Speaker 1: Welcome to Crash Course, a podcast about business, political, and
Speaker 1: social disruption and what we can learn from it. I'm
Speaker 1: Tim O'Brien. Today's Crash Course Free Speech Versus Censorship. I'll
Speaker 1: take a leap and say that speech has probably never
Speaker 1: been freer in the world than it is today. Multiple venues,
Speaker 1: especially social media, allow people's perspectives to take flight fluently
Speaker 1: globally and frequently. Pick your format print, audio, video, and images,
Speaker 1: for example, and you can easily put ideas in front
Speaker 1: of an audience huge audiences. Potentially, the culture of free
Speaker 1: speech is also under steady and ever more sophisticated assaults,
Speaker 1: perhaps because its ubiquity is threatening to any person or
Speaker 1: institution that holds an opposing viewpoint. The very thing that
Speaker 1: makes speech so free right now, ease of motion, is
Speaker 1: perhaps what also makes it more threatening. And I'll say
Speaker 1: that if speech feels threatening, the solution isn't to bottle
Speaker 1: it up, as Supreme Court Justice Lewis brandeis once advised
Speaker 1: almost a century ago, and I quote, the remedy to
Speaker 1: be applied is more speech, not enforced silence. But we
Speaker 1: are awash in efforts to enforce or encourage silence in
Speaker 1: our current chaotic era. Everything from education and public health
Speaker 1: to political opinion, religion, and art have offered fodder for
Speaker 1: attempted censorship. Joining me today to discuss free speech and
Speaker 1: efforts to corral it is Jamille Jaffer, an attorney who
Speaker 1: is also the director of the Night First Amendment Institute
Speaker 1: at Columbia University. The institute deploys what it describes as
Speaker 1: strategic litigation, research and public education to defend free speech
Speaker 1: in a digitally driven world. Welcome to Crash course.
Speaker 2: Jamil, thanks so much, happy to be here. So just
Speaker 2: start us off.
Speaker 1: A little bit, talk about how it came to pass
Speaker 1: that free speech has become the focal point of your
Speaker 1: own professional life.
Speaker 2: Well, I was a lawyer at the ACLU for almost
Speaker 2: fifteen years starting in two thousand and two, and I
Speaker 2: focused mostly on national security cases. So this was obviously
Speaker 2: right after nine to eleven, and we were doing a
Speaker 2: lot of work relating to detention and interrogation surveillance, and
Speaker 2: it turned out that a lot of those cases were
Speaker 2: incidentally First Amendment cases or free speech cases. So in
Speaker 2: the course of doing work on national security issues, I
Speaker 2: ended up litigating a lot of transparency cases where we
Speaker 2: were trying to get information about, for example, what was
Speaker 2: going on in the CIA's black sites. That litigated a
Speaker 2: bunch of cases involving the denial of visas to foreign
Speaker 2: citizens who had been invited to speak inside the United States,
Speaker 2: and those two turned out to be First Amendon cases.
Speaker 2: A lot of cases involving access to the courts, and
Speaker 2: then some cases involving the free speech and freedom of
Speaker 2: association implications of government surveillance. And so I was approaching
Speaker 2: all those cases as cases about national security and human rights,
Speaker 2: but they all ended up turning on these questions about
Speaker 2: the First Amendment, or at least free speech. And so
Speaker 2: I became a First Amendment lawyer almost by accident. And
Speaker 2: I'd been at these you a long time again, almost
Speaker 2: fifteen years, and I got a call from Columbia, which
Speaker 2: had decided with the Knight Foundation to set up this
Speaker 2: institute here to focus on digital age free speech questions.
Speaker 2: That was twenty sixteen. Now we've been doing this for
Speaker 2: seven years and it's now a real organization. We have
Speaker 2: about twenty five people, including thirteen or fourteen litigators. We
Speaker 2: bring strategic litigation, We host and commission research, and we
Speaker 2: have a growing public education program as well, so did I.
Speaker 1: They sort of over sell or improperly describe the dynamic
Speaker 1: that's a foot in our lives right now. You know
Speaker 1: this idea that the digital revolution, and with it, the
Speaker 1: advent of social media, has made free speech freer perhaps
Speaker 1: than ever before, while at the same time making it
Speaker 1: so front and center in people's lives that it appears
Speaker 1: to people with opposing viewpoints also be more threatening than
Speaker 1: ever before. Or is that the wrong way to think
Speaker 1: about it.
Speaker 2: I think that's a legitimate way of thinking about it.
Speaker 2: It's not the only way of thinking about it. So
Speaker 2: it might depend what you mean by free speech, right.
Speaker 1: Just to clear that up, I guess I would say
Speaker 1: the ability to speak freely and the ability to speak
Speaker 1: without being censored.
Speaker 2: You know, I think it also depends what you mean
Speaker 2: by censorships. Let me tell you why I'm sort of
Speaker 2: resisting this frame. So you're definitely right that social media
Speaker 2: in particular has democratized speech so that now anybody who
Speaker 2: wants to comment on matters of publica or for that matter,
Speaker 2: matters of private concern, can do it without the kinds
Speaker 2: of gatekeepers that were always in the way twenty years ago. Right,
Speaker 2: You no longer need the permission of CBS or New
Speaker 2: York Times to speak to a broad audience. There are
Speaker 2: lots of people who are doing that right now on
Speaker 2: social media without any mediation at all, and in many
Speaker 2: ways that's been an amazing thing for free speech. You know.
Speaker 2: It means that we can hold government officials and other
Speaker 2: powerful private actors to account much much more easily. So
Speaker 2: you know, in that sense, yes, absolutely, speech is freer
Speaker 2: now than it's ever been. On the other hand, we
Speaker 2: do have these new gatekeepers, the social media companies themselves,
Speaker 2: that play a very large role in determining what speech
Speaker 2: gets heard online, which ideas get traction, which speakers are
Speaker 2: allowed to speak. All sorts of new technologies pose new
Speaker 2: kinds of threats to free speech. We have a case
Speaker 2: against spyware manufacturer whose technology was used to hack the
Speaker 2: phones of Central American journalists. That's the kind of threat
Speaker 2: to press freedom that nobody even contemplated ten or twenty
Speaker 2: years ago. So I would say it's complicated. There's a
Speaker 2: sense in which you're certainly right, but that's not the
Speaker 2: only way to look at the facts here.
