WEBVTT - Free Speech vs. Censorship 0:00:01.480 --> 0:00:04.960 Welcome to Crash Course, a podcast about business, political, and 0:00:05.000 --> 0:00:08.320 social disruption and what we can learn from it. I'm 0:00:08.360 --> 0:00:14.400 Tim O'Brien. Today's Crash Course Free Speech Versus Censorship. I'll 0:00:14.400 --> 0:00:16.919 take a leap and say that speech has probably never 0:00:16.960 --> 0:00:20.880 been freer in the world than it is today. Multiple venues, 0:00:21.160 --> 0:00:25.439 especially social media, allow people's perspectives to take flight fluently 0:00:25.960 --> 0:00:32.159 globally and frequently. Pick your format print, audio, video, and images, 0:00:32.200 --> 0:00:35.240 for example, and you can easily put ideas in front 0:00:35.280 --> 0:00:39.720 of an audience huge audiences. Potentially, the culture of free 0:00:39.720 --> 0:00:44.400 speech is also under steady and ever more sophisticated assaults, 0:00:45.040 --> 0:00:48.320 perhaps because its ubiquity is threatening to any person or 0:00:48.360 --> 0:00:52.199 institution that holds an opposing viewpoint. The very thing that 0:00:52.240 --> 0:00:55.720 makes speech so free right now, ease of motion, is 0:00:55.840 --> 0:00:59.840 perhaps what also makes it more threatening. And I'll say 0:00:59.840 --> 0:01:04.360 that if speech feels threatening, the solution isn't to bottle 0:01:04.360 --> 0:01:08.200 it up, as Supreme Court Justice Lewis brandeis once advised 0:01:08.200 --> 0:01:12.000 almost a century ago, and I quote, the remedy to 0:01:12.000 --> 0:01:17.560 be applied is more speech, not enforced silence. But we 0:01:17.600 --> 0:01:20.760 are awash in efforts to enforce or encourage silence in 0:01:20.800 --> 0:01:25.199 our current chaotic era. Everything from education and public health 0:01:25.440 --> 0:01:29.640 to political opinion, religion, and art have offered fodder for 0:01:29.720 --> 0:01:34.200 attempted censorship. Joining me today to discuss free speech and 0:01:34.240 --> 0:01:37.680 efforts to corral it is Jamille Jaffer, an attorney who 0:01:37.760 --> 0:01:40.880 is also the director of the Night First Amendment Institute 0:01:41.000 --> 0:01:45.160 at Columbia University. The institute deploys what it describes as 0:01:45.520 --> 0:01:50.560 strategic litigation, research and public education to defend free speech 0:01:50.880 --> 0:01:54.520 in a digitally driven world. Welcome to Crash course. 0:01:54.360 --> 0:01:58.280 Jamil, thanks so much, happy to be here. So just 0:01:58.320 --> 0:01:59.120 start us off. 0:01:59.000 --> 0:02:02.120 A little bit, talk about how it came to pass 0:02:02.200 --> 0:02:05.760 that free speech has become the focal point of your 0:02:05.800 --> 0:02:06.960 own professional life. 0:02:07.440 --> 0:02:10.720 Well, I was a lawyer at the ACLU for almost 0:02:10.760 --> 0:02:14.680 fifteen years starting in two thousand and two, and I 0:02:14.800 --> 0:02:19.800 focused mostly on national security cases. So this was obviously 0:02:20.200 --> 0:02:22.120 right after nine to eleven, and we were doing a 0:02:22.160 --> 0:02:28.480 lot of work relating to detention and interrogation surveillance, and 0:02:28.520 --> 0:02:31.440 it turned out that a lot of those cases were 0:02:32.240 --> 0:02:37.240 incidentally First Amendment cases or free speech cases. So in 0:02:37.280 --> 0:02:40.400 the course of doing work on national security issues, I 0:02:40.480 --> 0:02:43.280 ended up litigating a lot of transparency cases where we 0:02:43.320 --> 0:02:46.120 were trying to get information about, for example, what was 0:02:46.160 --> 0:02:49.480 going on in the CIA's black sites. That litigated a 0:02:49.520 --> 0:02:53.360 bunch of cases involving the denial of visas to foreign 0:02:53.480 --> 0:02:56.760 citizens who had been invited to speak inside the United States, 0:02:57.160 --> 0:02:59.639 and those two turned out to be First Amendon cases. 