So to Speak podcast transcript: Free speech in the digital age with Jameel Jaffer

Note: This is a unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Jameel, thanks for coming on the show.

Jameel Jaffer: Thanks for having me.

Nico: On Constitution Day no less.

Jameel: Oh, yeah. That’s right.

Nico: Before we dive into the Knight First Amendment Institute, I wanna get a little bit of your background. So, you went to Williams College, correct?

Jameel: I did.

Nico: And then Harvard Law School.

Jameel: Yeah.

Nico: And what got you interested in civil liberties work?

Jameel: Well, I guess I had been interested in civil liberties work for a while, but I didn’t really get thinking about it as a career until I clerked, after law school. I spent a year clerking here in New York for the Second Circuit, for a judge on the Second Circuit. And then I spent a year of clerking in Ottawa for the Chief Justice of the Canadian Supreme Court. I’m Canadian; I grew up in Canada.

Nico: Was there a specific case that you were involved in that peaked your interest?

[Crosstalk]

Jameel: Yes. Well, so, I can’t tell you which cases I worked on, but I can tell you a little bit about which cases I’ve heard before the court at the time I was there. So, especially at the Canadian Supreme Court I just happened to be there at a time when there were a lot of civil liberties cases and free speech cases in particular. One case called Sharp, which involved – it was a child pornography case, but had to do with somebody who had drawn pictures of child pornography. The question was, what does Section 2 (b), which is the Canadian First Amendment analog – what does it have to say about somebody’s right to draw those pictures?

Nico: How would you know the images were of a child? Were there contextual factors –?

Jameel: It’s a cartoon that somebody had drawn, yeah. And apparently, you could tell from the image itself that it was a child. And it was a very hard decision for the court and raised a lot of very fundamental questions about what Section 2 (b) was about. And the Chief Justice ended up writing an opinion about that case of free speech, an opinion about that case. There was also another case that year which was –

[Crosstalk]

Nico: And where did they come out on it?

Jameel: They came out with a free speech opinion that used the phrase, “mere articulation of thought can’t be criminalized.” And they characterized as a cartoon, as a comic, as a – I’m not sure that’s the right word – this drawing as a mere articulation of thought. There was another case involving refoulment detour, just sending refugees back to a place where they would be tortured. It had to do with a Tamil refugee from Sri Lanka. And the case was heard by the court for the first time in the spring of 2001 and was reheard by the court after I left. It was reheard by the court after 9/11.

And that was a fascinating case that sort of raised all the questions that we have been debating since 9/11 here in the United States, about the proper line to be drawn between – what limits human rights principles place and should place on the government’s power to do things in the name of national security. So, those cases were fascinating cases and made me even more interested in issues relating to civil liberties and human rights. And then I had accepted an offer at a law firm here in New York, a big law firm –

Nico: Were you hoping to stay in Canada?

Jameel: No, I sort of knew that I was – I had spent that previous, almost decade, in the United States and I knew that I would come back to the United States afterwards. But, at least immediately, I knew I would come back to the US. I never knew where I would end up eventually. But I’d accepted this offer at a law firm in New York and I started working here in October of 2001, so right after 9/11. And I was doing a lot of pro-bono work for the ACLU and that eventually turned into a job at the ACLU. And I started at the ACLU in the summer of 2002, intending to stay at the ACLU for a year or two and then go back to doing something else.

Nico: That’s how it is with every job, isn’t it?

Jameel: I guess, yeah. Maybe it is. But the ACLU was very good to me. I had many opportunities at the ACLU that I wouldn’t have got anywhere else –

[Crosstalk]

Nico: At a most fascinating time.

Jameel: – the most important of which – Yeah. The most important of which was, the opportunity to work on these cases that I cared – these issues that I cared so much about at a time when it seemed like the answers to those questions really, really mattered. And I worked on a whole array of cases ranging from detention cases, to interrogation and torture issues, targeted killing –

Nico: You worked on the Bush torture memos.