Speaker 1: I'm sure it's not the only way to think about it.
Speaker 1: Jimil That's why I wanted to kind of do a
Speaker 1: reality check with you. And as it happens, the Supreme
Speaker 1: Court itself is wrestling right now with trying to understand
Speaker 1: this interplay between digital platforms and free speech and then
Speaker 1: the intervention of opposing parties and how that speech is
Speaker 1: conducted essentially, And there's a couple of imminent Supreme Court
Speaker 1: hearings afoot. Those actually might have taken place by the
Speaker 1: time we air, but I wanted to talk to you
Speaker 1: about those. In the first one of them, a California
Speaker 1: school board blocked parents on their own Facebook page because
Speaker 1: the parents had left posts complaining about racism at the school.
Speaker 1: And in that specific case, the court is trying to
Speaker 1: come out on whether or not the school board has
Speaker 1: a right essentially to limit parents speech if the parents
Speaker 1: are criticizing the institution. I think that's a sort of
Speaker 1: a thumbnail of what's at stake here. Tell me how
Speaker 1: you view that particular case and what's in play there.
Speaker 2: So these are representative of a broader class of cases
Speaker 2: involving the use of social media by public officials, and
Speaker 2: as you know, public officials now use social media often
Speaker 2: as their principal means of communicating with the public and
Speaker 2: with their constituents in particular, and the result is that
Speaker 2: some public officials social media accounts have become really important
Speaker 2: public forums, like forums for discussion of public policy. I mean,
Speaker 2: Trump's account, I think was the paradigm here. People used
Speaker 2: to go to Trump's Twitter account to hear the views
Speaker 2: of the president, to engage with those views, to engage
Speaker 2: with other citizens about what the president had said. There's
Speaker 2: a lot that you could learn from President Trump's Twitter
Speaker 2: account you couldn't learn anywhere else. And so that Twitter
Speaker 2: account took on this democratic significance kind of like you know,
Speaker 2: a city council meeting or a school board meeting, or
Speaker 2: a legislator's town hall, but you know, on steroids, almost
Speaker 2: like Trump was standing at the front of the room
Speaker 2: and there are millions of citizens assembled in front of
Speaker 2: him who were listening to him, talking back to him,
Speaker 2: talking to one another. You know, that's one way to
Speaker 2: think of what that social media account was. And you know,
Speaker 2: Trump is unique in many different respects, but many other
Speaker 2: public officials now use their social media accounts in basically
Speaker 2: the same way. And so this question of what status
Speaker 2: these accounts have under The first Amendment is a really
Speaker 2: important one. If there's a school board meeting, you can't
Speaker 2: get kicked out of it just because you disagree with
Speaker 2: what the school board thinks. And if you go to
Speaker 2: a city council meeting and you complain about racism at
Speaker 2: city schools, the city council can't kick you out just
Speaker 2: because they don't like what you're saying. And so the
Speaker 2: question is what happens if a public official effectively kicks
Speaker 2: you out of his or her social media account, you know,
Speaker 2: blocks you from accessing the account. I think that when
Speaker 2: people first come to this set of questions, they they
Speaker 2: go this is trivial, but given the significance that these
Speaker 2: accounts now have to our democracy, it's actually a really
Speaker 2: important question. When can a public official block a citizen
Speaker 2: from participating in that democratically important space? And that's the
Speaker 2: question this before the court.
Speaker 1: Wait, but before you go on here, because I think
Speaker 1: we should clarify something. Is you mentioned that school officials
Speaker 1: have their own, say, personal accounts. They may also have
Speaker 1: individual accounts as a representative of the local government or
Speaker 1: a local institution, and then there also might be an
Speaker 1: an institutional account. Yes, so there's different classes of accounts
Speaker 1: actually that come into play. I would presume that a
Speaker 1: local official with a personal account is free to let
Speaker 1: anyonet to honor off that personal account that they want
Speaker 1: to if it's in their capacity as an individual.
Speaker 2: Yeah.
Speaker 1: You see members of Progress, for example, expressly saying this
Speaker 1: is my personal account and this is my federal account
Speaker 1: as a politician. In the school board case in California,
Speaker 1: my understanding is the parents were posting on a school
Speaker 1: board account, not an account representing any individual, either in
Speaker 1: their capacity as a local official or as an individual,
Speaker 1: and that they were kicked off the school board account
Speaker 1: or blocked from it. Essentially. Is that correct?
Speaker 2: I mean, all that's correct, And conceptually you're right that
Speaker 2: nobody's saying that the First Amendment should apply to a
Speaker 2: public official's personal account. But what counts as a personal
Speaker 2: account is actually a complicated question, because you know, Trump
Speaker 2: used to say that his account was personal, but he
Speaker 2: used that account to do the work.
Speaker 1: I'm a Trump later because he's very Suey ganeerous in
Speaker 1: a lot of ways and important in this debate and discussion.
Speaker 1: But I want to focus in on what the Supreme
Speaker 1: Court right now is looking at in these two cases.
Speaker 2: Yeah. Even with these two cases, though, you know, the
Speaker 2: question is when does an account reflect the exercise of
Speaker 2: state power? Because when the account reflects the exercise of
Speaker 2: state power, it's subject to the constraints of the First Amendment.
