The mainstream news industry has been in sharp decline since the 1990s, owing to a series of financial and cultural changes brought by the rise of the internet. Amid the closing or shrinking of newspapers, magazines, and other legacy news outlets, Americans have increasingly turned to social media and heavily partisan websites and cable networks as their main sources of news and information, which has led to a proliferation of disinformation and misinformation and fueled polarization.
Given the vital role a free and responsible press plays in American democracy and the unique protections the Constitution provides for it under the First Amendment, is it time for the government to get involved? Is it governments place to do so? And how could that happen without infringing on that freedom?
In a new book, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech (Oxford University Press, 2021), Martha Minow, 300th Anniversary University Professor at Harvard Law School, says the First Amendment not only does not preclude the federal government from protecting a free press in jeopardy, it requires that it do so. Minow spoke with the Gazette about some of the ways to potentially clean up social media and bankroll local news, and why arguing on Twitter isnt a First Amendment right.
GAZETTE: There seems to be broad misunderstanding about what speech is protected by the First Amendment and what is not. Underlying cancel culture and complaints about deplatforming is a belief that people should not be penalized for saying things online that others find objectionable or that are inaccurate or even false because of their right to freely express themselves. Can you clarify how the First Amendment applies and doesnt apply to social media platforms, like Twitter or Facebook, and online generally?
MINOW: I wrote a book to examine the challenges and decline of the news industry during a time of exploding misinformation and disinformation, a global pandemic, and great challenges to democracies in the United States and elsewhere. Certainly, one big dimension of this context is [what] some people are calling [an] infodemic: the flood of information that is enabled by the Internet, and particularly social media. But it is not just social media. Its conventional media, particularly cable news, but also some broadcast news.
Most of the sources of communications are private, and private communications are not governed by the First Amendment. Private companies are entitled to edit, elevate, suppress, remove [speech], whether its in broadcast, cable, or on a social media platform. Indeed, private companies have First Amendment freedoms against any government intervention. We in America are very fond of rights, and rights maybe are what hold us together more certainly than shared traditions, shared identities. And one of the ways thats really evolved is how we talk about rights as if its a cultural phenomenon or its part of our identities. But that kind of informal conversation about I have First Amendment freedom may be a metaphor on a social media platform, but it is not a legal right. We sign terms-of-service agreements with platform companies. Theyre the ones that control what is communicated and whats not. Thats much less edited than broadcast or cable or print media. So, were living in an unprecedented time of lowered barriers to communicating to mass audiences almost anybody can have access to a mass audience. But thats all enabled by private providers and the private providers are not restricted by the First Amendment in what they remove or amplify.
GAZETTE: What are a few of the measures that could effectively hold tech firms to account for what is published and shared on their platforms?
MINOW: When it comes to holding the platform companies responsible for conveying, amplifying, even escalating hateful communications, misinformation, [and] disinformation, there are some techniques, but we have to be careful because if the government is involved, then the First Amendment is front and center. The techniques include eliminating or reducing the immunity currently granted under the [1996] Communications Decency Act, which has a section, Section 230, that treats platform companies differently from any other media and specifically immunizes them from liabilities that apply to all these other entities. They include liabilities for fraud, for defamation, for violating contract terms. [But] even Section 230 does not immunize the platforms from criminal responsibility or from violations of intellectual property rights. So, one very direct step to hold companies responsible would be to either eliminate this immunity or make it conditional. I actually prefer that alternative.
Companies adopt and should adhere to standards of moderation, content moderation rules. They can develop their own, but the idea would be theyd have to announce standards; theyd have to report on them; and theyd have to have processes to act on anyone calling them out for violating their own standards. Thats pretty direct, and it would put them on the same par as all the other media entities that exist in the country.
Another possibility would be to take intellectual property seriously and make the platforms pay when they take or steal or promote information from other news sources. They dont put the revenues that they gain, particularly from advertising, back into investment in news. Its not a punishment; its simply the idea of holding them responsible like [the] grown-up companies that they are.