0:03:00.320 --> 0:03:03.320 A lot of cases involving access to the courts, and 0:03:03.360 --> 0:03:06.240 then some cases involving the free speech and freedom of 0:03:06.280 --> 0:03:11.000 association implications of government surveillance. And so I was approaching 0:03:11.000 --> 0:03:14.919 all those cases as cases about national security and human rights, 0:03:14.919 --> 0:03:18.200 but they all ended up turning on these questions about 0:03:18.240 --> 0:03:21.280 the First Amendment, or at least free speech. And so 0:03:21.560 --> 0:03:25.679 I became a First Amendment lawyer almost by accident. And 0:03:25.840 --> 0:03:27.880 I'd been at these you a long time again, almost 0:03:27.919 --> 0:03:31.040 fifteen years, and I got a call from Columbia, which 0:03:31.080 --> 0:03:35.000 had decided with the Knight Foundation to set up this 0:03:35.280 --> 0:03:39.560 institute here to focus on digital age free speech questions. 0:03:40.240 --> 0:03:43.640 That was twenty sixteen. Now we've been doing this for 0:03:43.680 --> 0:03:46.520 seven years and it's now a real organization. We have 0:03:46.600 --> 0:03:50.960 about twenty five people, including thirteen or fourteen litigators. We 0:03:51.080 --> 0:03:55.240 bring strategic litigation, We host and commission research, and we 0:03:55.360 --> 0:04:00.000 have a growing public education program as well, so did I. 0:04:00.000 --> 0:04:03.840 They sort of over sell or improperly describe the dynamic 0:04:04.360 --> 0:04:06.960 that's a foot in our lives right now. You know 0:04:07.040 --> 0:04:10.360 this idea that the digital revolution, and with it, the 0:04:10.400 --> 0:04:15.640 advent of social media, has made free speech freer perhaps 0:04:15.680 --> 0:04:19.920 than ever before, while at the same time making it 0:04:19.960 --> 0:04:23.320 so front and center in people's lives that it appears 0:04:24.160 --> 0:04:27.240 to people with opposing viewpoints also be more threatening than 0:04:27.279 --> 0:04:29.320 ever before. Or is that the wrong way to think 0:04:29.320 --> 0:04:29.720 about it. 0:04:30.520 --> 0:04:32.680 I think that's a legitimate way of thinking about it. 0:04:32.680 --> 0:04:34.440 It's not the only way of thinking about it. So 0:04:34.480 --> 0:04:37.279 it might depend what you mean by free speech, right. 0:04:37.680 --> 0:04:39.479 Just to clear that up, I guess I would say 0:04:39.520 --> 0:04:42.560 the ability to speak freely and the ability to speak 0:04:42.600 --> 0:04:43.560 without being censored. 0:04:44.240 --> 0:04:46.680 You know, I think it also depends what you mean 0:04:46.720 --> 0:04:49.039 by censorships. Let me tell you why I'm sort of 0:04:49.080 --> 0:04:53.280 resisting this frame. So you're definitely right that social media 0:04:53.320 --> 0:04:57.120 in particular has democratized speech so that now anybody who 0:04:57.440 --> 0:05:01.120 wants to comment on matters of publica or for that matter, 0:05:01.200 --> 0:05:04.000 matters of private concern, can do it without the kinds 0:05:04.000 --> 0:05:06.880 of gatekeepers that were always in the way twenty years ago. Right, 0:05:06.880 --> 0:05:10.320 You no longer need the permission of CBS or New 0:05:10.400 --> 0:05:12.480 York Times to speak to a broad audience. There are 0:05:12.480 --> 0:05:14.440 lots of people who are doing that right now on 0:05:14.480 --> 0:05:18.680 social media without any mediation at all, and in many 0:05:18.760 --> 0:05:21.840 ways that's been an amazing thing for free speech. You know. 0:05:21.880 --> 0:05:25.240 It means that we can hold government officials and other 0:05:25.279 --> 0:05:28.920 powerful private actors to account much much more easily. So 0:05:29.120 --> 0:05:31.920 you know, in that sense, yes, absolutely, speech is freer 0:05:32.080 --> 0:05:34.599 now than it's ever been. On the other hand, we 0:05:34.720 --> 0:05:38.640 do have these new gatekeepers, the social media companies themselves, 0:05:38.920 --> 0:05:42.040 that play a very large role in determining what speech 0:05:42.080 --> 0:05:45.800 gets heard online, which ideas get traction, which speakers are 0:05:45.839 --> 0:05:49.760 allowed to speak. All sorts of new technologies pose new 0:05:49.920 --> 0:05:52.760 kinds of threats to free speech. We have a case 0:05:52.800 --> 0:05:57.280 against spyware manufacturer whose technology was used to hack the 0:05:57.279 --> 0:06:01.400 phones of Central American journalists. That's the kind of threat 0:06:01.480 --> 0:06:04.679 to press freedom that nobody even contemplated ten or twenty 0:06:04.760 --> 0:06:07.240 