Speaker 2: But you can't answer that question about whether an account
Speaker 2: reflects the exercise of state power without actually looking beyond
Speaker 2: the label. It's not enough that somebody says this is
Speaker 2: a personal account, or you know, I also have an
Speaker 2: official account. You got to look at how the account
Speaker 2: is used. And it's one of the things the Supreme
Speaker 2: Court is going to have to struggle with is how
Speaker 2: do you draw this line? Because on some of these
Speaker 2: accounts you've got a bunch of photographs of cats, and
Speaker 2: then you have, you know, a legislator saying if you
Speaker 2: have comments about my proposal to do X, then please
Speaker 2: write to my office. So it's a combination of things.
Speaker 2: And how do you decide is this subject to the
Speaker 2: constraints for the First Amendment or not? That's a hard question.
Speaker 1: The other case that the Supreme Court's looking at in
Speaker 1: the docket that I've referenced to you right now is
Speaker 1: is a case in Michigan where a resident was blocked
Speaker 1: from the city manager's Facebook page after the resident to
Speaker 1: complained about the locality's response to the COVID nineteen pandemic.
Speaker 1: I'm assuming the same things that we just discussed in
Speaker 1: the school board case in California are at play in
Speaker 1: this Michigan case. Again, Can a local entity block a
Speaker 1: resident from expressing himself or herself on a social media
Speaker 1: platform that's affiliated in some way with the local government.
Speaker 2: Yeah, now that's right. I mean these two cases that
Speaker 2: you just mentioned, the court is really focused on the
Speaker 2: question of whether the accounts reflect the exercise of state power,
Speaker 2: and the court didn't grant cer, so the court hasn't
Speaker 2: agreed to consider the question of what those constraints might be.
Speaker 2: So it's conceivable that the court says in these two cases,
Speaker 2: in both of these cases, the public officials social media
Speaker 2: accounts were exercises of state power, and therefore the first
Speaker 2: amenment applies. But this question what does it mean when
Speaker 2: the first amendent applies is not actually presented by these
Speaker 2: two cases and is going to have to be addressed
Speaker 2: by the lower courts in the first instance, and you
Speaker 2: could imagine a rule that says, well, public officials can
Speaker 2: block their constituents for all sorts of reasons, like, for example,
Speaker 2: for spamming them, but they can't block them based on
Speaker 2: viewpoint alone. Like that would be one possible First Amendment rule,
Speaker 2: but we're not going to get that kind of rule
Speaker 2: out of the Supreme Court this term. It's going to
Speaker 2: be for the lower courts to address that first.
Speaker 1: In this collection of things that the Supreme Court is
Speaker 1: looking at, another one that's intriguing to me is they're
Speaker 1: going to consider a case involving content moderation on social
Speaker 1: media platforms and what protections the platforms themselves, as private entities,
Speaker 1: should enjoy around how they moderate what appears on their
Speaker 1: own sites, whether it's Facebook or Twitter. And we'll talk
Speaker 1: more about this as we go on in the conversation
Speaker 1: because this is also kind of, i think, ground zero
Speaker 1: of our current debate about the new digital world and
Speaker 1: free speech. But talk a little bit about what the
Speaker 1: Supreme Court is looking at in that case, what responsibilities
Speaker 1: private entities have over content moderation.
Speaker 2: Yeah, So the cases we just talked about are cases
Speaker 2: about the government as speaker right, where you have public
Speaker 2: officials wanting to use social media themselves and their speakers
Speaker 2: in that context. These cases that you just brought up
Speaker 2: are cases involving the government as regulator, where the question
Speaker 2: is what limits is the First Amendment place on the
Speaker 2: government's power to control or influence the content moderation policies
Speaker 2: of the platforms, And these two cases involve laws out
Speaker 2: of Florida and Texas, both passed in twenty twenty one.
Speaker 2: Both of the laws impose what are sometimes called must
Speaker 2: carry obligations on the platforms. So the Florida law, for example,
Speaker 2: requires the platforms to carry the speech of political candidates
Speaker 2: as well as prohibits them from taking down the speech
Speaker 2: of media organizations on the basis of the content of
Speaker 2: the media organization's articles. And then the Texas law prohibits
Speaker 2: the platforms from taking down speech on the basis of viewpoint.
Speaker 2: So both of these laws impose again what are called
Speaker 2: must carry obligations on the platforms that require them to
Speaker 2: publish speech that they might not want to publish. And
Speaker 2: both laws also require the platforms to notify users whose
Speaker 2: speech is taken down. So if Facebook decides that one
Speaker 2: of your posts violates a term of service, then Facebook
Speaker 2: is required under these laws to tell you that they've
Speaker 2: taken the speech down and to explain why they've taken
Speaker 2: it down. So those are the laws, and the question
Speaker 2: before the Supreme Court is does the First Amendment permit
Speaker 2: the government to impose those kinds of must carry obligations
Speaker 2: on the platforms? And does it permit the government to
Speaker 2: require the platforms to notify and provide explanations to their
Speaker 2: users in the way I just described. So those are
Speaker 2: the questions, and they turn out to be really complicated
Speaker 2: First Amendment questions, in part because the precedents that we
Speaker 2: have don't involve social media. The precedence we have, you know,
Speaker 2: sometimes involve newspapers, and then there's a question of how
Speaker 2: far do those precedents that were decided in relation to
Speaker 2: newspapers go when we're talking about this very different medium.
Speaker 2: So for that reason, these two cases are complicated.
Speaker 1: And because of the technology platforms themselves have worked mightily
Speaker 1: to claim that they're not publishers, they're merely technology platforms,
Speaker 1: even though in my opinion, they do act as publishers
Speaker 1: in the world we live in right now, and I
Speaker 1: think it's a smoke screen that the tech companies have
Speaker 1: thrown up because to moderate more would be more expensive.
Speaker 1: That's an extra expense they want to take on. Describing
Speaker 1: themselves as a publisher brings them into a different, potentially
Speaker 1: regulatory regime. Describing themselves as publishers puts a different onus
Speaker 1: on them legally and exposes them to new life abilities.