Jameel: Yeah. Probably the longest running case I worked on at the ACLU was a freedom of information act case, involving the Bush administration’s interrogation policies and that case – which is still going on now, actually; I’m not involved in it anymore, but there are still lawyers at the ACLU who are working on it. That case ended up resulting in the release of the torture memos – the Bush administration’s torture memos as well as a lot of other crucial information about the Bush administration’s policies. But then I worked on a lot of surveillance cases and –

[Crosstalk]

Nico: The NSA stuff, the Snowden stuff.

Jameel: Right, so even before the Snowden disclosures, we challenged the constitutionality of the Bush administration’s warrantless wiretapping program. That was back in 2006 – or 2005-2006. And we litigated that in the district court and in the Sixth Circuit. We tried to get the Supreme Court to – we won in the district court. The decision was overturned on standing grounds in the Sixth Circuit 2-1. And we filed a sur-petition to the Supreme Court in 2006, which the Supreme Court denied.

And then we went back again after Congress essentially ratified the Bush administration’s warrantless wiretapping program through the FISA Amendment’s Act of 2008. We went back, and we challenged the constitutionality of that statute; lost in the district court but won in the Second Circuit; held on to it in spite of a very contentious vote for a rehearing en banc. It was a 6-6 vote on rehearing, so we held onto it in the Second Circuit, and then I argued it before the Supreme Court in 2012, and we lost 5-4, just a couple of months before the Snowden disclosures. We lost on the ground –

Nico: Do you think it would have gone the other way if it had landed – the arguments had landed right around the Snowden disclosures, or just after?

[Crosstalk]

Jameel: I had an interest, yes, it would have gone the other way. But I do think it would have gone the other way. I mean, it was 5-4 and the whole debate at that time – this was I guess the winter/spring of 2013 – was whether our allegations were reasonable or not. And we alleged that this statute would be used to surveil not only suspected terrorists but a lot of other people as well that the government would engage in dragging that collection.

Nico: And you didn’t have any access to the information that Snowden subsequently revealed.

Jameel: That’s right. We had basically just the statute itself and we said, “Just read the statute. That’s what the statute is designed for.” And five justices of the Supreme Court said, “Ultimately, you have not established with sufficient certainty that this kind of surveillance you’re describing will take place.” And then just a couple of months later Snowden disclosed what he disclosed, and we learned that the surveillance was actually much, much broader than we had ever thought it could be. So, yes, I think it would have gone the other way, but who knows.

Then we were involved in post-Snowden litigation over surveillance including a challenge to the NSA call records program, which involved the mass collection of American’s call records. Every time you picked up the telephone, the NSA was essentially making a note of – at what time you picked up the phone, who you called, how long you spoke to them for – every single domestic phone call. And we won a ruling from the Second Circuit that that program was unlawful, and they eventually retired that program. So, there was a lot of surveillance litigation which was both Fourth Amendment and First Amendment Litigation.

Nico: Well, there are some ties here with the Knight First Amendment Institute here, as well. But before I get there, a question from your Canadian background: what was your perspective growing up of America’s First Amendment? Because I know Canada has a different conception of free speech; it balances dignity a little bit more.

Jameel: Yeah. I’m not sure that I had a very good sense of the differences between the Canadian system and the American system before I became a lawyer. My sense was that free speech was protected in Canada, and free speech was protected in the United States. I think that there’s a very good argument that that’s true. That’s largely true. I’m not somebody who thinks that if we reinterpreted the First Amendment to exclude the protection of hate speech, narrowly defined, the First Amendment’s sky would fall. I think that there’s room for reasonable disagreement about where those lines should be drawn.

My instinct is to favor the American approach over the Canadian approach, but I’m not sure those are the most important question. To me the more interesting questions right now, the more important questions right now, are not about that particular boundary, but rather about how we treat things like the chilling effect of surveillance, or how we deal with the privatization of the public square. Those questions seem to me, much more important to whether we will be able to continue to say that free speech is protected.

Nico: Well, the hate speech and political speech questions, often those go before the high court, they’re 9-0 decisions, so they’re not contentious or open questions, some of the things that you and the Knight Institute are working on. So, the Institute was founded in 2006, correct?

[Crosstalk]

Jameel: 2016.

Nico: 2016, excuse me.

Jameel: Yeah, yeah.