years ago. So I would say it's complicated. There's a 0:06:07.279 --> 0:06:09.719 sense in which you're certainly right, but that's not the 0:06:09.760 --> 0:06:11.279 only way to look at the facts here. 0:06:11.640 --> 0:06:13.600 I'm sure it's not the only way to think about it. 0:06:13.640 --> 0:06:15.039 Jimil That's why I wanted to kind of do a 0:06:15.040 --> 0:06:18.919 reality check with you. And as it happens, the Supreme 0:06:18.920 --> 0:06:23.000 Court itself is wrestling right now with trying to understand 0:06:23.000 --> 0:06:27.560 this interplay between digital platforms and free speech and then 0:06:27.560 --> 0:06:31.279 the intervention of opposing parties and how that speech is 0:06:31.320 --> 0:06:36.479 conducted essentially, And there's a couple of imminent Supreme Court 0:06:36.520 --> 0:06:39.479 hearings afoot. Those actually might have taken place by the 0:06:39.520 --> 0:06:41.720 time we air, but I wanted to talk to you 0:06:41.760 --> 0:06:44.760 about those. In the first one of them, a California 0:06:44.839 --> 0:06:50.680 school board blocked parents on their own Facebook page because 0:06:50.800 --> 0:06:55.240 the parents had left posts complaining about racism at the school. 0:06:56.040 --> 0:06:59.280 And in that specific case, the court is trying to 0:06:59.600 --> 0:07:02.800 come out on whether or not the school board has 0:07:02.800 --> 0:07:06.920 a right essentially to limit parents speech if the parents 0:07:06.960 --> 0:07:09.960 are criticizing the institution. I think that's a sort of 0:07:10.360 --> 0:07:13.120 a thumbnail of what's at stake here. Tell me how 0:07:13.120 --> 0:07:15.720 you view that particular case and what's in play there. 0:07:15.840 --> 0:07:19.040 So these are representative of a broader class of cases 0:07:19.160 --> 0:07:23.000 involving the use of social media by public officials, and 0:07:23.480 --> 0:07:27.240 as you know, public officials now use social media often 0:07:27.280 --> 0:07:30.240 as their principal means of communicating with the public and 0:07:30.240 --> 0:07:33.800 with their constituents in particular, and the result is that 0:07:34.000 --> 0:07:39.000 some public officials social media accounts have become really important 0:07:39.080 --> 0:07:43.920 public forums, like forums for discussion of public policy. I mean, 0:07:44.000 --> 0:07:47.480 Trump's account, I think was the paradigm here. People used 0:07:47.480 --> 0:07:50.440 to go to Trump's Twitter account to hear the views 0:07:50.440 --> 0:07:53.360 of the president, to engage with those views, to engage 0:07:53.400 --> 0:07:56.640 with other citizens about what the president had said. There's 0:07:56.680 --> 0:07:59.560 a lot that you could learn from President Trump's Twitter 0:07:59.560 --> 0:08:02.560 account you couldn't learn anywhere else. And so that Twitter 0:08:02.600 --> 0:08:07.280 account took on this democratic significance kind of like you know, 0:08:07.320 --> 0:08:10.360 a city council meeting or a school board meeting, or 0:08:10.400 --> 0:08:13.880 a legislator's town hall, but you know, on steroids, almost 0:08:13.960 --> 0:08:15.920 like Trump was standing at the front of the room 0:08:16.000 --> 0:08:18.880 and there are millions of citizens assembled in front of 0:08:18.960 --> 0:08:22.200 him who were listening to him, talking back to him, 0:08:22.280 --> 0:08:24.640 talking to one another. You know, that's one way to 0:08:24.680 --> 0:08:28.160 think of what that social media account was. And you know, 0:08:28.200 --> 0:08:31.640 Trump is unique in many different respects, but many other 0:08:31.680 --> 0:08:35.600 public officials now use their social media accounts in basically 0:08:35.679 --> 0:08:39.080 the same way. And so this question of what status 0:08:39.120 --> 0:08:41.960 these accounts have under The first Amendment is a really 0:08:42.000 --> 0:08:44.840 important one. If there's a school board meeting, you can't 0:08:44.840 --> 0:08:47.200 get kicked out of it just because you disagree with 0:08:47.240 --> 0:08:49.640 what the school board thinks. And if you go to 0:08:49.679 --> 0:08:53.199 a city council meeting and you complain about racism at 0:08:53.200 --> 0:08:56.200 city schools, the city council can't kick