Speaker 1: If they embrace the definition of publisher, it's more expensive
Speaker 1: and more complex to run their businesses. And so they
Speaker 1: insist that they're merely technology platforms and they're simply offering
Speaker 1: people a place to express themselves. But if we've seen
Speaker 1: when technology platforms, I think, hide behind that label to
Speaker 1: a certain extent, they don't perform the kind of gatekeeping
Speaker 1: role you sometimes want in a complicated era in which
Speaker 1: propaganda and disinformation exists alongside free speech and facts.
Speaker 2: Yeah, I think that there's no doubt that you're right
Speaker 2: that the social media companies have tried to have it
Speaker 2: both ways. You know, they sometimes say that we're effectively
Speaker 2: merely conduits for our user's speech, and we can't be
Speaker 2: held responsible for what's on our platforms because all of that,
Speaker 2: you know, has been written by other people and we're
Speaker 2: just kind of the infrastructure they have. I would say,
Speaker 2: if not abandoned that talking point, now they've certainly drifted
Speaker 2: considerably far away from it, and in these cases before
Speaker 2: the Supreme Court, their argument is actually just the opposite.
Speaker 2: Their argument is that the social media platforms are just
Speaker 2: like newspapers for First Amendment purposes. We also exercise editorial
Speaker 2: judgment when we decide what content can be on our platforms.
Speaker 2: You know, when we decide that misinformation needs to be labeled,
Speaker 2: or when we decide that speech that glorifies violence needs
Speaker 2: to be taken down. Those are editorial decisions and their
Speaker 2: editorial decisions within the meaning of the First Amendment. And
Speaker 2: for the same reasons the newspapers are protected, and to
Speaker 2: the same extent the newspapers are protected, we're protected too.
Speaker 2: That's the argument they're making. That's sort of the first
Speaker 2: step of their arguments in these cases, is that we're
Speaker 2: just like newspapers. And the second step is, for the
Speaker 2: same reasons Congress couldn't tell a newspaper to carry speech
Speaker 2: it didn't want to carry, Congress can't tell us, or
Speaker 2: legislators can't tell us in this case, is Florida and
Speaker 2: Texas can't tell us what to carry. And for the
Speaker 2: same reasons that legislators couldn't require newspapers to explain why
Speaker 2: they did or didn't publish any particular article. We can't
Speaker 2: be required to explain to our users why we took
Speaker 2: down their posts. So you're absolutely right that in other contexts,
Speaker 2: the platforms have tried very hard to disavow any responsibility
Speaker 2: for the content on their platforms. In this particular context,
Speaker 2: they're running in exactly the opposite direction and saying that
Speaker 2: we're no different from newspapers and are entitled to the
Speaker 2: same constitutional protection as newspapers are.
Speaker 1: Okay, on that note, I want to take a quick
Speaker 1: break and hear from one of our sponsors, Jamil, and
Speaker 1: then we'll come right back and continue this conversation. We're
Speaker 1: back with Jamil Jaffer, director of the Night First Amendment
Speaker 1: Institute at Columbia University. Jamil is a free speech warrior. Jamie,
Speaker 1: let's step away from the specifics of the Supreme Court
Speaker 1: cases we've been talking about in the prior segment and
Speaker 1: just talk philosophically for a minute about what place the
Speaker 1: values or virtues of free speech have traditionally occupied in
Speaker 1: American life. Why is this thing that we call free
Speaker 1: speech protected in the Constitution, Why is it constantly debated
Speaker 1: in our public life. Why are you and I talking
Speaker 1: about it right now?
Speaker 2: Yeah, I mean, I think that a big part of
Speaker 2: the answer to that question is that free speech and democracy,
Speaker 2: or free speech and self government are very very closely connected, right,
Speaker 2: and democracy is core to our self conception in the
Speaker 2: United States. That's sort of what defines our society is
Speaker 2: it's a democratic character. But if you're going to have
Speaker 2: a government that is answerable to the people, then the
Speaker 2: people need to have the freedom to debate government policy,
Speaker 2: they need to have access to information, and it's the
Speaker 2: First Amendment that guarantees those things. And so one way
Speaker 2: to think about the First Amendment, or the core purpose
Speaker 2: of the First Amendment, is that it's intended to create
Speaker 2: the conditions that are necessary to sustain democracy, and that,
Speaker 2: in fact, is how most free speech theorists have thought
Speaker 2: about it, at least for the last fifty years. You know,
Speaker 2: I think people don't always know this, but the First
Speaker 2: Amendment as we understand it today is actually very young.
Speaker 2: It grew out of opinions that Oliver Wendell Holmes and
Speaker 2: Louis Brandeis wrote beginning in nineteen nineteen, so just a
Speaker 2: century ago, and those opinions were dissents and concurrences initially,
Speaker 2: and then over time they sort of moved over into
Speaker 2: the majority. But most of the rules that we think
Speaker 2: of as fundamental to the First Amendment today were established
Speaker 2: by the Supreme Court in the nineteen sixties and seventies
Speaker 2: through cases like New York Times versus Sullivan, which insulates
Speaker 2: news organizations from most defamation claims, Brandenburg versus Ohio, which
Speaker 2: holds that even extreme forms of political advocacy are protected
Speaker 2: by the First Amendment unless they amount to incitement, or
Speaker 2: cases like the Pentagon Papers case in the nineteen seventy one
Speaker 2: case that held that the government couldn't obtain a prior
Speaker 2: restraint against the newspapers for publishing a secret report about
Speaker 2: the Vietnam War. Like those cases were decided fifty years ago,
Speaker 2: and those cases really defined the First Amendment as we
Speaker 2: understand it today. So all this is very very new,
Speaker 2: but those cases from the nineteen sixties and seventies really
Speaker 2: positioned democracy at the heart of the First Amendment. They
Speaker 2: really saw the purpose of the First Amendment as again
Speaker 2: kind of creating the conditions that would make self government
Speaker 2: and democracy possible. And so now when you think about
Speaker 2: extending the First Amendment to new spheres. One question that
Speaker 2: you might begin with is what would serve our democracy
Speaker 2: in this new sphere. What rules relating to free speech
Speaker 2: would be best for our democracy in this new sphere, like,
Speaker 2: for example, the sphere of SAE social media. So that's
Speaker 2: one way to approach these questions, and I think it's
Speaker 2: the way that's most consistent with the way that the
Speaker 2: Supreme Court approached these questions in this formative period in
Speaker 2: the nineteen sixties and seventies.
