Intro Montage:
What is Twitter?
Evelyn Douek:
Good day. I'm Evelyn Douek, and welcome to episode three of "Views On First."
Intro Montage:
Twitter. Twitter, Twitter, Twitter, Twitter, Twitter.
Evelyn Douek:
This is a podcast about the First Amendment in the digital age, from the Knight First Amendment Institute at Columbia University.
Ron Wyden:
Section 230 ensures that you really get a fair shake for the little guy.
Evelyn Douek:
This podcast explores what on earth the First Amendment is going to do about social media platforms and free speech in the digital age.
Genevieve Lakier:
Over time, courts have changed drastically their understanding of what the First Amendment means and how do you protect it. And we're in a period where that understanding is changing again. The story is not yet written.
Evelyn Douek:
So far, in episodes one and two, we've been talking about, well, tweets.
We've been getting up to speed on what's trending in debates about the collision between the First Amendment and the internet. But these battles are only the latest front in a long raging war. It's not like there was this stable and clearly defined thing called the First Amendment before the internet came along and confused everyone. The First Amendment has meant lots of different things. Sometimes it feels like a raw shark test, and what people see when they look into it reveals a lot about their deep dreams and desires, or some significant event from their childhood.
So trying to understand the current tug of war over the First Amendment by looking only at recent arguments, is like watching the Star Wars prequels without having seen the original. It's fine, you might still enjoy it, but you really are missing a whole lot of context. So this episode, we're going back to the beginning, because the story of the First Amendment right now is not just a story about tweets, it's also a story about deeper, tectonic shifts. It's a story that starts a long time ago in a galaxy far, far away.
Okay, so it's not that long ago or that far away. It's here in the United States, and it's like a hundred years ago when modern free speech doctrine started to emerge. But we are going right back to basics. And if we're doing First Amendment 101, then we need someone to play professor. Luckily, we scrounged up someone that fits the bill.
Genevieve Lakier:
So my name is Genevieve Lakier. I am Professor of Law, Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School.
Evelyn Douek:
And relevantly...
Genevieve Lakier:
Whoops.
Evelyn Douek:
The good news is Genevieve is better at remembering things about free speech than she is her job titles. She's also the former senior visiting research scholar at the Knight First Amendment Institute, and she teaches and writes really long articles about the past, present, and future of the First Amendment. She literally has a t-shirt that says, "First Amendment addict." So there's really no one better to talk about this. So why do we have a right to free speech? Why are we here? Why are we talking about all of this? What is important about the First Amendment, and what are the values that the First Amendment reflects?
Genevieve Lakier:
There are lots of values. Freedom of speech is supposed to get us, free speech is supposed to protect the right of people to speak, but also people to read, to listen, for people to make expressive choices for themselves. Perhaps the oldest justification for the right is that if we guarantee newspapers and pamphleteers and other speakers the right to say what they like, we can protect ourselves against abusive governments. It is also supposed to protect literature and other kinds of expressive arts from small-minded conformists...
Evelyn Douek:
Podcasts, maybe.
Genevieve Lakier:
Who knows? That's a contested question. But yeah, everything that people create to express themselves, more generally it's understood to be a mechanism for protecting and facilitating democracy. And then on top of all that, protecting these values is supposed to help society in general, all of us together, make social, or moral, or scientific progress, to help us collectively get closer to the truth of things by debating ideas amongst each other.
Evelyn Douek:
And how does the choice of which free speech value you prioritize affect First Amendment doctrine? So what happens if, for example, you craft your First Amendment law around the fear of government abuse?
Genevieve Lakier:
Okay, so that's in some ways the simplest. If we're worried about government abuse, we want to set up a very rigid wall between government, and speakers, and disseminators of speech. So the government gets to do nothing, say nothing, have nothing to do with newspapers, booksellers, publishers...
Evelyn Douek:
Podcasts.
Genevieve Lakier:
... telegraphs Companies, podcasts, this obsession with podcasts, really.
Evelyn Douek:
It's the best form of communication, clearly.
Genevieve Lakier:
It's what free speech has been aiming to its entire three centuries.
Evelyn Douek:
All leading up to this moment right here with the two of us in our wardrobes.
