The Free Speech Century, with Lee Bollinger & Geoffrey Stone

Feb 6, 2019

The Supreme Court's 1919 decision in "Schenck v. United States" is one of the most important free speech cases in American history. Because of it we have an elaborate set of free speech laws and norms, but the context is always shifting. In this fascinating talk Bollinger and Stone explore how our understanding of the First Amendment has been transformed over time, and how it may change in the future to cope with social media and other challenges.

JOANNE MYERS: Good morning, everyone. I'm Joanne Myers, director of Public Affairs programs, and on behalf of the Carnegie Council I would like to welcome our members, guests, and C-SPAN Book TV to this Public Affairs breakfast program.

It is our privilege to be hosting two of our nation's leading First Amendment scholars, Lee Bollinger, president of Columbia University, and Geoff Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago. I believe you received copies of their bios when checking in, which I hope you'll take a moment to read if you haven't done so already.

Together they will be discussing The Free Speech Century. This co-edited volume of essays commemorates the 100th anniversary of the U.S. Supreme Court's decisions interpreting the First Amendment's guarantee that "Congress shall make no law abridging the freedom of speech or of the press."

Although the words drafted in 1789 seem plain enough, it wasn't until 1919, in response to the government's harsh suppression of World War I critics, that Justice Holmes laid the foundation for our nation's robust protection of free speech when he wrote that "Speech can only be suppressed when the government can demonstrate a clear and present danger or crimes the government has a right to prevent." It's important to point out that with this ruling, Schenck v. United States, the Supreme Court recognized that the principles of the First Amendment were formed against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

In Free Speech Century our speakers have gathered many of our nation's leading constitutional scholars, familiar names such as Laurence Tribe, Lawrence Lessig, and Cass Sunstein, among others, to reflect on the history of the First Amendment as it has been interpreted in the courts and in our society. In covering not only the past, critiquing controversial issues of the present, and anticipating the future in this age of the Internet, social media, and the globalization of speech, they look at how principles of free expression have been embraced, modified, and pursued, both in the United States and around the world.

It's now 100 years since freedom of speech in American became a reality rather than just an ideal, and still we are witnessing serious challenges to the First Amendment. One could argue that there is no better time than now to affirm the bold experiment begun by our forefathers so long ago and remind us about why the First Amendment's protection of free speech and expression is central to the concept of the American political system and our democratic institutions.

Please join me in giving a very warm welcome to two of our nation's leading academics, Lee Bollinger and Geoff Stone. Thank you for joining us.

GEOFFREY STONE: One of the things that's important to understand is that when the Supreme Court first addressed the meaning of the First Amendment in 1919 the Court unanimously upheld the convictions of individuals for criticizing World War I and the draft. Even justices Oliver Wendell Holmes and Louis Brandeis, who went on to be heroes of free speech, were part of that unanimous Court.

So the commitment that we today have to free speech—if somebody said today, "We should prosecute someone for criticizing a government policy," saying it's a bad idea because it might lead some people if they're persuaded that it's a bad idea to engage in undesirable conduct, we would say that's completely inconsistent with the First Amendment. But it's important to know that when the Court first addressed these questions, that's the position they took, and it wasn't until several months later that Justice Oliver Wendell Holmes began writing dissenting opinions, arguing to the contrary. But basically it took the Court half a century to get to the point where it fully endorsed the positions taken by Holmes and Brandeis in their dissenting opinions in that era.

The story of the evolution of free speech doctrine in the United States is one of a long struggle in which the Court had to learn from its own mistakes and ultimately come to the point of giving a robust protection to free speech which was not part of the initial understanding of the First Amendment.

Lee, do you want to add something to that?

LEE BOLLINGER: Geoff has stated, I think, the fundamental purpose behind the book. Most people, if you ask them, freedom of speech, freedom of the press in America, how long has that been, most people would think it's like the beginning of the country, it's back in the 18th century.

Anybody like Geoff and me, who have devoted our lives to this subject and really came of age in the time, that is, the 1960s, when freedom of speech and press as we know it today was really conceived of in a powerful sense, we know that the very first cases in the Supreme Court of the United States—and it's the Supreme Court cases over time that really define free speech and free press—there is not a single free speech case in the Supreme Court until 1919. And then, as Geoff said, it took them 50 years in the Supreme Court to develop the array of cases and decisions and holdings that we take today as the core of the American idea of freedom of speech and press. That is an astonishing thing, and you can say a number of things about this.

It's a mistake to take it for granted. Across the political spectrum today, conservatives and liberals generally agree on free speech and free press in the United States. I'm not talking about President Trump, whom I think has a different view of this. If he were unleashed on the First Amendment, I think we'd have a very different First Amendment. But in the Republican Party generally and the Democratic Party there is really quite a bit of unanimity. Different reasons, different rationales, but it's a very different situation from abortion and Roe v. Wade and other areas.