you out just 0:08:56.200 --> 0:08:58.640 because they don't like what you're saying. And so the 0:08:58.720 --> 0:09:02.760 question is what happens if a public official effectively kicks 0:09:02.800 --> 0:09:05.320 you out of his or her social media account, you know, 0:09:05.360 --> 0:09:08.880 blocks you from accessing the account. I think that when 0:09:08.920 --> 0:09:10.760 people first come to this set of questions, they they 0:09:10.840 --> 0:09:14.440 go this is trivial, but given the significance that these 0:09:14.480 --> 0:09:17.640 accounts now have to our democracy, it's actually a really 0:09:17.679 --> 0:09:21.760 important question. When can a public official block a citizen 0:09:22.200 --> 0:09:25.679 from participating in that democratically important space? And that's the 0:09:25.760 --> 0:09:26.760 question this before the court. 0:09:26.880 --> 0:09:28.440 Wait, but before you go on here, because I think 0:09:28.480 --> 0:09:32.400 we should clarify something. Is you mentioned that school officials 0:09:32.440 --> 0:09:35.920 have their own, say, personal accounts. They may also have 0:09:36.280 --> 0:09:39.840 individual accounts as a representative of the local government or 0:09:39.880 --> 0:09:42.600 a local institution, and then there also might be an 0:09:42.600 --> 0:09:47.079 an institutional account. Yes, so there's different classes of accounts 0:09:47.160 --> 0:09:50.400 actually that come into play. I would presume that a 0:09:50.440 --> 0:09:53.559 local official with a personal account is free to let 0:09:53.559 --> 0:09:56.320 anyonet to honor off that personal account that they want 0:09:56.360 --> 0:09:58.480 to if it's in their capacity as an individual. 0:09:58.840 --> 0:09:59.000 Yeah. 0:09:59.080 --> 0:10:02.480 You see members of Progress, for example, expressly saying this 0:10:02.559 --> 0:10:05.480 is my personal account and this is my federal account 0:10:05.520 --> 0:10:09.480 as a politician. In the school board case in California, 0:10:09.520 --> 0:10:13.720 my understanding is the parents were posting on a school 0:10:13.720 --> 0:10:17.200 board account, not an account representing any individual, either in 0:10:17.240 --> 0:10:20.439 their capacity as a local official or as an individual, 0:10:20.720 --> 0:10:23.080 and that they were kicked off the school board account 0:10:23.559 --> 0:10:25.960 or blocked from it. Essentially. Is that correct? 0:10:26.040 --> 0:10:29.000 I mean, all that's correct, And conceptually you're right that 0:10:29.360 --> 0:10:32.480 nobody's saying that the First Amendment should apply to a 0:10:32.480 --> 0:10:36.640 public official's personal account. But what counts as a personal 0:10:36.640 --> 0:10:39.840 account is actually a complicated question, because you know, Trump 0:10:39.920 --> 0:10:42.440 used to say that his account was personal, but he 0:10:42.600 --> 0:10:44.520 used that account to do the work. 0:10:44.920 --> 0:10:47.480 I'm a Trump later because he's very Suey ganeerous in 0:10:47.559 --> 0:10:50.760 a lot of ways and important in this debate and discussion. 0:10:51.080 --> 0:10:52.720 But I want to focus in on what the Supreme 0:10:52.760 --> 0:10:55.559 Court right now is looking at in these two cases. 0:10:55.840 --> 0:10:58.200 Yeah. Even with these two cases, though, you know, the 0:10:58.320 --> 0:11:01.760 question is when does an account reflect the exercise of 0:11:01.840 --> 0:11:05.400 state power? Because when the account reflects the exercise of 0:11:05.440 --> 0:11:09.480 state power, it's subject to the constraints of the First Amendment. 0:11:10.200 --> 0:11:13.240 But you can't answer that question about whether an account 0:11:13.320 --> 0:11:17.160 reflects the exercise of state power without actually looking beyond 0:11:17.160 --> 0:11:20.440 the label. It's not enough that somebody says this is 0:11:20.440 --> 0:11:22.240 a personal account, or you know, I also have an 0:11:22.280 --> 0:11:24.800 official account. You got to look at how the account 0:11:24.840 --> 0:11:26.240 is used. And it's one of the things the Supreme 0:11:26.240 --> 0:11:28.360 Court is going to have to struggle with is how 0:11:28.360 --> 0:11:31.079 do you draw this line? Because on some of these 0:11:31.120 --> 0:11:33.760 accounts you've got a bunch of photographs of cats, and 0:11:33.800 --> 0:11:36.320 then you have, you know, a legislator saying if you 0:11:36.400 --> 0:11:39.160 have comments about my proposal to do X, then please 0:11:39.160 --> 0:11:41.960 write to my office. So it's a combination of things. 