Skip to main content
Loading Explore guides…
Censorship & Content Moderation · Acedra
Home
Explore
Law
Censorship & Content Moderation
Sign in to save
Chat
If YouTube asks you to sign in, open the video on YouTube.
Watch on YouTube
Reload player
Transcript
97 segments
Copy
Hide video
0:00
Good afternoon. Good afternoon. Welcome. Welcome to this false first HLS, Harvard Law School Rappaport Forum. The Rappaport Forum was launched in 2020 to promote full, open, and vigorous discussion. The goal being to promote the respectful clash of ideas about critical, complicated, pressing issues that face our community, our country, and the world. Is made possible through the generous gift from the Rappaport Foundation, and it builds on the legacy of the Harvard Law School Forum,
0:40
which Jerry Rappaport Foundation in the wake of World War, Second World War to provide a spiring whereas with regular opportunities to engage with ideas and issues connected to the study of law in a rapidly changing world. Jeremy Rappaport sadly passed away in 2021. But his many contributions to this law school and to American public life can live on for generations. I want to acknowledge and thank Jerry and philanthropic work who is
1:04
here today for so many decades of support for Harvard Law School, and for their commitment to civic discourse and in particular for their generosity in that endeavor. We have a perfect topic today for the theme of promoting civic discourse about difficult questions. Because today's conversation is a civic discourse about civic discourse. The topic is censorship, content moderation, and the First Amendment. We have with us two very distinguished speakers and participants for
1:37
genuinely the most sophisticated experts on these topics who have nuanced and complex views and who nevertheless know how to have fun. I know that having fun required sometimes fixing it up and disagreeing and not expressing the most nuanced form of the argument the first time around, but expressing it at its strongest form and then gradually nuancing it as you go. They are starting with a person immediately to my left, Daphne Teller,
2:06
who directs the program on platform regulation at the Stanford Cyber Policy Center. She also Lecturer at the Stanford Law School. She came originally from real-world of platform legal governance with ears as an Associate General Counsel at Google and then has gone on to a very distinguished career as an observer, commentator, and also participant at the same time in the policy issues with which we are engaged. And we're very, very grateful to you for
2:35
coming all the way across the country for this conversation. Daphne is left and these are only geographical indications, not political ones. Is Jameel Jennifer, whose Executive Director of the night First Amendment Institute at Columbia University and Jameel noticed you're not built as a founding director even though you are a founding director nowadays you know, everything is a founding, this, that or the other thing. The tibial not only directs the night Institute, but also have ramped it up.
3:01
He's also a professor and adjunct professor of law and Journalism at Columbia Law School, and Jameel litigated important free speech and free association and freedom of information issues for years at the ACLU playing a central role in the legal proceedings that led to the eventual uncovering of the torture memos and has carved out for himself really distinctive. And I think it would be fair to say in our generation, our arteries generation, unique place in shaping
3:33
public discussion and engagement on issues of free speech more generally. I'm thrilled to have them both here. Starting with Daphne, each will speak for a bit under 10 minutes. And I just wanted to say a word about the two leading topics that we'll be talking about, and we will ensure expand beyond just those topics. The first is a set of cases that are in front of the US Supreme Court now, that are being briefed and it will be argued
4:03
this Supreme Court term decided one expect by the end of June. Involving laws passed by Florida and Texas that in their form, regulate what social media platforms may and may not do in their content moderation. To oversimplify, each of these laws imposes on the platforms something like the standard that the First Amendment imposes on government, and moderating and contexts. As you know, that standard, and not just those of you who are in my person having class. Welcome badger here.
4:44
We just had 2 hours of evidence. These are real people really committed to the First Amendment. Thank you for coming. As you know, all of you, the standards that a private company and the social media platforms of a private companies are ordinarily helps you or not First Amendment standards. Because the First Amendment in the first instance only regulates the government. These state laws therefore would put the content moderation operations
5:13
within those companies in a very different position with respect to what they can and have moderate than they presently are. It will require far less moderation of things like hate speech at this information, and possibly even an ordinary every day offensiveness than they practice under current circumstances. And the circuit courts of appeals split on the constitutionality of laws, and that's why it's before the Supreme Court now.
