Should the government or private companies identify and regulate truth and lies? Martha Minow, professor at Harvard Law School and author of the new book, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech, Paul Matzko of the Cato Institute and author of The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement, and Jonathan Rauch, author of the new book, The Constitution of Knowledge: A Defense of Truth, discuss the history of American protection for free speech values and how they are challenged by the social media landscape today. They also discuss current debates about the regulation of online speech, from content regulation to algorithmic disinformation, and what reforms, if any, might promote the free trade in ideas and expression in the future. Newton Minow, former chairman of the Federal Communications Commission during the John F. Kennedy administration, provides remarks. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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This episode was produced by Jackie McDermott, Tanaya Tauber, John Guerra, and Lana Ulrich. It was engineered by David Stotz and Jackie McDermott.
PARTICIPANTS
Newton Minow served as the Chairman of the Federal Communications Committee under the Kennedy administration. He currently serves as senior counsel at the Sidley law firm in Chicago, as well as Walter Annenberg Professor Emeritus at Northwestern University. He is the author of four books, including Abandoned in the Wasteland: Children, Television, and the First Amendment (co-authored with Craig LaMay).
Paul Matzko is the editor for innovation and technology at Libertarianism.org. He is also the host of the Building Tomorrow podcast and a policy scholar at the Cato Institute. Matzko is the author of The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement.
Martha Minow is the 300th Anniversary Professor at Harvard Law School, where she previously served as the dean of the Law School. She is the author and editor of several books, including most recently, Saving the News: Why the Constitution Calls for Government Action to Preserve the Freedom of Speech. Minow is also co-chair of the access to justice project of the American Academy of Arts and Sciences and co-chair of the advisory board to Massachusetts Institute of Technology’s Schwartzman College of Computing.
Jonathan Rauch is a senior fellow in the Governance Studies Program at the Brookings Institution. He is a contributing writer of The Atlantic and recipient of the 2005 National Magazine Award; he also previously wrote the award-winning column “Social Studies” for National Journal from 1998-2010. Rauch is the author of numerous books, including most recently, The Constitution of Knowledge: A Defense of Truth.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Martha Minow, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech
- Communications Act of 1934
- The Fairness Doctrine
- Paul Matzko, The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement
- Newton Minow, "Television and the Public Interest" (1961)
- Newton Minow and Craig LaMay, Abandoned in the Wasteland: Children, Television, and the First Amendment
- Jonathan Rauch, The Constitution of Knowledge: A Defense of Truth
- Substack.com
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. The podcast sharing live constitutional conversations and debates hosted by the National Constitution Center. I'm Jackie McDermott, the show's producer. The press is the only private institution mentioned in the constitution. In this episode of panel debates whether the constitution composed the government to protect the press, free speech, and information today. National Constitution Center President Jeffrey Rosen was joined by Martha Minow, author of Saving the News: Why the Constitution Calls for Government Action to Preserve the Freedom of Speech; Jonathan Rauch, author of the Constitution of Knowledge of Defensive Truth; and Paul Matzko, author of The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement.
Newton Minow, a veteran of Media Regulation who is the chair of the Federal Communications Commission under President Kennedy provides the opening remarks. This panel was streamed live on June 15th, 2021. Here's Jeff to get the conversation started.
Jeffrey Rosen: [00:01:05] Ladies and gentlemen, welcome to the National Constitution Center. And friends, I am thrilled that we are joined by a very special guest who will provide introductory remarks. It's hard to think of anyone better to lead us off. Newton Minow, it's an honor to welcome you to the National Constitution Center and tell us about your thoughts about why Martha Minow's book is important.
Newton Minow: [00:01:27] Jeffrey, thank you. It's a great honor to be here. Ma- Martha, got her first copy of her book yesterday. So we are very thrilled to be here to tell you about it. I have, Martha asked me to write the preface of her book because in the last seven decades, I've seen every side of the communications business. And I am ... When Martha asked me, it seemed to me that there were five points that ought to be considered. Communications Act passed in the 1930s lists the two words, Public Interest, 17 times. Today, I don't hear much talk about the public interest or very little talk about it.
Second, when we were at the FCC, we tried to enlarge choice. We felt that opening up UHF, opening up cable, opening up all forms of new television would benefit the public. Sixty years later, I'm not so sure. I'm not so sure that the big proliferation of channels has increased the divisions in the country. We've saw in the early days of television when JFK was killed, when there 9/11, how television united the country. Today, in many ways, television is dividing the country.
Also, what I think artificial intelligence is going to change things, many ways I believe television has amended the constitution because television signals don't correspond the physical boundaries or state boundaries. These are all things that I would urge you to think about and that's why I think Martha's book is so important. Edward R. Murrow in the early days of television said, and I quote him, he said, "Television, this instrument can teach. It can illuminate. It can even inspire but it can do so only through the extent that humans are determined to use it to those ends. Otherwise, it is nothing but wires and in a box."
Martha is one of those rare, determined humans who is trying to use the new media to advance all of our interest and that's why I urge you, urge you to read her book and then to think and reflect about it. And I'm looking forward to our discussion today. Thank you.
