Major First Amendment issues are making their way through the courts and their resolution by the Supreme Court could change long-standing free speech and free press principles.
On this edition of Office Hours, Stuart Brotman, a First Amendment scholar with deep expertise in communications law joins CAFE Executive Producer Tamara Sepper to discuss three areas that have been making the headlines in recent months:
(1) Laws passed by Republicans in Texas and Florida that regulate content moderation by large social media companies and their right to exclude posts based on the viewpoints expressed;
(2) Defamation law and whether the justices will revisit the “actual malice” standard established in New York Times v. Sullivan, given a series of recent high-profile lawsuits, including Dominion Voting Systems v. Fox News; and
(3) An Arizona law that bans people from recording police if the individual recording is within 8 feet away from the law enforcement activity and is given notice.
Brotman also discusses his new book, “The First Amendment Lives On – Conversations Commemorating Hugh M. Hefner’s Legacy of Enduring Free Speech and Free Press Values.”
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TRANSCRIPT:
Tamara Sepper: From CAFE and the Vox Media Podcast Network, this is Office Hours. I’m Tamara Sepper. Today, our focus is on the First Amendment. There is a sense, among many, that our freedom of speech and freedom of press are facing unprecedented challenges. Right now, there are major First Amendment issues making their way through the courts, and their resolution by the Supreme Court could change long-standing principles. To help us understand these cases, and what’s at stake, I am joined by Stuart Brotman. He is a First Amendment scholar and advocate with wide expertise in media law.
Stuart Brotman, thank you so much for joining me on Office Hours. So I’m really excited to have you because you’ve just published this new book. It’s cur called The First Amendment Lives On, and in it you speak were the seven of the top First Amendment advocates and scholars of our time. Amongst them, Geoffrey Stone, Floyd Abrams, Nadine Strossen, people who’ve led to ACLU and many others who’ve argued seminal cases, First Amendment cases, before the Supreme Court. So before we get to th e three issues that we’re going to be discussing today, content moderation by social media companies, libel law as it’s raised in the context of Dominion’s lawsuit, and the right to record police activity, I do want to start with your book and lay the foundation for these cases that we’re going to discuss.
The title, The First Amendment Lives On. How’d you come up with that title? Why “Lives On”?
Stuart Brotman: Well, first of all, it’s intended to be a hopeful title because we are living in somewhat precarious times now, both for democratic institutions and, of course, in terms of free speech and free press. So one of the notions was to give people a sense, which was not just a blind sense, but it was reall y a sense based on the deep conversations I had with the individuals that I spoke with. I think all of them in the end had a sense of optimism. I wouldn’t want to call it blind optimism. I think everyone is sober about where we are today, but in terms of understanding how core the First Amendment is to the future of democracy and to sustaining our democracy, and at the end of the day, we call it the First Amendment because it is the bedrock of so much of our democratic process.
Tamara Sepper: Why don’t we go to the text of the First Amendment. So it’s 45 words and then contains six principles, and there’s something about the structure, the order in which they appear that’s important. Talk about that.
Stuart Brotman: Well, I had a great conversation with Burt Neuborne, who was the founding director of the Brennan Center at NYU Law School and still continues to teach there. So Burt has this wonderful way of thinking about the First Amendment, which he calls Madison’s Music. The idea to Burt was that James Madison, when he was working on the Federalist Papers and developing the concept of the First Amendment, that it was not a random order of how the First Amendment was constructed. It was a little bit like a musical symphony, and it was intended to build each of the elements upon each other.
So we start out with the innermost thinking and consciousness of people, which often has some relationship to spirituality. So the notion there was that government would not first of all establish a religion, a particular religion, and it would not interfere with people’s ability to essentially explore their spirituality, whether it was through a god or not believing in a god. So that’s the other notion of the religion aspects of the First Amendment. Government has no role in establishing religion or in essentially dealing with the free exercise of religious practice. Any type of religious practice will be acceptable.
Then from that inner notion, Burt in Madison’s Music has the idea that we need to then begin to express ourselves, and how do we express ourselves? We speak. So this is the notion of freedom of speech, which is the second idea in the First Amendment. Then, of course, speaking has a certain power, but what really can make speech even more powerful as a social connector is the fact that it could be amplified, and who amplifies it? The press. So that’s the third idea that we should have no restrictions on freedom of the press because freedom of the press plays a very distinct role in our ability to think and speak.