Nico: And when they brought you aboard as the director, was the mission fully formed? Because it seems as though the mission is very much in your image or the image of your interests, given the work at the ACLU and its unique mission in the First Amendment community.

Jameel: So, at a high level there was a very clear sense of what the mission of the Institute would be. The institute grew out of these conversations that Lee Bollinger, who’s the president of Columbia, and Alberto Ibargüen who’s the president of the Knight Foundation had had over many years. Their core insight was that these celebrated precedents from the 1960s and ‘70s like the Pentagon Papers Case, New York Times versus Sullivan, the cases that are really the core of the American free speech tradition, or the foundation of the American free speech tradition, that those cases were decided in an era in which the threats to free speech looked very, very different than the ones we’re facing today.

Nico: I think it says on your website the analog era, and we live now in the digital era.

[Crosstalk]

Jameel: Yeah, that’s right. That’s right. Yes, these were analog era precedents and now we have digital era questions, right? And they thought we need an institute that is dedicated to figuring out what the right answers are to these complicated questions at the edge of the law, at the edge of technology. And then fighting for those answers in court. At that level, the mission of the Institute was decided before I came on board. The institute was set up to defend the First Amendment in the digital age through litigation, and research, and public education.

Beyond that, it’s been a conversation between me and the board over the last couple of years, and the board includes Lee Bollinger and Alberto Ibargüen, but also includes: from Columbia, Steve Coll and Nick Lemann; from the journalism school, Gillian Lester, who’s the dean of the law school; Gerry Rosberg, who’s an advisor to Lee. And then we have some external board members as well: Eve Burton, who’s general counsel at Hurst; Eduardo Peñalver, who’s the dean of the law school at Cornell; Ted Olson, the former Solicitor General. It’s a pretty diverse, and obviously, a very accomplished group of board members.

We’ve had a conversation, now, for two years about where the Institute’s energy should be dedicated, and I think it’s fair to say we’ve taken many different things into account. One of them is, what are other organizations working on? Where is the field already well represented, and where are the gaps? And what are we especially well positioned to do as an institute that is housed at a major research university, but also has a research litigation arm? What are the talents and backgrounds of the staff of the Institute?

As you alluded to, my own background is as a national security lawyer who’s done a lot of work on privacy issues. Our doctrine reflects that, too. But then, there’s also the fact that the world presents us with new challenges every day, and we are responding to what the world presents. So, maybe our most significant piece of litigation, so far – certainly the one that receives the most attention in the press –

Nico: It’s also the first case. I know where you’re going, right?

Jameel: Yeah. Well, it’s not actually our first case, but it got so much attention that people assume that it was our first case. We did cases before that nobody paid attention to.

Nico: Whoever your comms director is, is great, because you go to your cases page on your website and it’s right up at the top. They know what people are going for.

Jameel: Right. Well, yeah. So, we challenge President Trump’s practice of blocking critics from his Twitter account. And everybody loves talking about Twitter, everybody loves talking about Trump – or hates talking about Trump. And this is a fascinating First Amendment question about: is it fair to characterize public officials’ social media accounts as public forums under the First Amendment? Are these the digital age’s equivalents of town halls and city council meetings? It’s really made for law school exams and law school hypotheticals.

But that case in a way is perfect for us because it involves these deep structural trends relating to new technology and new uses of new technology, but also involves a set of issues that are in the news right, and that everybody is already talking about. President Trump’s Twitter account specifically is something that is fascinating to –

[Crosstalk]

Nico: So, from a communications perspective it’s like you’re drawing the attention of journalists who might come to you in the future to look at these issues just by the nature of how newsworthy your first case – or not your first case – one of your early cases.

Jameel: Yeah, yeah. Well, the other thing that I like about this case is that, when we filed it, there was really a diversity of opinion on whether we knew what we were talking about or not. A lot of people thought, including some First Amendment scholars – initially resisted the idea that President Trump’s Twitter account could be conceived of as a public forum.

Nico: I remember I interviewed Eugene Volokh out in California two months before you filed this lawsuit and we were talking about virtual reality. He had just written a paper about virtual reality and some of the free speech First Amendment applications of that. We got talking about politicians and how future town halls might occur in virtual reality, or how politicians might be able to create a world for themselves in virtual reality; very esoteric stuff.

