Schedule

• Thursday November 14

  Columbia Journalism School

  Joseph D. Jamail Lecture Hall

  2950 Broadway 

  New York, NY

  6:30PM – 8:00PM EDT

  Private platforms, public discourse

  In this stage-setting conversation, we’ll discuss digital platform business models and their impact on public discourse, relative advantages and disadvantages of content-based regulation versus structural reform, and the relevance of First Amendment principles to these issues. This panel will sharpen the questions we’ll tackle over the course of the symposium.

  WELCOME

  • Steve Coll, Dean, Columbia Journalism School

  OPENING REMARKS

  • Jameel Jaffer, Knight First Amendment Institute

  PANELISTS

  • Jack Balkin, Yale Law School
  • Emily Bell, Columbia Journalism School
  • Cindy Cohn, Electronic Frontier Foundation
  • Lina Khan, Columbia Law School

  MODERATOR

  • Katy Glenn Bass, Knight First Amendment Institute

• Friday November 15

  Columbia Law School

  Jerome L. Greene Hall, Room 104

  435 W. 116th Street

  New York, NY

  9:30AM – 9:45AM EDT

  Welcome Remarks 

  • President Lee C. Bollinger, Columbia University

  9:45AM – 11:15AM EDT

  Information plurality and integrity in an era of concentrated power

  For a number of related reasons—media consolidation, the collapse of local news, the mechanics of surveillance capitalism—a small number of technology companies occupy central positions in our speech environment.  These companies’ human and algorithmic decisions have an outsized influence on the quality and integrity of the information we see, as well as on who sees which information, and in which context they see it. In this conversation, we’ll consider legal or institutional reforms that could protect the public’s access to a diversity of news sources and improve the quality and integrity of the information that underlies public discourse.

  PANELISTS

  • Lina Khan, Columbia Law School
  • Susan McGregor, Columbia Journalism School
  • Andrea Prat, Columbia University
  • Ethan Zuckerman, MIT Media Lab

  MODERATOR

  • Vivian Schiller, Civil Foundation

  View Abstracts

  Anti-Monopoly Tools to Structure a Free & Diverse Press

  Lina Khan

  Khan begins with a diagnosis of the precise sources of platform power over discourse. In addition to much-discussed platform policies around content moderation, she examines: (1) the current structure of the digital ad market, dominated by Google and Facebook, (2) the current structure of Google and Facebook, which are integrated in ways that render publishers both dependent on the platforms’ networks and in competition with them, and (3) their behavioral advertising-based business models, which incentivize pervasive and persistent data collection. These factors directly shape the ability of editors to invest in reporting, the diversity of available news sources, what kind of content platforms are incentivized to promote, and the freedom with which individuals search for, read, and share news. Khan proceeds to identify anti-monopoly tools that can help structure digital markets that enable a free and diverse press and promote individual liberty. These reforms include select vertical break-ups to engender competition in the digital ad market and bright-line prohibitions on certain business models for entities designated essential to speech facilities.

  Measuring and Protecting Plurality in the Digital Age: A Political Economy Approach

  Andrea Prat

  Prat looks at an independent media industry at the heart of the democratic process. However, he notes that media can be captured by political and economic forces and that this well-documented risk is higher when the media industry is concentrated. He argues that the current regulatory system is toothless because it is based on outdated platform-specific ownership restrictions. Standard antitrust policy, while useful to protect consumer welfare, is inadequate too because it targets market outcomes rather than voter information. Prat advocates the introduction of a plurality review for mergers involving news providers to be based on a platform-neutral assessment of the attention share of the merged entity. Such an approach is illustrated with a possible quantification of the attention share index and a recent merger decision in the UK that was based on that principle.

  The Case for Digital Public Service Media

  Ethan Zuckerman

  Zuckerman points to the successful history of multiple forms of public broadcasting (PBS, NPR, and the BBC among them) and public-minded digital platforms and tools like Wikipedia and Mozilla Firefox to argue for the introduction of ambitious public service digital media tools that would fill gaps in the current digital media landscape, with an emphasis on creating tools that strengthen open and democratic societies. These could include auditable and transparent search and discovery tools, non-surveillant advertising networks, and alternative social media platforms. Zuckerman also identifies possible funding models to support these tools, including donations from users, taxes on surveillant advertising, and donations from the tech giants.

  Hide Abstracts

  11:15AM – 11:30AM EDT

  Coffee Break

  11:30AM – 1:00PM EDT

  New (and old) approaches to shaping the online information environment

  Legislators, advocates, and scholars—some of our contributors among them—have proposed a wide variety of legislative and regulatory reforms to address information disorders on digital platforms, including disorders that stem from the technology companies’ increasing power over the speech environment. In response to the threat of legislation, the largest technology companies have begun to develop their own measures to address some of these disorders. In this conversation, we’ll evaluate the promise of these proposed and already-implemented measures and consider whether opening new avenues for government intervention would give rise to new risks for free speech online.