Then of course, as we gather ideas and begin to communicate with each other, then people begin to assemble and meet and talk about those ideas. So that raises the notion of freedom of assembly. Of course, assembly is not the last part of the First Amendment. It’s this notion of petitioning the government for grievances. Basically, that means we act. We don’t just speak, we don’t just assemble, but we then have the ability, we have the power to go to the government and say, “We disagree with what you’re doing,” or, “We would like to support what you’re doing.” So if you look at it within the context of that sequence, it’s a very interesting metaphor for how the First Amendment was constructed.
Tamara Sepper: So Burt Neuborne, the former national legal director of ACLU, tells you, “The First Amendment right to vote is waiting to be discovered, hiding in plain sight right there in the sixth idea, the petition clause.” What does he mean? What is he talking about, and can you see the Supreme Court adopting the right to vote through the First Amendment?
Stuart Brotman: Well, I found it to be a really interesting idea, and if you follow the logic that Burt lays out in the book and in his own book, Madison’s Music, action is not enough, the idea of petitioning the government for grievance or for grievances. So right now, of course, we have the referendum process. People can essentially compile a petition. Of course, if that meets the requirements of a referendum, where does it go? It goes to the ballot box, and that means that the logical next step of the final part of the First Amendment, which is the… petitioning the government, I think Burt would argue you, and perhaps I would agree that implicit in that is not just petitioning, but if you’re going to bring something to a referendum or to the ballot box, you then have to have the ability to vote.
Burt mentioned that he has discussed this with several Supreme Court justices. He didn’t name them, but he said that at least two or three were very interested in this notion. I’m not sure that this will ever wind up in terms of a Supreme Court decision, but like a lot of ideas, they start off as theoretical ideas, they work their way up into jurisprudence, and eventually, a case is presented with at the Supreme Court where you can apply that.
So in terms of near term, no, I don’t expect this to be read into the First Amendment, and I think you could say that with the originalist movement now it probably would not be read into it because the originalist would say, “If you didn’t put it in the language of the First Amendment when it was drafted, it shouldn’t be there at all.”
Tamara Sepper: Do you think, if it were adopted, it would address some of the concerns people have about voting rights right now?
Stuart Brotman: I think it might, and that also, obviously, raises issues because the Supreme Court has really been narrowing the scope of voting rights, and that would probably make it highly unlikely that they would expand it by this interpretation of the First Amendment.
Tamara Sepper: What has been the historical trajectory of the First Amendment’s interpretation by the Supreme Court?
Stuart Brotman: Well, we’ve had a long history of the First Amendment, but we have not had a very long history in terms of what we might call the jurisprudence of the First Amendment. So up until the early part of the 20th century, courts really were not deciding cases based on the First Amendment, and in particular, the Supreme Court had not begun to develop a thinking about the First Amendment.
Unfortunately, once they began to do that, it was a relatively restricted view of the First Amendment. We had the Alien and Sedition Act, which was a act pastoring World War II, which essentially restricted speech that might affect the government’s involvement in World War II. The Supreme Court upheld the Alien and Sedition Act even though, as we now understand it, that was a clear conflict with the First Amendment. What happened is that we had a series of extraordinary dissenting opinions by two Supreme Court justices, Oliver Wendell Holmes and Louis Brandeis, and at the lower court level, Learned Hand, and those three were really the people, the judges who developed a jurisprudence or began to get the court to think about how to develop a line of cases and a line of thinking about the First Amendment.
As that became the case, ultimately, we saw that the dissent became the majority view of the court. So we had this quite dramatic shift, particularly in the middle part of the 20th century and, of course, continuing into the 21st century where we have a Supreme Court that now has established precedence in the First Amendment area. Of course, we’ve seen a widening during this period of First Amendment protections over time. So this has been a major development, obviously, in American law and in the way that the Supreme Court views the First Amendment.
Tamara Sepper: What was happening that caused the shift to happen towards the Brandeis and Holmes’ view on the First Amendment?
Stuart Brotman: Well, I think the court had cases that were put in front of them that caused them to pause and think, and particularly because so much of the court, at least historically, has been this notion of stare decisis. The notion is how do you build up a series of cases that the Supreme Court can rely on.