And I’m like, “Well, what would be the First Amendment implication if a politician just decided to exclude an individual from their new virtual reality?” And Eugene’s initial instinct was that it wouldn’t violate the First Amendment principles. But then your case came out and I think he read the case, and read the briefs, and seemed to come along to your side.

Jameel: Yeah, not immediately. So, he’s obviously one of the sharpest First Amendment thinkers out there and so I was particularly interested to read his reactions to it. And his first reaction was that relatively skeptical one. But then he wrote another post a few weeks later when he said, “You know what, maybe there’s here.” And my impression is that he – that he’s now more or less on our side in this case. Although he still has some reservations about the extension of our argument to other factual circumstances, which are totally understandable reservations. But there are other once critics who have sort of come around over the course of the litigation and that’s very gratifying –

[Crosstalk]

Nico: Well you won the trial at court.

Jameel: Yeah, we won in the district court, that’s right. And over the last few weeks, the Trump administration, the White House has unblocked all of our clients as well as dozens of other people who were blocked on viewpoint.

Nico: So, it’s the Knight Institute versus Trump, how did you get standing in that case?

Jameel: So, we made a right to hear argument. We said that the Knight Institute follows the President’s Twitter account, we are in other words, participants in this public forum and the exclusion of speakers from this forum on the basis of viewpoint injures us as listeners. And we won on that argument too.

Nico: Did you bring in other plaintiffs just in case you didn’t have standing?

Jameel: No, absolutely. We had seven others who were blocked themselves –

Nico: Oh, personally blocked.

Jameel: – on the basis of viewpoint. And the whole case has been litigated on a joint stipulation of facts, so – In the ordinary course what would have happened, after we filed our complaints, is we would do some discovery as to who, actually, did the blocking here and why did they do the blocking? The judge suggested to both parties that instead of going through that discovery, the parties agree to a set of stipulated facts. And maybe surprisingly, at least it was initially surprising to me, the government agreed to do that.

And they gave us a set of stipulated facts in which they conceded that the President himself had blocked our plaintiffs, that he had done so after they had criticized him through tweets. They gave us a bunch of other concessions that turned out to be very important to us in the litigation.

Nico: he’s gotta be watching his Twitter account very closely with the thousands, and tens of thousands of retweets and likes he gets. I mean, I just look at mine, and I only have a thousand. What you would have to sift through in order to find your critics. I mean, I imagine there are a lot.

[Crosstalk]

Jameel: So, there are a lot of critics, but the reason he blocked our plaintiffs is that they weren’t just critics, but their criticism was popular. So, they criticized him, and then other people liked or retweeted their criticism, which put their criticism at the top of the President’s feed. So, when President Trump opened up his Twitter account in the morning, he saw his own tweet from yesterday, and right under it he saw our clients’ criticism of him, which got him –

[Crosstalk]

Nico: 2000 likes, or something like that.

Jameel: And that got him apparently sort of riled up and he blocked them. But, anyway, the whole case so far has proceeded on that basis, and now the government has unblocked our clients, as well as dozens of other people, but it is appealing the decision below. So, we’re in the Second Circuit now arguing over the constitutionality of this kind of blocking even though during the pendency of the litigation now, our clients will be able to participate in the public forum.

Nico: Has oral argument been set yet?

Jameel: Not in the second circuit, no. I would expect probably early December or something like that.

Jameel: So, how do we sift through the question of: there are official Twitter accounts for the President, and then there’s his Twitter account that he had as a private citizen for years. But, if I understand your argument correctly, he uses that to make public policy announcements, therefore it comes within the gauges of the Federal Government is therefore subject to the same, sort of, requirements of the First Amendment. If he was not doing that; if he was not making public pronouncements on policy issues on his personal Twitter account, would that still be a First Amendment concern for you?

Jameel: Right. No, it wouldn’t. For us, it’s not about whether you call it an official account or you call it a personal account. It’s a functional question: how is the account actually used? And what matters to us most, in this case, is that the President uses the account almost entirely for official purposes. He uses the account to announce new government policies, to defend government policies, to announce appointments to important government offices.