0:11:41.960 --> 0:11:44.120 And how do you decide is this subject to the 0:11:44.160 --> 0:11:46.600 constraints for the First Amendment or not? That's a hard question. 0:11:47.200 --> 0:11:49.600 The other case that the Supreme Court's looking at in 0:11:49.640 --> 0:11:52.280 the docket that I've referenced to you right now is 0:11:52.280 --> 0:11:56.680 is a case in Michigan where a resident was blocked 0:11:56.720 --> 0:12:00.880 from the city manager's Facebook page after the resident to 0:12:01.040 --> 0:12:05.720 complained about the locality's response to the COVID nineteen pandemic. 0:12:06.679 --> 0:12:10.000 I'm assuming the same things that we just discussed in 0:12:10.040 --> 0:12:12.800 the school board case in California are at play in 0:12:12.840 --> 0:12:17.720 this Michigan case. Again, Can a local entity block a 0:12:17.920 --> 0:12:22.840 resident from expressing himself or herself on a social media 0:12:22.880 --> 0:12:25.840 platform that's affiliated in some way with the local government. 0:12:26.480 --> 0:12:28.760 Yeah, now that's right. I mean these two cases that 0:12:28.800 --> 0:12:32.400 you just mentioned, the court is really focused on the 0:12:32.480 --> 0:12:36.480 question of whether the accounts reflect the exercise of state power, 0:12:36.720 --> 0:12:39.640 and the court didn't grant cer, so the court hasn't 0:12:39.679 --> 0:12:44.360 agreed to consider the question of what those constraints might be. 0:12:44.400 --> 0:12:47.520 So it's conceivable that the court says in these two cases, 0:12:48.160 --> 0:12:51.360 in both of these cases, the public officials social media 0:12:51.360 --> 0:12:55.720 accounts were exercises of state power, and therefore the first 0:12:55.720 --> 0:12:59.120 amenment applies. But this question what does it mean when 0:12:59.160 --> 0:13:02.199 the first amendent applies is not actually presented by these 0:13:02.240 --> 0:13:04.640 two cases and is going to have to be addressed 0:13:04.679 --> 0:13:07.840 by the lower courts in the first instance, and you 0:13:07.880 --> 0:13:11.360 could imagine a rule that says, well, public officials can 0:13:11.480 --> 0:13:14.720 block their constituents for all sorts of reasons, like, for example, 0:13:14.720 --> 0:13:17.920 for spamming them, but they can't block them based on 0:13:18.000 --> 0:13:21.480 viewpoint alone. Like that would be one possible First Amendment rule, 0:13:21.760 --> 0:13:23.440 but we're not going to get that kind of rule 0:13:23.480 --> 0:13:26.160 out of the Supreme Court this term. It's going to 0:13:26.200 --> 0:13:27.920 be for the lower courts to address that first. 0:13:29.000 --> 0:13:31.400 In this collection of things that the Supreme Court is 0:13:31.480 --> 0:13:34.120 looking at, another one that's intriguing to me is they're 0:13:34.160 --> 0:13:38.320 going to consider a case involving content moderation on social 0:13:38.320 --> 0:13:44.400 media platforms and what protections the platforms themselves, as private entities, 0:13:44.640 --> 0:13:48.120 should enjoy around how they moderate what appears on their 0:13:48.160 --> 0:13:51.280 own sites, whether it's Facebook or Twitter. And we'll talk 0:13:51.320 --> 0:13:53.080 more about this as we go on in the conversation 0:13:53.120 --> 0:13:56.040 because this is also kind of, i think, ground zero 0:13:56.160 --> 0:13:59.000 of our current debate about the new digital world and 0:13:59.040 --> 0:14:01.760 free speech. But talk a little bit about what the 0:14:01.840 --> 0:14:05.520 Supreme Court is looking at in that case, what responsibilities 0:14:05.720 --> 0:14:08.560 private entities have over content moderation. 