Let me give you a quick example. So the area of obscenity is one that the Supreme Court never really understood in a way that it could develop a coherent jurisprudence. So from about 1957 to 1973, about a quarter of a century, we had the Supreme Court testing out new notions of obscenity. Of course, ultimately, we wound up with the broadest concept, the Miller Doctrine, which essentially has mooted most of what would’ve been considered obscene in most of the 20th century. So that was an example where the court had to internally test its ideas. Of course, we have that famous Potter Stewart quote, which maybe expresses the confusion and the exasperation better than anything else, which is, “Obscenity is something that you know when you see it.”
A lot of the obscenity cases happened during the period where John Marshall Harlan II was on the Supreme Court, What was not very well-known was that Justice Harlan was blind, and Justice Harlan was a critical justice in terms of helping to change thinking on obscenity law.
One of the most uncomfortable aspects of the Supreme Court clerks that he had is that they needed to watch all of the movies and other items that were being brought to the court on the basis of obscenity and then come in and narrate that to Justice Harlan.
So literally, we had blind justice in the actual sense deciding a number of these cases. What was interesting is that Harlan, who was generally a conservative Wall Street lawyer, came around to the concept that obscenity really needed to be brought in and reconciled with the First Amendment. Of course, he wrote the famous decision in Cohen versus California, where, essentially, someone walked into a state office building with a fuck the draft T-shirt, and that was not viewed to be obscene.
Tamara Sepper: What’s the test now for obscenity?
Stuart Brotman: It’s essentially something that conforms to community standards and has some socially redeeming value. You can imagine that virtually anything that we are dealing with today conforms the two community standards because, obviously, the community standards we have now are the standards of the internet. In terms of socially redeeming value, we have such a diverse population in society that virtually anything can be said to have a socially redeeming value.
Tamara Sepper: Coming back to today, Floyd Abrams tells you that, “The current Supreme Court is a very pro First Amendment court.” Do you agree with that assessment and how have the justices shown that their pro First Amendment?
Stuart Brotman: Well, obviously, Floyd was the beneficiary when he and Alex Bickel argued the Pentagon Papers case, and that was a landmark case, essentially, where the government tried to restrict the New York Times from publishing the Pentagon Papers on the basis of national security. The court ultimately decided that the government did not make its case and that the presumption should be that there would be no prior restraint.
So clearly, that case, which was decided 50 years ago but certainly is part of the contemporary Supreme Court, I think would be a landmark. Times versus Sullivan is another, which was decided in the 1960s that essentially raised the bar of how defamation cases would be decided so that if you were a public figure, you would have to show what was called actual malice, and that standard means that you need to know that something is false or you need to have a reckless disregard for whether it’s true or false, and that really created a national standard and a much higher bar because before that, we had cases all across the country based on local defamation laws where local public officials were essentially suing local media companies and doing that on the basis of defamation without this actual malice standard.
So those would be two examples, and the third example, obviously, is the commercial speech area, where once upon a time, there was this division between political speech, which was considered protected by the First Amendment and commercial speech, which was considered part of commerce and not really part of the First Amendment. So certainly since the late 1960s, early 1970s, we’ve seen a series of cases that essentially have brought commercial speech under the umbrella of the First Amendment. So those would be three examples.
Now, what’s interesting is what do we consider the contemporary Supreme Court, and certainly in the past year or so, we have a very, very different Supreme Court than we had even five or 10 years ago. So it would be interesting if I went back and had the same conversation with Floyd whether or not he would evaluate what he said in the context of what’s happening today.
Tamara Sepper: Let’s turn to the content moderation by social media companies. This news has been making headlines for the last couple of weeks or so. Florida and Texas, conservative politicians in those states passed what they’re calling anti-censorship laws that would have the result of taking away editorial control from social media companies. What do these laws say, SB 7072 in Florida and Texas is HB 20?
Stuart Brotman: Well, they vary a little bit, but I think, broadly, you can put the two together. When we talk about whether or not this will be presented to the Supreme Court, which I think it will, I think those two laws and those two cases will be consolidated, but essentially, they would prohibit social media platforms and they do that on the basis of the size of the platform. So in Texas, for example, there’s a threshold of 50 million users that you have to meet, and it means that a social media platform would lose the discretion to ban or to restrict anyone based on their political viewpoint.