  PANELISTS

  • Neil Chilson, Charles Koch Institute
  • Evelyn Douek, Harvard Law School
  • Ellen P. Goodman, Rutgers Law School
  • Surya Mattu, The Markup

  MODERATOR

  • Alex Abdo, Knight First Amendment Institute

  View Abstracts

  [The] Breakup Speech: Can Antitrust Fix the Relationship between Platforms and Free Speech Values?

  Neil Chilson and Casey Mattox

  Chilson and Mattox argue that if private platform power over the speech environment is a problem, antitrust is the wrong solution. Competition can promote the free speech preferences of consumers. But current free speech concerns are not caused by a lack of competition —so increasing the number of competitors will not help. In fact, unleashing antitrust regulators to pursue non-competition related goals would threaten free speech values. Removing important constraints on the powerful tools of antitrust—tools with a history of abusive and arbitrary use—would weaken antitrust’s ability to protect the competitive process while amplifying the tools governments and others could use to interfere with private speech.

  The Rise of Content Cartels

  Evelyn Douek

  Douek begins from the position that increased competition in the tech sector will not resolve many of our speech-related concerns, and that in some cases, collaboration between platforms will be both necessary and beneficial. She then traces the emergence of what she calls “content cartels.” In these cartels, a few powerful players—mainly large digital platforms working with representatives of various governments—work together to set parameters for acceptable content across the industry in a growing number of areas. While cartel action to detect and remove (or preempt) illegal content like child pornography can be successful, Douek shows how platforms are increasingly under pressure to collaborate in ad hoc, secretive ways in response to particular crises, and why we must work urgently to create structures and safeguards for such collaborations that allow for transparency and accountability to the public.

  Digital Information Fidelity and Friction

  Ellen P. Goodman

  Goodman looks at the loss of “information fidelity” on digital information platforms—defined as a signal to noise ratio of information that supports democratic discourse and cabins cognitive manipulation. She examines efforts to use transparency regulations imported from the analog world as a way to restore information fidelity and finds them useful, but insufficient. Platforms produce “algorithmic noise” by collecting personal data, microtargeting messages, and amplifying information in ways that bypass and undermine cognitive autonomy, overwhelming traditional transparency measures. The adaptation of TV and radio advertising disclosure laws to the online sphere will be insufficient to protect informational fidelity in the face of algorithmic ordering and behavioral nudges that produce salience throughout the system. She argues for more systemic transparency requirements that expose how meaning is made and how noise is produced, as well as innovations to increase “signal” and to strategically introduce friction into the production and sharing of speech online, including the creation of “speed bumps” to interrupt the flow of disinformation.

  Hide Abstracts

  2:15PM – 3:45PM EDT

  Public options, public utilities, public spheres

  Questions about information policy and communications infrastructure are tied up with notions of the common and the public good. As the power of privately owned social media platforms has expanded, concerns about the platforms’ dominance and opacity have prompted proposals to regulate the platforms as public utilities, or to intervene more directly in their operations in the name of the public interest. Simultaneously, as other nations advance a vision of an internet that is heavily surveilled, censored, and manipulated, questions about what values we want the internet to reflect have returned again to the fore. In this conversation, we’ll discuss some of the most ambitious proposals for restructuring the internet, and we’ll consider some of the most powerful arguments for and against those proposals.

  PANELISTS

  • Richard John, Columbia Journalism School
  • John Samples, Cato Institute
  • Ganesh Sitaraman, Vanderbilt Law School
  • Zephyr Teachout, Fordham Law School

  MODERATOR

  • Ramya Krishnan, Knight First Amendment Institute

  View View Abstracts

  Social Media Regulation in the Public Interest: Some Lessons from History

  Paul Matzko and John Samples

  Samples and Matzko take a skeptical view of new proposals to regulate social media, arguing that previous attempts to regulate media in the public interest actually led to regulatory capture, censorship, and the suppression of political dissent. They examine three episodes of media regulation prior to 1980: The regulation of radio in the 1930s and 1940s, the history of the Fairness Doctrine and independent radio in the 1960s, and President Nixon’s intimidation campaign against the television networks in the 1970s. They conclude that government officials see media regulation as a way to control new communications technologies that may either threaten or advance their political standing. They argue that the outcomes of these episodes should inform current concerns, including questions about the role of courts in protecting free speech and how to properly apply the First Amendment to new media forms.