5:40
Hard to imagine a topic more important for free speech in the United States today, than what are the standards that the social media platforms may or may not use to determine what content can be on those platforms. Here at that issue arises in direct relationship to the First Amendment. The other is also before the Supreme Court, but in a slightly different procedural posture. If you'll forgive the legally. It is a case involving an argument by individuals whose content was taken down from
6:10
social media sites for violating their rules on COVID misinformation. Who alleged in district court where they wondered preliminary injunction that the Biden administration convinced by means of encouragement and even coercion the platforms to take down their content by fine tuning their content moderation, misinformation standards to prohibit what they were doing. The US Court of Appeals for the Fifth Circuit partly upheld a preliminary injunction issued by the lower court.
6:47
It narrowed it down to just the Biden administration and knock people in the CDC. The Supreme Court decided to stay that order until, I think 04:00 today and gave until the end of the day, Wednesday for people to submit briefs. It's very probable that before you go off to your hop happy hours this evening, there will be a Supreme Court decision on this fascinating enrich issue, which sometimes we use the shorthand to call it the goodbye jaw bone. I actually don't know the intellectual origins of
7:20
that phrase because it sounds to me like Samson, the jaw bone of the ass, and that didn't, well, for the Philistines. It is that actually the origin. I always thought it had something to do with the fact that you talk out of your job, but I guess not. If so, it's a very loaded metaphor. I guess it assumes that conclusion. But what is meant is circumstances where a government officials using persuasion and persuasion may go up to the line, will cross the line of coercive persuasion to the point
7:49
where the decision to remove the speech, becomes the law of the speech of the government. By becoming the speech of the government is regulated by the First Amendment. For those of you who haven't taken First Amendment or having taken a recently. The idea is that the government ordinarily can say whatever it likes, but it can't stop people from speaking. Private parties can stop other private parties from speaking and they're not stopped by the First Amendment from doing so.
8:18
But if the private party to the social media company removes the speech and then other private person. It does so because the government made them do it. Then at that point, it becomes the government speech act, and then it cannot lawfully be performed. It would have been fine on that theory of the platforms themselves, but it's not constitutional if they did it by being pushed into it according to some complex legal standard by this government. Without further ado, Daphne, the floor is yours.
8:49
Thank you so much. Thank you to Harvard and the Rappaport Forum for hosting us here. I've been practicing platform speech law for a long, long time and I've been teaching it for 11 years. I just realized and when I started teaching it, every single class was on a topic that lawyers call intermediary liability. That's the question of when the law handler should require platforms to take down the user's speech because that speech or that content is unlawful and is it's doing harm and
9:26
violating the law by being distributed further by the platforms. Every year that I teach for the past five or six years, I had to drop a day of talking about that question, which is, when does the law require a platforms to silence their users and add more material about the opposite question, which is, when can the law stop platforms from silencing their users? Are there situations where there can be what we call must carry laws, compelling platform to carry speech against their will
9:59
because a government body has decided that that's what's in the public interests. As we know from Noah's introduction in these cases coming out of Texas and Florida that are likely to go to the Supreme Court soon. Those dates are asserting the right to compel platforms to carry speech that they don't want to. But let's do you think that other issue has gone away? There have been three state laws effectively requiring them to take down a user's speech that got struck down as
10:30
unconstitutional in the past two-and-a-half weeks, so that there is a lot of action on both sides of this. When does the law make platform silence people when doesn't compel them to let people speak. It's a very complicated set of issues because they are really our speech considerations on all sides. It is quite understandable that people want to be able to talk in some of the most important public forums of our age, and they don't like it when a giant corporations stops them from doing that.
11:05
That is not surprising and while it is cast as politically an issue of concern to the right until Republicans right now, I think it is absolutely a bipartisan issue. Liberals don't like being silenced by corporations either. It's I think unsurprising that we're seeing, the great wave of regulation right now including the three state laws that were just struck down in the Texas and Florida laws. Because we're in this historically unprecedented situation of
11:36
very concentrated power over public discourse and private discourse, the things that we would have said to each other in a church, or a bar, or a note passed in class are instead passed through these private companies and transmitted digitally. That introduces both a greater capacity for control because they're them at all, because it's decentralized power. Because they can have tools that automatically detect what words you use and automatically inaccurately, you suppress things.