In the Florida case, it’s a little more narrow because it deals with political candidates, not any citizen who had a political viewpoint. So the Texas law is a little broader than the Florida law, but the basic idea there is to restrict privately held companies. This would be Facebook and YouTube and a variety of other social media platforms, which, of course, are not the government, and so the question is, does the First Amendment apply in that context because the government is essentially prohibiting speech of private actors.
The editorial discretion in the social media world we’ve come to know as content moderation, but in some respects, it’s not all that different if you think of a newspaper or broadcast station, which is deciding who is going to be put on the air or in the newspaper and who is not. What social media companies do, obviously, is they also make decisions. So we’ve seen in recent years, in particularly with Twitter and the ban on former President Trump, that particular politicians or particular political viewpoints have been excluded by these companies in the name of content moderation.
That’s the reason why this has become such a political hot potato because, certainly, the political establishment in Texas and Florida believe that that constitutes some level of censorship of conservative political viewpoints, and the only way to prevent that is to have a law passed, which would impose fines on these social media companies if they in fact prohibited either political candidates or political viewpoints from being on that social media platform.
Tamara Sepper: The Fifth Circuit Court of Appeals upheld the Texas law. The 11th Circuit said that the Florida law did not pass constitutional muster. Almost everyone, all the legal analysts, at least on Twitter, that I saw called the Fifth Circuit decision by Judge Oldham legally bonkers, incoherent. What made this decision so far afield from what you might expect?
Stuart Brotman: Well, it doesn’t really conform with all of the precedents that we know in terms of what the Supreme Court has decided, and it almost flips the issue on its head because what Judge Oldham says there is that the law does not chill speech, it chills censorship. That seems to be a puzzling notion because, essentially, it is chilling editorial control, known as content moderation, from private actors by virtue of having the government step in and say, “We will be the ultimate arbiter of this and we will prohibit you from exercising that discretion.” That doesn’t seem to make a lot of sense in terms of what we understand about the First Amendment, certainly the prior cases that have been decided certainly over the past 20 or 30 years.
Tamara Sepper: So now, we have a circuit split, right? Most likely, as you said, these cases will be consolidated and justices will hear them. How do you think the Supreme Court will rule in these cases?
Stuart Brotman: I think we have to go back to the politics of today’s court. I think we’re certainly in a six-three environment now, and even if Chief Justice Roberts aligns with Justice Kagan and Justice Sotomayor and, of course, new Justice Jackson, we have the Barrett, Thomas, Gorsuch, Kavanaugh, and Alito faction, and we’ve seen the power of that. Often, as we saw the Dobbs case, Justice Roberts will go along with that. He may have some either concurrence, which modifies, but ultimately, these cases may be decided based on that six-three alliance, which, again, could be switched to five-four, but at the end of the day, the Barrett, Thomas, Gorsuch, Kavanaugh, and Alito alliance, essentially, I think tips the balance in many ways.
So I think many people are puzzled as to whether or not the court will look to the prior precedents and essentially follow those precedents or as we’ve seen particularly with Justice Thomas, for example, a real sense of skepticism and maybe dissatisfaction with the way that social media companies have developed, and a notion that maybe they are too powerful and there has to be some check and balance with government involved here.
Tamara Sepper: What would be the legal justification for taking away this editorial control from social media companies, and would it be consistent, for example, with Citizens United?
Stuart Brotman: Well, that’s an interesting question. It probably would not be consistent with Citizens United, but again, certainly, what we saw in the Dobbs case is that at least today’s Supreme Court alliance is not necessarily looking at precedents, stare decisis consistency. They’re willing to sit down with a blank piece of paper and write a new rationale and say, “This is now going to be the law going forward.” So it’s very puzzling in terms of how they would be able to write an opinion based on what we know about traditional jurisprudence, which is operating on prior precedent and stare decisis. There is no line of cases that essentially would allow that, but again, we may be in an entirely new environment.
Tamara Sepper: To what extent do you think are the common carrier or places of public accommodation doctrines applicable here? Meaning, for example, phone companies or train companies hold themselves out to the public as offering a certain service, and therefore, they’re subject to regulations that say, basically, you cannot exclude certain individuals. What do you make of that argument as far as applying that doctrine to social media companies like Facebook, Twitter, others that do have large market dominance?
Stuart Brotman: Well, this is an argument that Justice Thomas has raised in some dissents, and that might be a rationale that would be presented, but common carriage, typically, that whole concept typically is one that’s developed by Congress. So Congress will specify. For example, in the old days, it was considered trucking companies were common carriers, and that was part of the Interstate Commerce Act. So it would really be a great leap of judicial activism for the court to essentially characterize any of these social media companies as common carriers when Congress has never done that.