He engages in international diplomacy through this mechanism. If you go to his profile page, the account is said to belong to the President of the United States, and there’s a big photograph of – I think last week it was of Air Force One – the photograph changes. But it’s always something relating to his official duties. So, there’s no mistaking this –

[Crosstalk]

Nico: Because if you go to his “official” Twitter account, it says these tweets must be – may be archived and this is –

Jameel: Yeah, @POTUS account.

Nico: Yeah, @POTUS.

Jameel: That’s right. That’s right. So, first of all, accounts are used, more or less, interchangeably. I bet @POTUS account will often retweet the @realDonaldTrump account and vice versa.

Nico: And this is the account that Obama used as well.

Jameel: Well, not the one we’re litigating over.

Nico: I know. But the other, the @POTUS one.

[Crosstalk]

Jameel: The @POTUS, that’s right.

Nico: Yeah. So, it changes with the president.

Jameel: That’s right. That’s right. Yeah, this one, @realDonaldTrump belonged to Trump before he became president, and presumably, it’ll belong to him again after he leaves office. But think of it like a local official who had a car before he or she became a local official, and then used the car for official purposes during his or her tenure as an official. You would treat that car as – I’m not sure this is the best analogy – you would treat that car as an appendage of the official in his or her official capacity.

If the car gets in an accident, you would expect the government to be responsible for that, for the cost of the accident. This is the same thing. It was once private property but is now being used for official purposes, and because it’s being used for official purposes – almost entirely for official purposes, it’s subject to the First Amendment.

Nico: Yeah. So, on your website you identify, I believe it’s three priorities for the organization. And one of them is the increased privatization in the public square, so I imagine what that means that used to be the case, we’d go to the sidewalks, or the town square to have our rallies, to host our protests. Often that’s happening on social media now, private companies, not subject to the First Amendment. And then you also are doing litigation in government transparency, and also government surveillance. And what’s interesting to me, from a First Amendment perspective, is that at least those latter two priorities aren’t often considered core First Amendment activities.

And you actually acknowledge this on your website. You said, “These are often fit within, for example, the government surveillance, within the Fourth Amendment scope.” And so, why try and bring them within the First Amendment ambit? Is that you get higher scrutiny when you apply First Amendment analysis and then we can start talking about the First Amendment Lochnerism and the expansion of the scope of the First Amendment? But what’s the thinking there? What’s the strategy?

Jameel: So, the main motivation for focusing on those two areas is that we think of those two areas as involving significant and underappreciated threats to First Amendment values. If you think of surveillance for example, which as you say is usually analyzed through a Fourth Amendment lens, through a privacy lens – But there is a long line of cases especially from the 1960s and ‘70s in which the Supreme Court thought about surveillance through a First Amendment lens, where all these cases involving the NAACP and efforts by southern states for NAACP to disclose information.

They’re not always thought of as surveillance case, but they are surveillance cases. They’re cases in which the government tried to force private organizations to disclose sensitive information with the consequence that association with those organizations was chilled. And we wanna try to resurrect the First Amendment as a constraint on government surveillance power. Not because it’s tactically advisable to do it, although you may be right through a First Amendment lens – evaluating these things through a First Amendment lens results in additional scrutiny. I hope that’s true.

But the main motivation for doing it is not that tactical motivation, but just that we see those threats, surveillance in particular, as having very real implications for First Amendment freedoms. And it’s especially true at the margins. If you focus on communities at the margins that are already hesitant to participate in our democracy in ways that most other people are not hesitant to do so, government surveillance, or even the threat of government surveillance can make those communities even more hesitant. And we wanna think about the First Amendment implications of those policies that are usually evaluated only through a privacy lens.

Nico: I remember – was it two years ago – I had Glen Greenwald on the show, and we were talking about the First Amendment free speech implications of surveillance, and he referenced a study that was done a while ago where they simply put a big eye on the wall in which people were talking or communicating. And when the eye was on the wall, people were less candid, than when the eye wasn’t on the wall.

So, the idea that it chills speech there seems to be some social science research to suggest that exists. And I think just intuitively it makes sense. When I was growing up, and there was something I didn’t want my parents to hear, I’d be more candid when they were outside of the room than, of course, when they in the room.