You know, the fact of the matter is, the big disinformation source is as much broadcast and cable [television as it is online] and on those, there is a basis for government regulation. The FCC could take that seriously and withhold licenses, remove them, terminate them, for companies that are misleading people, that are labeling as news something thats entirely opinion. Cable is largely a monopoly. Local communities grant franchises to cable companies; local communities could hold them more responsible. I dont look forward to a day, I hope we never see it, that the government, at any level, is deciding the content. But when there is scarce opportunity to amplify communications given to private companies, its only fair that they should have standards that they then deliver on [by] providing some quality control of what they amplify. There is no right to have your message sent to everybody in the world anywhere. What there is, is a right to be free from government restrictions on your speech. So, one very specific suggestion that I have is that when we deal with digital communications, there could be a delay, and there could be speed bumps. Before people can spread messages to large numbers of people, there could be a delay, they could even use artificial intelligence to monitor it before it can be spread beyond a handful of people.
GAZETTE: The era of self-policing hasnt worked very well so far, but you say there are things companies can and should be doing right now to act more responsibly and to help support the news. What are a few of those?
MINOW: I agree with you that self-regulation has not worked. Its striking to me that Mark Zuckerberg has said, in effect, We need help. We cant do it alone. And so, I think this is a problem thats bigger than any one company, and it does require government action. The government can act by enforcing, or strengthening and then enforcing, consumer protection rules, including rules about the uses of our data. The government can act by limiting the immunity granted to internet platforms and condition it on the development of codes of conduct that are then enforced. And the government can act by making rules that require sharing the information about the algorithms and their uses with a watchdog, whether academic or nonprofit organizations. We need to improve the entire ecosystem in which information circulates.
GAZETTE: Local news has been a vital part of that ecosystem. Government can support local news without necessarily wading into a First Amendment quagmire, you argue. What are some ways that could be accomplished?
MINOW: Local news is more trusted by people. Theres less polarization in local communities; theres more accountability. But with its decline, which is massive, theres a loss of accountability journalism in local communities and a loss of this ecosystem. And so, one thing to consider is to tax the big platforms and to cordon off the revenues that are generated and plow them back into supporting local news and public media and nonprofit media. Theres a Local Journalism Sustainability Act introduced in the Senate [in July], and it parallels a bipartisan [bill] in the House that uses tax deductions and tax credits to strengthen local news. One of the interesting ideas there is to give a tax break to local companies that buy ads in local news. Another is to relieve payroll taxes for nonprofits and for-profit local news if they hire more journalists. And finally, a dimension that I think is interesting but has its tricky elements, is to allow [tax] deductions for individuals who either subscribe to local news or make gifts to local news. Thats great in the sense that theres no government involvement. But its problematic in that we already know that they are disguises for disinformation, for foreign governments to pretend that they are nonprofit organizations in this country and to hijack whats otherwise a good idea. So that needs some work.
GAZETTE: So, not a government-funded news service, like Voice of America, but financial assistance for individual news organizations so they can continue working independently and ideally, thrive?
MINOW: That is whats being proposed, and it certainly poses many fewer worries. It is really to strengthen this ecosystem of public and private, multiple, diverse, news sources. [These are] especially needed in the local context where we have news deserts thousands of communities that have no local news. When Michael Brown was killed in Ferguson, Missouri, and the Department of Justice undertook a massive investigation exposing the way that the legal system relied on fines and fees on the backs of poor people, one of the things that emerged was there was no local news. Bad things happen where no one is watching.
Interview has been edited for clarity and length.
