Floyd abrams joined the advocates and legal scholars for a discussion about First Amendment cases in the courts during the Constitution CentersFirst Amendment a summit in philadelphia. They discuss how the court may view social media and contrast to traditional media and the importance of a free press. Thank you, everyone. I confess that i was showing up with lincolns socks. The Supporters Committee had a socks, but im still a little bit stiff in public and i cant bring myself to wear them yet. They are on the website if you want to go check them out to walk the First Amendment walk. Im delighted to be here with jamil and larissa and we are going to get right into it to ie we have a lot to cover. The last few months have been a busy time for First Amendment washers. So many different headlines and cases. The newspaper in kansas a lawsuit in florida brought disney. A Defamation Case against fox news that fizzles out into a very large financial settlement to the company. Texas bull stick talk off of stateat devices and networks and montana decides lets ban it altogether. The two cases bulging social media, one in texas, one in florida and finally now the Biden Administration has weighed in. Then last friday two more developments. A federal appeals court, the circuit ways in any very interesting case about government contacts with social media platforms around content they carry and whether they crossed the line and then a case we will hear floyd to talk about where hisld law firm represented twitter. We can still call it twitter, right, in philadelphia . [laughter] i think we can still say twitter. Its over itser moderation law. Looking at this vast array of cases, id like to go to each one of you to see where you view these areas and where do we as press advocates have to play defense and where are the opportunities . As press lawyers we often griped that the Supreme Court hasnt heard a libel case in 30 years and 20 plus years since theres been any case but theres a lot going on out there. What are the opportunities . I will start with you. First let me say thanks to everybody that is involved in putting this together. Its great to have such a big crowd. I guess what i think about the dangers and a opportunities, i m definitely worried about the erosion of the doctrine for example the right to speak anonymously if significant important rights that is under a lot of pressure right now. I worry about that. But to be honest, its been more time worried about not to the erosion of the First Amendment doctrine but rather the calcification of the First Amendment doctrine goes without saying that we live in this era of incredible technological change and information ecosystem that we live now. Its totally different from the one that exists ten or 20 years ago. I think its important that we hold onto the First Amendment values its meant to protect like accountability, intolerance, autonomy, truth speaking and selfgovernment. These are really important values at least as important now as when the First Amendment was drafted. But i think the firstst amendmet doctrine needs to be responsive to technological change and now what we used to call the Public Square is almost entirely owned by private corporations. Social media has democratized a speech in a lot of ways but also introduced the whole set of pathologies. Its also true that Surveillance Technology i think has turned on its head to the traditional relationship or the ideal relationship between the citizens and the government and now its increasingly fair to say that citizens are totally transparent to the government not just the powerful private actors as well but whereas those governments and private actors are almost entirely opaque to us and that is the complete reversal of the appropriate democratic relationship. I think the First Amendment has to be responsive to all that and i worry when i see other First Amendment advocates and First Amendment litigators defending First Amendment doctrine that was in and of itself. The doctrine exists to protect a set of values and i dont think we should lose set of those values. Thats what i if im up at night worrying about the amendment thats probably what im worried about. We are looking at this vast array of headlines. Where do you see the opportunity and where do you worry about erosion . Im not looking for a lot of new law. I think the direction we should be most focused on is preserving the old law not necessarily very old, but applying the principles that made us the most free in terms of free speech and free press in the history of the world and not moving away from there. You cant escape new problems with new technology and the like. I think one of the most important issues that will surely be litigated not just in a few years but does relate to mesocial media to the degree to which social media will have more or less the same level of the First Amendment protections that means actions to government control arrows would otherwise be the case. Social media is where a lot of the action is on the ground, but in terms of First Amendment law. Other cases that were referred and the Supreme Court sooner rather than later about questions like can states require social media entities to have what we used to call the fairness doctrine one on one side and you must put the other side on. That has been held unconstitutional with regards to the press the Supreme Court has said unambiguously not being challenged at all now. You cant tell you newspaper what to print, period. Its not fair that they are loaded in this direction or that. Too bad. Read another newspaper. Do something