Jameel: Yeah, I mean, I don’t know that study, but it’s consistent with everything I know about this particular area. One ironic thing is, so, I’m accustomed to being a plaintiffs’ lawyer in this particular context where we are often trying to persuade courts that government surveillance does, in fact, have this chilling effect, and it’s a chilling effect that the court should be concerned about. And the government, in those cases is on the other side, arguing that, “No, no, no. What are you talking about? There’s no chilling effect here.”

But if you look at all these FOIA cases in which we’re trying to get government documents about government processes that are otherwise secret, you see government lawyers making the same argument. Government lawyers saying, “Oh, no, no. You can’t release this information because it will chill discussions within the government about sensitive government processes.”

Nico: That’s a good point. Having their counsels say, “Can’t have these conversations over the phone, because we –”

Jameel: Right. I mean, so, especially with the deliberative process privilege. The government routinely points to the danger of a chill in justifying to courts their preference to keep certain kinds of documents secret. And I just think it’s interesting that you see the government, sort of, on both sides of this. I actually accept the government’s view. I mean, I think the government is right that disclosure in that particular context has a chilling effect; that requiring the government to disclose deliberative documents can have a discouraging effect on the willingness of government employees to have candid conversations. You have to balance that against the public good that comes from transparency.

Nico: And that’s actually a conversation that I’ve been seeing happen a lot. There is a paper put out by Jonathan Rauch and someone else about what they call radical transparency. There was a big movement for transparency in the ‘90s and 2000s, but there seems to be a backlash to that insofar as to say, well, it’s hard to compromise now because everything that’s discussed behind closed doors is now subject to public records request or to transparency laws.

And it’s saying, it kinda helps supercharge the polarization we’ve seen in the society because you can’t speak candidly about anything anymore, to the extent – backdoor deals can be bad, but they can also be good because they can allow people to not have to work through some of the issues in the public. So, what do you make of that? You said you have to balance it.

Jameel: Yeah. Look, there are trade-offs here and I think that the answer with respect to one set of proceedings or documents may be different from the answer – the right answer with respect to another set of proceedings or documents. And we should recognize that there are benefits to transparency, but there’s sometimes cost. I mean, I don’t – I’m not of the view that we have gone radically too far in the direction of transparency. To the contrary; I think that overall our problem is still one of opacity rather than transparency. But that’s not to say that I think more transparency is a cure-all across the board. I think in some contexts more transparency would be –

Nico: So, you’re not arguing for perfect transparency in all government processes.

Jameel: I guess I’m arguing for perfect transparency, but perfect transparency and total transparency I would say are totally different things.

Nico: Yeah, okay. Fair enough. You had a conference that I actually attended; a fascinating conference back in March. I think you cosponsored it with the Columbia Law Review of A First Amendment for All? Free Expression in an Age of Inequality. And I was struck by how many of the scholars there were just very skeptical of the direction the First Amendment has gone in recent years, expanding the scope. Now often, striking down regulatory or economic policy in a way that it wasn’t when our seminal First Amendment cases, for example in the ‘60s and ‘70s, were being litigated and decided. And since then Janus happened, Masterpiece Cake Shop, there was the NIFLA case, and then Elena Kagan of course.

And this is a phrase that I’ve heard a lot at your conference, that the First Amendment is being weaponized. This is kind of a two-part question: The first question is: do you see growing skepticism within the progressive movement when it comes to the First Amendment? And then the second part of that: if so, is that a good or a bad thing?

Jameel: Yeah, yeah. Well, so, one of the reasons we co-hosted that conference is that we have a litigation program, and the litigation program requires us to take strong positions. You can’t walk into court and say, “On the one hand this – on the other hand this –” You have to take a position and defend it. But, we don’t have answers to every question and the research program gives us the opportunity to explore questions that we haven’t yet been able to answer.