Excerpt from:
Martha Minow looks at ways government can stop disinformation - Harvard Gazette
- Meet the Brothers Behind an Extreme Gun Rights Network Republicans Call a Big Scam - The Daily Beast [Last Updated On: June 26th, 2020] [Originally Added On: June 26th, 2020]
- The Brothers Behind an Extreme Gun-Rights Network That Republicans Call a Big Scam - The Trace [Last Updated On: June 26th, 2020] [Originally Added On: June 26th, 2020]
- Antifa, The Left-Wing Version Of Fascism | News, Sports, Jobs - Jamestown Post Journal [Last Updated On: June 26th, 2020] [Originally Added On: June 26th, 2020]
- COVID-19 and the Growing White Supremacist Menace - Foreign Affairs Magazine [Last Updated On: June 26th, 2020] [Originally Added On: June 26th, 2020]
- My Little Pony Fans Are Ready to Admit They Have a Nazi Problem - The Atlantic [Last Updated On: June 26th, 2020] [Originally Added On: June 26th, 2020]
- Can't Imagine a World Without Police? Start Here - VICE [Last Updated On: June 26th, 2020] [Originally Added On: June 26th, 2020]
- Black WaPo editor claims white women 'lucky' to be called 'Karen' - Filmy One [Last Updated On: July 1st, 2020] [Originally Added On: July 1st, 2020]
- Twitter sued for allegedly conspiring with Saudi Arabia government to shut down dissenting voices - Reclaim The Net [Last Updated On: July 1st, 2020] [Originally Added On: July 1st, 2020]
- Will the Social-Justice Mob Cancel Hamilton? - City Journal [Last Updated On: July 1st, 2020] [Originally Added On: July 1st, 2020]
- Dick Masterson says Patreon alternative New Project 2 is closing after getting blacklisted by Mastercard - Reclaim The Net [Last Updated On: July 1st, 2020] [Originally Added On: July 1st, 2020]
- Reddit bans r/The_Donald and 2000 other hateful subreddits because it was about time - The Next Web [Last Updated On: July 1st, 2020] [Originally Added On: July 1st, 2020]
- Progressives the voice of tyranny - Cowichan Valley Citizen [Last Updated On: July 1st, 2020] [Originally Added On: July 1st, 2020]
- Deplatforming - Wikipedia [Last Updated On: July 1st, 2020] [Originally Added On: July 1st, 2020]
- Whats the Deal With Parler? - Slate [Last Updated On: July 9th, 2020] [Originally Added On: July 9th, 2020]
- Why did it take so long for Reddit and Facebook to block racist groups? - The Guardian [Last Updated On: July 9th, 2020] [Originally Added On: July 9th, 2020]
- Theres nothing Marxist about Black Lives Matter - Spiked [Last Updated On: July 9th, 2020] [Originally Added On: July 9th, 2020]
- The Real Masters of 'Cancel Culture' The Pro-Israel Lobby - The Bullet - Socialist Project [Last Updated On: July 9th, 2020] [Originally Added On: July 9th, 2020]
- Facebook would be in 'way better shape' adopting Twitter's disinformation response, ex-Facebook security chief says - CNBC [Last Updated On: July 9th, 2020] [Originally Added On: July 9th, 2020]
- Is cancel culture silencing open debate? There are risks to shutting down opinions we disagree with - The Conversation AU [Last Updated On: July 10th, 2020] [Originally Added On: July 10th, 2020]
- Minds Wants to Pay You to Post on Its Social Network, and Is Expanding Into India - Gadgets 360 [Last Updated On: July 18th, 2020] [Originally Added On: July 18th, 2020]
- Owen Benjamin and His Personal Army (Collided With Reality) - Patheos [Last Updated On: July 18th, 2020] [Originally Added On: July 18th, 2020]
- The boundaries of free expression are up for debate in the Age of COVID-19 and Black Lives Matter - capitalcurrent.ca [Last Updated On: July 18th, 2020] [Originally Added On: July 18th, 2020]
- Judge allows withdrawal of Spencer's attorney - The Daily Progress [Last Updated On: July 18th, 2020] [Originally Added On: July 18th, 2020]
- Is cancel culture silencing open debate? The perils of shutting down disagreeable opinions and arguments - ABC News [Last Updated On: July 19th, 2020] [Originally Added On: July 19th, 2020]
- Milo Yiannopoulos is proof that deplatforming works [Last Updated On: July 19th, 2020] [Originally Added On: July 19th, 2020]
- On the ethics of deplatforming : stupidpol [Last Updated On: July 19th, 2020] [Originally Added On: July 19th, 2020]