Stuart Brotman: In some cases, Congress has explicitly said comparable type services are not common carriers. So for example, when Congress amended the Communications Act to cover cable television, it had a provision that said cable television shall not be treated as a common carrier. If Congress can put that language in and hasn’t done so for social media companies, I think it goes back to this notion that it’s a legislative function, not a judicial function.
Tamara Sepper: Let’s talk about the harm here. These laws have been challenged by lobbyists that represent groups of social media companies. What’s the harm? What’s the problem with complying with these laws?
Stuart Brotman: Well, it depends on how these companies view themselves and how we view these companies. So for example, going back to a traditional media company which has editorial discretion. Under the First Amendment, would we prohibit, for example, the New York Times from making editorial decisions about political viewpoints or political candidates that are being covered? No, of course, we wouldn’t and, of course, we have Supreme Court precedents in those areas. There’s a famous case in the 1960s called CBS versus DNC, and that’s where the Democratic National Committee asked CBS or said, “We want to buy specific political advertising on the CBS television network,” and CBS said,” No.” The DNC brought CBS to court. Ultimately, that was decided by the Supreme Court, and the Supreme Court said, “CBS, under the First Amendment, has no obligation to carry the DNC’s political ads. It can make editorial decisions.” So I think the social media companies would say, “We are just like that too. Why should we have a different obligation under the First Amendment than, for example, broadcasters or newspapers?”
Tamara Sepper: The reality is, that these social media companies remove millions of posts every day, that everything from posts by ISIS that try to recruit terrorists to racists, to comments, to people egging on others to commit suicide, some really awful stuff. What’s likely to happen outside of the courts? How are these companies going to comply with this law in Texas now that it’s been upheld and the Supreme Court has yet to rule on it?
Stuart Brotman: Well, they could do a variety of things. Obviously, they’re going to vigorously contest this. Right now, in fact, they have already applied for a stay of the Fifth Circuit decision, which is interesting is that is an uncontested stay because Texas is not opposing it. So it’s highly likely that that law will not take effect unless and until the Supreme Court decides to take the case and decide in favor of Texas.
So we won’t really know how this works in practice until, ultimately, the Supreme Court decides, but social media companies could do a variety of things if they needed to comply. One is they could do popups. So anytime something came where they essentially were forced to carry that particular content, they could say in a popup, “We, under the law, must carry this, and we want to warn you,” for example, that this is a terrorist or a hate speech or some vile communication,” essentially separating themselves and showing that the law is requiring them to do that. So that’s one thing.
They could do geo-blocking, which is a common method. They essentially can create a zone where Texas or Florida are not going to have the full access of the internet. Of course, that will create an enormous political firestorm in those states, which will not want to be second class citizens in social media. So you might see that as the beginning of the end of those laws because I think there would be just an enormous blowback politically.
Then the third, of course, they could just flood the zone. They could just say, “Yes, we are going to open the floodgates exactly as is required by the law.” Again, that may create the same level of political blowback because all of a sudden, you might have a Facebook or YouTube flooded with the types of really offensive social media content that you alluded to. I think, again, people might go back and say to the legislature, “This is something that we didn’t sign up for.”
Tamara Sepper: Another point of analysis here is Section 230 of Communications Decency Act. While perhaps it hasn’t played a huge role in this case today, October 3rd, we learned that the Supreme Court would weigh in on Section 230 and two separate cases that are now before it. So tell us what Section 230 does and its relevance to this issue.
Stuart Brotman: Well, Section 230 was, as you said, part of the Communications Decency Act, it says that social media platforms have been immunized from liability because, essentially, they are conduits for content. As we know, there are millions and millions of social media posts every day. So Congress had this notion that these social media platforms should not have any legal liability for essentially reviewing the content as it’s uploaded and downloaded, and wrote this specific provision Section 230 into the law.
Stuart Brotman: Now, of course, in today’s times, that has created a lot of controversy, as you mentioned, in terms of the flood of what we might call bad content that is flowing on the internet, and there are people who say, “I want to sue for defamation. I want to sue for intentional infliction of emotional distress. But today under Section 230, Congress has said, “No, you’re not allowed to do that.” So that really creates this environment, I think, on both sides of the political spectrum as to whether or not Section 230 should remain as that wall against legal liability or whether essentially it should be lowered, there should be some exceptions that are made.