A lot of us here have been thinking about what it would mean to have a First Amendment that was more attuned to issues of equality. I mean, is there a version of the First Amendment that could be more attuned to those issues, or would it mean – would it necessarily mean compromising the things about the First Amendment that we really value – the sort of neutrality of the First Amendment that we often really value? And so, we co-hosted the conference as a way of sort of exploring that set of questions. That wasn’t your – your question was –

Nico: Well, I understand being in that position, because there’s this sort of meta-debate happening on the campus free speech community and those who comment on it, whether there is a crisis on campus. And FOIA has never said that there is a crisis on campus and we would really never take that position just because it doesn’t matter to us to the extent there is a crisis – to the extent one person’s right is violated that’s cause for us to become involved. And so, what we did is we hosted the debate with people on all sides of that issue to kinda flush it out because we couldn’t avoid it. But we also didn’t feel strongly enough to take a position on it.

Jameel: Yeah, yeah. I think that we will over time have to and want to take positions on some of these – some of the questions that we debated at the conference. A lot of them we haven’t yet, as an Institute, taken positions on questions related to campaign finance – We haven’t litigated those questions yet. Or commercial speech, or even regulation of social media, which is something we’ve spent a lot of time thinking about over the last few months.

We haven’t taken a position yet on what that regulation should look like, how tolerant the First Amendment should be of efforts by the government to regulate the social media companies. And all of these questions: campaign finance, commercial speech, regulation of social media – they’re all, in some ways, interesting for the same reason, which is that you have free speech interest on both sides of the V. With regulation of social media, you have the social media companies asserting their own First Amendment right to create the community that they want to –

Nico: Yeah, their own editorial right to decide what expression is hosted on their platform.

Jameel: Right, right. And that’s not an implausible argument –

[Crosstalk]

Nico: Despite the fact they say they’re not news organizations or media companies. They won’t have it always.

Jameel: And then on the other side you have users of social media who say, this is the public square and whatever rules Facebook adopts here are rules that have the same effect, or even a larger effect than the rules of the government adopts with respect to the analog public square. And so, you have the –

[Crosstalk]

Nico: And I think you’ve got work on this. I have friends who work at a journalist outlet and when they try and advertise their posts, for example, on Facebook, it falls within their issue of advocacy, incidentally to register, and it becomes a –

Jameel: This is a bit of a digression, but I think of a lot of these questions as sort of presenting free speech interests on both sides, and we, like a lot of other people, struggle with how to reconcile or how to balance those competing First Amendment claims. And this symposium was an effort to address at least one set of those – a subset of those questions. You asked do I see increasing skepticism amongst progressive – Yes, absolutely. Skepticism about the First Amendment.

Now, the skepticism that I see is about the First Amendment as it’s been interpreted by the Supreme Court over the last couple of decades. You mentioned this sort of deregulatory First Amendment, the increasing use of the First Amendment as a deregulatory tool. And I definitely see skepticism from progressives about that. I don’t think Justice Kagan is on her own in expressing profound reservations about the use of the First Amendment to limit the government’s ability –

Nico: Yeah, Michael Sideman over at Georgetown had that popular – I think it’ll actually be in the November Columbia Law Review. Sort of came out of this conference where he said, “Can’t free speech be progressive?” And his answer, “More or less, no.” But it was “no” in a way that I don’t – I think a lot of people have missed. He said if you wanna use the First Amendment to reach certain progressive outcomes, such as defeating income inequality, for example, you can’t expect it to do that.

Jameel: Yeah, yeah. You’re expecting too much of the First Amendment. And I think what he would say, and what, I think, he did say in his paper is that progressives should look to other mechanisms to achieve those kinds of ends.

Nico: One thing he did say, that struck me as sort of unfair, is that he said, “The First Amendment can be utilized in a greater way by people with greater wealth.” And David Cole, recently, at the New York Times said – he’s sympathetic to that argument, but it argues too much. I mean, you say that about any right, for example, the right to an abortion, the right to hire a good criminal defense attorney, the right to send your kid to private school, for example. And what level of equality is enough for us to say, “Okay, now we can defend these rights.”

Jameel: Yeah. I mean, I guess for me, I think the more useful strategy at this point, or the more useful thing to do at this point, is just to think about the values we want the First Amendment to protect. And if you think of self-government as central to the First Amendment’s concern – I’m not suggesting that self-government exhausts the First Amendment’s concerns, but it’s certainly core to the First Amendment’s concern.