0:14:09.559 --> 0:14:12.880 Yeah, So the cases we just talked about are cases 0:14:12.960 --> 0:14:16.120 about the government as speaker right, where you have public 0:14:16.120 --> 0:14:20.240 officials wanting to use social media themselves and their speakers 0:14:20.240 --> 0:14:23.600 in that context. These cases that you just brought up 0:14:24.000 --> 0:14:28.000 are cases involving the government as regulator, where the question 0:14:28.160 --> 0:14:30.480 is what limits is the First Amendment place on the 0:14:30.480 --> 0:14:35.960 government's power to control or influence the content moderation policies 0:14:36.000 --> 0:14:40.120 of the platforms, And these two cases involve laws out 0:14:40.160 --> 0:14:44.800 of Florida and Texas, both passed in twenty twenty one. 0:14:44.840 --> 0:14:48.240 Both of the laws impose what are sometimes called must 0:14:48.280 --> 0:14:52.320 carry obligations on the platforms. So the Florida law, for example, 0:14:52.440 --> 0:14:57.280 requires the platforms to carry the speech of political candidates 0:14:57.840 --> 0:15:01.160 as well as prohibits them from taking down the speech 0:15:01.240 --> 0:15:04.480 of media organizations on the basis of the content of 0:15:04.520 --> 0:15:08.960 the media organization's articles. And then the Texas law prohibits 0:15:09.000 --> 0:15:12.600 the platforms from taking down speech on the basis of viewpoint. 0:15:13.360 --> 0:15:16.080 So both of these laws impose again what are called 0:15:16.160 --> 0:15:18.760 must carry obligations on the platforms that require them to 0:15:18.760 --> 0:15:21.720 publish speech that they might not want to publish. And 0:15:21.840 --> 0:15:27.280 both laws also require the platforms to notify users whose 0:15:27.280 --> 0:15:31.800 speech is taken down. So if Facebook decides that one 0:15:31.800 --> 0:15:35.200 of your posts violates a term of service, then Facebook 0:15:35.240 --> 0:15:37.840 is required under these laws to tell you that they've 0:15:37.880 --> 0:15:41.200 taken the speech down and to explain why they've taken 0:15:41.240 --> 0:15:44.480 it down. So those are the laws, and the question 0:15:44.520 --> 0:15:48.200 before the Supreme Court is does the First Amendment permit 0:15:48.320 --> 0:15:52.000 the government to impose those kinds of must carry obligations 0:15:52.000 --> 0:15:54.680 on the platforms? And does it permit the government to 0:15:55.080 --> 0:15:59.520 require the platforms to notify and provide explanations to their 0:15:59.640 --> 0:16:01.880 users in the way I just described. So those are 0:16:01.880 --> 0:16:05.479 the questions, and they turn out to be really complicated 0:16:05.680 --> 0:16:08.840 First Amendment questions, in part because the precedents that we 0:16:09.000 --> 0:16:12.160 have don't involve social media. The precedence we have, you know, 0:16:12.200 --> 0:16:15.320 sometimes involve newspapers, and then there's a question of how 0:16:15.320 --> 0:16:18.800 far do those precedents that were decided in relation to 0:16:18.920 --> 0:16:23.040 newspapers go when we're talking about this very different medium. 0:16:23.400 --> 0:16:26.480 So for that reason, these two cases are complicated. 0:16:26.080 --> 0:16:30.080 And because of the technology platforms themselves have worked mightily 0:16:30.200 --> 0:16:33.800 to claim that they're not publishers, they're merely technology platforms, 0:16:33.840 --> 0:16:37.240 even though in my opinion, they do act as publishers 0:16:37.600 --> 0:16:39.760 in the world we live in right now, and I 0:16:39.800 --> 0:16:42.120 think it's a smoke screen that the tech companies have 0:16:42.160 --> 0:16:46.760 thrown up because to moderate more would be more expensive. 0:16:46.840 --> 0:16:49.640 That's an extra expense they want to take on. Describing 0:16:49.680 --> 0:16:52.360 themselves as a publisher brings them into a different, potentially 0:16:52.400 --> 0:16:57.160 regulatory regime. Describing themselves as publishers puts a different onus 0:16:57.240 --> 0:17:00.680 on them legally and exposes them to new life abilities. 0:17:01.120 --> 0:17:05.080 If they embrace the definition of publisher, it's more expensive 0:17:05.359 --> 0:17:08.960 and more complex to run their businesses. And so they 0:17:09.000 --> 0:17:12.399 insist that they're merely technology platforms and they're simply offering 0:17:12.440 --> 0:17:15.000 people a place to express themselves. But if we've seen 0:17:15.800 --> 0:17:19.399 when technology platforms, I think, hide behind that label to 0:17:19.480 --> 0:17:23.000 a certain extent, they don't perform the kind of gatekeeping 0:17:23.119 --> 0:17:26.200 role you sometimes want in a complicated era in which 0:17:26.359 --> 0:17:30.760 propaganda and disinformation exists alongside free speech and facts. 