12:12
It's unprecedented power. Because it is private power, the tools to defend users rights from surveillance under the Fourth Amendment and from censorship under the First Amendment. Those legal tools don't work, if they work we don't know how they work yet. Because the idea of applying them to private actors in the way that some advocates want to do now is unprecedented, unexplored territory, figuring out how that could possibly work.
12:47
I want to suggest that there is a problem in the way that states have responded to this concentration of power. That this is a problem that appears on the right and the left again, I think a lot of this gets cast as, as partism and isn't necessarily. The problem is that regulators saying, wow, private company is YouTube, Facebook, Google. You have so much control over discourse. It's terrible. We're going to have to take that over and tell you how to use it.
13:21
Instead of saying there's a concentration of power, let's undo the concentration of power which is conceivable through interoperability amendments, or through changes in privacy law. Instead of taking that approach, the approach that you get from both the left and the right is to say, use your power in the following way. They use it to take on more of this speech or use it to keep up more of this speech.
13:48
I want to drive home that the Texas and Florida laws, although they get cold, must carry laws. Texas and Florida themselves claimed that they are common carriage laws, which suggests that the platforms are supposed to just carry everything that people say. They actually introduce some pretty significant state preferences about speech. They have not content-neutral, they're not speaker neutral, and they incentivize platforms to do things that will suppress speech,
14:20
as well as maybe carry more speech.
14:26
One way that that works is Texas's law has a mandate to the viewpoint neutral. When platforms are deciding what content to take down, they want to take down anti-racist content. Then they have to also said that backwards. If they want to take down pro racist content, they also have to leave up anti-racist content of your peak. You're really difficult issue and they're supposed to carry speech on both sides of it. They wanted to take down pro anorexia and content into teenagers.
14:58
They might have to take down the anti anorexia content aimed at teenagers. What that does for listeners, if you're on the Internet and you wanted to follow a speaker, you already respect or learned about something is as the cost of accessing the information you want, which maybe is the anti-racist speech. You have to also put up with this state mandated inclusion of the stuff that you didn't want. It is very much changing what it is that users can see and read online and state behest in a way
15:38
that raises questions not just about platforms rights to decide what to do, but about users rights to speak and earned rather to access information online. It is also, I think quite likely speaking as a former platform lawyer that if a clapper was trying to decide how to comply with the viewpoint neutrality mandate, they'll say, you know what, I'd rather have no one talking about racism at all, then have to carry both the pro racist and anti-racist viewpoints.
16:07
I'm just going to take down a whole lot more speech than I used to. That's the consequences of this nominally appropriate expression law in Texas. I can tell you more about ways in which I think the last one that we need to introduce state preferences for speech. But hopefully that sets out the basics of it. About three more minutes. I think there's an underlying problem here or an underlying difficulty, which is about what in the trade gets called lawful. But I'll post speech,
16:42
this is this very large category of speech and I have an article in the Chicago Law Review going into more depth on this. That is legal. It's protected by the First Amendment. That's probably not going to change, but it is also morally abhorrent to many people. It violates social norms and they don't want to see it. The pro anorexia and content, the pro suicide content that beheading videos, the Holocaust denial, the list is very long and it's very ugly.
17:12
If we don't want to see that content on the Internet, we can use the law to make it go away. Where we've been so far as we're having private companies come up with rules and enforcing the rules that there's economic demand for it and then social demand for, but nobody likes that either because of this concentration of power issue. The deeper question I think is how to deal with that and the answer can't be here. I hope it can't be, we'll just spend a bunch Wars VHS.
17:47
We will use the law to restrict all this stuff that is currently First Amendment protected or there's a version of that says you can still stay at sale that stuff offline. But if you sat on the platform it is dangerous, so they have to take it down. Maybe the FCC will administer a new set of rules for previously local speech and say platforms have to take it down. There are a lot of directions you could go to use legal power to address that and I think they're all pretty scary.