Maybe we should evaluate each of the Supreme Court’s decisions over the last 10-20 years by reference to self-government and ask whether decisions striking down campaign finance regulations are in fact serving that particular value; do they make it more possible for us collectively to decide what kind of society we wanna live in and achieve that kind of society, or are they getting in the way of those kinds of decisions. And same with regulation of social media. If you want to decide how much weight to give to Facebook’s claim that it is entitled to full First Amendment protection for its “editorial” decisions.

If you wanna decide how much weight to give to that argument, as opposed to the argument of Facebook’s users that Facebook is akin to a public square and that it should be expected to govern the public square in the way that a public square ought to be governed, well, maybe refer back to self-government. Maybe ask the question: which of these arguments better serves that underlying value. Now, I’m not gonna pretend that from self-government you can go directly to a single answer. There’s gonna be a debate about it. But it narrows the debate to think about the values that the First Amendment –

[Crosstalk]

Nico: Yeah, and there are multiple. There’s the marketplace of ideas, the search for truth, the idea of individual autonomy, which is like the libertarian argument. So, yeah balancing, or figuring that out which –

Jameel: I think it’s fair to say that virtually everybody thinks that self-government is core to the First Amendment’s concern. Now once you get beyond self-government, people disagree about how much weight you should give autonomy; how much weight you should give to sort of self-expression or self-determination –

[Crosstalk]

Nico: Yeah, I think it’s few and far between –

Jameel: I think self-government is the common –

Nico: Few and far between are the people who would argue that the First Amendment isn’t important for that reason.

Jameel: Right, right. Yeah, so, anyway. I wonder whether sort of starting from the values, rather than from the doctrine might be a helpful way of approaching some of these questions.

Nico: So, last question here, because I – we have two more minutes here. Artificial Intelligence; have you been thinking about that question at all? I’ve done like three podcasts on it at this point, and everyone is very confused as to how we should think about artificial intelligence’s First Amendment protections.

Jameel: Yeah. It’s a great question to which I don’t have a good answer. But if we have only two more minutes I wanna mention another project that we’re working on, which is not unrelated. So, we have been representing journalists and researchers who study the social media platforms and they want to inform the public debate about how these platforms work, and what speech is getting privilege, and what speech is getting suppressed – And they find their research stymied by the social media platform’s terms of service which bar the use of certain digital tools.

You can’t scrape Facebook – you can’t scrape publicly available information from Facebook. You can’t use a temporary research account on Facebook because it violates their fake account prohibition. And Facebook isn’t the government, and Facebook isn’t bound by the First Amendment, and so it’s hard to make an argument directly under the First Amendment that Facebook is acting unlawfully by preventing researchers and journalists from doing this kind of work. But, this kind of work is really crucial right now to helping us understand how the digital public square works; helping us understand the human and algorithmic decisions that shape the public square and that shape public discourse.

Nico: Of course, the controversy surrounding bots and their influence on the 2016 election, which is I imagine one reason you can’t have research accounts on Facebook, for example.

Jameel: Yeah, yeah. Yeah, I think that generally the prohibitions that Facebook and other platforms have on the use of these digital tools, generally those prohibitions are very easy to understand, and I think serve obvious purposes, obvious legitimate purposes. But they also have the effect of impeding or altogether preventing certain kinds of journalism and research that are especially important right now. And so, we have been talking to Facebook; we sent Facebook a letter, or a public letter a few weeks ago urging Facebook to adopt a safe harbor for certain kinds of journalistic research.

[Crosstalk]

Nico: I saw that on your website, yeah.

Jameel: Yeah. And we’ve been talking to Facebook over the last few weeks about that proposal and we’ll be putting more energy into that. Not just with Facebook, but with other platforms as well, trying to get them to come up with ways of protecting their users’ privacy and protecting the integrity of their platforms, but also allowing for this kind of journalism and research, which are so important right now.

Nico: Right. Well, I think we’ll leave it there. Jameel Jaffer, thank you for coming on the show today. The Knight Institute is protecting free speech and free press in the digital age. Thank you.

Jameel: Thank you.