else. Or really is rather simplified. The way to describe but its not wrong and its very important about how the social media will be treated. In my view they have a very strong argument that they should get the same or Something Like theam same amount for some of te same sorts of reasons for fear of government control and oversight. But not necessarily how the law is goinge. To move. In one case they will probably decide in the next year in florida and texas legislators which passed walls designed to assure the legislators in those states that will spare so an absolutely critical moment in the court of appeals for the fifth circuit a judge asked the lawyer for the company, social Media Company are you saying you could have on the ground that you could favor a democrat over the republicans, and the answer was yes. Yes, you can to it. Now, no one now thinks that the law is certainly not is or even plausibly is about to change so that a newspaper or a mag seen e or a book writer can be forced to answer the question, arent you bias, youre in your pockets, all you to is praise them and denounce them. That situation and i believe into the future is really clear. We dont w have a great idea wht the court is going to say about social media on that. The other topic, we are going to have defamation which three of the most conservative members of the court who have said in so many words that they would two plus one that we know, that they want to set aside what may be the greatest victory which is New York Times and sullivan case of 1964 as the court has become more conservative and some members of the court have become unambiguously antipress. It makes it all more likely that that that case may welcome up before this court and while for what its worth, i dont think they are going to reverse in effect or set aside, New York Times against sullivan, we dont know. Its in play, its in play intellectually, its in play ridiculously and so i think thats i think they will take one of the cases, some very sympathetic case from the point of view of someone who has been wronged and because we protectno speech so much doesnt have a remedy. The other thing i can say is that i really cant talk about the twitter case. Okay. Because its just been filed. Understood. Ill like you to engage on the same question but add one more layer to it. You have devoted your life as an educator, Law School Professor and i think everybody was quite interested in hearing l from yor perspective as a law professor what are you struggling persuade the students today, where do you see weaknesses in their understanding and appreciation of of First Amendment juries prudence and what thoughts do you have in order to restore the belief. So when youre thinking law students, t important to remember that law students are just people like the rest of us and so they have some of the same biases like the general public things i worry about generally is kind of the suspicion of the press, suspicion that the press is not providing information in a way that undermines support for press freedom generally and it increases overturning maritimes versus sullivan and criticize influencers as extended by the Supreme Court. Even more so, the biggest tension i see in students is a big tension between liberty and equality. And and so, they are much more interested in punishing speech that might be thought to threaten equality, what they see as hate speech. They are much more interested as a whole, these are gross generalizations, there are variations in students. The Younger Generation sees emotional harm as a threat to their very safety in a way that might justify speech regulation. You see this slide, right, speech that is offensive become speech that makes me feel unsafe. And so the idea that we have to tolerate that speech is part of living in a democracy and the idea that we tolerate a speech because we do not know who is going to be in power the next iteration of elections and we cannot be sure that our side will be in power the next time and what our side considers offensive may not be the same thing that is considered offensive to the other side. And so, that tension between equality and liberty comes out differently for a lot of people to the Younger Generation. Convincing them that their views may not win and they need neutral principles to adopt so that, to ensure liberty for all of us, is a harder self than he used to be. Mr. Brown are there things we can do to help buttress the belief in the First Amendment with this group . Ms. Lidsky teaching civics is really important. I teach constitutional law as well as First Amendment law and media law. So, say in broad sweep of history and understanding that in the cycles of history, there is always an authoritarian impulse to silence that speech with which we disagree. And it always will be look at ends badly. It is never a good thing. History gives you humility and it is the only way that the individual on the last panel talked about teaching students about the constitutional principles that bind us together in the importance of holding our elected officials to norms that support those principles because we do not know that we will always be the ones in power. We need some common neutral principles that will bind us together despite our differences. Mr. Brown thank you. [applause] very good, yeah, all right. Keeping with our teaching theme, i think it was secretary raimondo who said recently about the tiktok ban. If you want to lose every voter under 35, go ban talk. Tiktok. Do you see an opportunity in these cases an important opportunity to invigorate this generation with the