Fox News, TikTok And Defining Today’s 1st Amendment

Almost every day brings headlines of more assaults on the constitutional traditions of free speech in the U.S. From yesterday’s New York Times
NYT
alone came: “A TikTok Ban? What about Free Speech?”; “If We Don’t Master A.I. It Will Master Us”; and “Efforts Double to Ban Books in Schools and Libraries.” And don’t forget the battle over Fox News’s alleged spread of election disinformation and the proliferation of hate speech on social media. Wasn’t the internet’s instantaneous availability of almost limitless sources of information going to help resolve problems just like these?

I recently spoke about the current state of the 1^st amendment with Stuart Brotman, Editor of The First Amendment Lives On, a book published just last year filled with of edited conversations Brotman conducted with a group of imminent 1^st amendment scholars and practitioners. Brotman himself is a prominent author at the intersection of law and technology and has served in four different presidential administrations. But for all the expertise in evidence here, the challenges facing the news media, the tech industry, policymakers and the public (to name just a few stakeholders) are going to require more than legal wizardry to solve. Not to saddle a long-time friend and colleague with unwanted baggage, the perspectives below are mine unless otherwise noted.

Dominion Voting Systems v. Fox: The existential challenges for the news business

Dominion is claiming that they were libeled by Fox News and its on-air talent surrounding false allegations about their voting machines’ role in the outcome of the 2020 election. Fox News’ defense rests almost entirely on the argument that it didn’t act in “reckless disregard” of the truth, the stricter standard for suing news organizations that the U.S. Supreme Court established nearly 60 years ago in New York Times v. Sullivan. Ironically, this enhanced protection for news media has been under attack from conservative pundits for years as a gift to “liberal” news institutions. It’s too soon for any prediction on the ultimate outcome, but this case might be a rare lose-lose for 1^st amendment fans. If Dominion wins, it could conceivably chill some forms of even legitimate news reporting by encouraging future litigants. But if Fox News wins, it might indicate a greater cocoon for ever-more egregious dissemination of misinformation.

Beyond the 1^st amendment issues at stake, perhaps an even greater concern is what is this case tells us about the precarious state of the news business, particularly the objective pursuit of truth. As Professor Geoffrey Stone of the University of Chicago Law School stated to Brotman: “Having a robust marketplace of ideas is essential to enable a democracy to function in the way it is meant to function.” But that marketplace is anything but robust today.

Part of what allegedly drove Fox News even deeper into the election conspiracy thicket was the fear that they would lose the allegiance of their core viewers to even-further right-leaning news sources such as Newsmax. In a world where consumers not only can but overwhelmingly do choose to limit their news consumption to like-minded sources, even the leading cable news network wasn’t crazy to be fearful of its future.

Of course, tumult in the news business isn’t breaking news. Newspapers and magazines have been under assault for nearly two decades. Alongside Fox News’s fraught editorial decisions we have the still indeterminate remake of CNN under its new corporate owners, NBC News’s shifting of resources towards streaming, a host of new and untested newsletters entering the fray and even early rumblings of news powered by artificial intelligence. A simple reliance on a vigorous 1^st amendment – however that gets defined – is hardly a catch-all solution for the essential pursuit of independent news reporting and for the proof of successful business models to sustain that pursuit.

To ban or not to ban: TikTok’s link with geopolitical competition

In a rare display of bipartisan alignment, both Republicans and Democrats took aim at TikTok in a congressional hearing last week. The Biden Administration and several other countries are seriously contemplating a ban of the service, and the U.S. has already banned it from government devices. How exactly did a mobile app that is a home to short-form videos of user-created dances, silly memes and beauty and fashion tips become such a global threat? To sort-of paraphrase James Carville, it’s not the content, stupid.

On its face a government ban of a speech platform would seem directly antithetical to the entire notion of 1^st amendment freedoms. Yet TikTok is owned by the Chinese company Byte Dance, and the notion of a truly independent, non-governmental Chinese company is not consistent with anyone’s notion of objective truth. Lawmakers are not (in this instance) entirely off base to fear how the Chinese government may leverage the private data of TikTok users, or abuse its ability to influence the algorithms that shape everything users see on TikTok.

Professor Burt Neuborne of NYU School of Law (and one of my own law professors) told Brotman that the “diffuse” nature of the internet provides companies with “even more power by shaping people’s ideas and by drowning out minor voices” as well. When you put that power even indirectly in the hands of a government, the traditional reliance on that “robust marketplace” of ideas is at even greater peril. The answers to our challenges here lie somewhere in a complex mix of enhanced cybersecurity, public education and global cooperation that the 1^st amendment has little ability to shape on its own.

Can you get educated in school anymore? Battles over books, speech and speakers

Efforts to ban books in libraries and schools in the U.S. doubled in the last year according to the American Library Association. The conservative rallying cry against “wokeness” has fueled efforts to ban the teaching of critical race theory, including to young children who are years from being anywhere near such teaching, and of novels addressing LGBTQ+ themes among others. Florida has passed legislation known as the “Don’t Say Gay” bill and is now contemplating prohibiting the discussion of even menstruation for children under 12, despite frequent examples of earlier onsets to puberty. And coming from the left, we have college campuses where only a certain accepted conventional wisdom and speakers that espouse it appear welcome. Haven’t any of those folks heard of the “Free Speech Movement” in the 1960s?

This is hardly a first for these efforts in American history, as anyone who saw Inherit the Wind or studied the Scopes trial could attest. But when so much more information is available to so many more people, any governmental efforts so shut down creative and science-based teaching is even more depressing now, although hopefully more futile. As Brotman pointed out to me, the courts have yet to weigh in on many of these censorship efforts, so there may still be some respite even from a conservative court system. But the 1^st amendment can only put out so many fires, and many decisive battles will be fought without ever seeing a court room.

I know I’ve left out many more troublesome speech-related issues, from social media’s reliance on its legal safe harbor in its content and recommendation decisions to the extent of the 1^st amendment’s protection for AI speech generated without human intervention. All carry still more speech-related entanglements for tech and media.

When I was in law school, the 1^st amendment’s “warriors” were academic and practitioner superstars, sent forth to guard the gates of free speech and a free press. Given the complexity of our political, technological and cultural challenges today, those resources aren’t likely to be enough to solve our speech-related problems in the foreseeable future. Maybe the true destiny of the 1^st amendment lies not in our legal stars, but in ourselves.