719 --> 00:45:04,040
Speaker 1: and we had editing help from Sagebauman, Jeff Grocott, Mike

781
00:45:04,120 --> 00:45:08,160
Speaker 1: Mietze and Christine Vanden Bilart. Blake Maples does our sound

782
00:45:08,200 --> 00:45:12,000
Speaker 1: engineering and our original theme song was composed by Luis Gara.

783
00:45:12,560 --> 00:45:15,520
Speaker 1: I'm Tim O'Brien. We'll be back next week with another

784
00:45:15,520 --> 00:45:16,160
Speaker 1: crash course.