18:13
I'm much more interested in approaches that go back to this idea of maybe let's not have that concentration of power. Let's build what my Stanford colleague, Francis Fukuyama calls middleware or what other people call adversarial interoperability or competitive compatibility. Which is, finding ways to make it so that Internet users can decide for themselves what speech rules they want to be subject to and have a competitive marketplace of different providers coming along when you select
18:46
the Disney flavor of YouTube or the version of Twitter that is curated by a Black Lives Matter affiliated group where the combination or something from your church. There are all these ways to layer competing speech rules on top of existing platforms that I think can take us away from this idea that there has to be just one set of rules and the government gets to say what it's going to be. Thank you so much Daphne. I'm on that last topic it would be interesting to talk
19:13
about whether that puts people into filter bubbles and B, whether we're not actually seeing a market competition now the way that the company, formerly, Twitter, now has radically different rules of engagement than it did previously that were in competition with other factors.
19:35
I totally disagree with everything that Daphne said [LAUGHTER]. It's really a privilege to be up here with Daphne and Noah, the workbook, both wonderful people and really smart thinkers on this set of issues. I do need to correct one thing that Noah said, I did not in fact dream up tonight institute, it was Columbia University and the Knight Foundation and dropped it off and then made the mistake of hiring me to build the issue.
20:06
As you've already heard, the courts are going to hear this whole slew of cases over the next few years relating to the government's power to influence or coerce or expose the social media companies content moderation decisions. I think it hardly needs to be said that those cases are going to have an immense effect on the character of digital public sphere and therefore on our democracy as well. Some of those cases have already been mentioned in Florida and Texas. We have these laws that require
20:42
the social media companies to carry content that they would rather not carried. The law also limit the use of recommendation algorithms that require the companies to disclose all information to their users into the public. There's also this Missouri case that no referred to where users have sued the Biden administration over its efforts to coerce the platforms or influenced platforms into taking down what the administration saw as vaccine disinformation.
21:18
I would put into this category of cases also the TikTok cases where a Montana has ban TikTok altogether from operating the state. One way to think about law, is as the most extreme contact maturation where TikTok can't conserve any content at all to its users. There are lots of other cases Daphne referred to, just some of them. Lots of other cases and the lower courts right now that raise these issues. I think that the plaintiffs have pretty good chance of prevailing in most of those cases.
21:58
In my view, the plaintiffs probably should prevail in most of those cases, because most of them involve what I think can fairly be described as government efforts to rig public discourse. That is precisely what the First Amendment was meant to protect against. But I think that it matters a lot. How the courts resolve those cases, how the plaintiffs win those cases. I'm worried that the courts are constructing a First Amendment that
22:32
sees every regulatory intervention in this sphere as a form of censorship. I don't think that version of the First Amendment would serve free speech or democracy very well. In my view, the First Amendment should be able to distinguish between regulation that undermines the values of the First Amendment was meant to serve values like accountability and self government, and interventions that promote those values. The first amendment needs to be able to distinguish
23:10
those two categories of interventions. Of course, it's important that the First Amendment be attentive to the possibility that any intervention in this sphere is an effort to distort public discourse, or that the intervention will have that effect. I don't want to move past that too quickly. I think that's hugely important. If you doubt the importance of that, just look around the world and the way that fake news laws are being used now against journalists. I think it's hugely important that
23:46
First Amendment doctrine continued to be attentive to the possibility that any regulation in this sphere has that intent or that effect. But I do think it would be a sad thing and something terrible for our democracy if the courts constructed the first amendment that was indiscriminately deregulatory. A First Amendment that left essentially no space for regulatory intervention at all. Even intervention that might be important
24:16
to protecting the integrity or the vitality of the digital public sphere. I think it's worth taking a close look at some of the arguments that the social media companies and the technology companies more broadly are making in these cases that we have identified already. One of the arguments is that the collection of user data is speech within the meaning of the First Amendment. Another is that any regulatory intervention that implicates the platforms editorial judgment has to be
24:51
subject to the most stringent constitutional review. Another argument is that any regulatory intervention that focuses specifically on social media companies should be subject for that reason to the most stringent form of constitutional. Then finally, any regulation that would be unconstitutional if applied to newspapers must also be unconstitutional as it's applied to social media companies. It's not surprising that you see social media companies making those arguments.