Speaker 1: And yet, even with the presidents that you've referred to
Speaker 1: and the sort of legal architecture that's been built around
Speaker 1: free speech, it still gets contested daily and plenty of
Speaker 1: venues outside of courtrooms. You've mentioned Florida already in the podcast.
Speaker 1: Florida has been sort of on the cutting edge of
Speaker 1: asserting I think, state involvement in different forms of speech.
Speaker 1: You know, the state government in Florida has intervened around
Speaker 1: how the history of slavery and the African American black
Speaker 1: experience in the United States should be taught. They've intervened
Speaker 1: in things around what the K through twelve curriculum should
Speaker 1: look like. It's empowered parents at a very microcosmic level,
Speaker 1: to essentially police libraries for texts that are acceptable or
Speaker 1: unacceptable to sometimes just one parent in a community of
Speaker 1: How do you see that, How do you see some
Speaker 1: of these things that have been going on in Florida?
Speaker 1: How do you see that shaping this current battle we're
Speaker 1: having now over defining both the nature free speech and
Speaker 1: the parameter surrounding it.
Speaker 2: Yeah. I would say first that those cases that you
Speaker 2: just described only underscore how important First Amendment protections are.
Speaker 2: There really is a kind of authoritarian impulse behind some
Speaker 2: of those policies. Those policies are intended to restrict the
Speaker 2: ideas that the public has access to. And the point
Speaker 2: of the First Amendment, and the point of a lot
Speaker 2: of the precedents that I just described from the nineteen
Speaker 2: sixties and seventies, is to take that power out of
Speaker 2: the hands of government to make sure that we the
Speaker 2: people get to decide which ideas are worthwhile and which
Speaker 2: ones aren't. And these laws that you just described are
Speaker 2: these kind of regulatory interventions that you just described, I
Speaker 2: think are completely inconsistent with that principle. And so I
Speaker 2: would say that some of these First Amendment protections are
Speaker 2: going to get tested in cases involving those regulatory interventions
Speaker 2: that you just described. But I still have confidence that
Speaker 2: the courts will uphold those principles to sort of define
Speaker 2: the First Amendment. And again, one of those principles is
Speaker 2: just that it's not up to the government to decide
Speaker 2: which ideas are worthwhile that's a power that Constitution gives
Speaker 2: to ordinary citizens.
Speaker 1: What about private entities ability to shape what isn't isn't acceptable? Obviously,
Speaker 1: the First Amendment was erected essentially to protect individuals from
Speaker 1: government censorship. It doesn't stretch with the same kind of
Speaker 1: robust vigor into private enterprises as it does into how
Speaker 1: it moderates and as a watchdog against government censorship. Nonetheless, again,
Speaker 1: this digital era we're in has really put all out
Speaker 1: of this in stark relief, which leads me to Elon
Speaker 1: Musk and Twitter. Musk bought Twitter. When he bought it,
Speaker 1: he described himself as a free speech appsolutist, and he
Speaker 1: said that one of the reasons he was purchasing Twitter
Speaker 1: was because he felt people's free speech, particularly conservative free speech,
Speaker 1: was being circumscribed. Since taking it over, I as a
Speaker 1: Twitter user and a Twitter observer, think it's become this
Speaker 1: sort of carnival less car crash of mismanagement and misinformation,
Speaker 1: And in fact, I think Musk has acted to make
Speaker 1: it easier for disinformation and a kind of hysteria to
Speaker 1: take root on Twitter that wasn't there before. It was
Speaker 1: there in bits and pieces, but it's very center stage now.
Speaker 1: How do you think about the responsibilities that are on
Speaker 1: private owners in this digital era in terms of making
Speaker 1: sure that everyone has access from both sides of the
Speaker 1: aisle politically, and that good factual information, as opposed to
Speaker 1: disinformation and propaganda, don't flow freely across sites.
Speaker 2: I share your view of what's happened to Twitter. I
Speaker 2: think that it's too bad because I think Twitter used
Speaker 2: to play really important role in underwriting public discourse. I
Speaker 2: don't really see it playing that role now, in part
Speaker 2: because of the pathologies that you just described. I would separate, though,
Speaker 2: the question of the social media company's ethical responsibilities, and
Speaker 2: I do think that there are ethical responsibilities in the
Speaker 2: same way that media organizations have, you know, a kind
Speaker 2: of journalistic set of ethics. Social media platforms should also
Speaker 2: be thinking about what their ethical responsibilities are. But I
Speaker 2: would separate that question from the question of what the
Speaker 2: government should be doing to influence or control the content
Speaker 2: moderation policy of the platforms, because it's possible that most
Speaker 2: of the work that we need done here has to
Speaker 2: be done not through regulation, but through the development of
Speaker 2: platform ethics. One concern I have with the cases that
Speaker 2: we were just talking about in the Supreme Court, these
Speaker 2: Florida and Texas cases, is that the laws that these
Speaker 2: two states have passed I think are largely unconstitutional. I
Speaker 2: don't see the Supreme Court coming to the conclusion that
Speaker 2: the social media plot platforms don't have First Amendment rights.