Genevieve Lakier:
So obviously, First Amendment solely worried about government abuse, would definitely not let the government touch podcasters, because that'd be a real problem. So we want to limit the government's power, and there have been some arguments over time to say what the First Amendment really means, or should mean, is that the government has no power whatsoever to regulate speech.
Evelyn Douek:
Doesn't the government regulate speech all the time?
Genevieve Lakier:
Well, right. This is why it turns out it's quite complicated thinking about freedom of speech, because that's never actually been how things work. Obviously, we want to regulate newspapers, for example, like regular old businesses, and maybe we want to do more, we want to make sure that the newspapers are not corrupt, that a rich fat cat cannot buy a newspaper and come to power that way. We worried about democracy, and so a First Amendment that is more concerned with democracy might in fact require not just permit, but require there to be a lot of government regulation of newspapers.
Meanwhile, if you're really interested in expressive autonomy, the creative freedom of podcasters, or book sellers, or opera singers, or whatever it may be, maybe you want there to be a lot of government subsidies of these kinds of professions, we might worry that the market isn't interested enough in the good stuff to pay for enough of it to be produced. But again, that's tricky, because that looks very different than a society in which the government has no power is doing nothing when it comes to the production of speech and expression.
Evelyn Douek:
And so you've got these tensions. What values have most influenced First Amendment doctrine?
Genevieve Lakier:
American Constitution law, American law, is just really worried about government abuse. And maybe it goes back to the revolution, and this idea that the entire point of the new Constitution and the Bill of Rights is to free us from the tyranny that America escaped. I think some of it is just a distrust of government intervention in the private sphere generally, this sort of embrace of the idea of the market as a place of freedom. And so anything that interferes with that feels scary, or bad. But it's really characteristic of how America thinks about free speech. Americans are really proud of their free speech tradition.
Evelyn Douek:
Well, that's definitely true. I'm not sure exactly what happens, but random Americans constantly want to tell me how American free speech is the best free speech. It's the biggest, the shiniest, it goes faster. It's like they add First Amendment fundamentalism to the water along with the fluoride, or something.
Genevieve Lakier:
Pretty much every country guarantees in one way or another free speech. The thing that is so exceptional about American free speech law, and I think also sort of ideology, how people think about it, how they talk about it, how they imagine it, is this real embrace of this negative liberty idea of free speech. That free speech means I get to say whatever I like, and government, you keep your hands off my speech.
Evelyn Douek:
And this ethos was reflected in the way that American law in general approached regulating the internet in the early days. We've got someone who was right there on the front lines in the 90s, who should know.
Ron Wyden:
I'm Ron Wyden, one of Oregon's United States Senators.
Evelyn Douek:
Democrat Ron Wyden is now one of the most famous names in internet regulation. But it wasn't always obvious how important his contribution would be to this particular area of law, given the way the story starts.
Ron Wyden:
I went to school on a basketball scholarship, so occasionally when we had a little time there was a lunchroom, and the house members, we were both young members of the house, we'd go down there and everybody'd want to just talk basketball with me, and ask me about what happened over the weekend and stuff, and I always enjoyed it.
Evelyn Douek:
Senator Wyden is talking about former representative Chris Cox, a Republican from California, who is perhaps the other most famous name in incident regulation because of what he and Senator Wyden did next.
Ron Wyden:
And Chris and I said one day, "We got to think through how to approach the internet," and what we saw is nobody knew how to use a computer even. And so we plunged in.
Evelyn Douek:
And from today's vantage point, it might seem obvious and inevitable that the internet grew up as a fairly regulation free space. I mean, people literally thought you couldn't regulate it, including President Clinton.
President Clinton:
We know how much the internet has changed America, and we are already an open society. Imagine how much it could change China. Now, there's no question China has been trying to crack down on the internet. Good luck. That's sort of like trying to nail jello to the wall.
Evelyn Douek:
Many early digital rights activists agreed. Here's John Perry Barlow, a lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation, reading the famous Declaration of the Independence of Cyberspace that he wrote in 1996.
John Perry Barlow:
Governments of the industrial world, you weary giants of flesh and steel, I come from cyberspace, the new home of mind. On behalf of the future, I ask you of the past to leave us alone.