25:23
What business wouldn't want to be totally beyond the reach of regulation. I Understand and appreciate why they're making these arguments. But if courts accept those arguments, it's not just the bad laws that we have already identified that will be struck down. It's also good laws, those arguments will preempt legislatures from passing laws that I think most of us, no matter what our political views are, I would agree makes sense. Privacy laws, for example, that would restrict what data
25:56
the platforms can collect and what they can do with that data. Interoperability laws, which Daphne already mentioned that might make it possible for third parties to build on top of them that works, that the social media companies have created. Transparency laws that would allow the public to better understand what effect the platform engineering decisions are having on public discourse or process oriented laws that would give users whose speech is taken
26:27
down the right to an explanation or the right to appeal that decision. Now, I know Noah wants me to make this argument at the strongest possible way, but I need to caveat it in one respect at least, which is that the details aren't going to matter a lot. I'm not making the argument that every transparency law is necessarily constitutional. Again, it's important that the courts be attempted not just to the reasons why legislatures are passing these laws, but to the actual effect that the laws are
26:59
likely First Amendment actors exercise of editorial judgment. But a First Amendment that precluded any and all regulation of social media platforms would make the First Amendment the enemy of the values that we need the First Amendment to protect. Should I stop there doing a couple of more minutes. No, you can go on for another minute or two. Well, that won't be [OVERLAPPING]. I can say provocative [LAUGHTER] the last time I had a discussion with [inaudible],
27:33
we got into a yelling argument that took an hour and a half in video somewhere in the [OVERLAPPING] You were the moderator. I was the moderator.
27:42
I guess the only thing maybe this will sharpen the argument slightly. The argument that the First Amendment shouldn't make any distinction between newspapers and social media companies seems especially misguided to me. There's no question in my mind that social media companies exercise editorial judgment. They make judgments all the time about the relative value of different categories of speech that seems like editorial judgment or at least analogous to the judgments that newspapers make
28:17
about what should appear on their pages or the parade organizers make when they decide which floats can appear on the parade. That seems like a form of editorial judgment to me. But the relationship that a social media company has to the speech that appears on its platform is different from the relationship that a newspaper has to the speech that appears in its pages. To say that another way, both of these actors exercise editorial judgment,
28:46
but they exercise editorial judgment in different ways. Those differences, I think, should matter to the First Amendment analysis. Want to leave it there, I can say more on that. Great. I would love to ask a question to both of you that derives from something that Jameel said that I think is relevant to both of your comments. That is the question of why we have a First Amendment in the first place at all. I think you said, Jameel that the whole point of
29:12
the First Amendment is to avoid the government distorting free speech or rigging what this course is out there in the public. I want to push back from the standpoint of the people who passed the Florida and Texas laws. I think what they would say is that's not the main purpose of the First Amendment, although it might be a purpose. The main purpose of the First Amendment is to enable people to speak freely. Nowadays the place that people speak is on social media.
29:37
As platform lawyers certainly know, and everyone who uses social media knows an enormous amount of content that you might want to say on social media, you can't, it gets taken down. The more controversial you are, the more quick they are to take it down. From that perspective, if the government can't tell social media to allow free speech, and if it can't define free speech by saying we're not going to make up a special definition for you,
30:04
we're just going to use the definition that the courts make us use. How on earth can that be in violation of the principles of the First Amendment? It seems like the only way it could be is if you think something that you guys both claim not to think, which is that the platforms are not just like newspapers who can say whatever they want. If they're not like newspapers, what could possibly be wrong with Florida or Texas saying, you know what guys?
30:34
You're subject to the same standards that we're subject to. The reason for that is that the First Amendment is about maximizing people's capacity to communicate and you aren't in the real-world, the thing that stands between this generation and the possibility of free speech. I would like each of you to address that. That's not what they said though. [LAUGHTER] Well, let's reconstruct the strongest argument that they could. Let's then just imagine a statute which is a variant on this.
31:01
The statute that just says, the platforms may not do anything that the government may not do with the regulation of free speech. Is that constitutional in your view? I don't think so. That's what I thought. To be clear, the difference is, so Florida says, you have to let politicians say anything, and journalist say anything. It's picking winners for us speakers and giving them special privileges. I think those are important special speakers too by the way they do, and it's very clumsy.