How did that happen? How do we go from 1919 and what Geoff described as those decisions, which were really of a completely different mentality, to today? To emphasize the different mentality of 1919, as Geoff said, the three decisions that all came together all involved people who had just criticized the draft or the war, were convicted, and the Supreme Court of the United States unanimously—with the great Oliver Wendell Holmes Jr. writing the opinion for the Court—upheld the convictions.

And one of those cases involved a candidate for president of the United States, Eugene Debs, head of the Socialist Party. He gave a speech in Ohio in which he praised people who had resisted the draft. Absolutely protected speech in today's world. Prosecuted, convicted, and the Supreme Court affirms the conviction. This is the kind of thing you hear about in Turkey, in other countries around the world.

So how do we go from there to here? We wanted to try to bring together people who would help us understand that.

GEOFFREY STONE: One interesting aspect of free speech today is, as Lee said, there is this agreement on the part of both liberals and conservatives, jurists, academics, and lawyers that free speech is really important. Yet the way that plays out is sometimes surprising.

One example of a contemporary issue where that has happened is on the issue of campaign finance. Traditionally, liberals have been much more supportive of free speech than political conservatives, whether it's about criticism of the war during the First World War or whether it's about the communist era or anti-Vietnam War movement, it has generally been liberals who have been fierce defenders of free speech, and conservatives who have been more cautious about it. But at the present time, at one level both of them have endorsed free speech, but there are these anomalies where we now find some circumstances where political conservatives or traditional conservatives are more fiercely defending free speech than liberals. As I said, campaign finance is an excellent example of this.

For conservative justices—and this divides very neatly between Republican-appointed justices and Democratic-appointed justices and generally liberal and generally conservative justices—in campaign finance reform issues like Citizens United what one finds are that the conservative justices take a very aggressive approach in protecting the First Amendment and saying that for the government to limit the amount that corporations or individuals can spend in order to promote the views that they believe to be important in the political and democratic system by saying that they can only spend a certain amount to support those positions is in direct defiance of the principle of free speech and that to tell somebody, "You've spoken enough; shut up and sit down," is completely incompatible with the principle of free speech.

Whereas the more liberal justices have taken the position that we have to look at the democratic system more broadly, and we have to ask: Is there a danger that a small segment of our population because of their accumulation of enormous wealth is able to distort the system by spending huge amounts of money wildly disproportionate to their representation as people and therefore to manipulate the political process in a way that's completely incompatible with the ultimate goals of the First Amendment, which they would say are not so much to give each person the right to speak as much as he or she wants but to produce a democratic system that operates in a functioning and appropriate manner.

The conservative justices will respond that it's not that simple because one of the things we've learned over time, from 1919 to the present, is that we cannot trust public officials when they regulate speech. They will say they are regulating speech for a valid reason when their real motivation is something else entirely.

To go back to the World War I cases, what the public officials said is: "We are silencing people who criticize the war and the draft because we need to win this war, and we can't afford to have people refuse service in the military or to be insubordinate or not buy war bonds. If we're going to win this war, we cannot have people acting in ways that are inconsistent with the war, and therefore we have to stop people from criticizing the war because that will lead to this bad behavior."

One of the things the Court came to understand is that the real motivation behind these laws against criticizing the war and the draft was not so much the impact it would have on the ability to actually fight the war, but people don't like being criticized, and the Wilson administration didn't want people saying, "We don't think you're fighting the right war; we don't think people should be dying over this," therefore putting in jeopardy their reelections.

So conservatives today on the campaign finance issue will argue: "We can't allow campaign finance because just as in the World War I cases the people in favor of campaign finance say they're doing it to promote our democracy, but what they're really doing is trying to restrict speech that is inconsistent with their political positions, and therefore we should be distrustful of that." It poses a really interesting dilemma in terms of how we continue to rethink these questions that are with us from the very beginning.

LEE BOLLINGER: So Geoff has very succinctly and beautifully condensed the argument about campaign finance laws. This is, as he indicates, one of the most contested areas of contemporary freedom of speech jurisprudence. We have some essays on this in the book, one by Floyd Abrams. [Editor's note: For more from Abrams, check out his 2017 Public Affairs talk, The Soul of the First Amendment.] These are really important thoughts. Geoff has really nicely put that before you.

I'd make a couple of comments. One is, we went from this 100 years, and it's really the last 50, beginning I think with New York Times v. Sullivan, which laid out this idea that freedom of speech and press is premised on the fact that we live in a democracy and if you live in a democracy you must have the citizens be able to discuss public issues, and the government can't intervene and say what's right or wrong.

From that it says you can't have libel laws that try to protect the reputations of government officials unless certain things: actual malice, extremist speech—the Klan in Ohio, the neo-Nazis in Skokie, protected speech, people who come up and say terrible things to another person, fighting words—you can only punish that in the event that it's a face-to-face encounter, deeply personal, offensive to the average person, narrow that exception; narrow the libel exception; the obscenity laws that have been around for so many decades, narrowed that; the Pentagon Papers—the press, you can publish. Case after case after case established this doctrinal structure that we live with today.