Evelyn Douek:
Barlow wrote this because Congress ... well, Congress was trying to nail jello to the wall.
Ron Wyden:
Congress was trying to regulate pornography. And Chris Cox and I were in the house, and we were kind of wonky and we thought, "We don't know everything about this newfangled idea called the internet," but we thought that all of these regulations would really damage the internet in its infancy. And so everybody else was thinking about censoring the internet, and we decided we're going to take a different course, we're going to enable companies, and platforms, and networks, to protect their users, and really create more choices.
Evelyn Douek:
So Congress passed the Communications Decency Act. And a lot of it was broad provisions attempting to censor online porn. But tucked away in that act was something else that wasn't really noticed much at the time.
Ron Wyden:
There were really two choices. There was a censorship approach offered by Senator Exon, and then what Congressman Cox and I offered.
Evelyn Douek:
Wyden and Cox wanted to make sure that websites didn't take down too much stuff that their users posted just because they were scared of being sued. So they wrote a short section saying that websites wouldn't be liable for content that others posted on their services.
Ron Wyden:
Both approaches were reviewed by the Supreme Court. And the Supreme Court said that our approach, which was called Section 230 in the Communications Decency Act, stood.
Evelyn Douek:
Okay, Section 230. Section 230 is kind of like [inaudible 00:11:15]. It's so famous now that it goes by a single name only.
News Nation Newscaster:
A short tweet posted by President Trump earlier today read simply, "Repeal Section 230."
Ron Wyden:
Donald Trump always talked about why he was against 230. I was convinced as I listened to him, he wouldn't know 230 if it hit him in the head.
Evelyn Douek:
So as a quick refresher for Mr. Trump and any others who aren't in the weeds on this, Section 230 basically says that platforms can't be sued for the content that users post on them, and they can take content down if they want to. Before Section 230, some courts had held that if a platform starts taking content down, they should be held responsible for everything that they leave up, because by engaging in content moderation, a platform is taking responsibility for what's on their services.
Ron Wyden:
In the 90s, online platforms were basically given a choice. You could either police your website, even just taking post down that were clearly heinous, and be liable for all of it, even if something slipped through. Or you could turn a blind eye and police nothing. Section 230 fixes that. Platforms can remove some content, allow others, it can promote some content, limit others, add contents, warnings when necessary, and block the conduct when it's clearly going beyond a common decency. So what we came to feel is we were creating rights to ensure freedom of speech on the internet, and responsibilities.
Evelyn Douek:
So Section 230 really reflects the idea that the government should keep its hands off the internet.
Ron Wyden:
Chris Cox and I let a thousand flowers bloom. You have a conservative website, God bless them, let them go out and tell their story, and use the principles that we envisioned in writing Section 230. Same thing is true with a progressive website.
Evelyn Douek:
And while many people think it's Section 230, that means that platforms and speakers online are shielded from liability, actually, a lot of it is protected by that pesky little thing called the First Amendment.
Ron Wyden:
If Chris Cox and I vanished, and 230 vanished, most of the hate speech in America would still be allowed because of the First Amendment that protects like 95, 90 6% of it. The real difference is Section 230 ensures that you really get a fair shake for the little guy, because if it's just the First Amendment, they're going to be flooded with lawsuits, and lawsuits and litigation alone can be devastating.
Evelyn Douek:
In this way, Senator Wyden thinks the First Amendment and Section 230 work hand in hand.
Ron Wyden:
It's now been over 25 years, Section 230 and the First Amendment ultimately are one of the strongest ways to guarantee a fair shake in America for the person who doesn't have power and clout. That was the case then, it's even more important today than it was when we started. And if you're not on the internet field, you're not in the debate in this country.
Evelyn Douek:
So the role of the internet in society has only grown in the last 25 years, while Section 230 has largely remained the same. But now, now Section 230, the bedrock of American online speech regulation for the last quarter century, is under fire. There are dozens of bills in Congress proposing amendments to it. And in February, the Supreme Court of the United States will hear two cases that could radically narrow the scope of the section to make platforms liable for far more things on their services. Gonzalez v. Google and Twitter v. Taamneh, to be decided this Supreme Court term, could change the legal framework that has governed the internet for over 25 years.