Speaker 2: I don't see the Supreme Court upholding these laws that
Speaker 2: impose quite onerous must carry obligations on the platforms for
Speaker 2: no articulated reason. But I am worried that in struking
Speaker 2: down these laws, the Supreme Court might write those opinions
Speaker 2: so broadly that those opinions foreclose other legislation in the
Speaker 2: future that might be narrower and more justified by legislative
Speaker 2: findings and more closely connected to legitimate democratic goals. I
Speaker 2: do think that there is a role for governments to
Speaker 2: play in this sphere. I think that some form of
Speaker 2: transparency mandate would be a good thing. You know, requiring
Speaker 2: the platforms to be more accountable to the public and
Speaker 2: to researchers and to regulators about the decisions they're making
Speaker 2: would be a good thing. Some version of a notice requirement,
Speaker 2: I think would be a good thing. I think it
Speaker 2: makes sense that, you know, when people are kicked off
Speaker 2: these platforms that have gatekeeper powers or with respect to
Speaker 2: public discourse, it makes sense that they should have to
Speaker 2: explain their decisions. And I worry that Florida and Texas's
Speaker 2: laws will, for good reason be struck down, but struck
Speaker 2: down in terms that are so categorical that the court
Speaker 2: will foreclose much more sensible legislation that might be proposed
Speaker 2: next year or the year after. That's my worry about
Speaker 2: those particular cases.
Speaker 1: The COVID lockdown and the COVID here has also introduced
Speaker 1: an interesting new development I think or highlighted, maybe one
Speaker 1: that pre existed, but this idea around the extent to
Speaker 1: which the government is allowed to police digital platforms for
Speaker 1: bad information around say healthcare and public health that if
Speaker 1: it is false, could be threatening to the well being
Speaker 1: of individuals, but that obviously also can run up against
Speaker 1: individuals desired to present their own views about a public
Speaker 1: health crisis, or the efficacy of government recommendations during a
Speaker 1: public health crisis, whether it's asking for vaccinations, wherever it
Speaker 1: might be. That's also been playing out in a very
Speaker 1: intense way in recent years, in a way that I
Speaker 1: didn't think it had in the past, and I was
Speaker 1: wondering how you think about that issue.
Speaker 2: Yeah, I mean, I guess two things. So one is authority.
Speaker 2: I mean absolutely, you know, the government has information and
Speaker 2: insight that the public lacks on issues relating to public health.
Speaker 2: It's obviously crucial that the CDC be able to share
Speaker 2: that information with the public, important that government agencies be
Speaker 2: generally trusted. I think that the lesson from the last
Speaker 2: few years, though, is not that we need to clamp
Speaker 2: down on misinformation about public health or ensure that only
Speaker 2: the government's views are heard. I think the lesson from
Speaker 2: the last few years is first that the platforms have
Speaker 2: a kind of ethical responsibility to their users to ensure
Speaker 2: that their users are hearing information from trustworthy sources, but
Speaker 2: also that the platforms have an obligation to sure that
Speaker 2: there is space for dissent. You know, the government does
Speaker 2: have this special expertise but that doesn't mean the government
Speaker 2: doesn't get things wrong. Sometimes the government gets things wrong
Speaker 2: in good faith, and sometimes government officials, for whatever reasons,
Speaker 2: decide to mislead the public about something or the other.
Speaker 2: And part of the reason we create space for dissent
Speaker 2: is because the fact that dissenters are allowed to voice
Speaker 2: their views is one of the things that gives legitimacy
Speaker 2: to the government's views. Right. We're willing to trust the
Speaker 2: government in part because dissenters are allowed to have their say,
Speaker 2: and we trust that when dissent is persuasive, it'll eventually
Speaker 2: have the effect of forcing the government to change its
Speaker 2: own views or its own policies. So I think you
Speaker 2: need kind of both of these things. You need the
Speaker 2: platforms to ensure that their users are given access to
Speaker 2: trustworthy speakers, but also they need to make sure that
Speaker 2: there's room for dissent. And I think that the way
Speaker 2: that platforms can do that is by responding to what
Speaker 2: they think of as misinformation with labeling rather than suppression.
Speaker 2: I think labeling is a much much better solution to
Speaker 2: the problem of public health misinformation than suppression. Is much
Speaker 2: better for Facebook to just stick its own speech on
Speaker 2: top of what it believes to misinformation, and it can
Speaker 2: say we don't think this is accurate. If you want
Speaker 2: an accurate view, go to the CDC's website. That is
Speaker 2: an appropriate way for Facebook to respond to speech that
Speaker 2: it thinks of as dangerous misinformation. If Facebook responds with
Speaker 2: suppression rather than labeling, the effect is to give those
Speaker 2: speakers of a kind of monopoly on public discourse, and
Speaker 2: also to disable the kind of descent that for one
Speaker 2: thing you might turn out to be right, but for
Speaker 2: another the kind of descent that actually ends up legitimating
Speaker 2: the government's views. The fact that the descent is there
Speaker 2: is one of the reasons that we are willing to
Speaker 2: trust the CDC, because we know if the CDC gets
Speaker 2: things wrong, people will say so other scientists will say,
Speaker 2: the CDC got this wrong, And here's how I know
Speaker 2: I got it wrong right. So I think that's why
Speaker 2: I favor labeling over suppression. I don't think it would
Speaker 2: make sense to give the government the power to make
Speaker 2: misinformation unlawful. And I say that for a number of reasons.
Speaker 2: One is that what is or isn't misinformation is always
Speaker 2: a contested thing. There's no way to draw that line
Speaker 2: in a way that will be seen as politically legitimate.
Speaker 2: Another is the government often gets things wrong even when
Speaker 2: it's operating in good faith, and still in others of
Speaker 2: the government doesn't always operate in good faith. Those are
Speaker 2: all reasons why it would be a bad idea to
Speaker 2: go down the road of giving government officials the power
Speaker 2: to suppress misinformation. And I will say just one more
Speaker 2: thing about that, which is that when people propose that
Speaker 2: government officials should be given that authority, they always have
Speaker 2: in mind that the government officials who will be exercising
Speaker 2: that authority are people like them. And you cannot have
Speaker 2: any confidence that the people who are going to be
Speaker 2: exercising that governmental authority tomorrow will be people like you,
Speaker 2: even if they are people like you today. So that's
Speaker 2: still another reason to reject that possible purported solution to
Speaker 2: the problem of misinformation.