- Social Media Deplatforming: Big Techs Gag Order - Dateway [Last Updated On: July 19th, 2020] [Originally Added On: July 19th, 2020]
- Is There A World Beyond YouTube for Crypto? - Cryptonews [Last Updated On: July 19th, 2020] [Originally Added On: July 19th, 2020]
- 9 weeks till NZ election what does the political landscape look like? - thedailyblog.co.nz [Last Updated On: July 19th, 2020] [Originally Added On: July 19th, 2020]
- Best and worst of this week's headlines: International students, sexual abuse - GW Hatchet [Last Updated On: July 20th, 2020] [Originally Added On: July 20th, 2020]
- WUWT is being deplatformed service interruptions the subsequent few days - The Shepherd of the Hills Gazette [Last Updated On: July 20th, 2020] [Originally Added On: July 20th, 2020]
- Is Cancel Culture Butchering the Centre? | Jonathan MS Pearce - Patheos [Last Updated On: July 20th, 2020] [Originally Added On: July 20th, 2020]
- Churchill: Troy preacher has the right to offend - Laredo Morning Times [Last Updated On: July 20th, 2020] [Originally Added On: July 20th, 2020]
- How QAnon Will Fight Back Against Twitters Ban And What Happens Next - Observer [Last Updated On: July 22nd, 2020] [Originally Added On: July 22nd, 2020]
- Goodbye Compromise - The Organization for World Peace [Last Updated On: July 22nd, 2020] [Originally Added On: July 22nd, 2020]
- Nearly half of Americans think cancel culture has gone TOO FAR... but 2 in 5 admit participating in it - RT [Last Updated On: July 22nd, 2020] [Originally Added On: July 22nd, 2020]
- What is deplatform? - Definition from WhatIs.com [Last Updated On: July 23rd, 2020] [Originally Added On: July 23rd, 2020]
- Its too late to stop QAnon with fact checks and account bans - MIT Technology Review [Last Updated On: July 26th, 2020] [Originally Added On: July 26th, 2020]
- Why Congress should look at Twitter and Facebook - MIT Technology Review [Last Updated On: July 27th, 2020] [Originally Added On: July 27th, 2020]
- Cancel Culture and Call Out Culture Are Not the Same - Study Breaks [Last Updated On: July 27th, 2020] [Originally Added On: July 27th, 2020]
- Florida man to be charged with vandalism of 2 synagogues - Forward [Last Updated On: July 27th, 2020] [Originally Added On: July 27th, 2020]
- Remains of 286 Jewish Holocaust victims uncovered in 2 basements in Ukraine - Forward [Last Updated On: July 27th, 2020] [Originally Added On: July 27th, 2020]
- How Transformative Justice Can Address Harm Without Police - Shadowproof [Last Updated On: July 28th, 2020] [Originally Added On: July 28th, 2020]
- Police Are The Real Cancel Culture - CounterPunch.org - CounterPunch [Last Updated On: July 28th, 2020] [Originally Added On: July 28th, 2020]
- Trump Jr. bashes Twitter over suspension: 'This never happens to ... the left. It only hurts conservatives' - Fox News [Last Updated On: July 29th, 2020] [Originally Added On: July 29th, 2020]
- Donald Trump Jr. Returns to Twitter, Reacts to Being Booted Off Platform - PopCulture.com [Last Updated On: July 29th, 2020] [Originally Added On: July 29th, 2020]
- If Cancel Culture Is About Getting Fired, Let's Cancel At-Will Employment - In These Times [Last Updated On: July 29th, 2020] [Originally Added On: July 29th, 2020]
- Big tech CEOs give Congress the 5 Ds of Dodgeball on anti-competitive behavior - The Sociable [Last Updated On: July 29th, 2020] [Originally Added On: July 29th, 2020]
- QAnon accounts banned by Twitter have already returned, with over 100,000 followers - The Daily Dot [Last Updated On: July 30th, 2020] [Originally Added On: July 30th, 2020]
- Who would sell Holocaust-themed face masks? This guy. - Forward [Last Updated On: July 30th, 2020] [Originally Added On: July 30th, 2020]
- East Hartford Police Union Claims GLOCK Pistols Are Defective!? - AmmoLand Shooting Sports News [Last Updated On: July 31st, 2020] [Originally Added On: July 31st, 2020]
- COVID Fatigue: The State of Public Policy on Coronavirus - The Globe Post [Last Updated On: July 31st, 2020] [Originally Added On: July 31st, 2020]
- Trump says he'll ban Tik Tok, to hoots of derision - Boing Boing [Last Updated On: August 1st, 2020] [Originally Added On: August 1st, 2020]