But then within that there are profound disagreements. Campaign finance is one of the most prominent. What that reveals, as Geoff described it you could hear two different philosophies about freedom of speech and press. One philosophy is what free speech and free press in the Constitution of the United States are all about is stopping the government from ever being involved in citizens talking about public issues. That's one view.

The other view is, that's important, but what's most important or equally important is making sure that the quality of that debate and discussion is sound and good, and we need to have the government also play a role in regulating some aspects of this so it can be a better system.

What's an example? Well, in a courtroom you have a jury. Nobody says that the jury can just hear whatever people want to say to it or ask whatever it wants, talk whatever it wants. There are rules. Lawyers can only introduce certain kinds of evidence, they can only say certain things, etc., because the thinking, deliberative process requires that it be structured.

When Geoff or I go teach our course on First Amendment, we don't just say it's open season, you can say anything you want. We say: "That's a good idea; that's not a good idea. You can't say that about this other person, etc." Should we have some of that in our political system?

Well, campaign finance is playing out in one form. Another area where this comes up is regulation of media. In the United States if you look over the past 80-90 years, there has been what I have called a "dual system" of the First Amendment with respect to media. Newspapers—The New York Times, The Washington Post, etc.—the government can't say: "Your editorial is unfair. You have to allow other sides to present their views. You have too much power. You're the only newspaper in the city. You have to share the discussion with people who have other points of view so your audience can hear all views."

We say: "Absolutely not. Are you kidding? The government telling The New York Times what to publish?"

When it came to radio and TV and then cable to some extent, but radio and TV in the 1950s, 1960s, and 1970s period, very different regime. We set up a government agency, the Federal Communications Commission (FCC). It developed rules. If you were lucky enough to have a license and a monopoly position in your community, you have to present a fair debate. You have to allow people with different points of view to express themselves, upheld unanimously by the Supreme Court in 1969. A dual system playing out these philosophical differences.

So today the question is Facebook. Is Facebook subject to government regulation because it is controlling the political forum in America? Or is it really like The New York Times in that it has total control over its content, and the government can't intervene? Or is it a utility that has no particular First Amendment rights except we're just going to regulate it like a utility. This is one of the big questions as well.

GEOFFREY STONE: One of the reasons I think why this has become so complicated is that when most of the people in this room were growing up most Americans got their news from relatively reliable sources, whether it was The New York Times or the Chicago Tribune or ABC or NBC or whatever. Most of us got our information and news from people who made a serious effort to make it both accurate and fair, and they had positions. The Wall Street Journal was different from The New York Times, or The Nation was different from The National Review. But they were basically responsible in presenting the facts and then made their arguments based on those facts. They disagreed about the arguments, but it was pretty easy for people to have a reasonably reliable understanding on most issues of what the underlying facts were.

Today increasingly people get their news and information from social media, and many of the sites that people rely upon, particularly younger people, are highly ideological in nature and screen their "facts" to make them consistent with the set of views that they want to promote. Individuals who buy into that and get used to that as a norm tend to think too often that this highly ideological source is giving me reliable facts.

It's difficult to have a well-functioning democracy if we have large percentages of the population with completely different beliefs about what the underlying facts are and are not open to even hearing the opposite side, and that's why the fairness doctrine came into being at the time it was created because of the concern that when radio was invented that one or two very wealthy people would buy up the frequencies in a particular city and just dominate it and put forth single points of view. Now we've got to face this problem that increasingly we have this tribalism that exists in American politics that was always there to some degree but now seems to be there to a much greater degree, and how do we get people to understand that they need to be more self-critical about what they're learning and what they're hearing and understand that there's a danger that they're only hearing one side of the factual story, let alone the ideological story.

The primary response to that, I think, should be educational. It should be that we need in literally the educational system for younger people, to be paying attention to informing them about the dangers of this world that they're now living in. In the same way that we worry about teaching young people about crossing the street or using drugs or whatever, we need to teach them about being responsible citizens in a democracy, about how to inform themselves, and how to be wary of the risks of becoming completely dedicated to a particular political or ideological point of view which may be giving you false facts.

Then there's the larger question of do we want government to be regulating this. Do we trust government to get involved in regulating this?

There's a great danger in that, of course. To put it in contemporary terms, do we want, for example, the Trump administration to have the power to decide what is a false idea and what is not a false idea, and to have the power to punish those people who promulgate what they believe to be a false idea and to look the other way to those people who advocate what they believe to be a true idea whether it's in fact objectively true or not? Giving the government that power is dangerous in a democracy. It actually worked fairly well under the fairness doctrine, but it's not obvious that we can replicate that today in the world of social media.

LEE BOLLINGER: So we have campaign finance, and it plays out these big themes. You have the Internet and new technologies of communication and platforms like social media and what to do with them that plays out these different conceptions of the First Amendment. These are nicely discussed in a series of essays—Emily Bell, Tim Wu—on what to do with Facebook and how to think about the Internet and social media.