31:32
Then Texas says you have to be viewpoint neutral. But actually you don't have to be viewpoint neutral as to these things we think are really bad, you can just take that down. Just imagine they did it well. Instead, we're imagining a law that says there is a common carriage law, which is what Texas or Florida claim they have. Which says you have to carry every single thing, period. Or you have to carry every single thing that's legal and so if you know something's illegal,
31:56
take that down, but you have to carry everything else. I think one I guess the Constitutionality, but like those lawmakers constituents would hate that. Their kids and grandparents and cousins and whatever would go on YouTube and suddenly see a bunch of extreme cord or go on TikTok and see a bunch of pro suicide videos and think this is not something people would actually be happy with. But setting that aside, I have been focusing on the speech writers and the users and how they're affected.
32:28
But here the impact on the speech rights of the platforms is quite visible and quite extreme, is taking away their ability to set any editorial policy at all, which I think is clearly a First Amendment problem. [OVERLAPPING] The why biggest corporations deserve free speech rights? Well, because we have a bunch of precedents saying that, the parade operators and the cable operators and so forth, various commercial entities or non commercial entities,
32:57
they just aggregate third-party speeches that sets the rules for it, they do have First Amendment rights. Because the Supreme Court I think is going to answer that. But I also think it would destroy. [OVERLAPPING] Can I just Obstruct, Emi, what if the Supreme Court said that a parade is one thing because you can always make your own parade, but I tried to make my own Facebook and I wasn't so successful. They're not exactly like a parade and so we're going to treat them differently.
33:24
I think Jameel thinks that they should be treated differently from newspapers. Imagine that precedent doesn't limit us here because I personally don't think that it does. You still think if you are on the Supreme Court and not bound by precedent do you believe that these giant, the dollar multinational corporations that control all of our speech have their own free speech right to shut us up? That's the question that I'm asking. Yes, I do.
33:48
I don't think [OVERLAPPING] there should be more of them. They shouldn't have the power that they do, but they are providing a service that most users want in curating the speech that they see so it's not a free speech mash ed everyday when you show up on Twitter or YouTube or Facebook. They're doing that, they're expressing their own priorities about what speech is good and bad in so doing. I agree with you, the court can just change it and maybe they will,
34:18
and maybe that's the road we're heading for so precedent is not that important. But I think that there is a First Amendment value being served that would be served better with more competition but it's definitely a First Amendment value. Jameel, and especially given that you think there's a difference between social media companies and newspapers, I want to know what the principle is behind that difference unless you are
34:40
willing to allow governments to force the social media companies, to allow free speech. Well, I think it depends. The answer for newspapers the Supreme Court has already given us in case about Miami Herald. There was a law that would have, required newspapers to avoid opposing viewpoints when they editorialize on certain topics, and the Supreme Court struck it down said you can't force newspapers to publish opinions they disagree with and carry speech, so they don't want to carry.
35:15
The question is, does that principle apply or apply with the same force to social media companies, and I don't think it should. I do think that there are circumstances in which legislatures should be able to impose, must carry obligations on platforms, even if they couldn't impose the same ones on newspapers. I'm not totally unsympathetic to that aspect of the Florida law. The best version of the Florida law would say a couple of weeks before elections,
35:53
big social media companies can take down political candidates posts only according to, say, published procedural rules that are applied generally and not just to political candidates or to a particular subset of political candidates. Now, do I think that law might be constitutional because I think the social media companies have no First Amendment rights at issue here? No. I think the social media companies are exercising editorial judgment.
36:24
They're just exercising in a different way than newspapers do. But the fact that they are exercising editorial judgment isn't the end of the analysis. Then there's the question of, is the public justification for overriding that editorial judgment strong enough to justify overriding it. I think you could make a strong case, or at least a plausible case that in the weeks before an election, the public's interests in hearing from political candidates should prevail over the interests
36:58
of Facebook or TikTok in promoting the political candidates that they might prefer at that particular moment in time. I'm not defending the Florida law. The Florida law I think was passed in Florida to retaliate against companies that were perceived to have a liberal bias. I don't think there are any legislative findings in the Florida law to justify the must carry provision I just described. But I'm not unsympathetic to that argument. I don't think we want a First Amendment that categorically
37:29
precludes legislatures from even considering those types of must carry. Because you're just a tiny bit what seems to me like it would be the logical conclusion of that view. You say there has to be a compelling governmental interest, fair. What about the compelling governmental interest in the next generation of people who communicate only social media, for the most part, having free speech? [inaudible] has said that the public sphere today is online and on social media. If you accept that,
38:00
that I can't even imagine and interests more compelling to override the supposed free speech interests of these gazillion dollar corporation. I think neither view was jumping up and down about the idea that all corporations have free speech rights but we'll leave that to one side. But the core idea would be that we can't have free speech anymore if the platforms are treated as exercising their editorial control. You yourself, I think I'm expressing a view this closer to
38:31
your view to mine because I tend to be on neither like newspapers. But I'm really trying to articulate the counter-view, once you've conceded that under some circumstances their editorial control can be overwritten why not override it just all the way down the line and let's just have free speech? We don't have to invent some bad free speech law, we'll just use the free speech law the Supreme Court has already created for governments.
38:53
Because there are competing First Amendment rights at stake here. The platforms also have references, the speakers, they need to be accounted for. I think what you said earlier about how this would actually work in practice, needs to account for something. Needs account for something that this would result in a digital public sphere that works for nobody. That's the reason that I don't think that's a very persuasive argument. Number 1, the platforms have their own speaker rights at issue here.
39:23
Number 2, overriding those rights in the way that you described, essentially imposing the First Amendment on private platforms would result in a public sphere that works for nobody. I go onto Bluesky now because I want to see the views of the people I follow on Bluesky. If I went onto Bluesky and instead, the first n things that I saw were posts from Elon Musk or Jack Dorsey, it would be much less useful to them. Can I ask Daphne,
39:57
I'm going to ask you to dig in a little bit on that because you also made a version of that argument that no one would be happy with such a thing. [NOISE] But I think my response to that would be something like this, we have the public sphere and it was always governed by free speech rules, and it existed, and it was fine. It wasn't perfect, but it was fine. Now we have this new phenomenon on social media and you're saying, well, this business model can't possibly work if you do it that way.
40:21
Who cares from a free speech standpoint? Since when is the point of the First Amendment to serve the interests of the shareholders with these big corporations? It worked fine before, is still working fine outside of social media, so why not do it that way? Why not open to a greater free speech? Then the last point is maybe even the premise is not true. The company formerly known as Twitter has not quite suspended all rules, but certainly my feed includes many things that I would
40:51
not want my grandmother or a small child to see. I didn't do anything different. I just showed up on the site one day everything had changed. You can still use it. I don't think it's the death of the forum. I'm have an answer that's about metaphor and the answer that's about doctrine. The metaphor answer is that platforms are functioning as a substitute for the public square and also the Nightly News broadcasts, and also passing a note in class,
41:19
and also just this long list of means of communication, some of which have that free-for-all speech rules and some of you didn't at all. I think sacrificing the value that people get from platforms in those other roles in order to turn everything into the free-for-all isn't justified by the historical analogies. But moving to doctrine, we have repeated First Amendment cases saying, if the technology permits a resolution where the government can meet
41:53
its goals by putting more autonomy in the hands of individual users and listeners, then it should do that instead of having a top-down rule. We have the Playboy case, which is about cable scrambling and the court was like, well, but what if parents had more individual can fall within their households? Wouldn't that be better? Because the law there had suppressed too much lawful speech without the legislature trying to get to a better means and is fit between
42:21
this legitimate goal of protecting children and the risk to lock those speech, the court said, no, go back, there are better versions and specifically increasing individual autonomy is a better version. You get something similar in the Ashcroft case. I want to make the argument that lawmakers don't get to just ignore remedies that would increase user autonomy and say, too bad, there was this major power over speech that we're going to have to take over and [inaudible] how to use.