Jeffrey Rosen: [00:04:14] Thank you so much for that inspiring introduction and we will pay, heed to your wise words and will indeed closely engage with Martha's book. Martha, in your book, Saving the News, you argue that the First Amendment of course, doesn't govern the conduct of private enterprises but nothing in the constitution forecloses government action to regulate concentrated economic power. You argue that there's a long history of intervention by the federal government involving regulations to shape and develop media in the United States. And you identify a host of potential reforms today, including a new fairness doctrine and awareness efforts to distinguish opinions from news, regulation of digital platforms as public utilities, use of governmental anti-trust authority to regulate the media and much else.
I'm just reading from your extraordinarily clear and lucid introduction. Tell us more about the argument of your book, Saving the News that under some circumstances, forms of government regulation and intervention may be appropriate.
Martha Minow: [00:05:14] Well, thank you Jeff and thanks Newton Minow for that moving and powerful introduction and to you all for participating here. You know, I think that we are living in an unprecedented time with more information available at people's fingertips than any time in history but also with a cacophony and confusion that follows. Only one private industry is mentioned in United States, constitution and it's the press. And I don't think it's by accident. I think that the framers of the constitution understood how central the press was and is to the maintenance of a constitutional democracy, to the distribution of ideas and information. And indeed to the accountability process necessary to hold those who have government office to accountability to the voters.
We're in a crisis right now when it comes to the private news industry. Whatever the medium, whether it's print or broadcast or internet or cable, there is a devastating disruption and particularly the older forms are being disrupted by the internet generally, which doesn't view itself and its leaders do not think of themselves as journalists in the news industry and nonetheless, they have built an ad industry that draws away from conventional media the hard blood of the financial mechanism that supported broadcast news, cable news and print media.
The devastation has been so profound that over 50% of newspapers have reduced employment, many are closing and that's also too on broadcast. I can go through many of the details but I recommend you just Google it and you'll see it. It's not hard to find. And it's not just the reduction of news, creating news deserts in many parts of the country where there's literally no local news. It's also then the blurring of the lines or eliminating the lines between opinion and reportage or facts.
What I do think is very significant here is that the First Amendment has been conceived of throughout American history as important. But only recently as a barrier to government action. In fact, as Jeff, you described a minute ago, throughout American history, the United States government has been deeply involved in every aspect of the media, whether offering discounts or free distribution of media newspaper and publications through the post office from the very first congress. Or all the way to financing the first telegraph line and actually paying for the research through the national Science Foundation for the algorithm that created Google or investing in the very research that produced the internet.
Fundamentally in broadcast and cable it has been the government that has organized the market and decided what kind of competition to have and what kind not to have. So we've always had active and direct government engagement and I think this is not the time to stop. This is the time to in fact, amplify that a- attention to make sure we have a rich and vibrant ecosystem, particularly of news. In that context, I identify two kinds of reforms. One is to actually tackle the forces that are undermining the viability of private news industry and the second is to support, amplify and sustain a variety of public interest news operations to profit, non profit and public media.
I do think that there's room to tax the internet companies. I do think that there's room to even take the revenues from that tax and plow it back into reinvestment into news because actually, the- they are circulating news that is produced by news organizations without paying for it. I'm sure that there's power to enforce the i- intellectual property laws and require payment for the circulation of material developed by others.
I do think that there's even room to develop a new fairness doctrine where the platform internet companies would not be censors but instead be sharers of varieties of viewpoints and news. And I, I'm sure that there's capacity and I hope that there's will to strengthen something like a public internet that creates alternatives and improve some marketplace of competition. So I look forward to more conversation but that's the basic outline.
Jeffrey Rosen: [00:10:26] Thank you so much for presenting the outline so clearly and powerfully. Paul Matzko, in your book on the history of talk radio. You described how in the 1960s there was a concerted effort by President John F. Kennedy who is so worried about what an aide called, a formidable force of mainly conservative talk radio criticizing his policies that Kennedy authorized the internal revenue service to audit the conservative talk radio and use the FCC's fairness doctrine to, as you put it, silence these conservative broadcasters. Tell us about this history to use the fairness doctrine in this way and what do you think you can, it can tell us about proposals by Martha and others to revive a sort of fairness doctrine for the internet today.
Paul Matzko: [00:11:15] Sure Jeffrey. It's a ... First, let me say it's a pleasure to be here I spent a lot of time reading Newton Minow's vast wasteland speech. So it's just a delight to be here actually talking with him in conversation with Martha and John in conversation today. So i- i- it's ... Few things send a shudder down my spine quite like hearing the idea that we should apply the public interest standard. That was the standard for broadcasting from 1927, 1934 to the internet. The fairness doctrine is just, I guess, most egregious of a long line of pernicious actions taken under the banner of enforcing the public interest.
In the 1920s and '30s, it was obvious to everyone that the public interest meant constraining the number of radio stations that were assigned frequencies and restricting those to none political radicals. So if you're a socialist who run a radio station, you better watch out. Sorry WEVD, Eugene, Victor, Debs station New York City, your station gets downgraded. If you're a, a station that appeals to immigrants and and broadcast in languages other than English, sorry, you could lose your station license.