importance of the First Amendment protection . Mr. Jaffer absolutely. First, i have heard larson said this before. It is really important that we teach the history of the Civil Rights Movement in connection with free speech because the truth is of the Civil Rights Movement in this country never have gotten off the ground but for the freedom of speech. The First Amendment protected that speech. It is much harder to see free speech and equality is in opposition once you understand a little bit about that history. On the tiktok stuff, yes, i do think there are college students, College Age Students who care a lot about access to tiktok because tiktok is a place where they themselves post content. They participate in conversation themselves and their listeners as well as speakers in that space. There is a kind of dismissiveness on the part of some people who do not use tiktok, mostly older people who do not use tiktok and they think it is just about dance videos or and is true there are some very good dance videos on tiktok. [laughter] there is a lot more than that on tiktok, including political speech, speech about every topic under the sun is on tiktok. And is presented in more ways than you can possibly imagine and its in more communities than you can possibly imagine. And a lot of that speech is really valuable, societally valuable speech, socially valuable speech. Even if you think of dance videos as outside that description. In these College Age Students now see political leaders proposing to or even actually doing it, banning access to this platform. And it is perhaps the introduction to what free speech means in this country with the First Amendment and what it means in this country. As you know, bruce, my organization has challenged the constitutionality of texass tiktok ban as it to Public University professors. It reaches only state employees. One effect of that ban is to prevent Public University professors from accessing tiktok in the classroom or studying tiktok, including studying the problems of disinformation and Data Collection on tiktok that are of sensibly the justification ostensibly the justification for the ban in the first place. But i think that floyd mentioned quite appropriately that we should be concerned about preserving old First Amendment doctrine. One of the cases we are relying on in this case is lamont versus postmaster general which is a 1964 i think case involving a statute that requires people who wanted to receive communist propaganda from abroad to register with the post office before they could receive it. The Supreme Court struck down that statute saying essentially unless the government has a very good reason to prevent americans from accessing information from abroad it cannot prevent them from doing it or burden their right to access that information. The fact that the government regards this as propaganda is not a good reason. In one of the cases we rely on heavily in our brief challenging the constitutionality of texass tiktok ban is that case. In one of the questions presented in this case is how to apply that principle that was established in lamont vs. Postmaster general 50 years ago through this very new and different context. But i do think, to answer your question, at it is possible that some younger people who have not yet had occasion to become familiar with the First Amendment or fault in love with it or fault in love with it might become familiar with it and fall in love with it because of these threats to ban a platform that they care a lot about. Mr. Abrams the phrase will be dance in the streets will take on new valence after the dance videos on tiktok. Mr. Brown floyd, this is a perfect setting to ask you a question about the work you are doing at Yale Law School on the press clause. When you announced the project recently you said quote, for too long the provision in the First Amendment freedom of speech and of the press would be protected from government abridgment has led to justifiably broad protection of the former with far too little notice of the latter. It is time to begin to address that constitutional decision see deficiency. We are also eager to hear from you about what you are doing with this work and what you would like to see come out of it. Well, so far we are doing what academics do. Mr. Abrams we are having compasses. [laughter] we are having conferences, a series of conferences around the country with great scholars which we have done for happy year now. We are going to do it another year or so, hopefully we will write something up which might persuade someone on some corner or another. We have come amongst the problems we have in the country know about free press is that small newspapers are going out of business. Newspapers in areas which have been served sometimes only by one newspaper and which covers that town, that city, that part of that state are not only not driving but are rapidly going out of business. There is nothing that a lawyer or academic can do about that. I asked when editor one editor of an iowa newspaper with a circulation below 2000, i said to you from a lawyer to a journalist, what could we do . Suppose we asked you, what would you like . He said, well, lower mail rates. I thought well, i cant help with that you know . The question is is there something we can do in law, something that we can credibly hopefully persuasively argue that the First Amendment provides, which could at least be of help when these organizations are up against google or other super large entities, what with which they dont have good relations that would charge them a lack of money a lots of mon