Transcripts For CSPAN2 Constitutional 20240703

Floyd abrams joined the advocates and legal scholars for a discussion about First Amendment cases in the courts during the Constitution Centers First Amendment a summit in philadelphia. They discuss how the court may view social media and contrast to traditional media and the importance of a free press. Thank you, everyone. I confess that i was showing up with lincolns socks. The Supporters Committee had a socks, but im still a little bit stiff in public and i cant bring myself to wear them yet. They are on the website if you want to go check them out to walk the First Amendment walk. Im delighted to be here with jamil and larissa and we are going to get right into it to ie we have a lot to cover. The last few months have been a busy time for First Amendment washers. So many different headlines and cases. The newspaper in kansas a lawsuit in florida brought disney. A Defamation Case against fox news that fizzles out into a very large financial settlement to the company. Texas bull stick talk off of stateat devices and networks and montana decides lets ban it altogether. The two cases bulging social media, one in texas, one in florida and finally now the Biden Administration has weighed in. Then last friday two more developments. A federal appeals court, the circuit ways in any very interesting case about government contacts with social media platforms around content they carry and whether they crossed the line and then a case we will hear floyd to talk about where hisld law firm represented twitter. We can still call it twitter, right, in philadelphia . [laughter] i think we can still say twitter. Its over itser moderation law. Looking at this vast array of cases, id like to go to each one of you to see where you view these areas and where do we as press advocates have to play defense and where are the opportunities . As press lawyers we often griped that the Supreme Court hasnt heard a libel case in 30 years and 20 plus years since theres been any case but theres a lot going on out there. What are the opportunities . I will start with you. First let me say thanks to everybody that is involved in putting this together. Its great to have such a big crowd. I guess what i think about the dangers and a opportunities, i m definitely worried about the erosion of the doctrine for example the right to speak anonymously if significant important rights that is under a lot of pressure right now. I worry about that. But to be honest, its been more time worried about not to the erosion of the First Amendment doctrine but rather the calcification of the First Amendment doctrine goes without saying that we live in this era of incredible technological change and information ecosystem that we live now. Its totally different from the one that exists ten or 20 years ago. I think its important that we hold onto the First Amendment values its meant to protect like accountability, intolerance, autonomy, truth speaking and selfgovernment. These are really important values at least as important now as when the First Amendment was drafted. But i think the firstst amendmet doctrine needs to be responsive to technological change and now what we used to call the Public Square is almost entirely owned by private corporations. Social media has democratized a speech in a lot of ways but also introduced the whole set of pathologies. Its also true that Surveillance Technology i think has turned on its head to the traditional relationship or the ideal relationship between the citizens and the government and now its increasingly fair to say that citizens are totally transparent to the government not just the powerful private actors as well but whereas those governments and private actors are almost entirely opaque to us and that is the complete reversal of the appropriate democratic relationship. I think the First Amendment has to be responsive to all that and i worry when i see other First Amendment advocates and First Amendment litigators defending First Amendment doctrine that was in and of itself. The doctrine exists to protect a set of values and i dont think we should lose set of those values. Thats what i if im up at night worrying about the amendment thats probably what im worried about. We are looking at this vast array of headlines. Where do you see the opportunity and where do you worry about erosion . Im not looking for a lot of new law. I think the direction we should be most focused on is preserving the old law not necessarily very old, but applying the principles that made us the most free in terms of free speech and free press in the history of the world and not moving away from there. You cant escape new problems with new technology and the like. I think one of the most important issues that will surely be litigated not just in a few years but does relate to mesocial media to the degree to which social media will have more or less the same level of the First Amendment protections that means actions to government control arrows would otherwise be the case. Social media is where a lot of the action is on the ground, but in terms of First Amendment law. Other cases that were referred and the Supreme Court sooner rather than later about questions like can states require social media entities to have what we used to call the fairness doctrine one on one side and you must put the other side on. That has been held unconstitutional with regards to the press the Supreme Court has said unambiguously not being challenged at all now. You cant tell you newspaper what to print, period. Its not fair that they are loaded in this direction or that. Too bad. Read another newspaper. Do something else. Or really is rather simplified. The way to describe but its not wrong and its very important about how the social media will be treated. In my view they have a very strong argument that they should get the same or Something Like theam same amount for some of te same sorts of reasons for fear of government control and oversight. But not necessarily how the law is goinge. To move. In one case they will probably decide in the next year in florida and texas legislators which passed walls designed to assure the legislators in those states that will spare so an absolutely critical moment in the court of appeals for the fifth circuit a judge asked the lawyer for the company, social Media Company are you saying you could have on the ground that you could favor a democrat over the republicans, and the answer was yes. Yes, you can to it. Now, no one now thinks that the law is certainly not is or even plausibly is about to change so that a newspaper or a mag seen e or a book writer can be forced to answer the question, arent you bias, youre in your pockets, all you to is praise them and denounce them. That situation and i believe into the future is really clear. We dont w have a great idea wht the court is going to say about social media on that. The other topic, we are going to have defamation which three of the most conservative members of the court who have said in so many words that they would two plus one that we know, that they want to set aside what may be the greatest victory which is New York Times and sullivan case of 1964 as the court has become more conservative and some members of the court have become unambiguously antipress. It makes it all more likely that that that case may welcome up before this court and while for what its worth, i dont think they are going to reverse in effect or set aside, New York Times against sullivan, we dont know. Its in play, its in play intellectually, its in play ridiculously and so i think thats i think they will take one of the cases, some very sympathetic case from the point of view of someone who has been wronged and because we protectno speech so much doesnt have a remedy. The other thing i can say is that i really cant talk about the twitter case. Okay. Because its just been filed. Understood. Ill like you to engage on the same question but add one more layer to it. You have devoted your life as an educator, Law School Professor and i think everybody was quite interested in hearing l from yor perspective as a law professor what are you struggling persuade the students today, where do you see weaknesses in their understanding and appreciation of of First Amendment juries prudence and what thoughts do you have in order to restore the belief. So when youre thinking law students, t important to remember that law students are just people like the rest of us and so they have some of the same biases like the general public things i worry about generally is kind of the suspicion of the press, suspicion that the press is not providing information in a way that undermines support for press freedom generally and it increases overturning maritimes versus sullivan and criticize influencers as extended by the Supreme Court. Even more so, the biggest tension i see in students is a big tension between liberty and equality. And and so, they are much more interested in punishing speech that might be thought to threaten equality, what they see as hate speech. They are much more interested as a whole, these are gross generalizations, there are variations in students. The Younger Generation sees emotional harm as a threat to their very safety in a way that might justify speech regulation. You see this slide, right, speech that is offensive become speech that makes me feel unsafe. And so the idea that we have to tolerate that speech is part of living in a democracy and the idea that we tolerate a speech because we do not know who is going to be in power the next iteration of elections and we cannot be sure that our side will be in power the next time and what our side considers offensive may not be the same thing that is considered offensive to the other side. And so, that tension between equality and liberty comes out differently for a lot of people to the Younger Generation. Convincing them that their views may not win and they need neutral principles to adopt so that, to ensure liberty for all of us, is a harder self than he used to be. Mr. Brown are there things we can do to help buttress the belief in the First Amendment with this group . Ms. Lidsky teaching civics is really important. I teach constitutional law as well as First Amendment law and media law. So, say in broad sweep of history and understanding that in the cycles of history, there is always an authoritarian impulse to silence that speech with which we disagree. And it always will be look at ends badly. It is never a good thing. History gives you humility and it is the only way that the individual on the last panel talked about teaching students about the constitutional principles that bind us together in the importance of holding our elected officials to norms that support those principles because we do not know that we will always be the ones in power. We need some common neutral principles that will bind us together despite our differences. Mr. Brown thank you. [applause] very good, yeah, all right. Keeping with our teaching theme, i think it was secretary raimondo who said recently about the tiktok ban. If you want to lose every voter under 35, go ban talk. Tiktok. Do you see an opportunity in these cases an important opportunity to invigorate this generation with the importance of the First Amendment protection . Mr. Jaffer absolutely. First, i have heard larson said this before. It is really important that we teach the history of the Civil Rights Movement in connection with free speech because the truth is of the Civil Rights Movement in this country never have gotten off the ground but for the freedom of speech. The First Amendment protected that speech. It is much harder to see free speech and equality is in opposition once you understand a little bit about that history. On the tiktok stuff, yes, i do think there are college