So this idea that there is a, a singular public interest that can be identified by a group of technocrats, lawyers sitting in a room in Washington DC has done a lot of really anti-progressive harm throughout the history of broadcast regulations. But the thing I focus on in my book is the fairness doctrine, which from its enactment or from its, I guess, proposal 194- '49, it's kind of codified in 1959 but it's not actually acted on until the early 1960s during the John F. Kennedy administration.
That's because Kennedy is the first president to face really the first wave of mass right-wing radio. There had been right-wing radio broadcasters before this. You think of people like Father Charles Coughlin, the idea that you could at almost anywhere in the United States almost any time of day, turn to radio station and hear nearly full daytime radio coverage from a conservative radio host. That was really kind of noble in the 1960s. We're familiar with it now because of talk radio but it was noble at the time.
So Kennedy has a problem. They're attacking these, these radio right posts or attacking his legislative agenda, the hopes for reelection in '64 on a Nuclear Test Ban Treaty with the Soviet Union. Right-wing radio is uh, a let- constituent mail is pouring in, saying, "I've heard about this on the radio." Pouring into congressional offices saying, "Shoot this treaty down." What do you do? Well, if you're JFK, and uh, I have, you know, I found this smoking gun oval office tape of JFK's involvement in this, he tells the internal revenue service to do targeted audits of right-wing broadcasters. We can set that aside but on the regula- radio regulation side, he, he tells Bill Henry who's Newton's successor as chairman of the FCC. He tells them it is important that stations be kept fair.
Of course, what Kennedy means is fair to me, right? So the fairness doctrine who can be opposed to it in theory? Who doesn't want fairness and balance on the airwaves? But in practice, it was weaponized by the Kennedy administration. They created in a astroturf front organization, the citizens committee for a nuclear test ban to generate fairness doctrine complaints against stations that aired criticisms of the nuclear test ban treaty. Bill Henry created created the corollary, the what was called the Coleman Doctrine saying that if you aired a paid attack on the treaty for free, if the response, the people who wanted the res- pre-response time, they said they couldn't pay. You had to give them free air time to respond.
Of course, no one ever said they could pay. This created a chilling effect. Stations didn't want to have to pay twice for something they only got paid one time for. And so radio station started dropping right-wing radio en masse and by the end of the 1960s, right-wing radio was a shadow of itself earlier in the decade. going down from a peak of perhaps 20 million, which is as many as Rush Limbaugh some 40 years later down to a, a relative handful by the end of the decade, which means it is one of the most successful episodes of government censorship of the last half century, and really in American history. Belonging right up there in conversation with the Alien and Sedition Acts the Comstock Laws and other kind of low lights in in the history of free speech in America. So that's the elevator pitch. And i- if, if you want to read more, the book's right here.
Jeffrey Rosen: [00:15:39] Th- thank you very much for, for giving the pitch and uh, for summari- summarizing it so well. Jonathan Rauch in your powerful book, The Constitution of Knowledge, you give an inspiring philosophical defense of what you call the operating system of the reality-based community, namely the 18th century faith. That reason and the power of argument will ultimately lead to the discovery of truth. I- I'd love you to share that perhaps in the next round but because we're talking about the fairness doctrine and regulation, you also have important chapters on disinformation technology and the challenge of digital media and troll epistemology and how to combat disinformation.
What is your reaction to Martha's proposal of fairness doctrine for the internet age? And what can the constitution of knowledge tell us about whether or not it's a good idea?
Jonathan Rauch: [00:16:27] Thank you Jeff. It's wonderful to be here. In terms of diagnosis, Martha and I and lots of other people are on a similar page. We had all hoped when the internet came along that it would be a vibrant marketplace of ideas in which truth would prevail. What we forgot is that the marketplace of ideas depends on a structure, the constitution of knowledge. A structured market, it's very Madisonian, lots of requirements. None of that was built in and the result was we got an epistemic race to the bottom because internet was dependent on an advertising based business model and that meant that what got the most attention made the most money and what got the most attention was outrage and misinformation.
So this environment turned out to be actively hostile to truth and the question now is how do we deal with that? But there are really two questions that Martha raises and it's important to distinguish them. One is the epistemic crisis and that's the hostility to truth in the online world. That's anti-vaxxers. It's Russian disinformation. It's Trumpian disinformation and many other things.
A separate problem, which I think is actually the more pressing problem, which Martha's completely right to focus on is the economic problem, the collapse of a business model for reality-based journalism, which means that organizations are increasingly pushed toward writing opinion, toward just outright making stuff up to confirmation bias instead of disconfirmation bias, meaning telling people what they want to hear instead of actually checking to see if it's true. This has reached crisis proportions. I haven't yet had the opportunity to read Martha's book but I am very much looking forward to her suggestions for ways to re-inject some vitality into the business model for mainstream journalism.
The second problem, the epistemic problem I think is very hard for the government to deal with and I don't think it should try to do that directly. And I would just remind people that any structure that you set up to directly regulate what can be put up by internet publishers online you know, as of January 15th or sorry, January 20th, 2025, that structure will might be under the control of Donald J. Trump. So I think that's a bad idea.
I think many of other Mar- Martha's other ideas are probably good ideas. I haven't had a chance to, to review them but one thing I want to suggest to people is let's not just look for our car keys under the street light because that's where the light is. We have had information disruptions in the past, very big ones. For example, as all of you know, 19th century American journalism was a swamp of fake news and extreme partisanship. Yet somehow we go from the turn of the last century when yellow journalism, a lot of people think helped start the Spanish-American war to sell newspapers to only about 40 years later Edward R. Murrow and just an extraordinary mainstream media.
