A Century of First Amendment Law

decide cases that would shape First Amendment doctrine. Two First Amendment scholars, Lee Bolinger, the president of Columbia University, and Jeffrey Stone, a professor at the University of Chicago Law School, have brought together some leading scholars in a new book of essays that explores the evolution of First Amendment doctrine. It's called the Free Speech Century. They join me now, Lee tell us about the premise of the book. The

idea is that this is one years old. That is the First Amendment jurisprudence, and most people don't realize that. They think that it goes back at least to the beginning of the country. And while the first Amendment was there. There are no cases until n So everything we have today is the product of the last one hundred years,

and it's an amazing journey to see that. So I think if you start with Vince Blasi's essay, you get the deep, deep sense of how complex this is doctrinally, theoretically, and then you go through a whole series of essays about particular doctrines, and then you end with the future and him wu Emily Bell and so on. So I think sort of as a whole, it tries to tell the story of the last one years. Jeff, what do you want readers to get from this collection of essays?

I think the most important thing to get out of this set of essays is first an understanding of the complexity and the challenges posed and giving meaning to the First Amendment. That the simple language of Congress will make no law bridge in the freedom of speech or of the press doesn't tell us very much, and that it's taken the Court literally a century to get where we are today, and where we are today does not by any means resolve lots of the questions we have to

face in the future. So I think part of what the book does is to demonstrate that this is an extraordinarily difficult task, that there are alternative universes one could imagine in which the Supreme Court might be given very different meaning to the First Amendment, and that it's largely a product of logic and history and reason and how

things have evolved over time. So I think that's the most important thing to me that the reader we get out of this is that this is an ongoing challenge that continues into the future, and that begins in a fairly difficult and challenging time, which was World War One. Let's talk about the legal issues raised by the social

media giants Facebook, Twitter, and Google. In her essay, Columbia journalism professor Emily Bail rights, the global technology companies are reshaping our concepts of what we mean by mass media, the independent press, and the public sphere. Tell us more about that. This is I think one of the major questions of the time and of the future. So you start with the fact that the Internet is the most

recent new communications technology that's been invented and implemented. One of the things that's happening is that it has undermined the business model of the traditional press. The newspapers and radio and TV, but especially daily newspapers, and this is a major question for the country. How we're going to sustain a fourth branch of government, as we like to

call it, an independent, free journalistic enterprise. So that's number one. Secondly, as you have more and more people talking and receiving news and thinking in the context of social media, a number of questions then follow. How much control do the company that are really now semi they are monopolies have over who is speaking and what is said on that. Some people think today that too much is allowed, too much hate speech, foreign manipulation of speech, and so on.

Other people, as Emily points out, are concerned that the companies are exercising too much censorship of speech. So you have, as its most elementary level, a question from the First Amendment. If you think about the public forum in which public issues are discussed and debated, how willing are we as a society to allow that to be so controlled by private companies? And then if you are troubled about that,

what can be done about it? Jeff, there's a lot of talk today about trying somehow to regulate the social media platforms. What's your take on whether they'll be regulation in the future and whether there should be regulation. What's happened with the effect to the social media platforms is that when they first came into existence, Congress decided that they should be treated very differently than newspapers or television

shows or book publishers. The conventional forms of communication are all liable for allowing publications or allowing speakers to express views that otherwise would be the basis for civil liability or criminal liability. So the New York Times published as something which is defamatory or something which is a threat, then not only is the author liable, but the New York Times and liable. And when social media came into existence, and these platforms came into existence, Congress decided to treat

them quite differently. And the idea was that they would be neutral opportunities to enable private individuals to utilize these sources of communication, um without having anyone screen what they can say in the way that that newspapers and TV and radio and someone do that screening. And therefore the platforms would be you and from any liability for whatever

you or I put on Facebook or Twitter. And the idea then was that this would be an opportunity for individual citizens to communicate directly with fellow citizens with no intermediary but even though they themselves could be liable for violating the law. But the problem there, I think is that is that what we've seen is is so many people are engaging in speech that other people find deeply problematic and that bringing lawsuits against them is not realistic.