Now, there’s been a lot of discussion whether or not Congress will modify Section 230. In fact, during the last presidential campaign, both Biden and Trump indicated that they were in favor of some reform of Section 230, and we’ve seen on both sides of the political aisle, some movement in that area, but I think it’s going to be very difficult for Congress to actually come up with a new legislative scheme.
So here’s where the court becomes very important, and as you indicated, the court now has decided to take two cases dealing with Section 230, one against YouTube, one against Twitter. YouTube has algorithms which have been used by terrorists, and one of those terrorists group wound up killing someone. When that family sued YouTube, YouTube said, “We have immunity under Section 230.”
We also had a case dealing with Twitter and the Anti-Terrorism Act, which Congress passed, which says you cannot aid or abet terrorist activity and, of course, you have social media posts that do that. Question is, should Twitter be liable? Under Section 230 today, no, but if the court decides that it should carve out an exception there, it can do so. We’ve seen some erosion or some beginning of the carve out certainly in the area, for example, of child pornography. Clearly, companies can now be held liable. Congress went back and revised Section 230 to put in a provision to create liability for social media companies in terms of transmitting child pornography. So it is possible.
The other thing we haven’t discussed, which is really a wild card here, are the states. So there are now over a hundred legislative bills throughout the United States dealing with content moderation. So individual states, not just Texas, not just Florida, are now stepping into this. Of course, it’s highly unusual because, as we know, none of these social media companies operate on a state-by-state basis. They’re all federal or clearly international. So we’re creating a very Balkanized view of social media, where each state, essentially, can create its own rules for social media.
I mean, California, which obviously has an entirely different political flavor than Texas or Florida, Governor Newsom has just signed into law something called AB 5871, and that law will require social media companies to report on a semi-annual basis their content moderation policies with respect to hate speech, disinformation, and extremism. That’s a case to watch because I would suspect that will be challenged as well because, again, government is coming in and telling social media companies, “We are going to oversee your editorial discretion,” and by requiring them to report to government on a semi-annual basis, that might be considered undermining the First Amendment principle of free speech and free press.
Tamara Sepper: It sounds like we’re going to see some major changes in Silicon Valley in the next few years.
Stuart Brotman: Absolutely. Absolutely, and it’s really an all front war here. Some of it is legislative, some of it is federal, some of it is state, some of it is the lower courts, some of it is the Supreme Court. So literally, I think, as I mentioned, we developed a jurisprudence of the First Amendment over the past hundred years. I think in the next 10, 15, 20 years, we will be developing a jurisprudence of social media.
Tamara Sepper: Let’s talk about defamation law. So Dominion Voting Systems is suing Fox News, OAN, various individuals, including Mike Lindell, the My Pillow guy, Sidney Powell, Rudy Giuliani for claiming that, essentially, Dominion engaged in the vote rigging scheme to get Biden elected and to ensure that Trump loses. The New York Times described the Dominion lawsuit against Fox as potentially “one of the most consequential First Amendment cases in a generation”. What makes it so?
Stuart Brotman: Well, I’m not sure I would agree, although I think it’s consequential, obviously, because of the dollar figures involved here. There are really parallel cases because another company called Smartmatic, which makes voting machines, has also sued many of those same parties on the same ground of being defamed. What’s interesting here is the application of the Times versus Sullivan standard that I talked about before in defamation, which has existed since 1964, which says that the test here would be actual malice, meaning that Fox would’ve had to know this was false or it would have to recklessly disregard whether or not it was true or false. Fox would say, “Maybe this is not even news. Maybe this is opinion.”
Tamara Sepper: How can something like that be considered an opinion? To me, it sounds like a fact, like either Dominion rigged the vote through something having to do with the machines it manufactured or it didn’t. In the legal world, how do we distinguish what is a fact and what is an opinion?
Stuart Brotman: Well, it’s almost an existential question, particularly in the world of social media, because there’s this new expression that a lot of people use, which is, “I heard.” So people say, “I saw something on the internet. I read something about it.” For example, Mike Lindell, he argues that, “Yes, I actually believed all of what I was telling you. There was nothing false about my belief.”