And the same dynamics that are putting pressure on the way Section 230 is understood, are putting pressure on old tenets of First Amendment doctrine too, because it turns out there has never been a stable agreement about what the First Amendment does or should mean, and so it can always be disrupted. As Genevieve puts it.
Genevieve Lakier:
I think there is this tenancy in public debate to think that the First Amendment means whatever you want it to mean. "It means protection against government abuse," for sure. "It means protection for the private market," "Oh yeah," "Oh no, no, no, it means healthy democracy. That's what it means. And that's what it has always meant." "Obviously, dumb, stupid. How can you think of anything else?" When in fact there are all these kinds of values the First Amendment is supposed to protect. And they sometimes work together, and they're sometimes in conflict, and over time courts have changed drastically their understanding of what the First Amendment means and how do you protect it. And we're in a period where that understanding is changing again.
Evelyn Douek:
You see, in public discourse, the First Amendment is kind of talked about as this singular monolith. But once you dig in a little further, it doesn't really make sense to talk about this as an American view of free speech. Because First Amendment history is, like all history, a story of politics and partisanship. It's a story of contestation and struggle. The different values that the First Amendment protects are not autonomous actors that have little wrestling matches between themselves, they're the tools and weapons of political actors with political goals and political constituencies. You can't talk about First Amendment law without talking about First Amendment politics, and that's where the story starts to get a little weird.
Genevieve Lakier:
Well, I would say up until maybe 10 to 15 years ago, there was a pretty simple political story, or I guess partisan story, you could tell about the First Amendment and these fights about what it means and how to protect free speech. Conservatives were really committed to a negative liberty theory of freedom of speech. They were really worried about government abuse. Then it was the liberals, or the progressives, who were critical of this, and who wanted there to be more regulation of the media business. More regulation of manipulation and abuse, in order to ensure equality, ease of access, and also perhaps to imagine ways in which government regulation could help produce a healthier democratic public discourse, whatever that might mean. So they were much more pro-regulatory.
Evelyn Douek:
Okay, so this is the historical tussle over the First Amendment.
In one corner you have the conservatives, who are really worried about government abuse. Their favorite maneuver is the leave-it-to-the-free-market attack. And in the other corner we have the progressives, who are more worried about democratic self-government and equality. They like to pull out the regulatory offensives. With these two sides lined up, let's replay one of their legendary clashes.
Genevieve Lakier:
I mean, the best example I think to try and understand the conservative approach to free speech is Citizens United.
Supreme Court Justice John Roberts:
In case 08205, Citizens United v. the FEC, Justice Kennedy has the opinion of the Court.
Genevieve Lakier:
Citizens United is one of the most famous, or maybe infamous cases in the First Amendment canon, and deservedly so. It helps us understand different visions of free speech. So Citizens United is a case about whether corporations have a First Amendment right to spend money on political advertising.
Evelyn Douek:
The political advertising in question was a movie about Hillary Clinton purportedly linking her to a bunch of scandals. And in 2007, when the case was being decided, this kind of material was illegal electioneering. But the nonprofit organization behind the movie, the Autonomous Citizens United, challenged the law that said they couldn't show it.
Genevieve Lakier:
And the Court says, in a five-to-four decision, that the First Amendment requires them to be able to spend in a pretty unconstrained manner, because to do otherwise would give the government too much power to meddle, or undermine, the independence of these private actors. Justice Kennedy writes the opinion, and the language there is so redolent of this anxiety, this concern with government abuse. He says these campaign finance laws that the courts struck down, they enabled censorship vast in scale that would go into shut up the best voices in society...
Supreme Court Justice Anthony Kennedy:
When the government seeks to use its full power, including the criminal law, to command where a person may get his or her information, or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
Genevieve Lakier:
It's this real fear of government intervention and meddling. And underpinning it is this notion that really the best way to guarantee free speech is just to get the government out of the business a regulating speech.
Supreme Court Justice Anthony Kennedy:
Political speech is indispensable to decision-making in a democracy, and this is not less true, because the speech comes from a corporation rather than an individual.
Evelyn Douek:
So that's over in one corner. But on the other side of the ring...