Another area that is a little different, but it's extremely interesting, is the Pentagon Papers and the right of the press to publish classified information.

Social media is—we have this whole new communications technology. What do we do about it? How do we think about it? How do we spin it into our system of freedom of speech and democracy? That's a new reality. How do we think about it?

The Pentagon Papers is—we figured this out, this problem. We have a solution. Have the circumstances changed such that we need to invent a new solution?

When the Pentagon Papers came up in the 1970s, the question was a question and issue that every society has to face: A government must have the ability to operate in secret. It's insane to think that everything about the government has to be open. So you have to acknowledge that we want a government that operates in secrecy.

On the other hand, we know that governments are inclined to act too secretly, so they will overdo the secrecy part.

How do you get that balance in the government where it's done too much and you need to reveal that to the public, and it's doing the right amount, and we don't need to have the public know? Over the past 100 years the idea, we have built up the idea of the press as a kind of servant or actor for the public. We rely on the press to get us information about the government. The press should be able to get the right amount of information from the government even though it's classified, if it's over-classified, and get it to the public.

So logically, you'd say: "Well, maybe there should be a judicial system where the press can go, and it can say, 'This is over-classified. Give it to us, we'll give it to the public,' and the government will say, 'No, we need this,' and some independent body will adjudicate that." Absolutely plausible idea. It simply doesn't work. It has not been accepted.

What was accepted in Pentagon Papers was this highly ambiguous situation where the government can classify whatever it wants, and there is no right of the public or the press to get that through a judicial system. Leakers in the government can take stuff, steal it from the government, and give it to the press. They run the risk of being prosecuted. They have no First Amendment right to claim because the public needs to know this, so they're at jeopardy. The press gets it, maybe even knowing that it has been stolen, and maybe acting with the leaker to some extent in getting this, they then decide how much is truly public and should be public. There's a war. That's the way it has been described, a battle.

Now today you have Snowden and you have WikiLeaks and you have computers and you have masses of information that can be released. Geoff was on Obama's task force to think about this. He is deeply knowledgeable about this problem. The question in a nutshell is: We could trust The Washington Post and The New York Times in 1970-whatever to make a sound, good, intelligent, wise judgment about publishing this and not publishing that. Ellsberg had to go and Xerox every damn page of the Pentagon Papers. He knew what was in there.

Today it's Julian Assange and WikiLeaks, who could care less about America. They're not patriots in any sense. They have no judgment about what it is that's wise to release and not, and somebody with the push of a button on a computer can release millions of documents, and they have no idea what's in them. Does that mean that we now should have a different regime for this? That's one of the open questions.

GEOFFREY STONE: One of the other issues worth talking about which is also discussed in the book is the question of hate speech, where the United States has a position that is different from many Western democracies. Many Western democracies have laws against hate speech and attempt to prohibit it.

The United States Supreme Court in 1951, at a time when First Amendment protection was relatively thin still in this country, held essentially that laws against hate speech were constitutional in the United States at the same time that they were holding that members of the Communist Party could be put in jail for espousing their views. I'm sure it was kind of a low point in First Amendment protection. But in the years since then, the Court has—both liberal and conservative justices—unanimously come to the opposite conclusion and has said that there cannot be a doctrine that prohibits the publication or the espousal of what others might call hate speech.

The reason the Court has come to that view is because it has basically embraced a principle that says that government may not restrict speech because of the point of view or the ideas being expressed, that we simply do not trust government to decide for us what are good and bad ideas, and if we give the government the authority to make those judgments, then they will abuse that authority inevitably, and we—the justices—don't want the power to decide which ideas the government should be allowed to suppress and which ideas they shouldn't be allowed to suppress because we too are vulnerable to our own biases and our own ideologies.

So what the Court has basically endorsed is a very strict rule that the government may not restrict speech because the particular point of view being expressed by the individual is seen as undesirable or hurtful unless that speech can be shown to create at the very least a clear and present danger of grave harm. That's the standard that the Supreme Court has actually never in the last half-century found to be satisfied in any case; it's that demanding a standard.

So with hate speech the government says, "We don't see any principled way to treat hate speech differently from any other speech that other people may hate." It may be hurtful, but lots of speech is hurtful. It may cause harm; lots of speech causes harm—like the World War I speech did, in fact, cause harm—but we don't think government should be in the business of picking and choosing what ideas are prohibitable.

This is one area where American law is very different from that in many other Western democracies. What Americans who defend that position would say is that we have learned from our own mistakes and that having attempted to have a constitutional guarantee of free speech and to be rigorous about protecting it we have learned we can't trust ourselves, and therefore we have to bend over backwards to tolerate things that the majority of us may think are horrible.