Obviously, the underlying facts of his belief may not have any basis in reality, but he’s saying, essentially, he has the right to say that as an opinion, and Fox would say they have the right to put Mike Lindell on the air to express that opinion, and they will point that during some of the broadcast. They will indicate to viewers, “We have not verified this. This is essentially something that’s being talked about,” and they are very careful in the way they craft this. Clearly, they do this with their legal staff, but they do it in a way that they won’t essentially be open to defamation claims.
Tamara Sepper: Is there no duty to verify legally speaking?
Stuart Brotman: Well, no, I mean, the difficulty now in social media is that, I mean, once upon a time, again, in those old days, we had all of our facts or our news, which was filtered through established organizations, which had principles, journalistic principles that people essentially knew you had to verify information, you had to get it from a number of sources. So this is all part of what we would call a journalistic practice. That’s not the world that we live in today because, obviously, in social media, even if someone reads a news article, they may pass it on to someone else on social media with their own comment about it and, ultimately, the third person passes on the comment, but not the original article.
So it’s really difficult to go back to the days of having the New York Times or the Wall Street Journal or The Washington Post as the filters for all of that.
Tamara Sepper: I read that Dominion conceded that it was a public figure. Should it have? To me, it sounds like no one knew what Dominion was until these allegations were made.
Stuart Brotman: Yeah. That’s really interesting because as you know in the Times versus Sullivan case, that dealt with public figures being employees or official figures of government, and that has been expanded over the years to now cover a much broader category. So celebrities, obviously, would be considered public figures. If you just continue that strand of analysis, virtually anyone on any day can become a public figure if they do something that goes viral. So in terms of Dominion, yes, Dominion typically would not be considered a public figure, but, of course, once Dominion goes viral, once people begin to talk about Dominion, it creates a new reality about that company.
Tamara Sepper: How vulnerable do you think the actual malice test is to being overturned?
Stuart Brotman: Well, again, we’re in this new world of the Supreme Court, where we have, essentially, some justices who have assumed the role of provocateurs, and we certainly see that Justice Thomas is now doing that and on a relatively consistent basis. Again, going back to Dobbs, the abortion case, I mean, he suggested a number of things not related to abortion but related to rights of privacy and marital contraception and same sex marriage, a variety of things which he might want to include in his reasoning, and I think we’ve seen that a little bit with Gorsuch. So we now have a couple of justices, and probably Alito would be in that category as well, who like to throw these new ideas into the mix.
Going back to that early part of the 20th century, once upon a time, we had people like Oliver Wendell Holmes or Louis Brandeis who played that role and, ultimately, over a number of years, they as brought the other justices along with them. given this six-three alignment, is when you have a Thomas or Alito or Thomas or Gorsuch, they may have the capability to bring Barrett and the other of the six-three to their side, and that could essentially change the law. So I guess the short answer is no, I don’t suspect in the immediate future meeting in the next five or so years that there will be any fundamental change in the actual malice standard under Times versus Sullivan,
Tamara Sepper: When we were talking about freedom of speech, we’re normally thinking about the speaker, right? To what extent should we consider the rights and dignity of the listener?
Stuart Brotman: Well, the Supreme Court has dealt with this before, and there was a case called the Red Lion case back in the 1960s. Once upon a time, the FCC had something called the Fairness Doctrine, and the Fairness Doctrine required that broadcasters essentially proactively cover issues of public importance, and whenever they did so, they would have to have contrasting viewpoints on those public issues. That was a regulation that the FCC promulgated, and that was challenged at the Supreme Court has a violation of the First Amendment. The Supreme Court unanimously said, “No, that, in fact, the interests are not just of the speaker, not just of the broadcaster. The interests are also of the listeners, and the listeners need to have exposure to these contrasting and diverse viewpoints.” That’s part of the First Amendment too.
So that’s the only time that the Supreme Court has really spoken to this concept. What’s very interesting is that the Supreme Court did not say that was a mandate under the First Amendment. They basically said it was allowable under the First Amendment. So what we saw in 1987 during the Reagan administration, the FCC abolished the Fairness Doctrine. So we don’t have that situation as we had before it was abolished, where we had the rights of the listeners being protected in a similar way to the rights of the speakers.
Tamara Sepper: The other interesting First Amendment case going on right now comes out of Arizona. So Arizona passed a law that says you cannot record any police activity within eight feet of it if you are given a warning by the police officer. Now, ACLU and some user organizations challenge the law, and as of today, the judge issued a preliminary injunction that temporarily blocks the law’s enforcement. What makes this a First Amendment case? What rights do we have to record the police?
