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Freedom of speech may be protected in the US by the First Amendment, but it's still something that's the focus of much attention thanks to the proliferation of misinformation on digital platforms. What's been happening on college campuses in the wake of the Israel Hamas war and what we regularly hear from politicians Satan Federal officials, for example, already grappling with back to back hurricanes that have killed hundreds across
the Southeast. They've been with another disaster related threat, disinformation over their relief efforts and the cause of the storm, conspiracy theories, hate speech, especially on acts after Hurricane Aline devastated a region, with former President Donald Trump and Elon Musk amplifying unverified allegay You mean.
Like weather forecasters making up the storm.
Or controlling the weather, or controlling the web, or the response from FEMA, and you know, FEMA having to move out of an area because of threats from a militia. This world, our next guest understands quite well. At least the dissemination of information in what free speech is versus what fearless speech is. Mary An Franks is a professor in intellectual property, technology, and civil rights law at George Washington University. She's testified on Capitol Hill on the connection
between censorship and small business. She's got a new book out. It's called Fearless Speech, Breaking Free from the First Amendment. She joins us from Washington, DC. Professor, good to have you with us. I want to just read from your prologue because you argue that your new book takes speech seriously. It's about speech first and the First Amendment. Second, you argue that the dysfunction of the current American free speech discourse what I just spoke about, can be attributed to
the inversion of that order. What do you mean?
What I mean by that is that we have this incredibly narrow, very legalistic, really reductionist, largely incoherent idea about what freedom of speech is that's based on perceptions and misperceptions of a legal doctrine, of course, the First Amendment, and when we really think about what is important in a democracy, the kinds of hard questions we have to ask about what kinds of speech should be promoted and
what kinds of speech should be punished. We need a much richer and more nuanced understanding of speech than you can get from that legal doctrine.
All right, So what is your definition of freedom of speech?
The definition I would use is to say the most important thing for democracy, that is, the most vital kinds of speech that you would want to protect in a democracy are going to be those kinds of speech that the ancient Greeks refer to as fearless speech. And the way that they described that really essential form of speech was that you had to be someone who was speaking truly as their own identity, so not trying to cover themselves in some kind of performance or try to disavow
some distance between them and their speech. And you had to say, speak courageously in a critical way about something or someone who was more powerful than you, and the risk that you would be taking and speaking that kind of truth would be to yourself as opposed to trying to cause harm to others.
You know, you say this, and what actually comes to mind is the way that Senator J. D. Vance has answered the question about whether or not Donald Trump won the twenty twenty election. He's done it over and over again a couple weeks ago in the vice presidential debate with Tim Walls, Governor of Minnesota, and then also most recently with The New York Times when he was asked, I believe four times whether or not Trump won the twenty twenty election, and his answer was always the same.
I'm focused on the future, not necessarily answering the question. He's focused on censorship and what tech platforms did. When it comes to censorship, is he doing fearless speech there?
He's definitely not doing fearless speech there. And he's also misstating what censorship is. And this is one of the reasons why I wrote the book is that for all the problems and I do highlight a lot of the problems with the First Amendment doctrine, we still want to be accurate about what it actually says. And what it's very clear about is that censorship means when the government is trying to make private individuals say something they don't want to say, or is punishing them for something that
they've said. Social media platforms making decisions about what they want on their platform or not is not censorship. It does not violate the First Amendment. I think he does know that, and Heed's trying deliberately to create misinformation about the First Amendment itself.
So when it comes to policing platforms, then what is your thoughts on social media? Is it media? Is it playful? We know it's dangerous, We've done a lot of reporting on that, but it's also a place where a lot of folks get their news, something that we are involved in on a daily basis. So, you know, newspapers, magazines, things were policed, traditional media, linear television. If we had said some wrong in the past, we had to correct it, or there might be a lawsuit, or somebody would make
a phone call. We still correct it. So I'm just curious. But it feels like, you know, social media is a wild wild West. So I don't know, does it need to be policed? And I'm just curious how you think about that.