European countries haven't had a tradition of free speech in a constitutional sense for very long. Most of them have moved in that direction only relatively recently. They haven't learned yet how they're going to screw up and what dangers they create when they start picking and choosing what speech they can decide is prohibitable, and we'll see what happens with that. It may be a problem of the sort that I just identified. Maybe it'll work out just fine.

But in this sense I think there's a very unanimous and rigorous commitment to the principle here, really beginning with the Skokie case involving the Nazis marching in Skokie, where the Court has come to the view that we just can't allow the majority to pick and choose what ideas they find don't have value because lots of ideas we once thought didn't have value—abortion should be legal, gays should have rights, interracial marriage should be a constitutional right—would have been regarded as completely off the charts in the past, and only because we allowed those ideas to be expressed and allowed people to address them and think about them, we changed our minds. And we don't think the majority or the Court should have the authority to decide which ideas are off the table and which are not because if we had done that in the past we'd be a worse society today than we are.

LEE BOLLINGER: This is really an important subject, obviously. Everybody in this room has been part of discussions, read things—have we taken free speech in America too far, and are we protecting people who are hurting others and undermining the culture of decency in the country?

Just to describe Geoff, Geoff is the leading person in the First Amendment group of scholars over the past 50 years who has most articulated and refined this idea that we need an analytical framework for thinking about attempts to censor speech, and that framework is, if the government is trying to regulate a viewpoint or content of the speech, it's done. We're not going to allow that.

But if it's trying to do other things, and it's not intending to stop ideas, okay, that kind of difference is extremely important and has been absolutely the defining kind of framework for First Amendment thinking. As I said, very complex, and Geoff's articles and books about this are brilliant.

I take a little bit different view on this and a little sort of airier view I suppose. It's hard to describe.

I think the thing that has always fascinated me about this phenomenon in American jurisprudence of protecting extremist speech or hate speech is several things. It's important to note, as Geoff says, the United States stands alone in the world and in human history in the degree to which this kind of speech is protected. This is an historic choice and an experiment in a way. Every other modern democracy draws that line closer in against extremist speech, and it's sort of hard to say that these other democracies are not democracies because they do that. There's something going on here that I think one has to unravel.

For me, I start with the idea that the First Amendment has been more than just a line-setting operation for when the government can regulate in speech or not. It is such a powerful set of cases and ideas and theories and so on that it has become part of the American identity.

If you ask Americans, "What does it mean to be American," one of the things that will be said right away is, "We believe in freedom of speech and press and openness," and people have different views about this. It's an astonishing thing to see how an idea can seep in and define a culture. You ask Europeans, "What does it mean to be French and what does it mean to be"—they don't go right away to freedom of speech and press. But for us, openness and so on, and part of that plays out in the context of protecting really nasty, bad speech. There is some kind of almost pride in us as a society being able to tolerate that.

The judges always say: "This is horrible speech. We totally disagree and condemn this content." Quite unique, actually, because judges shouldn't be commenting on this, but they do in the hate speech.

That's why, when Trump said, "There are good people on both sides of that," that was a public official changing the dynamics of what is happening in protection of speech. In order for us to protect extremist hate speech we have to all agree basically, "That's horrible."

But then there's something—and we're a society that believes that we have problems in accepting ideas, and in this realm of freedom of speech we're going to, as Geoff said, bend over backward to allow even the worst people, the worst ideas—Nazism, Holocaust, etc.—we're going to accept their right to speak because we are confident that we can counter this and so on.

Other societies don't. In Germany you cannot publish Mein Kampf; you cannot promote Nazism. And you understand why German society would go that route and why America might take a different route. But a fascinating area for us.

GEOFFREY STONE: Do you want to open it up for questions?

LEE BOLLINGER: Yes. Geoff and I agreed beforehand that we would only speak for 15 minutes and open it up for questions, but we like hearing ourselves so much that we gave ourselves an extra 20 minutes.

JOANNE MYERS: I can't tell you how grateful we are for this brilliant illumination of the First Amendment. So thank you very much. It was like having our own private tutorial.

I would just ask that when I call on you to introduce yourself and just make your question short so that we get everybody into the discussion.

LEE BOLLINGER: Let us just say, we have other people in the room who are our colleagues and who also have a lot of knowledge. Gerry Rosberg here was a co-clerk with Geoff and me the same year, and that was the formation of all this. He worked for The Washington Post for 20 years, knows this world deeply. David Stone worked for PBS and so on, has been in communications with us. And Jameel Jaffer is the head of our Knight Institute at Columbia, which is a major effort on our part and the Knight Foundation to actually try to do both—foster debate, research, and litigate about this.

GEOFFREY STONE: And Judith Miller as well.



QUESTION: My name is John Wallach. I'm a political theorist.

Thank you very much for your comments on free speech. I'd like you to elaborate, however, on something that you didn't talk about, and that is that free speech is never just about words, free speech is about the effect it plays in a social context, as you mentioned with respect to Germany.