students, College Age Students who care a lot about access to tiktok because tiktok is a place where they themselves post content. They participate in conversation themselves and their listeners as well as speakers in that space. There is a kind of dismissiveness on the part of some people who do not use tiktok, mostly older people who do not use tiktok and they think it is just about dance videos or and is true there are some very good dance videos on tiktok. [laughter] there is a lot more than that on tiktok, including political speech, speech about every topic under the sun is on tiktok. And is presented in more ways than you can possibly imagine and its in more communities than you can possibly imagine. And a lot of that speech is really valuable, societally valuable speech, socially valuable speech. Even if you think of dance videos as outside that description. In these College Age Students now see political leaders proposing to or even actually doing it, banning access to this platform. And it is perhaps the introduction to what free speech means in this country with the First Amendment and what it means in this country. As you know, bruce, my organization has challenged the constitutionality of texass tiktok ban as it to Public University professors. It reaches only state employees. One effect of that ban is to prevent Public University professors from accessing tiktok in the classroom or studying tiktok, including studying the problems of disinformation and Data Collection on tiktok that are of sensibly the justification ostensibly the justification for the ban in the first place. But i think that floyd mentioned quite appropriately that we should be concerned about preserving old First Amendment doctrine. One of the cases we are relying on in this case is lamont versus postmaster general which is a 1964 i think case involving a statute that requires people who wanted to receive communist propaganda from abroad to register with the post office before they could receive it. The Supreme Court struck down that statute saying essentially unless the government has a very good reason to prevent americans from accessing information from abroad it cannot prevent them from doing it or burden their right to access that information. The fact that the government regards this as propaganda is not a good reason. In one of the cases we rely on heavily in our brief challenging the constitutionality of texass tiktok ban is that case. In one of the questions presented in this case is how to apply that principle that was established in lamont vs. Postmaster general 50 years ago through this very new and different context. But i do think, to answer your question, at it is possible that some younger people who have not yet had occasion to become familiar with the First Amendment or fault in love with it or fault in love with it might become familiar with it and fall in love with it because of these threats to ban a platform that they care a lot about. Mr. Abrams the phrase will be dance in the streets will take on new valence after the dance videos on tiktok. Mr. Brown floyd, this is a perfect setting to ask you a question about the work you are doing at Yale Law School on the press clause. When you announced the project recently you said quote, for too long the provision in the First Amendment freedom of speech and of the press would be protected from government abridgment has led to justifiably broad protection of the former with far too little notice of the latter. It is time to begin to address that constitutional decision see deficiency. We are also eager to hear from you about what you are doing with this work and what you would like to see come out of it. Well, so far we are doing what academics do. Mr. Abrams we are having compasses. [laughter] we are having conferences, a series of conferences around the country with great scholars which we have done for happy year now. We are going to do it another year or so, hopefully we will write something up which might persuade someone on some corner or another. We have come amongst the problems we have in the country know about free press is that small newspapers are going out of business. Newspapers in areas which have been served sometimes only by one newspaper and which covers that town, that city, that part of that state are not only not driving but are rapidly going out of business. There is nothing that a lawyer or academic can do about that. I asked when editor one editor of an iowa newspaper with a circulation below 2000, i said to you from a lawyer to a journalist, what could we do . Suppose we asked you, what would you like . He said, well, lower mail rates. I thought well, i cant help with that you know . The question is is there something we can do in law, something that we can credibly hopefully persuasively argue that the First Amendment provides, which could at least be of help when these organizations are up against google or other super large entities, what with which they dont have good relations that would charge them a lack of money a lots of money and things like that . But i dont have a good answer to what is the end of this. I can say that from the beginning of our country, everyone talked about having a free press as being absolutely essential to the preservation of a free society. James madison who had initially been dubious about having a bill of rights at all, he said it is just going to be a parchment limitation. No one is going to pay attention. It would just be a piece of paper. He was ultimately persuaded by jefferson with whom he was very close and who he admired and by others that in order to get the constitution ratified as it was drafted in philadelphia, had to have a bill of rights. That there was more and more pressure and every draft of the bill of rights starting with the first one written medicine at a press clause in it. Freedom of speech and the press. The first draft, madisons first draft of the First Amendment in the First Continental Congress on the first day had in it a draft of the First Amendment which has language about how the press was invaluable. Press freedom was invaluable, must be valuable, cannot be interfered with. That did not make all the editing processes, but from the start and certainly with the framers, i mean they really got the essentiality of having a press free enough not to be governed by, overseen by, and limited by the newly empowered federal government. Remember, the reason that we have at our constitution federal constitution is that the articles of the confederation did not work. Each state had its own coins. There was no federal army. There were no any diplomat had to be cleared by all 13 former colonies that were now states. And so, there really was a consensus here in philadelphia, not far from here, there really was a consensus that there was need to have a written constitution and a written constitution which dealt with the issues of this brandnew country. But at the start, the first vote of the Continental Congress about having a bill of rights was 10 states no and no states saying yes, three having arrived not having arrived on horseback in time. It was nine 23. Nine to three. That could not be ratified. There were significant opposition to the Continental Congress and back in the states, the states would not rectify without rectify without a bill of rights. The bill of rights, whatever else was in it would protect freedom of speech, freedom of press and freedom of religion. In that is the way it became and yet, we find ourselves now back to what i am active in with a free press clause, which is just not very meaningful. Now, part of that is because we have very expensive protection for free speech. And so, it is not as if we are not a free people without a freer press, but not having a meaningful press clause, not having an individualized reduction protection for the press as opposed to speech alone would have been a great loss. And we have it, and we are not using it. The group that i am heading, what they are trying to do is to make sense of that and to try to come out with some notions about how to put into the press clause as enforced, a much greater meaning than it is thus far been given. Mr. Brown thank you, thank you. Larisa, you are the flirty on our panel. There is never a lack of interesting First Amendment headlines coming out of florida, but the one i wanted to ask you about for this panel takes us back to the right of reply case decided in december 1974. At that moment, access was thought of as coming from the left. Florida now has a new social media law, one of those cases that we can make to go up to the Supreme Court and im curious if you can speak to whether you think the political valence on this issue has shifted from where was during that summer and more broadly as a constitutional scholar, knowing that tornea and other important First Amendment precedents established at a time when the press is more popular than it is today. The social Media Companies may be in front of the court at a time when they are not popular. If you have thoughts about that issue as well and how the advocacy is impacted do you think by the fact that these cases at the court at a time when there is as we have been discussing today, deep societal risks of protection, loss of trust in traditional and new media. How has that impacted outcomes on the Supreme Court . Ms. Lidsky unfortunately it does impact outcomes. A lot of our institutions are not popular with people including the Supreme Court itself. It is at an alltime low in terms of popularity. But the press likewise, there is a great book i would recommend to you called why americans hate the and why it matters. The thesis of the book is basically that the dislike of the press and press practices does make its way into Legal Proceedings and herbs back even if you do not have key decisions overturned, the way they are applied curbed. You also dont get legislators passing laws that supplement constitutional protections for the press and then when you have juries deciding cases for example defamation involving the press, maybe they want to punish the press more and judges become skeptical of press claims about freedom but what is interesting to me as this is occurring at the same time when it is becoming so evident that we need reliable information. We the people need reliable information in order to engage in democratic selfgovernance. The role of the press than fostering democracy is more evident than ever in the lack of especially at the local level the press lane this role so we can know what our government officials are up to and call them out on it or vote them out if we need to is so very evident. It is not surprising in a way that people are concerned about the press. My coauthor and i said the press has decimated but decimated means 10 . In fact, the press has lost expertise more in the range of about 50 , newspapers in particular, in the past 20 years or so. The expertise has been leached out of newsrooms. It is not surprising that maybe the product different and especially at the local level, the product is not even exist. Does not even exist. That is something that floyd and the yale folks need to solve. [laughter] somebody needs to solve it, but i am an eternal optimist. I think new and different groups are coming in and there is a lot of experiments with public funding. The internet does give us room for instrumentation with people gathering information and providing it to us in different ways. You have some whistleblowing that is occurring by nonTraditional Press actors that called out i think the twitter files as some of the revelations about what was going on there is a kin to pentagon papers revelation. Has not had the same residence, resonance but both the administrations coercing social media to put their narrative across is something that is serious, they