Well, it depends a lot on what the outcomes are that we want from those platforms. When we say we go there for entertainment, we go there for news. If we care about those spaces in that way, then we need to have the kinds of rules, or the kinds of standards, or the kinds of design to make those outcomes happen because that kind of speech doesn't just happen
by itself. You don't get to good conversations, entertaining conversations, high value conversations, by just letting everybody do whatever they might want to do, because that isn't actually a free speech protective position. What you'll get is a bunch of chaos. You'll get a lot of people who are saying really provocative, stupid, uninformed,
really outrageous things, and they will drown out everybody else. So, if you want quality speech, if you want accurate speech, you have to have some kinds of standards in play. And every platform knows this because they all have standards in play. There are standards against spam, there are standards against all kinds of rules of privacy, regulations, any number
of things that every platform is already engaged in. The question is are you going to wield that power wisely and are you going to do it in a transparent way, and are you going to take responsibility for the things you leave up as well as for the things that you take down.
I mean, we know how some platforms treat this stuff because of what's happened on AX in the last couple of years. But I also think about incentives and the way that incentives could be misaligned. Right now, you can get paid on platforms by views, So your incentive is to create something that people will see. People see stuff. When the algorithm sees that people are interacting with it, leaving comments on it, reposting it, then it's it in
other people's feeds. Whether that's true or not, it doesn't seem like the system is designed to reward what you refer to as fearless speech.
Definitely not, and that shouldn't be surprising because what we often forget, and partly because the tech industry and major players in the tech industry try to make us forget this, is that this isn't the public square, This isn't some sort of democracy experiment. This is a corporation that has a product, and it's trying to sell you that product, and it's trying to tell you that what you're doing by speaking or posting or whatever it is is freedom
of speech. But all it is from the corporations perspective is profit. And so the only real standard that is being used in those cases is what's going to make that company profit, And so of course it's not going to align with democracy, of course, it's not going to align with high quality content. It's not even going to have the regular guardrails as you mentioned, of newspapers, radio stations, TV stations, all of whom have to take responses ability
when there is false information on them. When you know, you know that the New York Times can get sued, We know that Fox News can get sued if there's outright false statements being broadcast. So why is it that the tech industry gets this pass where they're allowed to do whatever they would like or do nothing, and allow disinformation, misinformation, truly harmful content to simply proliferate simply because it lines their pockets.
You know, I'm curious about what you think about the protests that we've seen on universities and campuses over the last year or so as a result of you're.
At George Washington University School of Law.
You are at you know, the Hamas attack on Israel and then obviously Israel's response, and so it felt like freedom of speech was certainly being questioned or maybe not allowed equally. So help us with that one, because that was certainly problematic. As we know, a lot of university heads are no laws are there as a result, So walk us through your thinking about that and how it might apply.
I think the first thing to note about that conflict, and I say conflict because it's ongoing right that this is some of the campuses are struggling with right now, is to say that this should be proof in the first instance, that the First Amendment doesn't help us here.
It doesn't resolve these questions. You can invote free speech all you want, you can invoke the First Amendment, but it's not actually going to answer the question of what kind of community do you want to have at any given university, and what are the kinds of threats to that kind of community that you should be focused on.
And what I think was really tragic about so much of the demonstration activity that happened in the last few months and the responses by universities is that they in some ways looked over their own communities and we're speaking to I think audiences that were more like members of Congress, or maybe the donors, or maybe the media, but they
weren't speaking to their students. They weren't speaking to their own communities and hearing what people were trying to communicate, and of course the things they're trying to communicate are controversial, They are complex, they can be misinterpreted, they can be
rightly interpreted in ways that are maybe concerning. But what you really should have seen from these universities is some leadership about their own community and some grace and some generosity for the students as they struggle through incredibly complex, fraught issues. That's the kind of leadership that I really wish we had seen, as opposed to grandstanding for donors, members of Congress, and others who were trying to weaponize those demonstrations to make their own political points.
I want to get right back to Maryanne Frank's professor in intellectual Property, Technology, and Civil Rights A lot George Washington University. She's got a new book out, Fearless Speech, Breaking Free from the First Amendment. She joins us once again from Washington, DC. The theme of burning is a big part of your book, Fearless Speech, Professor, burning crosses, burning women, burning books, burning down the public square, and then finally you conclude with choosing your own way to burn.
Why is that omnipresent in your book?