When it comes to campaign finance or hate speech or any of these other things, it's never a matter of someone being for free speech or someone being against free speech, it's a matter of judges and lawyers making a political judgment about the effect of that speech on the political environment, and I wonder if you could address that with respect to questions of campaign finance, for example, which doesn't involve the government—which you concentrated on—but about corporations and about their ability to regulate speech, or about hate groups. Like in Charlottesville, the American Civil Liberties Union (ACLU) was divided about whether or not to issue protection for the demonstrators. Is there a way to integrate the notion of context for free speech into our free speech thinking?

GEOFFREY STONE: I'm not actually sure exactly what you mean by context in this setting. I think that in interpreting the First Amendment for the most part what the Court has learned over time is that it wants to the greatest extent possible to divorce the decisions of judges from a specific context because when they do that they run the risk of being unduly influenced by their own subjective values and rooting interests and political beliefs and so on.

One of the aspirations I think of First Amendment doctrine that the Court has moved toward over time is to adopt what are basically neutral principles about how to think about and how to apply the First Amendment that takes away the ability of even the judges to be influenced subjectively by their own rooting interests for one side or the other. In that sense, I think it becomes acontextual in that they don't want to be influenced by whether we like these speakers or we don't like these speakers, and therefore they try to rise above that by creating principles that don't open the door to those kinds of circumstances.

One area where I think the justices haven't quite figured out how to do that is campaign finance, where I do think you see the strong ideological partisan division among the justices. If you asked, "Would you expect Republicans to be in favor of campaign finance or Democrats," just as a political matter, all of you I think would say, "Well, we expect Democrats would want to have the campaign finance and not Republicans," mainly because most billionaires are supporting Republicans.

On that issue, the fact that all the Republican-appointed justices tend to be against campaign finance regulation and Democratic justices are in favor of it is an example—they would reject this, of course—of where one might say the justices are not rising above the political implications of a situation and figuring out how to be truly neutral about it.

But for the most part, that's the aspiration, and that's why I think the justices try very hard to create principles which enable them and require them in effect to be separate from their own rooting interests in any given case.

LEE BOLLINGER: I would say—and I'm also unclear about where exactly you were going—it raises for me, your comments, another kind of deep puzzle about freedom of speech and press, the First Amendment, and that is—and all of us have wrestled with this—why are we so attuned to stopping government involvement in the area of speech or human expression? Then you've got to say, "Well, what do we mean by 'speech'?" Because everything is communication. How are we going to cut this off as a concept? Lots of intellectual puzzles in that direction. The Court came up with a kind of set of lines.

But the profound problem remains: Whatever you call speech, why are we giving all this attention to this area of human activity and not all the other parts? What's going on with this?

You can start to say, "Well, you know, speech doesn't cause as much harm as other forms of human action." Is that a justification? It may be true, but is that a justification for all the things we're talking about?

You can also say, "Actually, it causes a lot more harm in lots of ways than the other forms," so now you have another part.

Or you can say, "We have for a variety of historical and cultural contexts"—the language of the Constitution, historical writings of famous people like Milton and Mill—we came to the idea for maybe not rational reasons, but that this area of human activity deserves more kind of protection against government than other forms.

Then one might say, "It's actually because we want to have an area where we play out this kind of thinking because it will have a positive impact in the other areas."

I often like the analogy of a natural wilderness. Why do we want to live in New York City and then go into the backcountry of Yosemite? We're trying to—maybe it's fun, maybe it's just a break, and so on, but there's usually something more. We're trying to develop our character, our values, our capacities in certain ways, and then we come back into society and we think we're better.

I think there's something about that in the protections of speech and the way we go about it with the rest of human activity.

QUESTION: I'm Judy Miller, and I'm a journalist. I'm not going to ask a shield law question.

You write about Facebook—and by the way, thank you very much for the book and for your work—and Google. I've spent the last year looking at the impact of those social media platforms on newspapers, and I can tell you that if the current trends continue we won't have any newspapers left in a decade. You won't have to worry about whether or not The New York Times and The Washington Post are responsible because they won't be there if things continue.

You say that it's difficult if not impossible or perhaps not advisable to regulate Facebook and Google through free speech laws or restrictions, but what about using anti-trust laws where it's no longer the government that journalists are afraid of in terms of restrictions or primarily afraid of, it's being not even given a platform to have your articles and your ideas expressed because Google and Facebook are very close to being in a monopolistic position to do just that and have started to do that by limiting content which they find unacceptable.

So can one, should one, explore the idea of using anti-trust laws as opposed to getting at them through free speech? Why should Facebook not be regulated by the same defamation and libel laws that apply to The New York Times?

LEE BOLLINGER: Big, big, and important question.

First of all, I want to correct a misimpression. I did not take a position that Facebook should not be regulated. I do have a tentative position on this, but it's more complex than that.

We are in a period of absolutely profound historic transition in what we think of as "journalism" and the press, universities, and so on. I grew up in a family that worked at and owned a small daily newspaper in a small town in America. I spent my whole life in this arena, so I feel I know it well and painfully well.