did not come out Traditional Press actors. Mr. Brown yeah, thats great. We have time for one more question that i could ask of the whole panel. It is hard not to be in the setting and not to about the majestic words from sullivan and the central meaning of the First Amendment and the artifice, the image is created in their minds of the Fourth Estate and the press as a bulwark of democracy. We are clearly shifting into a different era, and we have teased a bit here on this panel about technological change, as floyd hinted, there is a chance a court will take some really important cases in the coming years. With each of you, what do you think the emerging digital First Amendment will look like . I am asking that question in a week in which the Justice Department is trying to break google apart and so there is this backdrop of the concentration of power the Tech Companies and our speech market place. If you had the opportunity to speak to that in your answer as well all in a handful of minutes, sorry. Do you want to go first . Mr. Jaffer sure. I would start by going back to where i began which is the values of the First Amendment and what it was meant to protect. I dont actually think it is that easy to take even if you are a 100 confident that the Supreme Court got it right in these cases decided 50 years ago like brandenburg or the pentagon papers case or New York Times versus sullivan, even if you feel in your bones at those decisions were 100 right, there is still a hard task in applying those principles to this very different factual landscape that we are dealing with now. You can believe in the first amendmen you can believe in the First Amendment and know how some of the cases should come out. I think that the next choice alluded to a couple of times without it being the two cases out of florida and texas. Florida and texas have the new social media laws that regulate social Media Companies companieo carry some content even when the companies dont want to carry it, and they also require the companies to be more transparent about their content moderation policies than they would like. This question of how to apply 50yearold president like precedent social Media Companies is not straightforward. If you read tornillo to me and the government cannot force editors understood in the broadest sense to make decisions that the editors dont want to make, you cannot force the editors hand, then these laws are obviously constitutional. The texas law and the florida law. That is exactly what the government is doing. Those governments are telling twitter and facebook what content they need to publish. If that is your reading of tornillo then it is relatively straightforward, but there are differences between social companies and newspapers. Figuring out which of those differences should matter whether any of them should matter as a really difficult task. And i think that how the court answers those questions is going to make a huge difference to what the digital landscape looks like the next 20 years. And we are here because at some level we are enthusiasts of the First Amendment. We all believe in the centrality of free speech to our society. I think most of us probably believe that free speech and democracy are almost synonymous. But you can believe all those things and still have a hard time figuring out how these cases should be decided. I think it is very difficult to predict what the Supreme Court will do, and not always obvious even to the people who care about free speech. Mr. Brown why . Mr. Abrams on social media, we have not talked about the section 230 of the federal law which governs this, which basically immunizes social media against libel claims for what people say on social media. It was intended to and it has allowed social media to explode in terms of its ability to in Effect People on while the social media entity does not have to check it. The New York Times has to check it. They even have to check it when the person is a public person in many instances circumstances. Whether we continue to have that , i dont know, but im not even advocating one thing or the other. A final note from me and i will save you time, if i had to tell you one thing you ought to tell your children when you go home tonight, it is that Salman Rushdie spoke to you. [applause] mr. Brown marissa what would you tell your class next time you convene . Ms. Lidsky well, so last term in the Supreme Court dealt with two significant internet related cases. Elena kagan said we are not the nine greatest experts on the internet. I am going to leave you with optimism because here is the thing, they waited, we have been dealing with a gap in the First Amendment principles for the internet for more than 25 years, a longtime parent Supreme Court is the reluctant to weigh in and theyre not that many cases but they are finally starting to take them which makes us a little trepidations. But in counterman versus colorado which dealt with threats last term they were very sensitive to the misinterpretations you could put on rats in an internet context and they set mens reas standards are high so that we did not absently punish speech that was not a threat. Then they rejected the invitation make twitter responsible for all extremism on the internet generated by its algorithm. And if so, they are really trying to be careful in the adaptation of these principles and it gives me hope that the point is the principles. We reason by analogy, but sometimes the bag Tech Companies are not really analogous to anything we have seen before. They are kind of like newspapers, kind of like common carriers, kind of like this and that. Hopefully, the Supreme Court will be modest in their own abilities and to be very careful in that adaptation process this term. Mr. Brown thank you. I think the three of you are pretty great of a threejudge panel. I would like to see you make no law. Thank you so much for being here. [applause]