For multiple reasons, but one of the main ones is the scene that I opened the introduction of the book with which is the burning of the press. The newspaper, a newspaper called the Memphis Free Speech, and it was Ida Wells's newspaper, and it was burnt at the ground after she published an editorial that she had written about the truth about lynching. And it was a moment where I thought, this is really a repeating theme throughout American history.
We have this belief, this mythology about the First Amendment, that we protect radical speech and we protect dissidents. And then you look back to the people who have spoken out against slavery, You look back at the people who were speaking out against lynching, You look at the women who were fighting for the right to vote. You look at the moments now in terms of Black Lives Matter protests and then Me Too movements, and you see that time and time again, the mob has come for those individuals.
They have suppressed that speech. It's been violently suppressed in a way that sometimes took the form of literal burning of newspapers, but sometimes took the form of incredibly onerous lawsuits or persecutions in other ways. So time and again, those who are trying to be most fearless in their speech have been suppressed, they have been violated, they've been assaulted. And that's really a theme that I wanted to emphasize in the book.
You know, just in your intro to you know, you say, unfettered free speeches does indeed exist, but only for some Americans today in America, delusional stalkers have a First Amendment right to terrorize their victims. Pornographers have a First Amendment right to glorify sexual violence. For profit businesses have a first Amendment right to deny services to gay people and to advertise this fact. Anti abortion ze, let's have a first amendment right to mislead pregnant women with fake pregnancy
and clinics. It goes on and on and on. So it is interesting. So what this is such a tough one. So what's the answer. What's the way forward? How do we preserve what is so a part of our American culture, right of being able to say anything? You know? But how can we kind of preserve that but have the right guard rails? Or can we or can we not?
I think we can, And I think it starts with acknowledging that we've never done it. I think it starts with acknowledging that this is our whole mythology about the First Amendment. The mythology about our country generally has always been at best an aspirational idea. It's never been a
completed project. So for the First Amendment, specifically for the question of free speech, we really have to be confrontational about how throughout our history the First Amendment has not stood up for free expression, at least not for those who were speaking out against the most powerful parts of society. It has shown up for the people who are the enemies in some ways of democracy and of those who
are trying to be egalitarian and progressive. So what we have to do first is we have to admit that we have to stop telling ourselves this bedtime story about the First Amendment that we've always protected free speech and acknowledge and really grapple with the fact that we haven't. We have chosen winners and losers for the First Amendment.
The moment we admit that, then we can have an honest discussion about what belongs in that part of the First Amendment that says this should be most protected, and what belongs in that part that most of us would agree should be something that we're allowed to regulate fraud, if we think about defamation to some extent, if we think about the kind of food and drug labeling, this information that you might work about, if there weren't any
kinds of protocols for those kinds of issues. We need to think about and be honest about the fact that we've always made assessments about harm and speech and injury, and let's talk about how we can do that in the fairest, most transparent way and really think about the context that we're speaking in and care about the harm, not just abstract harms, but actual harms. Are the one we've been talking about all this time, That is, there are people who are going to buy because of her Ria information.
Let me ask you, so, then, is it the Supreme Court who figures that out?
I wish I could say that we should have any confidence in the Supreme Court to do that. I don't think they're going to figure that out anytime soon. But that doesn't mean that the people can't figure these things out. The one takeaway here about the First Amendment being neither necessary nor sufficient for freedom of speech is that we
can do free speech. We can do fearless speech, without waiting on the Supreme Court, without waiting for the law to change, we can actually lift up, amplify, highlight those people who have taken those risks even though they had no protections, and we can make those people at the center of our discourse and we can model ourselves after them.
Professor, what's the link between Americans trust in media or a lack thereof, and the misunderstanding of the First Amendment in your view, I'm thinking of a report from Gallup that came out just yesterday that says that trust in media remains at a low, with only thirty one percent of Americans expressing a quote great deal or fair amount of confidence that the media will report the news fully, accurately and fairly.
I think it is a sign that we have at least two competing problems, or at least two problems that are contributing to this, and one is just a general lack of First Amendment literacy in our public right. We don't have really good education about what the First Amendment actually does and what it's supposed to protect because we're losing out on that clarity. The few parts of the First Moment that really are clear say that you've got to make sure that the government isn't trying to throttle
the media. You've got to make sure that that members of Congress aren't trying to intimidate researchers. Those are the things that actually are quite clear and quite good about the First Amendment, And if we could get clarity on those, then we could understand why it's so frightening that the government is trying to take hold of media and social
media in all the different ways. But that's partly a lesson for the media were at large too, which is help educate the public about what the First Amendment does and doesn't do.
What hope do you have that things changed?
I have hope that things can change, because we are at a very dangerous moment in history. But we have had these kinds of moments before, and there have been people who have been willing to stand up to say the things that are really hard, to act in a way that is against their own self interest, and to try to rescue democracy and to make that promise of equality become a reality rather than just an empty promise. And so I do still have hope for that because I still have hope in people.
I don't know you don't seem optimistic, Carol.
Speaking of speech, I feel a little speechless because I think it's such a big discussion of our time, right in terms of we talk so much about free speech, and that means people can say things that you don't agree with or can be uncomfortable. I don't know, though, there's a line that I think you can cross obviously when it creates harm, that is it, should it still be protected? I guess I would.
Say no, But yeah, and I think the way that just the speed at which speech travels now mm hmm is so fast because of the technology and the velocity of it. Exactly yeah, that's exactly right.
Well, Marian gave us a lot to think about timely, certainly as we uh, you know, we're thinking in the middle, like in the thick of it, and try to be so careful about the information certainly that we talk about, right, and so careful. But that's not the case everywhere in the world. Marion Frank's professor of an intellectual property technology civil rights law at George Washington University. Her new book Check it out, fear Less, Speed Breaking Free from the First Amendment.
This is Bloomberg Business Week inside from the reporters and editors who bring you America's most trusted business magazine, plus global business, finance and tech news as it happens. Bloomberg Business Week with Caro Messer and Tim Stenebek on Bloomberg Radio.
It is Bloomberg Business Week. A lot of news when it comes to the ESG world today. Okay, On the environmental side, back to back hurricanes Colleen and Milton expected to cost insures thirty five billion dollars to fifty five billion dollars. That's according to Moody's RMS Risk Modeling Unit. Then there's the social side. Rights in ESG in case anybody's keeping track stiantists hauling employees back to the office
walking back a work from home policy. Then I got a governance headline for you too, your customer doing rounds. I like that Boeing preparing to raise as much as twenty five billion dollars in debt inequity, giving the planemaker the financial resources to withstand that strike and work its way through a series of operational setbacks. All these headlines, by the way, courtesy of the Great ESG Daily Newsletter from Bloomberg News. You can sign up for that on the Bloomberg terminal.
I got to say every day when you read in on the top, we have a bunch of stories. Well, this is Jade Wong's world. She's Chief investment Officer at Calvert Research and Management, a Morgan Stanley owned firm that focuses on ESG and so called responsible investments. She joins us right here in our Bloomberg Interactive broker's studio. Really nice to have you here with us. We have talked
about ESG. I feel like I'm trying to think how old the industry now is but for a long time, but it does feel like it's going through a growing up period, an evolution, if you will. All the rage in twenty twenty twenty twenty one fell out of favor in twenty twenty two. How would you characterize it right now?
I think it's a period of opportunity for responsible investors who are really focused on integrating financially material ESG factors into their investment. There was a period, as you say, when it was kind of the hot topic, and so lots of firms were jumping in to get into and
take advantage of that interest. And I think the firms that are genuinely integrating ESG insights that are financially material because it's good for the investments that they're looking at are the ones who are going to continue to do that, and so Calvert is in that situation. We've been doing responsible and.
Guys were kind of out there in front early on.
Yep, we've we've been around since over forty years now and have always been focused on responsible investing. It is all that we do. So we have a large team entirely focused on understanding and determining the financial materiality and that I think is a really important part.
Isn't that though I think we got away from it. And forgive me because I feel like ESG got messed up with green or doing good completely, And I think the whole point is you have to look at a company and what are their like risks from environmental factors, right from social government. That's what this is about.
That's what this is about exactly. I mean, it's really understanding the industry, understanding the company, and really understanding what are the ESG risks that are going to make a difference in that company's performance over the long term. So it's not necessarily just the recycling that they do, but really, how are they treating their people, how are they managing their energy? You know, all of those factors that really make a difference over the long term.
What is what is ESG versus quote unquote responsible investing? Like, what's the distinction between the two in your world?
In our world? I think it's nomenclature. Responsible investing For us is the way that we've always kind of talked about it because we take the approach where we're not just looking at there's much more beyond just the E, the S and the G. Right, we also do corporate engagement. We also vote our proxies a certain way that are in line with responsible investment criteria as well.
But what does responsible mean? Is it responsible to climate change and making sure we doesn't get worse? Is it responsible to investors and making sure that the steps that the company takes is thinking about shareholder value and doesn't do anything financially that harms that.
First and foremost, it's always fiduciary duty. Right, we are focused on delivering value to our shareholders. I think responsible also means that we're also considering multiple stakeholders in addition to our investors. Right, you want to be responsible to the communities that companies are operating, and you want to make sure that those companies are treating their employees well. But all of those issues matter because they will over the long term, be able to deliver long term value creation.
For on one area that I think in Carol knows, I'm a broken record about this, but just United Airlines, for example, we just reported on what they did in the most recent quarter, how the outlook looks. We talked about the one point five billion dollar buy back. We talked about adjusted earnings per share for the third quarter. We didn't talk about how much sustainable aviation fuel the company used. We didn't talk about their net performance score
with their customers. We didn't talk about how employees are feeling about working at the company. Because in our world.
We talk about you.
That doesn't signet moves the companies stock.
So we're long term investors. And I think that many of the issues that you know, you kind of just cited, that you didn't talk about briefly on your on your show, is are the factors that actually we are focused on right Because for example, if you don't have strong human capital management, how are you going to retain the best talent?
And over the long term that turnover has a cost, strikes all of those things, right, but it's over the long term where you're going to be able to kind of see that play out into stock performance or into you know, the company's bottom line. There has been a lot of research that we've done specifically around what are the material ESSU factors in how do they interplay with equity upside and equity returns? And it proves out the consideration that is key is the financial materiality aspect.
So all right, to tell us about investor interest and the money flows coming in, I mean institutional interest. As ESG has kind of gone through its cycles and growing up period, it feels like.
Yeah, I mean, we're still seeing strong interest, particularly globally, you know, I think that a lot of the focus obviously within the US there has been a little bit more of a pullback. It's certainly not as strong as you're eluding the last couple of years. But I would say that globally there's a big surge of interests, definitely
in Europe, even more so in Asia. So and there are different pockets of I'd say a country that are still very much driven by are compelled by responsible investing, certainly millennials as that wealth kind of accumulates, right, there is also kind of this interest in, Hey, I want to make money, but I also want to take care of the planet. I want to be able to treat people well, and so those kind of are more integrated in how they're thinking about investing.
You mentioned, Jade that the ESG screening process that's in the DNA of the company. Something also in the DNA of the company is the firm's Women's Principles, and it's the twentieth anniversary of that. Help us understand what exactly that is and what that entails.
Sure, so, the Calverts Women's Principles were the first gender based investment principles that were focused exclusively on promoting, advancing, protecting, investing in women in the workplace. And so they were created in two thousand and four.
I can't believe that was twenty years ago.
Twenty years ago, I know. And they were actually the forerunners for the Women's Empowerment Principles introduced by the United Nations in twenty ten. So they really represent to corporations a framework, a code of conduct on how you can retain attract women in your workforce. That was how it was initiated, created twenty years ago, but today I would say that there's a much broader impact in that it continues to serve as a guideline for how do you
manage people in general? Right, Like, how do you attract the best talent in what is an increasingly diverse talent pool?
Is it a screen?
Also, No, it's a set of principles that are really multifaceted. So for example, it will one component is on employment and compensation, another is around health, safety and freedom of violence. Right, so really focusing on creating a culture.
That is Should it be a screen for companies? Ten seconds?
I think it is an important framework for investors, particularly to really understand how companies are managing their human capital.
Cool stuff, Jay, Thank you so much. Jade Wong, she's Chief Investment Officer of at Calvert Research and Management. Joining us right here in our interactive broker studio Carol Master, Tim Stanevik, And this is Bloomberg BusinessWeek.