Speaker 1: Okay, Jamil, let's take another break and then we'll come
Speaker 1: right back. We're back with Jamil Jaffer, and we're talking
Speaker 1: about free speech. Jamil, we talked earlier in the show
Speaker 1: about Donald Trump as a sort of avatar for a
Speaker 1: lot of the issues that have arisen around free speech
Speaker 1: and the uses and potential abuses of social media platforms.
Speaker 1: In the era we're in, Trump has actually made free
Speaker 1: speech a shield for himself. Recently around some of the
Speaker 1: court cases that have been directed against him, he said
Speaker 1: that his involvement in the January sixth insurrection that resulted
Speaker 1: in a violent clash at the Capitol and an attempt
Speaker 1: to overthrow the election result on that day interfere with
Speaker 1: the election counting that efforts to prosecute him our assaults
Speaker 1: on his own free speech. And I think this raises
Speaker 1: an interesting thing in the free speech debate that's worth clarifying,
Speaker 1: which is, you can protect speech in all of its forms,
Speaker 1: even often hate speech is protected legally. But there's a
Speaker 1: difference between speaking freely and inciting violence or inciting a crime,
Speaker 1: isn't there.
Speaker 2: Yeah, No, that's right. It's sometimes hard to separate these things.
Speaker 2: But if you protected all speech, then you know, you
Speaker 2: would presumably protect the person who says attack to their
Speaker 2: attack dog, and that would be self defeating, and so
Speaker 2: you kind of have to separate out speech that is
Speaker 2: part of criminal conduct. I think that if you look
Speaker 2: at the indictments of Trump, there's a lot of speech
Speaker 2: in there, a lot of what the government is relying
Speaker 2: on in accusing Trump of criminal activity is speech. I
Speaker 2: don't think that is in itself a First Amendment problem.
Speaker 2: Are prosecuted for conduct that involves speech all the time.
Speaker 2: Incitement is one example, Fraud is another example. Solicitation of
Speaker 2: criminal conduct is another example. You know, those are all
Speaker 2: situations where all that the person did is speak, but
Speaker 2: they spoke as part of a course of criminal conduct.
Speaker 2: So that's a line that's often difficult to draw. But
Speaker 2: it's the.
Speaker 1: Line between free expression and being a cod in criminal conduct.
Speaker 2: Yeah, exactly, because criminal conduct often involves speech. So that's
Speaker 2: going to be a challenge for the government in these cases.
Speaker 2: But I don't think the mere fact that the indictments
Speaker 2: accuse or list episodes in which Trump is alleged to
Speaker 2: have said this or that, you know, I don't think
Speaker 2: that is in itself a reason to think that these
Speaker 2: indictments are a First Amendment problem.
Speaker 1: Another troubling, poignant issue in the news right now is
Speaker 1: the Gaza conflict that's given rise to all sorts of
Speaker 1: debates around free speech, Muslims accusing Jews of being anti Muslim,
Speaker 1: Jews accusing Muslims of being anti Semitic. This has taken
Speaker 1: root on campuses now around the country. In the US,
Speaker 1: the debate about who's in the right and who's in
Speaker 1: the wrong in this particular conflict, and in some recent incidents,
Speaker 1: students who've either come out as being pro Palestinian or
Speaker 1: have said that they don't have an issue with what
Speaker 1: I think are some of the grotesque measures Hamas took
Speaker 1: and its attack on average Israeli citizens have come under
Speaker 1: sanction from their own universities, from outside owners to the
Speaker 1: universities who think the students have gone beyond the pale.
Speaker 1: My view of this has been that, however wrong some
Speaker 1: of the students might be in the way that they're
Speaker 1: describing what's occurred or what they're advocating for it, they
Speaker 1: are still students on a campus, and if you start
Speaker 1: sanctioning them for their speech, you get into very tender territory. Obviously,
Speaker 1: disagree with me if you want, but I did want
Speaker 1: to put this thing up in front of you because
Speaker 1: I think it's also another very public, poignant reminder of
Speaker 1: some of the fault lines and difficulties that's around free speech.
Speaker 2: Yeah, I do think that there are some difficult free
Speaker 2: speech questions here, but for the most part, they are
Speaker 2: not First Amendment questions, right, They are questions about free
Speaker 2: speech culture. So, for example, when a donor says to
Speaker 2: Harvard University, I used to give you hundreds of millions
Speaker 2: of dollars, and because you haven't condemned the students who
Speaker 2: didn't vociferously enough condemn the Hamas attacks, I'm going to
Speaker 2: withhold future donations. I think that the students had a
Speaker 2: right to say what they said, the university had a
Speaker 2: right to respond in whatever way it did, and the
Speaker 2: donor has a First Amendment right to respond in that
Speaker 2: way too. Now, those are the easy questions. The First
Speaker 2: Amendment questions are easy. Harder questions are about free speech culture.
Speaker 2: It does make me very uncomfortable to see donors putting
Speaker 2: this kind of pressure on universities to condemn their students.
Speaker 2: You know, one prominent headgefund manager was running these billboards
Speaker 2: at campuses around the country accusing some of the students
Speaker 2: of being anti Semitic, plastering their faces and names and
Speaker 2: home addresses on these billboards. Again, I think that those
Speaker 2: actions are probably lawful. I mean, I don't know all
Speaker 2: the details, but based on the description I just gave you,
Speaker 2: the actions are probably lawful, but they do seem inconsistent
Speaker 2: to me with the basic principles of an open, free
Speaker 2: speech culture. I don't see that as, you know, a
Speaker 2: kind of legitimate form of counter speech. Instead, those billboards
Speaker 2: are an attempt to intimidate and coerce students into giving
Speaker 2: up their First Amendment rights, stopping students from participating in
Speaker 2: public discourse about, you know, an issue whose importance everybody recognizes.