Genevieve Lakier:
The liberals and the progressives on the Court, when Citizens United came down, said, "This is terrible. What we want is democracy." And there's lots of evidence that when corporations give large amounts of money to politicians, the politicians are going to be much more likely to do their bidding. And so free speech requires, and certainly permits the government to regulate corporate spending.
John Paul Stevens:
I must emphatically disagree with today's law changing decision.
Evelyn Douek:
That was Justice John Paul Stevens.
John Paul Stevens:
I have filed a separate opinion that Justice Ginsburg, Justice Pryor and Justice Sotomayor joined.
Evelyn Douek:
The dissent was long and kind of grumpy.
John Paul Stevens:
The Court's second error is its assumption that the First Amendment absolutely and categorically prohibits any regulation of speech that distinguishes on the basis of a speaker's identity, including the identity as a corporation. In a variety of contexts, we have held that speech can be regulated differentially, on account of the speaker's identity. Simply put, corporations are not human beings.
Evelyn Douek:
You can really hear in the dissent the very different free speech values that the liberal wing of the Court was concerned with. The conservative majority reflects the epitome of that hands off my speech, negative view of free speech. While the liberal wing of the Court thought the government could have a positive role in promoting free speech values.
John Paul Stevens:
The majority ignores that in numerous respects, corporate electioneering has the potential to distort public debate in ways that undermine revenue and advance the interests of listeners. Unregulated corporate electioneering can drown out the voices of real people. It can decrease listeners' exposure to relevant viewpoints. It can generate cynicism and disenchantment. It can chill the speech of those who hold office, and it can decrease the willingness and capacity of citizens to participate in self-government. The Court's First Amendment analysis is based on the metaphor of an open marketplace of ideas, but the Court never actually engages with the reality of how that marketplace operates, or indeed with virtually any practical concerns, whatever.
Evelyn Douek:
And that pretty much encapsulates the conservative liberal political divide around the First Amendment. Until, about half a decade ago, when social media platforms came along and started banning certain kinds of speech and ultimately deplatformed President Trump himself. And we kind of went through the looking glass and entered the First Amendment upside down.
Genevieve Lakier:
What is remarkable about what's happening now is that with the rise of the social media platforms, these alignments have shifted. Some conservatives, particularly conservative politicians, but also judges and justices, have started to talk about the sort of the real problem with private corporate power abusing speech. And conservative politicians will say, sometimes when they talk about someone getting booted off a platform, say for example, former President Trump getting kicked off Twitter and Facebook, that was a violation of their First Amendment rights.
Evelyn Douek:
All that time, conservatives steadfastly insisted that private companies, including large media corporations, should have the right to make whatever choices they wanted.
Genevieve Lakier:
And now, and really for the first time, what the conservatives are saying is actually that's wrong. You have First Amendment rights not only against the government, but against large powerful corporations who, at least when they are social media corporations and they play this really important role in our democratic discourse. And opposed to them, you have now liberals and progressives saying, "Whoa, whoa, whoa, whoa, whoa, this is really scary," because it's going to give partisan elected officials and politicians all kinds of power to meddle in the business of these private corporations. And in particular, I think they're really worried in the wake of the Trump presidency, that these kinds of laws that would give governments the right to tell the social media companies what they're going to do, they could be abused all kinds of bad ends. And so now you hear the liberals or the progressives invoking this need for a strict separation between private business and the government. And really leaning hard on this, we are imagining free speech as protecting us against government abuse.
Evelyn Douek:
And there are real differences between government regulation of speech and corporate regulation, even when it comes to the most powerful corporations.
Genevieve Lakier:
The government has armies, it has courts, it can enforce its will in ways that corporations cannot. If you want to leave Facebook, well, you can go to Twitter.
Evelyn Douek:
Well, I mean, you can, for as long as it remains online. But I take a point.
Genevieve Lakier:
If you want to leave the United States, it's a much harder thing to accomplish, there's fewer exit options. And so conservatives always said, we cannot treat the government and private power in the same way. They do not pose an equal threat, or a similar kind of threat to free speech, we have to think just about the threat to the government.
Evelyn Douek:
But now, now we have conservatives that are thinking about the threat that corporations can pose to freedom of speech. It's that switch that is really remarkable. We're going to come back to where the rubber is hitting the road in today's debates in episode five. But the thing to underline here is that there's all sorts of ways to think about "protecting free speech." And right now the politics around that question are weird. Part of that weirdness is not just political opportunism, but this deeper question about how to regulate the new technological medium that is the internet. And in some sense that's new, but in another sense, not so much.