It is a tragedy in America to see the decline of the press as we've known it. It's a tragedy.

It's unclear exactly how it will play out. We know right now that private enterprise can't keep a major institution like The Washington Post going and that the only way is to have it fall into the hands of a very, very, very wealthy person, for whom the price of the paper is the equivalent of what his portfolio goes up or down in a single day. We know that local and regional press and journalism has been devastated by this. So, The New York Times and The Washington Post continue, but we know that there are so many examples of local newspapers.

Meanwhile, we have this new technology, and they are deeply conflicted about how they want to be thought about. On the one hand, they want to be a utility—we just let everything out there, we're not responsible for anything, and Congress gave them that protection in the 1990s.

On the other hand, they are under enormous pressure to censor, to stop—some people think they censor too much; other people say: "You're not censoring enough. You're allowing Russians to meddle. You're allowing other people to spread"—

So there's criticism of too much censorship and criticism of too little censorship, and a view that it's changing us, not just that it's letting in a certain amount of speech and shouldn't be their choice. It's that we are becoming different people because of the interactions on this. We're becoming more isolated in our exposure to other viewpoints. We're becoming short-term in our ability to think about things.

These are of the most significant questions a country faces. It goes to the thought and the information we deal with.

Many things to say about this. One of the reasons I raised the broadcasting example is because I think it's within the First Amendment tradition to conceive of a government role of participating in the development of these organizations. I'm not there yet because I still want to see how the technology companies themselves deal with this and change. I want to see them develop, if they can develop journalistic ethos in the way that the print media did and the broadcast media.

When I was growing up, my father, who was a publisher and editor of a newspaper, would never accept the idea that a broadcaster was an editor or a journalist. It was unacceptable to have that. Then, broadcasting developed that ethos over time. What will happen with Facebook and these others?

Geoff says rightly we need to try some other things first, like education. I would add we need to think about public funding of journalism.

One of the privileges of being an academic is that you can come up with ideas that have absolutely no possibility of ever happening, and I think—to take NPR and PBS and to develop our own American equivalent of the BBC would be a fantastic thing.

The journalism school, as you know, Nick Lemann—Nick likes to say that he and I are the only human beings in the United States who have advocated for public funding of classic journalism. But most journalists regard that as anathema, just like most politicians do.

GEOFFREY STONE: Just two quick points. One is that I do think the idea of public funding is increasingly important and attractive going forward, but it has to be done in a very careful way because once again, if government has the power to fund journalism, then the danger is that whoever's got the power to decide who they're going to fund, they're going to do it in ways that are politically and ideologically consistent with their own views. So one has to figure out how to do that in a way that's truly neutral. That's not impossible, but it's a serious challenge.

The second point I guess I'd make is that one way to deal in part with some of the problems about Facebook or other social media in terms of government regulation is to have government, for example, require that whenever an individual reads a site on social media of a particular ideological point of view, that they are automatically then given an alternative, opposite position.

It's kind of like a fairness doctrine to the individual, so that at least people are automatically given the opposing view. They don't have to read it. You can't require them to read it, but at least to make sure they're aware of it and they see it, and you can do that with just algorithms. I think that's one way of enhancing the opportunities that people have to not become completely tribal in their social media activity.

LEE BOLLINGER: Let me just say one other thing. It's always so easy to convey the wrong impression.

I think it's fantastic what has happened to The Washington Post under its new ownership. Don Graham and the Graham family are legends in the journalistic field and should be legends in how that transition happened, but the strengthening of The Washington Post is one of the great stories of the past decade, I think.

QUESTION: Jameel Jaffer. I run the Knight Institute at Columbia, and Lee is the chair of my board, so my question can be only so robust and uninhibited.

I wanted to ask both of you about your thoughts about national security secrets and the First Amendment. Lee, you suggested that we are now living in a different era in which technology gives leakers the ability to disclose a lot of information at once. Maybe the actors that are publishing this information aren't as reliable or trustworthy as the actors who were publishing it 50 years ago.

It seems to me that we've paid a very high price for excessive secrecy over the last 20 years. I can point to specific examples, and I'm sure others here could point to others. Let me just point to a couple.

One is the Bush administration's interrogation policies, the torture policies. I think there's a very good argument that if the Office of Legal Counsel hadn't been able to keep secret the memos that authorized those policies the public wouldn't have accepted those policies, and the public rejected them when they were disclosed. There's a very good argument that the war in Iraq was made possible by excessive secrecy, or at least in part by excessive secrecy.

So we've paid a very high price. Geoff was involved with the president's review group which looked into the surveillance policies that were disclosed by Snowden, and I think there's a good argument that some of what the Foreign Intelligence Surveillance Act (FISA) court approved would never have been approved if the debates had been public. In fact, after the documents became public, the public and Congress rejected some of the policies. So I think there's good evidence that we've paid a high price for excessive secrecy.