Speaker 1: Since we're talking about campus life, Jamil. Some data or
Speaker 1: studies have suggested that faculty members are getting punished or
Speaker 1: fired for speech or expression more frequently in recent years
Speaker 1: than they have historically. It's not clear to me how
Speaker 1: that breaks down if it's faculty members on the left
Speaker 1: getting censured by institutions on the right, or faculty members
Speaker 1: on the right getting it censored by administrations that are
Speaker 1: more left leaning. But it does seem to be increasing
Speaker 1: regardless of where the ideologies line up. And I'm wondering
Speaker 1: what you think about that. Do you think it's actually
Speaker 1: become more ubiquitous and apparent now than it has in
Speaker 1: the past, And what are your thoughts about that?
Speaker 2: If so, Yeah, I don't know the statistics, but it
Speaker 2: does certainly feel like academic freedom is under a special
Speaker 2: threat right now, not just with these sanctions being imposed
Speaker 2: on professors who say controversial things, but there are these
Speaker 2: attempts around the country to restrict the ways that teachers
Speaker 2: public university faculty teach. We have a case in Texas
Speaker 2: where we're challenging a law that restricts public university faculty
Speaker 2: from teaching with TikTok or studying TikTok. There are the
Speaker 2: interventions you mentioned earlier involving critical race theory or motivate
Speaker 2: it anyway, by the perception that critical race theory has
Speaker 2: kind of taken over schools. So there are all these
Speaker 2: efforts to chill the speech of public university faculty. And
Speaker 2: it goes beyond universities as well, you know, high schools
Speaker 2: and elementary schools too. These efforts to really kind of
Speaker 2: narrow the ideas that students are exposed to, and narrow
Speaker 2: the options that teachers have to teach their students, even
Speaker 2: you know, restrict the books that students can read, and
Speaker 2: all of that I think is a matter for real concern.
Speaker 1: You know, the standard here we're talking about is more broadly,
Speaker 1: I think, is that airing contentious views is a virtue,
Speaker 1: and disagreement about those views is healthy, especially on campuses.
Speaker 2: Yes, absolutely, I would say it goes even beyond that.
Speaker 2: The whole point of a university is to create a
Speaker 2: space in which people can really consider ideas freely, can
Speaker 2: pursue ideas to their limits, can explore ideas even if
Speaker 2: they're controversial or unpopular. I mean, that is the point
Speaker 2: of the university. If a university can't do that, then
Speaker 2: you know you've really undermined it's, you know, entire purpose.
Speaker 1: I always like to wind the show up, Jamil by
Speaker 1: asking people what they've learned. What do you know now
Speaker 1: as an attorney and an advocate steeped in issues surrounding
Speaker 1: free speech that you didn't know when you first embarked
Speaker 1: on your legal career.
Speaker 2: I would say that I know that these issues are
Speaker 2: more complicated than they seem at first. You know, you
Speaker 2: come to free speech, or certainly I did, with a
Speaker 2: pretty two dimensional understanding or one dimensional understanding of the
Speaker 2: First Amendment and the concept of free speech, that the
Speaker 2: whole point is to prevent the government from censoring us right.
Speaker 2: And it's not that that's wrong, but it turns out
Speaker 2: to be much more complicated, much more complicated, because there
Speaker 2: are legitimate questions about when something should count as censorship.
Speaker 2: There are legitimate questions about should we be worried only
Speaker 2: about the government or should we be worried about private
Speaker 2: actors too. There are legitimate questions about the purpose of
Speaker 2: the First Amendment. You know, we talked a little bit
Speaker 2: about self government and democracy, but there are also completely
Speaker 2: plausible theories of the First Amendment that center other values
Speaker 2: like individual autonomy or truth seeking or accountability. And if
Speaker 2: you think those are the values that the First Amendment
Speaker 2: should care most about, then your First Amendment is going
Speaker 2: to look a little bit different than a First Amendment
Speaker 2: that is focused principally on democracy. And ultimately, there's no
Speaker 2: right answer to those questions, or maybe a better way
Speaker 2: to say it is that the only way we can
Speaker 2: figure out what's right is to figure out what works.
Speaker 2: We have to think about, you know, what kind of
Speaker 2: society is this going to create? And do we like
Speaker 2: that society? So those are really hard questions, and you
Speaker 2: come to this for the first time you think it's
Speaker 2: just a matter of stopping the government from censoring people,
Speaker 2: and again, not incorrect, but not complete either.
Speaker 1: This has been such a great conversation, Jamil, but we're
Speaker 1: out of time unfortunately. Thank you for joining us today.
Speaker 2: Thank you so much.
Speaker 1: Jamil Jaffer is the director of the Night First Amendment
Speaker 1: Institute at Columbia University. You can find him on Twitter
Speaker 1: at Jamil Jaffer. Here at crash Course, we believe the
Speaker 1: collisions can be messy, impressive, challenging, surprising, and always instructive.
Speaker 1: In today's Crash Course, I learned that the digital revolution
Speaker 1: has upended so many things that even free speech and
Speaker 1: how we define it, enforce it and build our laws
Speaker 1: around it is also in motion. What did you learn?
Speaker 1: We'd love to hear from you. You can tweet at
Speaker 1: the Bloomberg Opinion handle at Opinion or me at Tim
Speaker 1: O'Brien using the hashtag Bloomberg Crash Course. You can also
Speaker 1: subscribe to our show wherever you're listening right now, and
Speaker 1: please leave us a review. It helps more people find
Speaker 1: the show. This episode was produced by the Indispensable Animasarakas,
Speaker 1: Julia Press and Me. Our supervising producer is mo Hendrickson,
Speaker 1: and we had editing help from Sagebauman, Jeff Grocott, Mike
Speaker 1: Mietze and Christine Vanden Bilart. Blake Maples does our sound
Speaker 1: engineering and our original theme song was composed by Luis Gara.
Speaker 1: I'm Tim O'Brien. We'll be back next week with another
Speaker 1: crash course.