Stuart Brotman: Well, this is freedom of the press. So if you imagine, again, the good old days or at least the old days where we had an established press, we had people who would go to an event, it might be a criminal event where the police were involved and they would have a press pass, and the police would set up a barrier, but the people who were representing the press would be able, essentially, to go to the front of the line to see what was going on, and reporters could write about it, but, of course, you had news photographers who could take pictures. They couldn’t go past that barrier. That’s never been the case.
So now in our new world, everyone seems to be a journalist. We all are now carrying around our miniature newsrooms in our smart phones. So when an event happens, people pull out their phones and begin to record that event simultaneous to the police acting in realtime. So we have this conflict or this potential conflict between this notion of police protection and public safety, let the police do their job, and this notion of the free press, having the public see how the police are doing their job. Obviously, we’ve seen a number of situations of police misconduct or negligence, and we would have not known about that but for the fact that there were people at the event who were able to record it.
Some of them may be from news organizations, but many times, these are people who are just pulling out their smartphones and shooting the video. Of course, now, we also have the phenomenon of body cams because police agencies now say, “We don’t want to be accused of something that we didn’t do, and so we want to document this while it’s taking place.” Of course, a body cam has a restricted view of the event. So one argument for having other people record it is it would allow us to see a number of different angles and a number of different things that are happening during the same event. We’ve seen loads of videos where something looks like something if you look from a particular angle, but when you essentially have many different angles, the entire perception changes.
I mean, one of the, again, existential issues to deal with here is what constitutes the press. Is it an institutional press or is it a functional press? Meaning, is it the notion that you can amplify what’s going on by using different technologies like smartphones?
Tamara Sepper: To what extent do you think it will matter legally whether the person doing the recording is formally a journalist or just a passerby who whips out his or her phone and starts recording what they see?
Stuart Brotman: Well, I think it may be difficult to continue to draw those lines, particularly because if you watch a regular local television station, often during the broadcast they will say, “If you see something, please upload your video to us.” So a lot of video that is now being broadcast by traditional journalistic organizations is not generated by those organizations. It’s generated by everyone else with a smartphone. I mean, we’ve just seen Hurricane Ian and the incredible coverage of Hurricane Ian. I mean, obviously, we had the weather channel and networks doing that, but the really striking video are the people who are in the hurricane who are experiencing it, and that really gives the public an understanding of what’s going on.
So there is, I think, a very powerful argument that the freedom of the press now really extends to a functionality of the press as opposed to an institutionality of the press. Meaning, you don’t need to have a vest that says press or a card that constitutes a press pass in order to essentially be in the position to inform the public.
Tamara Sepper: Of course, we saw in the killing of George Floyd how critical the video evidence was there. I don’t believe the people who took the videos were formally journalists. I think it was people that were just standing around there.
Stuart Brotman: Exactly, exactly. Of course, there are multiple examples, but there are certainly dramatic ones like that which illustrate the power of what I call citizen journalists. Even though these individuals don’t consider themselves journalists, they are essentially eyewitnesses, and now they have a technology that they can capture their eyewitness perceptions, and ultimately that those videos can be used for evidence and become part of the criminal justice system.
So I think that’s going on here. Certainly, the police don’t want to essentially have a situation, particularly when you have a live event where you have hundreds of people pulling out their phones and potentially interfering. Obviously, there is the ability to set up barriers, and I think the Arizona law has some limits in terms of how far away you need to be, but at the end of the day, again, technology may trump any of those laws, meaning that even if you’re 50 feet away, if you have a reasonably good smartphone, you have the capability to zoom in so it looks like you are very close. Of course, we have drone technology where you don’t even need to be physically on the ground. You could be shooting from hundreds of feet in the air with zoom lenses. Of course, now, drone technology is no longer just a technology of military. A lot of people can buy drone on Amazon for relatively inexpensive cost. So we will have a new version of citizen journalism not just through smartphones, but also through drones.
Tamara Sepper: Again, the book is called The First Amendment Lives on: Conversations Commemorating Hugh Hefner’s Legacy of Enduring Free Speech and Free Press Values. Stuart Brotman, thank you so much for joining me on Office Hours.
Stuart Brotman: Thanks so much, Tamara. Had a great talk.