  The National Security Case for Breaking Up Big Tech

  Ganesh Sitaraman

  Sitaraman takes on the claim that breaking up Big Tech would threaten U.S. national security and argues that, in fact, doing so would strengthen national security. He shows that tech companies are not competing with China so much as integrating with China. This integration supports the rise and export of digital authoritarianism around the world; deepens economic dependence that can be used as leverage against the U.S. in future geopolitical moments; forces companies to self-censor and contort their preferences to serve Chinese officials; and means that profit-seeking corporations and their lobbyists cannot be trusted to advocate for the interests of the U.S. in Washington. Sitaraman also argues that concentration in the tech sector weakens the defense industrial base by making the government dependent on a small number of contractors and redirecting taxpayer dollars from research to monopoly profits. He concludes that the best route to broad and transformative innovation is competition coupled with public spending on R&D, not concentration into monopolies.

  From Private Bads to Public Goods: Adapting Public Utility Regulation for Informational Infrastructure

  K. Sabeel Rahman and Zephyr Teachout

  Rahman and Teachout argue that for concerns about speech and discourse online, antitrust measures—the breaking up of large platforms and the imposition of structural limits on their business models—will help significantly, but cannot by themselves address concerns about how the speech platforms operate. They explore how public utility concepts like common carriage, nondiscrimination, and democratic participation in governance can be adapted to a modern regulatory context around digital platforms, focusing in particular on the need to shift the ad-based business model of information platforms. This focus on the underlying business model and corporate structure is appealing because it avoids some of the more fraught questions of content moderation and free speech within the platforms. Furthermore, this public utility approach, they argue, is also critical to restore democratic governance and control over our increasingly privatized public and informational infrastructure.

  Hide View Abstracts

  3:50PM – 5:15PM EDT

  First Amendment as object and obstacle

  Animating many landmarks of First Amendment jurisprudence is a concern about centralized control over the speech environment. But as the courts have construed the First Amendment to protect an ever-wider range of activity, it may be the First Amendment itself that is the most significant obstacle to some of the antimonopoly reforms that legislators and others are proposing.  In our closing conversation, we’ll reflect on the intertwined histories of the First Amendment and antitrust law, and we’ll consider whether, and to what extent, the First Amendment could prove an obstacle to legislative and regulatory proposals meant to protect our system of free expression.  We’ll also consider whether reform proposals could be restructured in ways that would make them less likely to fall foul of the Roberts Court’s First Amendment.

  PANELISTS

  • Daniel Crane, University of Michigan Law School
  • Genevieve Lakier, University of Chicago Law School
  • Tim Wu, Columbia Law School

  MODERATOR

  • Olivier Sylvain, Fordham Law School

  View Abstracts

  Collaboration and Competition in Information and News During Antitrust’s Formative Era

  Daniel Crane

  Crane looks at early 20th century jurisprudence on antitrust and on the First Amendment, showing that in cases concerning antitrust or unfair competition, Justices Holmes and Brandeis expressed the same values and concerns that animated their First Amendment jurisprudence.  Working through dissenting opinions, they opposed both restraints on free competition necessary to the propagation of information and ideas and government restrictions of collaborative information-sharing.  Seeking to work out the relationship between exclusivity, collaboration, and competition, Holmes and Brandeis argued that the government should neither promote informational exclusivity through the imposition of tort liability for unfair competition, nor stand in the way of voluntary and non-coercive efforts to facilitate the free flow of market information and democratic market access. Holmes’s and Brandeis’s dissents planted the seed of an idea about the mutually constructive roles that antitrust, unfair competition, and free speech could play in nurturing marketplace democracy.

   

  The Limits of Anti-Monopoly Law as a Solution to the Problems of the Platform Public Sphere

  Genevieve Lakier

  Lakier focuses on scholars’ concerns that the First Amendment could be used to thwart many attempts to rein in the power of the tech giants. She finds no First Amendment obstacles to breaking up the largest internet companies, but believes that doing so would not solve many speech- or surveillance-related problems because these are not primarily caused by economic concentration. Lakier then argues that although the First Amendment clearly prevents some kinds of internet regulation—like treating the platforms as public utilities—there are many options that it would not necessarily foreclose. Among these she identifies subsidies granted by Congress to local newspapers to counterbalance the democratic harms posed by the largest internet platforms, regulations that limit the uses that internet companies can make of consumer data, and even targeted speech regulations aimed at violent or harassing speech.

   

  Antitrust & Political Corruption: Overruling Noerr

  Tim Wu

  Wu reconsiders the First Amendment and antitrust’s best-known area of doctrinal intersection, the Noerr-Pennington doctrine. The doctrine provides an immunity to antitrust liability for conduct that can be described as political or legal advocacy. Dating from 1961, Noerr was strained when decided, and has not aged well. As an interpretation of the antitrust laws, it ignored Congressional concern about political mischief undertaken by conspiracies or monopolies; its legitimacy has always rested on avoidance of First Amendment concerns that surfaced after the statutes were passed. Noerr itself may have legitimately reflected such avoidance, but subsequent development of the Noerr doctrine has blown past any First Amendment-driven rationale for its existence. Others have suggested a reformulation of Noerr—but the better answer is that, lacking constitutional or statutory foundation, Noerr should now be overruled.

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