On the other side, it's obvious that publishers sometimes publish things they shouldn't publish, that are not in the national interest or in the public interest. Julian Assange published the diplomatic cables, and they embarrassed a lot of people. Maybe at the margin they made it more difficult for the United States to accomplish what it wanted to accomplish overseas. The New York Times published the Sony hacks, which embarrassed a lot of people and invaded privacy unnecessarily, or at least one could argue.

But it's not obvious to me that the costs of excessive transparency are anywhere near the costs of excessive secrecy. So I'm curious to know whether you disagree with that, and Geoff in particular because you had this experience working with the president's review group on surveillance whether you disagree with that because it seems to me that it's perhaps dangerous to think about changing the system now in a way that would close up our debates even more than they are closed right now.

GEOFFREY STONE: I agree that there is dramatic over-classification. That's one problem. One problem is that either because individuals within the government want to keep things secret because it's politically controversial and therefore they will stamp it top secret even though it's not really a threat to the national security if it was disclosed, but they'll classify it because they have political interests involved.

But also if you're an individual involved in classifying any particular bit of information, if you over-classify something, you don't pay any price. If you don't classify something that should have been classified and it gets public and it's really bad, you're screwed. So all of the incentives are to over-classify, both legitimate, understandable motivations, and also not appropriate political motivations. So there's huge over-classification.

One question is, is there any way to realistically monitor that? Part of the problem is that there is so much information that's classified that trying to actually go through it document by document is an insurmountable challenge. That's one part of the problem.

The other part of the problem, however, is that there is information which, if made public, really does harm the national interest and really does need to be kept secret, and one doesn't want to be casual about that. The difficulty is that we don't have a very good way of sorting out which is which inside the government structure.

If you talk about Snowden, some of the information that Snowden revealed, in my view, was not harmful to national security, was useful in terms of it led to reforms of certain policies that should have been reformed and wouldn't have been reformed but for those leaks, and that was a positive development. But other things that he released in my judgment did serious damage to national security and did not result in any reforms at all, other than the fact that the policies became ineffective because of the leaks.

So it's very difficult to make evaluations of these things. My view is we need much greater internal regulation within the government itself, that we need much greater oversight of what gets classified and what doesn't get classified than now exists, and it has to be done by people who are objective and not deeply embedded within the "We have to keep everything secret."

One thing I discovered, even from my short stint of six months inside this world, is that once you get inside this world and you begin to see the vulnerabilities of disclosing information, it's easy to become overly cautious very quickly. So it's hard to have people who are going to be neutral and dispassionate in making these evaluations once they begin to feel the pressure of "I don't want to make a mistake."

So it's a really hard one, but clearly what we need to do, what we haven't done, is to put in place mechanisms to review classification inside the government by people who are much more neutral and detached, and I think what that means is that they have to be turned over regularly, so you have new people coming in on a regular basis.

LEE BOLLINGER: Very quickly because we're running out of time, but Jameel has laid out again beautifully the costs that we pay for secrecy on public information that's needed and the costs of too much being disclosed.

There are several points of entry on the Pentagon Papers. One is you can say we should go back and we should correct the constitutional decisions that say the press has no right of access to information. We should open up a constitutional right of journalism to demand of the government that things be released and that judges will weigh the classified interests and the benefits of openness. We need a greater access. The Court was wrong to shut down a right of access.

Another way to go would be to give constitutional protection to leakers to some degree. Right now, if you're going to be a leaker, you don't have any First Amendment claim, and you may well go to jail. So it's a big calculation for you. Maybe we should have a balance that allows that to weigh the benefits and costs.

The last is that we shouldn't abandon Pentagon Papers, but we should draw a distinction between the WikiLeaks of the world, which really are not responsible organizations, let's say, and the major press institutions of America. A lot of people don't like that because they don't want to get into the business of "You're good press, and you're bad press," but it may be the best way to get this is to begin to make that distinction. So there are a lot of ways in which to rebalance.

JOANNE MYERS: Thank you again for giving this wonderful opportunity, and although this was just a tasting, this is the full meal. So I encourage you to buy the book and really read it. It's just a wonderful background to have. So, thank you very much.



You may also like

JUL 9, 2024 Article

The Rise of Preemptive Bans on Human Microchip Implants

As the impact and influence of chip implants increases in the U.S., it's time to raise ethical and legal questions about this technology.

JUL 2, 2024 Podcast

Cybernetics, Digital Surveillance, & the Role of Unions in Tech Governance, with Elisabet Haugsbø

Senior Fellow Anja Kaspersen speaks with Elisabet Haugsbø, president of tech union Tekna, about her engineering journey, resiliency in the AI era, and much more.

JUN 27, 2024 Podcast

AI, Military Ethics, & Being Alchemists of Meaning, with Heather M. Roff

Senior Fellow Anja Kaspersen and Heather Roff, senior research scientist at the The Center for Naval Analyses, discuss AI systems, military affairs, and much more.