That there's increasing pressure on the part of these social media platforms to engage in the kind of screening that originally was conceived that they wouldn't do, and that that poses a very serious question because we want to give these private entities the kind of power to decide what ideas what points of view can be expressed and which one can't when social media has now become so powerful.

On the other hand, having government involved in dictating to them what can be said and what can't be said is equally problematic because we don't generally trust the government in this regard. So it's created a real challenge to going forward to figure out how we deal with this, and I think that's one of the great challenges of social media as we look to the future. The movie The Post brought the Pentagon Papers case to a new generation.

David Strouss, a professor at the University of Chicago Law School, writes about it in his essay and he brings in the contrast with the massive leak by Edward Snowden tell us more about that. So. Pentagon Papers is one of the landmark cases of the First Amendment, of course from the nineteen seventies, and the majority of the court held that the government could not enjoin The New York Times at the Washington Post from publishing the classified information in

the Pentagon Papers. This was a landmark case because it established as a general principle the independence of the press and its role in informing the public about the government. It dealt with what is an abiding dilemma for any society, but focus on American society. The government has to have some degree of sequency in order to operate. That's just

a practical reality. On the other hand, it tends to and it's inclined over protect information from the public, and the public needs that information in order to exercise its sovereign powers of self government. How you draw that balance is one of the great questions of any free society. Britain draws it in one way. If you publish classified information, you're automatically criminally responsible. In the United States, we allow

the press who published this under certain conditions. The problem is that today, as David Strauss points out and Jeff and I pointed out, we may have different facts than we had in the time of the Pentagon Papers case. So number one in that case involved the Washington Post of the New York Times. Trustworthy institutions. Today it's Wiki leaks, which is hardly an institution that takes the interests of

the United States into consideration as it publishes things. Secondly, the amount of information that can now be released, the Snowdon type of hundreds of thousands of pages of classified information is so much greater than Daniel Elsberg going to a xerox machine and putting out the Pentagon paper. So the risk of bad things, that is, bad things from the standpoint of US security being released is much higher today.

So these are new facts. Jeff can add to this because he's been very involved in thinking about this at the national level. But it is a deep, abiding and

puzzling slemma. So I mean Lee has described quite well David Strouss's essay here, and uh Strouss puts his finger at a really important point, which is that the capacity of an individual leaker to reveal far more information, much more easily than was ever possible in the past because of changes in technology, is very different than it's ever been, and the ability of the United States to rely upon responsible media to exercise good judgment in deciding what to

publish is no longer available because there are so many other ways, as in wiki leaks, for example, the publishers information and make it available. That creates a real challenge. There is, in fact a major problem of over classification within the government, and I think the government could help itself if it could focus much more on what exactly it needs to classify and what it doesn't, and then I could focus better on keeping certain information confidential in

secret and reduced the opportunities for leaks. But I do think that the vulnerability that we now face is much greater. The damage done by Edward Snowden to the national security was far greater than anything that Danie Elsberg did, and I know that created real concerns within the national security part of the government. Nonetheless, interestingly, no effort was made to punish any of the entities that published the information.

Although obviously Snowden is subject to possible criminal prosecution. But I think this poses a serious challenge for the future because it is important for the government to be able to keep certain things confidential, and they need to figure out how to do that more effective courts. Eventually, we'll have to figure out whether there's a need for greater

intervention than the Pentagon paper suggested. I'm very nervous about doing that, but at the same time, I do see the dangers that can arise with unrestricted leaks and unrestricted publications. Thank you both for being on Bloomberg Law. That's Lee Bolinger, the president of Columbia University, and Jeffrey Stone, a professor at the University of Chicago Law School. Their book is called The Free Speech Century. Thanks for listening to the

Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg