BROOKE GLADSTONE: This is On the Media. I’m Brooke Gladstone.
BOB GARFIELD: And I’m Bob Garfield. We’ve just heard about how the First Amendment, so central to our view of liberty, was mainly dormant ‘til the 20th century. Since then, case after case reaffirmed something close to absolute protection from government censorship, prosecution, and so on, for even the ugliest and most belligerent speech. But the underlying premise in 1789 and up until now was that speech was scarce, hard to get into the public sphere and, once there, hard to ignore. In the internet era though, the social media era, the supply and demand proposition has flipped. In the so-called “marketplace of ideas” the key commodity has become not access to an audience but the actual attention of that audience. And few have commanded attention better than the ugliest and most belligerent on the web, that is, until very recently.
FEMALE CORRESPONDENT: Twitter is planning to permanently suspend Alex Jones's personal account at InfoWars. This comes after Twitter CEO Jack Dorsey was on Capitol Hill yesterday speaking with lawmakers.
BOB GARFIELD: Jones earned the boot, ironically enough, due to his coverage of a Senate Intelligence Committee hearing on policies of Facebook and Twitter. The event underscored a recent article by Constitutional scholar Tim Wu who argues that the First Amendment, itself, has been rendered largely irrelevant because its underlying assumptions have been obsoleted by technology. “It is a body of law,” he wrote, “that waits for a pamphleteer to be arrested before it will recognize a problem.” But rather than obsessing about the heavy hand of government, he says --
TIM WU: The greater threat, I think, to speech today is using speech, itself, as a weapon. That is, you try to flood the speech environment with your own version of reality. Journalists get attacked and discredited. It's a different kind of warfare, a different kind of speech control and one, as I've said, that puts the Constitution basically on the sidelines.
BOB GARFIELD: Okay, to give a notion of how anti-democratic that is, you point to China, which has embraced this kind of drowning-out regime more than actual censorship to preserve itself from dissent.
TIM WU: Yes, that’s right. They just employed an army of a million people, approximately -- like, no one knows the exact number, the 5-cent army they’re sometimes called -- who just were paid small amounts of money to say pro-party things in chat rooms, discussions, obviously, controlling what journalists say.
Russia came up with its own techniques. They were the pioneers of the abrasive troll army, which swarms critics and attacks and humiliates them. And, unfortunately, those techniques have immigrated to the United States.
BOB GARFIELD: Actually, you don't have to go to Beijing or the Kremlin to understand the drowning-out phenomenon. On Wednesday, a protester stood up in a hearing of the House Committee on Energy and Commerce. She was trying to denounce the supposed Twitter censorship of conservative voices, whereupon [LAUGHS] Republican Congressman Bill Long, a former auctioneer, jumped into the fray.
LAURA LOOMER, PROTESTOR: Please help us, Mr. President, before it is too late because Jack Dorsey is trying to influence the election, to sway the election to the Democrats and steal the election.
BILLY LONG: What? What did she say? I can’t understand it. What?
[REP. BILLY LONG, AUCTIONEER TALK/END CLIP]
BOB GARFIELD: Yeah. Was that a small-scale version of
exactly the threat that faces us?
TIM WU: I think you hit the nail on the head or hit the hammer on the auction block. Control of speech today is about control of attention. Everyone's attention turned to the congressperson, so, you know, the protester was lost. But protesters understand that too. You know, look at Alex Jones harassing Marco Rubio.
MARCO RUBIO: Don't touch me again, man. I’m asking you not to touch me.
ALEX JONES: Well, sure, I just patted you nicely.
MARCO RUBIO: I know but I don’t want to be touched. I don’t like to be touched.
I don't know who you are.
ALEX JONES: You want me to get arrested.
MARCO RUBIO: You're not going to get arrested. I'll take care of you myself.
ALEX JONES: Oh, oh, you’ll beat me up.
MARCO RUBIO: I didn’t say that.
ALEX JONES: You don’t know who I am but you’re so mad. You’re not gonna silence me!
TIM WU: The whole world has come to turn on this game of who can get the most attention, with the understanding that's where the power lies, and it has fundamentally changed the media landscape and made the First Amendment something of a bystander.
BOB GARFIELD: Here’s Twitter CEO Jack Dorsey testifying this week.
JACK DORSEY: We believe many people use Twitter as a digital public square. They gather from all around the world to see what's happening and have a conversation about what they see.
BOB GARFIELD: We just heard Jack Dorsey talking about the public square. And now, [LAUGHS] you’ve written about a case called Marsh v. Alabama from 1946. It was about the company town of Chickasaw, Alabama, which was owned and operated by the Gulf Shipbuilding Corporation. And this town required a permit for distributing religious literature. A woman was arrested for doing that and she argued that it was unconstitutional. And the Supreme Court determined that the town may have been private but was, in effect, the public square, a public space and the First Amendment applied. The woman was acquitted. This case has been cited as potentially precedent for extending the First Amendment to Facebook and Twitter as de facto public square. Is that a reasonable approach?
TIM WU: [LAUGHS] You’re right that occasionally the Supreme Court has said a private company can assume so many public duties, have so much control over the speech environment and be so much like a state that they, themselves, become bound by the Constitution. Normally, the Constitution only binds government. Even though I agree that Twitter and Facebook have, you know, tremendous power over discourse, the idea of them being bound by the First Amendment, to me, goes too far because, among other things, I think it’s counterproductive. It would then make them subject to suits by, for example, fake users who are claiming that well, you know, we’re just robots and we want to speak too or anyone who wants to have their say would turn the whole morass into a giant bed of litigation.
BOB GARFIELD: So what laws might be enacted by Congress that could address the current reality without creating a morass or running afoul of the Bill of Rights?
TIM WU: I think there's two areas. One is the enforcement of existing laws. You know, we live in an era where journalists and, and another critics and speakers are routinely subject to death threats, harassment; they’re essentially silenced. And I think law enforcement needs to see that they have a constitutional duty to protect speakers from attack. I think we do need new laws. I take the position that the First Amendment includes what you would call an accomplice liability doctrine, which is to say, you know, if the president calls or any other politician calls out a journalist and says, you know, go get them because they insulted me earlier, that that should be understood as a violation of the First Amendment. It would be illegal, obviously, for the government to arrest its critics but ordering a private mob to attack the press can be just as bad. And if you can draw a direct line between the president inducing or cajoling or telling people to attack a member of the press and other people obeying his orders, he could be successfully sued and enjoined from doing so.
This brings to mind, by the way, what I really think Congress should do. What we need right now is a new bill which fortifies the ability of federal prosecutors -- and states could pass similar laws -- to go out and arrest people who are trying to hurt, destroy, threaten the press and make it difficult to report on news. The project of governance requires good information to make decisions. This country is in grave danger of becoming basically a lot stupider. I mean, it already has but I actually think it could get worse.
BOB GARFIELD: I want to ask you about the old days when there was no internet, when there was no glut of speech, when political discourse was more or less curated by three broadcast networks, two newsmagazines and a bunch of daily newspapers. The news organizations served as gatekeepers who made sure that extreme voices were squeezed out of the conversation. Now, one of the beauties of the internet is that it’s far more inclusive and, and letting the audience decide which speech is intolerable and which isn’t. What I’m wondering is, to switch metaphors, is compelling social media to self-police, to be gatekeepers, does that throw the baby out with the bathwater? And by the baby, I mean the beauty of democratic access to political speech.
TIM WU: It seems funny to me to have some nostalgia for the news reporting style of the 1950s, although it turns out that certain gatekeeping is important. I refer just to the basic idea that you report facts, you don't report rumors, that you occasionally bore your audience is something that is slightly less prurient [LAUGHS] than whatever the president said yesterday. Now, I don’t know if we need to go as far back as things were in 1959, the height of, of boring-ness, I guess, but we’ve certainly gone way too far in the other direction. Yes, you hear more views but there is such a thing as going too far.
BOB GARFIELD: All right, Professor, what’s gonna happen?
TIM WU: The, the thing with a tabloid style country is, like any reality show, you get sick of it after a while. And I wouldn't be surprised if we have a swing back towards, especially after this administration passes, something just a little bit more tedious.
[MUSIC UP & UNDER]
You know, it’s like being at a, at a restaurant where you’re eating red meat all the time. I think people get sick of it. You know, you're looking for something a little more starchy.
BOB GARFIELD: [LAUGHS] Thank you for your simple carbohydrates.
TIM WU: That’s me, Mr. Broccoli, I guess, I don’t know.
BOB GARFIELD: Tim Wu is a professor of law at Columbia University. His chapter, “Is the First Amendment Obsolete?” can be found in the forthcoming anthology, The Free Speech Century. And his book, The Curse of Bigness: Antitrust in the New Gilded Age, will be out in November, as well.
That's it for this week show. On the Media is produced by Alana Casanova-Burgess, Micah Loewinger, Leah Fedder and Jon Hanrahan. We had more help from Samantha Maldonado, and our show was edited -- by Brooke. Our technical director is Jennifer Munson. Our engineers this week were Sam Bair and Merritt Jacob.
BROOKE GLADSTONE: Katya Rogers is our executive producer. Jim Schachter is WNYC’s vice-president for news. On the Media is a production of WNYC Studios. I’m Brooke Gladstone.