Genevieve Lakier:
Each time we get new technology everyone is convinced that the world has changed and it's all entirely new. But if you look at how these technologies were treated politically and publicly, it's so familiar. The first step is euphoria and utopianism. You think, wow, there's this new technology, it's going to bring people together, and we can speak so easily, and it's so democratizing, it transcends space and time, it's going to be wonderful, this is going to solve all of our problems. And all of a sudden you have abuse, and you have exclusion, you have inequality, you have monopolization of control, and then there's just this panic like, "Oh no, this thing is going to destroy society. Everyone's talking to each other and it's so dangerous. What are we going to do?" You had this with the Telegraph company where there's this just huge worries about Robert Barron's undermining American democracy.
For sure, the same thing about radio, the intimacy of the voice was going to corrupt the morals of the teenagers who were listening to it. A lot of worry about this in the early 20th century, and then we have all the panics about sex and pornography, and violence on the internet. And then typically what you get is this third stage where you have a kind of regulatory solution, where you don't get rid of all the problems, but you maybe do enough to make people feel a bit calmer about some of them. Or maybe we just get accustomed to this new world that we've created and things settle down. And so I think we're maybe still in phase two, where there's just tremendous anxiety about what this new technology has brought, and an effort to come up with a regulatory solution that's going to stave off the worst excesses we worried about. And so I think that story, the political and kind of regulatory story, is in parallel with the First Amendment story.
Evelyn Douek:
And that's where we started this season two, when we talked about Knight v. Trump. The debate over public officials blocking critics on social media is in large part a question about how law should accommodate technological progress. Should public forum doctrine be extended from offline forums to online ones? Should it be extended to forums that government officials establish on private property that is the property of the social media companies? And should public officials be permitted to block critics on social media even if they wouldn't be permitted to block critics from school board meetings?
Answering these questions might just be a matter of applying old doctrine to new facts, but it might also require asking whether old doctrine still makes sense in light of all of the changes in business models, in social practices and norms, and in technology, that have taken place since that old doctrine was first established 50, or 60, or 70 years ago.
So while many of the debates around internet regulations sound like all the usual partisan wrangling and mudslinging, it's worth not losing sight of the kernels of truth here. That the world is changing and may be First Amendment doctrine truth too. Conservatives about faith may be politically self-interested and not especially well fought through, but they are recognizing something true about the state of modern free speech.
Genevieve Lakier:
I don't think it's consistent with what they have said in the past, but I find it quite persuasive. I agree that corporations are not like governments exactly, but they do possess a huge amount of power to decide who can speak, and who can listen, and what we see, and what we say. And I think if you're worried about free speech, you should be worried about corporate power.
Evelyn Douek:
And so with all this instability in internet regulation land, everything is up for grabs. Your internet could look pretty different a few years from now.
Genevieve Lakier:
This is a very exciting time to be thinking about freedom of speech and social media, because the story is not yet written.
Evelyn Douek:
And hopefully, it's a very exciting time to be listening to podcasts about free speech on social media too. Next time, we're going to take a look at what the private sector has been up to, while the First Amendment has generally left it to self-regulate so far. While it may sound like platforms should love being left to their own devices to regulate their services however they want to, it hasn't actually been all puppy pictures and funny memes.
This episode of "Views On First" is co-written, produced, and edited by Mary Lasian, and hosted by me, Evelyn Douek. With production assistance and fact-checking from Kushel Dev. Candace White is our executive producer. Audio and production services are provided by Ultraviolet Audio, with production and scoring by me Mary Lasian, and mixing and sound design by Matt Boynton.
"Views on First" is brought to you by the Knight First Amendment Institute at Columbia University, and is available wherever you get your podcasts. Please subscribe and leave a review. We'd love to know what you think. To learn more about the Knight Institute, visit knightcolumbia.org, or follow the Institute on Twitter at @knightcolumbia, or on Mastodon by the same handle. I'm Evelyn Douek, thanks for listening.
Yes! Nailed it! All right.