42:53
They should have to look at better ways to give users power over what discourse they choose to participate in. It's also push back on the way the framed this. I think it's use arguing for a radical departure from historical practice because it's not the case that, everything always worked. Now we're proposing that we move to a different model where suddenly the public square works differently. It that worked in the past is that editors exercise
43:28
editorial judgment free from interference or substantial interference by the government. That's an argument in the other direction. That's an argument for giving the platforms the space to make editorial judgments that a lot of us might disagree with. My argument is just that that's not the only First Amendment interests on the table. The interests of editors and making editorial judgment is important First Amendment interests, but it's not the only interest on the table.
44:02
You have to at some point, balance that interests with the interests that you articulated. The interest of users in participating in public discourse, and I offered one possible line a couple of weeks before the election and you can have this must carry a role. You could offer a different line. My meta her argument is just that First Amendment shouldn't foreclose that. We shouldn't have First Amendment doctrine that says imposing
44:28
must carry obligations on anybody who's exercising First Amendment rights per se unconstitutional because that that will preclude even the exploration of the kinds of laws that we were talking about a few minutes ago. I'm going to turn to subject to job running in a second. I just wanted to say to put my own price on the table. I think I do have a more radical view, although my own actual view is on the other side. I tend to think broadly that you have to either
44:56
treat all free speakers with the same free speech rights the same and therefore that the social media companies are just like the newspapers or else that you have to allow the government to regulate in this specific way, where it would just say free speech applies in all of these contexts. I'm scared of a world where thoughtful, nuanced people like you articulate reasonable rules. But then it goes to the Supreme Court and now it's the Supreme Court was going to do the picking
45:24
and choosing of which legislative rules are okay and which aren't, and if could trade the two of you for the current configured Supreme Court, I wouldn't trade it in a second, but I can't. Anyway, let's let's turn to the jaw going on. Can I have one? Yeah, of course. Always. Once once again, you are making it seem like I am proposing a shift when you are proposing a shift. [LAUGHTER]. I agree that you're not already the Supreme Court.
45:52
Think about for parade, you want to go and have a parade or a protest, you have to apply for a license. If there's more than 100 people are going to participate in your demonstration, you have to apply for a license. We have a whole set of rules around licensing schemes to make sure that they are not used as a means of viewpoint discrimination. But we accept that parades are licensed. Parades or First Amendment activities, but we would never accept that kind of scheme if
46:27
it were imposed on social media companies or newspapers. If suddenly the government said all firsts [inaudible] actress have to be treated the same, parade organizers have to buy your licenses, so newspaper publishers should have to buy your licenses as well. We would say, what are you talking about? These are totally different activities that the legal regime that applies to one shouldn't necessarily apply the other. The First Amendment needs to be sensitive to backfill differences.
46:54
I think I'm just proposing what we already have acknowledged and recognized and you're proposing addition. Let's talk about job owning Daphne.
47:09
When you read the transcripts of the testimony of the backroom conversation between the Biden administration and the platforms around vaccine misinformation. What did you think? Did you think that this crossed what the legal line ought to be and amounted to intervention with free speech? Or did you think, no, they're doing what they're supposed to but they're allowed to do. No, they're just saying where the government and we really
47:38
want you not to do this and we're going to repeat ourselves and multiple times. If you were the judge in that case, what would you have said under prevailing legal standards? Let's say that, that it sounded familiar because I've been stonged out by Republicans, Democrats internationally. This this is not in any typical conversation with government. The White House emails that were so emphatic. They were dumb. [LAUGHTER]
48:09
They may have been dumb but did they cross the legal line when you were being pushed up? You were working at the time for Google, did they successfully push you around? You were still in Google. They didn't, but they were running into a lawyer with a lot of economic back. What I worry about much more is the same communications coming to smaller platforms that don't have a lawyer who's going to stand up for them and try to push back. But the thing that troubles me about the job,
48:38
any discussion generally is actually the focus on whether there's communications or coercive. These questions for democracy I want to thank the Rappaport Foundation. I want to thank everyone for coming, and I especially want to thank Daphne and Shamil for genuinely modeling nuanced and thoughtful discourse, even when I tried to make them not do that. [LAUGHTER] I'm super grateful to you both. Thank you for being here. Thank you. [APPLAUSE]
Here to help you learn
Sign in to keep a private conversation with your course tutor.
Ask me anything about the material…
Sign in to chat