0:17:31.119 --> 0:17:33.240 Yeah, I think that there's no doubt that you're right 0:17:33.320 --> 0:17:36.399 that the social media companies have tried to have it 0:17:36.480 --> 0:17:40.280 both ways. You know, they sometimes say that we're effectively 0:17:40.800 --> 0:17:44.480 merely conduits for our user's speech, and we can't be 0:17:44.560 --> 0:17:47.600 held responsible for what's on our platforms because all of that, 0:17:47.720 --> 0:17:49.720 you know, has been written by other people and we're 0:17:49.760 --> 0:17:53.040 just kind of the infrastructure they have. I would say, 0:17:53.440 --> 0:17:57.640 if not abandoned that talking point, now they've certainly drifted 0:17:57.760 --> 0:18:01.000 considerably far away from it, and in these cases before 0:18:01.000 --> 0:18:03.560 the Supreme Court, their argument is actually just the opposite. 0:18:03.600 --> 0:18:08.800 Their argument is that the social media platforms are just 0:18:08.960 --> 0:18:13.960 like newspapers for First Amendment purposes. We also exercise editorial 0:18:14.080 --> 0:18:17.920 judgment when we decide what content can be on our platforms. 0:18:18.359 --> 0:18:21.880 You know, when we decide that misinformation needs to be labeled, 0:18:22.000 --> 0:18:25.160 or when we decide that speech that glorifies violence needs 0:18:25.160 --> 0:18:28.680 to be taken down. Those are editorial decisions and their 0:18:28.800 --> 0:18:31.439 editorial decisions within the meaning of the First Amendment. And 0:18:31.480 --> 0:18:34.080 for the same reasons the newspapers are protected, and to 0:18:34.200 --> 0:18:38.000 the same extent the newspapers are protected, we're protected too. 0:18:38.359 --> 0:18:40.880 That's the argument they're making. That's sort of the first 0:18:40.920 --> 0:18:43.240 step of their arguments in these cases, is that we're 0:18:43.280 --> 0:18:46.040 just like newspapers. And the second step is, for the 0:18:46.080 --> 0:18:49.919 same reasons Congress couldn't tell a newspaper to carry speech 0:18:49.960 --> 0:18:52.639 it didn't want to carry, Congress can't tell us, or 0:18:52.760 --> 0:18:55.000 legislators can't tell us in this case, is Florida and 0:18:55.040 --> 0:18:57.520 Texas can't tell us what to carry. And for the 0:18:57.560 --> 0:19:03.159 same reasons that legislators couldn't require newspapers to explain why 0:19:03.200 --> 0:19:06.800 they did or didn't publish any particular article. We can't 0:19:06.800 --> 0:19:09.360 be required to explain to our users why we took 0:19:09.400 --> 0:19:13.800 down their posts. So you're absolutely right that in other contexts, 0:19:13.800 --> 0:19:19.359 the platforms have tried very hard to disavow any responsibility 0:19:19.520 --> 0:19:23.159 for the content on their platforms. In this particular context, 0:19:23.440 --> 0:19:27.200 they're running in exactly the opposite direction and saying that 0:19:27.280 --> 0:19:30.080 we're no different from newspapers and are entitled to the 0:19:30.080 --> 0:19:32.760 same constitutional protection as newspapers are. 0:19:33.280 --> 0:19:35.280 Okay, on that note, I want to take a quick 0:19:35.320 --> 0:19:37.520 break and hear from one of our sponsors, Jamil, and 0:19:37.520 --> 0:19:47.320 then we'll come right back and continue this conversation. We're 0:19:47.359 --> 0:19:50.040 back with Jamil Jaffer, director of the Night First Amendment 0:19:50.080 --> 0:19:55.320 Institute at Columbia University. Jamil is a free speech warrior. Jamie, 0:19:55.400 --> 0:19:58.440 let's step away from the specifics of the Supreme Court 0:19:58.480 --> 0:20:01.800 cases we've been talking about in the prior segment and 0:20:01.920 --> 0:20:06.359 just talk philosophically for a minute about what place the 0:20:06.480 --> 0:20:10.440 values or virtues of free speech have traditionally occupied in 0:20:10.520 --> 0:20:14.000 American life. Why is this thing that we call free 0:20:14.000 --> 0:20:18.720 speech protected in the Constitution, Why