Well, the answer to that was people in the industry did that because they began to understand that selling sewage was a bad business model. So they create the American society of newspaper editors that promulgates ethics codes and standards. Those begin to spread and get adopted through the industry. Journalism schools opened up. They begin teaching these standards to young journalists. Prizes are set up. The Pulitzer is only the biggest, which begin incentivizing coverage. Ethics codes say things like you need to run corrections. You need to talk to people before you write about them. You need to be fair and accurate.
And this turns out to be good business. Actually these codes are widely adopted and they, that's what you and I, Jeff were taught as young journalists. I think we're seeing the beginning of a similar process in the world of Facebook and maybe Twitter. I think the real magic in the long run is not going to be in policy design like you know, deciding what the rules are for who comes and who goes. It's going to be product design. It's going to be figuring out ways to make these platforms less friendly to misinformation. And it's going to be like what Facebook is doing now, the oversight board, which I think is a very interesting institutional experiment, doing exactly what the American Society of Newspaper Editors was doing a century ago, figuring out what are some best practices, how can we be transparent about them and then how can we begin setting them up. So I'm not all that pessimistic and we have a lot of resources here other than direct government regulation.
Jeffrey Rosen: [00:20:50] Thank you very much for that and thank you for distinguishing between the what you call the systemic problem and the economic problem of the collapse of the journalist business model. Martha Minow you've heard the thoughtful interventions of Paul and Jonathan would love your response to Paul's account of the misuse of the fairness doctrine historically and Jonathan's concern about its application today. Maybe give us more of a sense of how you would apply it today. You say treating the large digital platform companies as public utilities will permit regulation including potentially a new fairness doctrine requiring responsible exercise to the platform's moderating capabilities or an awareness doctrine assisting users in navigating both the content and their own uses of it. And then, of course, broaden out to this from the fairness doctrine to whatever of the other important reforms in your book that you'd like to put on the table.
Martha Minow: [00:21:37] Thank you. Well Paul is right. The fairness doctrine was abused. When my dad was chair of the Federal Communications Commission on one particular evening John F. Kennedy called and wanted dad to come down hard on a broadcaster who had been critical of the president and dad did not. And said to both the president and his aides, "You're lucky you have a friend who call, who tells the president, no." It's important to have a distance between those in government power and those who are there to hold them accountable. Very important but just as Paul said, it was not the policy that was the problem. It was its application. And the application, of course has i- is key but to, to broaden it more generally, I don't think anyone questions that there's a fairness and public interest concern when it comes to children.
I put in the chat, the book my dad wrote on the treatment of children under broadcasting. And it's not just broadcasting, all of news and all of media. We have a different view and I think there's similar concerns when it comes to violence. I really welcome Jonathan's important distinction between the ways that we know or don't know on the one hand and how the current internet world and digital world is disrupting our knowledge and, and compare that and the in- disinformation campaigns and so forth from the business financing structure of the companies that are involved. But bridging the two is actually what I would call cognitive disruption.
So the biggest internet platform companies are giving full employment to cognitive psychologists and behavioral psychologists who are paid full time to find ways to exploit our confusion and our vulnerabilities to find ways to keep us engaged by making sure that the algorithms amplify what is most enraging, what is most upsetting, what is most divisive. That is not simply allowing us to pursue our own choices. That's exploitation. And in this area and every area, the government has obligations to protect consumers, to guard us from exploitation. And it's that kind of regulation that I call for enforcing laws that are currently on the books and strengthening the capacity to do so, so that there is not that kind of exploitation.
Just take auto scroll. You, you're deep into a, a website. It recommends that you go somewhere else, which recommends you to go somewhere else and it does it automatically unless you stop it. Not only is it recommending based on your past viewing and reading practices, it's amplifying what will make you most upset, what will make you most emotional. It's those kinds of practices that I think weren't really serious consideration.
The fairness doctrine in its original form was predicated on a situation we don't have now, which was scarcity. Scarcity of the airwaves, scarcity of the spectrum, scarcity therefore of broadcast licenses necessary so that anyone could hear anything. Not everybody was broadcasting at the same time on the same frequency. Well, now we don't have that kind of scarcity. Anyone can send in the world messages through the internet platforms. We have a different kind of scarcity. We have attention scarcity.
Now we have everyone speaking at once in a different way and I think one of the problems that Jonathan, I think, very helpfully pointed to is the lack of competition for product design that will actually help people who want to find a way to see what's the other side of, of a point of view on a issue that I care about. How do you find it or how do I divide what is a, a report that has supported witnesses as opposed to what's an opinion? There's not enough competition to require uh, the ingenuity of of the people who've created the current algorithms to come up with better algorithms.
I think it is all to the good that we have private companies that are actually involved in creating content moderation. I don't want the government to, to moderate the content that I see but I want competition among the platforms and competition on dimensions other than exploiting our cognitive vulnerabilities.
Jeffrey Rosen: [00:26:08] Thank you very much for that, for that extremely thoughtful response to Paul and Jonathan and for emphasizing that in addition to a fairness doctrine, you think there are things that the platform could do voluntarily to combat the, the problem of, that you identify of algorithmic radicalization that sends people down ra- rabbit holes and creates increasingly extreme versions of stuff they've already seen. Paul in your book, you say that the misuse of the fairness doctrine in the '60s has had ripple effects to today that during the Trump administration, a conservative talk radio host such as Rush Limbaugh referred to that incident as a sign of how the IRS and others might discriminate against them.
Share, if you will, any more modern examples of misuses of government authority to discriminate on the basis of speech and then tell us is, is your objection simply to government enforced fairness doctrine or uh, would you object to the platforms voluntarily choosing to tweak their algorithms, for example, so that they don't send people down rabbit holes and recommend increasingly extreme version of stuff that people have already watched?
Paul Matzko: [00:27:34] Yeah, that's a great question. So what I would, I would start by noting is how the conversation has flipped, right? So it used to be in the '90s because talk radio skewed to the right, it was ordinary for right-wing talk radios like Rush Limbaugh and the like who was in radio as a teenager in the 1960s involved in community ascertainment, which was a kind of fairness doctrine adjacent exercise to, to decry the possibility of a new fairness doctrine. That was a commonplace. Well, folks on, on towards I guess points left folks, congressional democrats would periodically propose a revived fairness doctrine standard for broadcasting. And that was kind of the state of the discourse for you know, for about 20, 30 years after the formal repeal of the fairness doctrine in '87.
And that conversation switched interestingly during the Trump administration where the act- now the advocates of the fairness doctrine, the most, I guess the loudest voices in the room tend to be from the right. During the Trump Trump administration there was proposals by a number of members of congress, including Josh Hawley who wanted a, a non-discrimination and kind of neutrality doctrine housed at the FTC to ensure that social media platforms were neutral in regards to political content. There have been bills that would use different mechanisms tweaks to section 230 of the Communi- Communications Decency Act. There's a half a dozen of those bills currently you know, u- under consideration in congress that would kind of approach it from a different angle.
But in all these cases, it's an effort from the right to try to combat what they see as media unfairness, social media unfairness to right-wing voices. They want to use government power to force outlets to carry their messages. So it's, it's been an interesting inversion and of course, the, the, the ... I have what I call the shoe on the other foot test, which is that any power or agency that you propose that will be useful to you and your, you and yours to your political tribe will eventually be in the hands of the other side.
In the 1960s and '70s, that meant a lot of sour grapes and regrets among those involved in the Kennedy administration efforts to shut down right-wing radio. They later on realized, "Oh, that means Nixon gets that power and he's going to use it just as vigorously as Kennedy. Oops, maybe we shouldn't have done that." And so they actually ... So- some of the sources I have in my book exist because they were willing to talk. They were so regretful about their role in pushing the fairness doctrine because the other side gets a shot at it.
And so I think the cautionary tale in proposing fairness doctrine today is to remember that what would someone like Donald Trump have done with that same power, the ability to punish platforms that were in- inadequately, you know, aggressive and going after fake news. Now what fake news is, is going to vary quite dramatically depending on whether it's Donald Trump decrying it or a critic of Donald Trump decrying it, right? So there's a lot of ambiguity, a lot of room for shenanigans. So that's, that's how the conversation has shifted.
If I could add one note here it's that I'm actually quite optimistic at the moment about the future of journalism. It has looked very grim, right? Traditional media outlets have newspaper outlets have fallen in terms of subscriber bases.6 that's that's been concentrated in local newspapers while the big newspapers like The Times, the Washington Post are actually going from strength to strength but there are some encouraging changes that have been happening right under our noses just over the last like year.
Most, many of you have probably heard of things like Substack. I'm agnostic about the particular platform. Twitter's launching its own version. Facebook's looks like they're interested in creating a Substack clone so, but that idea, the email newsletter/blog website is is, has been booming just since last December. We're talking about exponential growth curve. So it means someone like Heather Cox Richardson, the obscure 19th century academic historian, writes good books, did not have a massive public audience. She started writing on Facebook her day-by-day commentary, historically informed commentary on the Trump administration's policies. She's now on Substack making more than a million dollars a year. I- it's, you know, one of the kind of top historical public intellectuals in the country.
That's going to become more and more common and more and more normal. It's not just the, the top-tier kind of public intellectuals who are being poached from the op-ed pages of The Times and elsewhere you can imagine you're actually seeing like whole news rooms being replicated on, on Substack type platforms like the Bulwark and the Dispatch, kind of never Trump outlets that were pushed out of the traditional media model I suppose in some ways. Uh, But you're going to start seeing that percolate down to local journalism. Everyone has someone in their little town who knows all the ins and outs, who keeps track of what's going on, who attends city council meetings. That person will someday have their own essentially newsletter Substack type system, which allows them to make a living off of a few hundred subscribers.
So the future of journalism both national and local is being transformed for the better as we talk right now. And that's been the kind of development just in the last six months and year. We should expect that to increase. So I'm optimistic. I'm actually, you know, quite optimistic in that regard.
Jeffrey Rosen: [00:32:45] Thank you very much for that. Thank you for that further historical insight and thank you for your optimism about the way that you think journalism is working. Jonathan Rauch, in your book, the Constitution of Knowledge, you have a chapter on the constitutional knowledge, which would begin with the Madisonian constitution designed to slow down deliberation to promote the discovery of truth. And you create a, a parallel definition of an epistemological constitution of knowledge defined not only by free speech but by empirical validation communities of testing that can distinguish between truth and falsehood. Tell us about that epistemological constitution of knowledge and whether you think that the institutions today, ranging not only from journalism but also, courts and universities are, or are not performing their crucial role as validators of reality.
Jonathan Rauch: [00:33:38] Well, thank you Jeff. It's a big question. I, I can't help but wave the book. There's a lot more in there I, I think you'll love the book. And Constitution Center will love it because I think I've invented Madisonian epistemology. I think that's, you know, that's an interesting and maybe big new thing but a quick way to introduce it actually is by contrasting my view with Paul's. Paul's model just now is marketplace of ideas. A lot of people communicating directly to the public will produce knowledge and good information. It turns out that that's wrong. It turns out the magic in science is structured conversations in which people have to persuade other people. And those other people, they can't, they can't just talk to people like themselves. They have to be forced to talk to people who have very different views and this happens in structured conversations in places like academic journals. And it happens in newsrooms.
The magic in journalism is not me getting on Substack broadcasting my opinion or what I think I know because I'm very likely wrong. The magic in journalism is the editor in the newsroom, the fact checker the copy desk. This story selection which is actually this is important, this is less important, this is true, this seems questionable and then afterwards, the other nodes in the system, which are all vetting the information, picking it up, testing it, and passing it on or suppressing it. It turns out in an open unstructured system where all of those intermediaries are not functioning well, you get a race to the bottom. You get bias confirmation. You, you get people looking for any kind of eyeballs. They can get, you get today's internet or you get 19th century journalism.
So the key to the constitutional knowledge is the same as the key to Madison's institutions, a constitution. You don't just have everyone voting on everything all the time. You need some institutions. You need checks and balances. You need some expertise. You need to put bias against bias. You need to decentralize it and you need a lot of structure to make it all work. That's the part we forget. If you ignore all those intermediaries and all that structure, it doesn't work. It becomes a massive disinformational race to the bottom.
So part of what we're all talking about here today is the massive disinform- disintermediation that's going on in the internet era and trying to figure out how can we restore some of these intermediaries, like editors, like fact checkers, like a structured process of persuasion and contrast into this new system. And I think it can be done but it's not going to be done by just individuals getting online and collecting subscribers.
Jeffrey Rosen: [00:36:10] Thank you so much for that. As you say the Constitution Center audience will I think very much be moved and inspired by your book. For after all the Constitution Center is the kind of convening platform that you describe, which tries to bring together people from different perspectives for the very civil Madisonian dialogue that you correctly argue is crucial to the discovery of truth.
Martha Minow, much to respond to and I think I'm going to ask you, what do you think of Jonathan's constitution of knowledge uh, you have many reforms in your book that are constitutionally inflected as you put it including reform of section 230 of the Communications Decency act, which immunizes platforms for liability for what they publish to non-governmental reforms such as tweaking the algorithm. So I'll ask you to put on the table the ones that you think are most powerful but we're getting a lot of questions in the chat. Basically, what's the big thing you want folks to know about the First Amendment? Are you confident that if for example algorithmic reform were adopted by the companies either under the threat of government regulation or voluntarily, people would in fact stop going down the rabbit holes? Or is it impossible to prevent people from amusing themselves to death and being susceptible to conspiracy theories because of their own choices?
Martha Minow: [00:37:27] There will always be people exploiting our fears and our worries and our ignorance. This has been true since there have been human beings. The question is whether that dominates and circulates. So my colleague Yochai Benkler has done deep empirical analysis of the misinformation during the 2016 campaign where he found it was less the internet than it was cable news and mainstream news but for the precise reason that Jonathan refers to because particularly, those outlets that are lean to the right cut themselves off from the circulation of of contest and engagement with competing views.
So conspiracy theories that started on the right didn't get shut down. Pizzagate and so forth, whereas con- There were plenty of conspiracy theories being circulated on the left but they were in conversation with the rest of the news ecosystem and they got shut down. And therefore, I think Jonathan is absolutely right. Just letting everybody talk is not going to produce knowledge and the marketplace metaphor that is behind so much of our First Amendment conversation itself piggybacks on a misunderstanding about the economic marketplace.
The economic marketplace is not and has never been let anybody do anything they want. That's the world of Hobbs. That's the war of all against all. The marketplace and the economy works because there are rules. The rules about property, the rules about tort. There are rules about enforcing contracts. The rules about how do you build trust in the underlying apparatus and that's what we don't have right now. So if there's one takeaway from my argument, my argument is that the constitution permits and may even require the creation and reinforcement of the structuring of the market for information, which means any trust enforcement, consumer protection enforcement public utility enforcement. And yes, I do think that there are even ways to nudge or prompt the kind of structured conversations that have made a difference in science and in journalism generally.
love Paul's optimism. I actually am very hopeful about Substack and what it's enabling but I just want to note, along with some of the very wonderful examples that he points to and others can point to, we see the rise of websites and social media pages that operate without any journalistic practices, without any knowledge. The Tow Center at the Columbia Journalism School documented 450 websites just in 2019 that masquerade as if they were in the local news. They have titles like East Michigan News, Grand Canyon Times but instead of publishing local, locally relevant information, the sites distribute algorithmically generated hyper partisan disinformation. And often with who knows who's behind them.
So among my recommendations is that the government actually mandate disclosure about where is this coming from? And that we conditioned something like section 230 immunity that's granted to the internet platforms and gives them in essence a subsidy that the mainstream media don't have because they're liable if they have misinformation. They're liable if they have different- defamation. It, we should condition that immunity if it's to continue at all on the private companies demonstrating that they have developed whatever their criteria are but they make it transparent what their criteria are for moderation, for accelerating content for distinguishing facts from opinion or not doing so.
And I don't think there's any legal problem with it but here's the last thing I'll say on this round Jeff. One of the problems here is actually the courts. The courts which have been such vindicators of the First Amendment values ironically are now becoming barriers by using a kind of weaponized First Amendment to strike down the very rules that make the marketplace of ideas possible. So just as an example in a recent opinion, the court of appeals for the fourth circuit struck down as unconstitutional a requirement of the disclosure of the source of political ads, even though within recent memory, the Supreme Court of the United States said, "One thing we know is constitutional is required disclosure of the source of the ads."
We're on a collision course with sanity here and the First Amendment should not be a barrier to sane and regulation and indeed to equipping ordinary people and intermediaries to be able to monitor what we're being fed.
Jeffrey Rosen: [00:42:35] Thank you so much for that. Thank you for putting on the table a series of proposals for curbing the powers of the tech company. They're very timely because just last Friday, a bipartisan group of lawmakers in the house introduced four bills that would curb the power of the tech giants. Two of addressing Amazon and Google and one would forbid the platforms promoting subsidies that operate on their platforms if they compete with other businesses and another would make it illegal in most cases for a platform to give preference to its own products with that, with hefty fines.
Paul are you opposed to all government interventions in the speech market, including the ones that Martha has just identified, which could include breaking up the platforms and requiring disclosure? And at the same time, do you support or oppose what Martha calls the weaponization of the First Amendment striking down disclosure requirements as a violation of free speech?
Paul Matzko: [00:43:30] So I think I, where I would start is with the cautionary note, which is that the best laid regulatory plans of mice and men gang aft a-gley, right? Like, like the fairness doctrine was a remarkable misfire. It was I think rooted in a good faith effort to try to introduce fairness and balance in broadcasting. The, the same thing applies today. So I mean we don't have time to get into great detail but almost all of Martha's proposals, the concrete proposals have a massive issue, potential issues with regulatory capture by the regulated industries and rent-seeking behavior by corporations seeking to create competitive moats around themselves.
For example the Australia passed a link tax recently creating a new category of ownership over the URL that a news story has. The intent of that was to encourage local uh, journalism, was to encourage more competition in that space to take down big tech platforms like Google down a notch. The effect has thus far been a massive giveaway to the Murdoch Media Empire the biggest beneficiary has been the largest, you know, media conglomerate in Australia owned by Rupert Murdoch.
So there's all ... If you did something similar here, create a new category of property, you should expect the same thing to happen, albeit the beneficiaries would be perhaps a little bit different. It would not benefit the small struggling local newspaper. It would primarily benefit the big incumbents. You take the public utility model idea that we should nationalize Facebook or social media platform that would actually not solve many of the problems that we were discussing. Disinformation and the like, if you nationalize Facebook it would then have some kind of probably common carrier obligation. It would certainly the First Amendment would then apply and the government would not be allowed just as the, you, you know yo- your, your telephone operator is that, has a common carrier obligation. They can't say you're not allowed to talk on here because you're a radical socialist or, or whatever, right? The same thing would then apply to social media.
So if your issue is the spread of disinformation, turning those platforms over to the government would make the problem worse not better. So as you go point by point, mo- so many of these proposals have similar pitfalls potential pitfalls and that you look, you look at the history of attempts to regulate broadcasting. You start saying, "Whoa, we don't want to apply those to the internet." It- it's really a happy accident that the internet ended up being the free, relatively free place it is. It's a, it's a unintended consequences of courts in congress in the '80s and '90s, deciding to go with one metaphor instead of another. They could have gone. After all, the internet was carried on copper wires originally.
It is telephony, right? The same phone lines you know, once upon a time. Today, fiber optic cables. The internet was in a sense a form of broadcasting, right, right? But the courts didn't go with a broadcasting mo- metaphor. They didn't apply the lower First Amendment standard that exist on broadcasting. Instead, they went with a print metaphor. They went with email online, you know, forums and, and bulletin boards where people chat and talk. And because they went with a different metaphor, they essentially left that a, a space that's free and able to evolve both in terms of technological innovation and the development of the social media platforms, then also as we're seeing to today, the kind of evolution in self-regulation like the Facebook oversight board.
And ultimately, I think we're going to see the recapitulation of many of the norms that Jonathan longs for like the newsroom and whatnot being replicated in a new space, in a Substack-like space. So the things he wants to see are going to be replicated there. We already see some signs of it but you have to give these things time. We're talking in historical terms. It took how many, 200 years to go from the first newspapers i- in the con- on the continent to get to the point where you have a modern newsroom sort of situation. That's to be generous, maybe more like 250 years.