- Matthew Longley of Gun Critic About Buying Gunstreamer.com - AmmoLand Shooting Sports News [Last Updated On: August 2nd, 2020] [Originally Added On: August 2nd, 2020]
- NZ First anti-Green ads will backfire, but Kingi restaurant fiasco perfect ACT Party culture war propaganda - thedailyblog.co.nz [Last Updated On: August 2nd, 2020] [Originally Added On: August 2nd, 2020]
- If Big Tech makes enemies of conservatives, it will have no allies - Washington Examiner [Last Updated On: August 3rd, 2020] [Originally Added On: August 3rd, 2020]
- Whats Going On With Trumps TikTok Ban and Microsofts Deal to Avoid It? - New York Magazine [Last Updated On: August 3rd, 2020] [Originally Added On: August 3rd, 2020]
- The Hate-Fueled Rise of r/The_Donaldand Its Epic Takedown - WIRED [Last Updated On: August 4th, 2020] [Originally Added On: August 4th, 2020]
- It's important that Scotland protects its tradition of literary and artistic freedom - iNews [Last Updated On: August 4th, 2020] [Originally Added On: August 4th, 2020]
- Inside the Beltway: Roger Ailes, 'The Man in the Areana' - Washington Times [Last Updated On: August 4th, 2020] [Originally Added On: August 4th, 2020]
- College disinvites conservative speaker over 'issues' with his 'values' - Campus Reform [Last Updated On: August 5th, 2020] [Originally Added On: August 5th, 2020]
- Jewish woman released from ICE custody following national outcry - Forward [Last Updated On: August 6th, 2020] [Originally Added On: August 6th, 2020]
- Why Extreme 5G Conspiracy Theories Have Gone Viral in the Age of COVID-19 - Observer [Last Updated On: August 7th, 2020] [Originally Added On: August 7th, 2020]
- Delaware to require teaching of the Holocaust, genocide - Forward [Last Updated On: August 7th, 2020] [Originally Added On: August 7th, 2020]
- Adin Steinsaltz, acclaimed scholar who made the Talmud more accessible, dies at 83 - Forward [Last Updated On: August 7th, 2020] [Originally Added On: August 7th, 2020]
- Deplatforming Works - Vice [Last Updated On: August 7th, 2020] [Originally Added On: August 7th, 2020]
- Deplatforming Works, Just Ask David Icke HAMZALA Inc. [Last Updated On: August 9th, 2020] [Originally Added On: August 9th, 2020]
- Cancel culture and conservative glass houses - The Week [Last Updated On: August 10th, 2020] [Originally Added On: August 10th, 2020]
- Are We Witnessing the Fall of Far-Right Figurehead 'Tommy Robinson'? - VICE [Last Updated On: August 15th, 2020] [Originally Added On: August 15th, 2020]
- Antifa Unsuccessfully Tries To Protest The Sturgis Motorcycle Rally - AmmoLand Shooting Sports News [Last Updated On: August 20th, 2020] [Originally Added On: August 20th, 2020]
- It's time to cull and reform our sham, woke universities - Reaction - Reaction [Last Updated On: August 20th, 2020] [Originally Added On: August 20th, 2020]
- Twitter Bans Babylon Bee, Then Claims It Was An Innocent Mistake - The Federalist [Last Updated On: August 20th, 2020] [Originally Added On: August 20th, 2020]
- E-Viction sex work event sheds light on digital gentrification by self-destructing when its over - The Daily Dot [Last Updated On: August 20th, 2020] [Originally Added On: August 20th, 2020]
- Against de-platforming and other stunts - DiEM25 [Last Updated On: August 20th, 2020] [Originally Added On: August 20th, 2020]
- The Big-Name Conservatives Bankrolling This Far-Right Troll's Run for Congress - VICE [Last Updated On: August 21st, 2020] [Originally Added On: August 21st, 2020]
- Roaming Charges: Great Balls of Ire at the RNC - CounterPunch [Last Updated On: September 3rd, 2020] [Originally Added On: September 3rd, 2020]
- Three thinkers on when we should call out harmful speech - Big Think [Last Updated On: September 3rd, 2020] [Originally Added On: September 3rd, 2020]
- Joe Rogans Spotify Debut Sparks Speculation Over Missing Episodes - Forbes [Last Updated On: September 3rd, 2020] [Originally Added On: September 3rd, 2020]
- Here's what LinkedIn is doing to Support Safe Conversations on its Platform! - Digital Information World [Last Updated On: September 21st, 2020] [Originally Added On: September 21st, 2020]
- The push for content moderation legislation around the world - Brookings Institution [Last Updated On: September 26th, 2020] [Originally Added On: September 26th, 2020]