is it constantly debated 0:20:18.760 --> 0:20:21.280 in our public life. Why are you and I talking 0:20:21.280 --> 0:20:22.120 about it right now? 0:20:22.920 --> 0:20:25.120 Yeah, I mean, I think that a big part of 0:20:25.200 --> 0:20:28.360 the answer to that question is that free speech and democracy, 0:20:28.440 --> 0:20:32.840 or free speech and self government are very very closely connected, right, 0:20:32.920 --> 0:20:36.840 and democracy is core to our self conception in the 0:20:36.920 --> 0:20:39.720 United States. That's sort of what defines our society is 0:20:39.880 --> 0:20:43.320 it's a democratic character. But if you're going to have 0:20:43.680 --> 0:20:49.240 a government that is answerable to the people, then the 0:20:49.280 --> 0:20:52.600 people need to have the freedom to debate government policy, 0:20:52.720 --> 0:20:55.919 they need to have access to information, and it's the 0:20:55.960 --> 0:21:00.600 First Amendment that guarantees those things. And so one way 0:21:00.640 --> 0:21:03.320 to think about the First Amendment, or the core purpose 0:21:03.359 --> 0:21:06.080 of the First Amendment, is that it's intended to create 0:21:06.119 --> 0:21:10.800 the conditions that are necessary to sustain democracy, and that, 0:21:10.880 --> 0:21:14.920 in fact, is how most free speech theorists have thought 0:21:14.960 --> 0:21:17.760 about it, at least for the last fifty years. You know, 0:21:17.800 --> 0:21:19.880 I think people don't always know this, but the First 0:21:19.880 --> 0:21:23.520 Amendment as we understand it today is actually very young. 0:21:23.600 --> 0:21:27.199 It grew out of opinions that Oliver Wendell Holmes and 0:21:27.400 --> 0:21:31.679 Louis Brandeis wrote beginning in nineteen nineteen, so just a 0:21:31.720 --> 0:21:37.160 century ago, and those opinions were dissents and concurrences initially, 0:21:37.200 --> 0:21:39.680 and then over time they sort of moved over into 0:21:39.720 --> 0:21:43.080 the majority. But most of the rules that we think 0:21:43.119 --> 0:21:47.960 of as fundamental to the First Amendment today were established 0:21:48.040 --> 0:21:50.120 by the Supreme Court in the nineteen sixties and seventies 0:21:50.119 --> 0:21:54.080 through cases like New York Times versus Sullivan, which insulates 0:21:54.240 --> 0:22:00.600 news organizations from most defamation claims, Brandenburg versus Ohio, which 0:22:00.800 --> 0:22:05.440 holds that even extreme forms of political advocacy are protected 0:22:05.440 --> 0:22:09.000 by the First Amendment unless they amount to incitement, or 0:22:09.040 --> 0:22:11.800 cases like the Pentagon Papers case in the nineteen seventy one 0:22:11.840 --> 0:22:14.879 case that held that the government couldn't obtain a prior 0:22:14.920 --> 0:22:18.280 restraint against the newspapers for publishing a secret report about 0:22:18.280 --> 0:22:21.760 the Vietnam War. Like those cases were decided fifty years ago, 0:22:21.880 --> 0:22:24.440 and those cases really defined the First Amendment as we 0:22:24.520 --> 0:22:26.920 understand it today. So all this is very very new, 0:22:27.840 --> 0:22:30.719 but those cases from the nineteen sixties and seventies really 0:22:30.840 --> 0:22:33.840 positioned democracy at the heart of the First Amendment. They 0:22:33.920 --> 0:22:37.560 really saw the purpose of the First Amendment as again 0:22:37.720 --> 0:22:40.800 kind of creating the conditions that would make self government 0:22:40.880 --> 0:22:45.000 and democracy possible. And so now when you think about 0:22:45.000 --> 0:22:48.560 extending the First Amendment to new spheres. One question that 0:22:48.640 --> 0:22:52.040 you might begin with is what would serve our democracy 0:22:52.080 --> 0:22:54.639 in this new sphere. What rules relating to free speech 0:22:54.960 --> 0:22:58.359 would be best for our democracy in this new sphere, like, 0:22:58.560 --> 0:23:01.640 for example, the sphere of SAE social media. So that's 0:23:01.680 --> 0:23:03.600 one way to approach these questions, and I think it's 0:23:03.680 --> 0:23:06.040 the way that's most consistent with the way that the 0:23:06.080 --> 0:23:09.240 Supreme Court approached these questions in this formative period in 0:23:09.240 --> 0:23:10.680