We're right now talking in increments of 25 years. These things will evolve if you give them space. So no, I don't think the government should have a heavy hand a regulatory hand and I think we can trust these markets to evolve social norms and institutions on their own.
Jeffrey Rosen: [00:47:35] Thank you very much for that case against government intervention. Jonathan, the last word in this wonderful conversation is going to be to you because our one rule in these conversations is that we end on time. We have some great comments in the chat including Bonnie Zedek who notes, "The NCC's interactive constitution may seem like a model that could be generalized to other forms of information dissemination. You see it's used more broadly." Yes, Bonnie. That idea of bringing together the leading liberal and conservative scholars in America to explore areas of agreement and disagreement about every clause of the constitution is, of course, a form of life that we hope to model for the world.
And then Warren Wolf asks, "So Jeff what are your viewership numbers? What are the chances of actually reaching a substantial number of American citizens?" So Warren the interactive constitution has gotten 45 million hits since we launched. The NCC is now the second most visited museum website in America. Shows like this are getting about 1,000 people live and many more on rebroadcast. The podcasts get about 100,000 listeners a month but that's a small portion of the many hundreds of millions of viewers.
So Jonathan, I want you to sum up as best you can, your, your, your inspiring an important book. And, and the question I want to ask is you do express some optimism that what you call the reality-based community in the form of courts and, and journalists can apply liberal norms of professionalism, civility, humility and what you call no bullshit as well but I want to just tee this up with the example of a college classmate of mine. Had the best education that could be imagined who was written up by The New York Times recently as someone who became a QAnon conspiracy theorist and she did that by just going down the algorithmic rabbit hole and going from yoga videos to conspiracy videos. And she's now a full believer.
So given that possibility in a free society that citizens won't take the time to seek out the thoughtful vetted information that promotes reality what is to be done?
Jonathan Rauch: [00:49:34] Well, Madison solved this problem. As you know, he said, "You don't want direct democracy. You want representatives, who are delegated, who have some expertise in professionalism and then you want to put them in productive conflict with each other and you want to force them to compromise. It turns out science, the reality-based community that science and academia, law, journalism and government are the big four do essentially the same thing. If you want to make knowledge, you got to persuade other people that you're right and a lot of those people are going to be experts. So you're going to have to have a lot of knowledge to do it. So that's where it comes from and that's still the answer.
I guess the thought I would bring all this home with is one reason I'm pleased to have this conversation is that the answers to these questions will be deliberate. I don't share the optimism that if you just have no structure at all, leave things entirely alone and pay no attention, the good guys prevail, the truth seekers, the reality-based community because the other side has some very powerful weapons, disinformation propaganda and that sort of thing.
What this requires is a conscious effort by people in many many walks of life including government but mostly non-government to deliberately understand the kinds of information attacks that were under today and begin formulating solutions that are going to range from technical and tweaking platforms to building institutions like what Facebook is doing, like the international network of fact checkers and many, many others. But I have hope not necessarily optimism but hope that we will get our act together and begin consciously doing what was done in the 19th century with journalism and that's putting our heads together in a lot of different areas and saying, "How can we improve the rules of the road?"
Jeffrey Rosen: [00:51:17] Hope but not optimism that we can improve the rules of the road a wonderful note on which to end. Martha Minow did want to clarify one important point Martha why don't you uh, why don't you do that before we close?
Martha Minow: [00:51:29] I, I have no interest in turning the Facebook or any of the other platforms into a government enterprise. I just want to see actual exercise of responsibility by the private powerful companies as they moderate and and I hope that Jonathan's vision is right. I hope that Paul's vision is right that we'll see the big enterprises and the small ones te- stepping up to the responsibility. And uh, mirroring the kind of open and fair discussion that we have had here today.
Jeffrey Rosen: [00:52:00] Very well said it has indeed been an open and inspiring discussion. It is so meaningful to con- to convene such powerful minds for such civil dialogue and thank you we, the people National Constitution Center learners for taking an hour out in the middle of your busy days to learn together. "Come, let us learn together," [Brandeis 00:55:09] said and that's exactly what we've been doing. Continue your learning by reading the books we've been discussing. Martha Minow's Saving the News: Why the Constitution Calls for Government Action to Preserve the Freedom of Speech. Paul Matzko's the Radio Right and Jonathan Rauch's Constitution of Knowledge of Defensive Truth. Thanks to all for a wonderful discussion. Bye everyone.
Jackie McDermott: [00:52:43] This episode was produced by me, Jackie McDermott along with Tanaya Tauber, John Guerra and Lana Ulrich. It was engineered by the National Constitution Center's AV Team. Join us live and register for upcoming online programs at constitutioncenter.org/debate and check out our past programs in our media library at constitutioncenter.org/constitution. There, our interactive constitution organizes programs by each provision of the constitution. So if today's conversation interested you, go to our First Amendment page where you'll find tons of programs and resources on the constitution, the press, the internet and free speech today.
As always please rate, review and subscribe to Live at the National Constitution Center on Apple Podcast or follow us on Spotify. And join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
