In today’s Facebook-and-Google-driven world, we tend to think as the self-publishers who use those networks that we’re free to say anything we want under First Amendment Protections, because, hey, the First Amendment to the Constitution says we can.
That’s not really true, though. Most people fail to realize that the scope of the First Amendment is, in fact, limited: It only protects us from the government, and not what we say to each other or about other people.
So notes Floyd Abrams, a leading legal authority on the First Amendment and U.S. constitutional law who has been involved in some of the most significant cases involving that amendment over the past half-century.
Abrams appeared as a guest recently on the FreeCourt podcast show to discuss First Amendment protections and his new book about that very subject, “The Soul of The First Amendment.”
From some of the landmark cases in which he has been involved, you could say that Abrams certainly is an expert on the subject. He summarized a few of those while discussing the First Amendment protections with FreeCourt podcast host Jason Hartman.
In 1971, Abrams worked on The Pentagon Papers case for The New York Times when the federal government sought an injunction against The Times for publishing the papers. The Times’ report was drawn from a Defense Department study of how we got into the war in Vietnam, which was still raging at the time. In a very contested case, Abrams and The Times won.
Abrams represented the Brooklyn Museum in 1999 in a case it brought against former Mayor Rudy Giuliani and New York City. Giuliani basically tried to shut down the museum on the grounds that one of its works of art was, in his view, sacrilegious and, in Abrams’ words, “in any event deeply offensive.” That case was settled out of court, but the museum remained open and got continued funding from the city.
Then, in a case decided by the U.S. Supreme Court in 2010, “I represented Senator Mitch McConnell in what became known as the Citizens United case,” Abrams recalls.
“I was one of the two lawyers who argued on behalf of, or on the side of, Citizens United, basically arguing that as a First Amendment matter, corporations and individuals both should be permitted to sort of spend their money as they choose on elections—urging who to vote for or vote against, taking positions on public issues and the like.”
Abrams was on the victorious side of that case, too.
During his FreeCourt podcast with Hartman, Abrams and the host discuss further why First Amendment Protections only relate to the government. Abrams also explains why broadcast media are treated differently than print media but broadcast is closing that gap, and he remarks on a couple of newer influences that are testing the First Amendment waters these days, namely Google and Facebook.
Why the First Amendment Only Relates to the Government
“The first thing you have to know is that the First Amendment only relates to the government,” Abrams tells Hartman in the podcast. “The First Amendment protects us against the government getting involved or too involved with respect to religion, freedom of speech or freedom of the press.
“It has nothing to do as a legal matter with what private people are allowed to say to each other, what employers are allowed to do to employees who say certain things, what neighbors can say. It is a protection against the government, and, so, it is limited in that way.”
However, sometimes the government “is larger than one might think,” Abrams adds.
“For example, there have been a lot of issues recently on college campuses about who can speak and who not and what the law is and what it should be, about language which is offensive to some people or even outrageous.
“And as to that, state schools are treated very differently than private ones. Ones that are funded, basically full-time, by a state or the federal government are subject to the First Amendment. Private universities are not.”
What other examples are there that the government is larger than it seems when it comes to First Amendment protections?
“When a city owns a bus line,” Abrams says.
“When the government builds a highway and it is a federal or state highway. That gets a little complicated, but sometimes roads and the like are private in one way or another. But when we’re talking about state entities, that’s what we mean. Sometimes stores, not many, but there are some which are owned by the government. The post office is the government. The telephone company is not. Television is not.”
Broadcast Media Almost ‘in,’ Like Print
Abrams also explains that because a television station or a radio station needs a federal license, it is subject to different sorts of laws than a privately owned newspaper—“not entirely different, but a greater level of regulation.”
“A broadcast station is supposed to serve the public interest, and license renewal might not be granted if somebody could show that the broadcaster used it 24 hours a day say, for advertisements. That’s all it is, all day and night. That’s not why we grant a license to a broadcaster.”
“How interesting, because in the past, it was always about the FCC, right?” Hartman asks, speaking of the Federal Communications Commission, which licenses radio and TV stations. “What we’re doing right now, is we’re podcasting, so I can cuss and swear and do all kinds of things that a radio station can’t do,” he adds, with a laugh.
“Exactly,” Abrams replies. “Yours is treated as being just as the same as if you went into a park and gave a speech, or if you otherwise exercise your First Amendment rights to speak out, write letters urging people who to vote for, said things on the internet.”
“But,” interrupts Hartman, “you can do that … a television station can have an opinion.
“For example, the left loves to come down on Fox News, but I think one of the distinctions that they haven’t been very successful at making is that some of their coverage is actual news and some is opinion. But opinion, when you’re looking at, formerly ‘O’Reilly,’ I mean that’s opinion. He’s not doing all news. He’s expressing opinions, versus news reporters who are supposed to be, theoretically, objective, right?”
“What you say is true,” answers Abrams, “but what I’m saying is in more recent cases, the broadcast medium has been receiving legal protection close to, not quite the same as, close to that of the print press, or close to that of the internet. Not quite the same, because they do need a license and because you are supposed to act consistently with the public interest.”
“But because of the First Amendment and First Amendment interests—the government, the FCC—you’ve got to be very careful about not pushing its views onto Fox or CNN or whoever. And that was one of the objections to having what we used to have, which was called a fairness doctrine.”
The Fairness Doctrine, Abrams explains, limited a broadcaster. “If he took a position on some matter of public interest, you had to have the other side on,” which also was known as equal time.
And, “You know, that sounds perfectly reasonable,” Abrams adds.
“The problem is, the umpire is a government entity (the FCC), and when the umpire is a government entity, you start running into significant First Amendment issues. Because there is a tendency, sometimes no worse than that but sometimes pretty clear, for governments to push the politics, the policies and the like that they favor.
“And that’s one of the reasons the law has moved in recent years toward giving broadcasters broad First Amendment rights and cable operators complete ones. Remember, in cable, you don’t need a license.”
The New Kids on the Block: Google and Facebook
Hartman remarks in the podcast that the day after the presidential election nearly a year ago, “All I start hearing about was ‘fake news’ and how Google and Facebook need to filter ‘fake news.’
“Well, who in the heck can possibly really decide who ‘fake news’ is as a person, even if they were truly objective, but definitely as a computer algorithm, my God, is that even possible?” Hartman asks. “People on the other side of the aisle would say, ‘well, CNN is fake news’ or ‘Fox is all fake news’? I mean, that just sounds like total censorship to me.”
“If there is a problem, Facebook and Google, in particular, want very much to have the entirety of the public like them,” says Abrams. “I mean, they don’t exist to take political positions or the like but … more people get their news from Facebook than any place in the world.”
“I agree,” Hartman says, “and that scares the heck out of me. Let me give you one more piece of ammunition for this discussion on this, I know this not your area, but antitrust. Any entity that controls 70 percent of the planet’s search traffic, like Google, or so much like Facebook, that’s gotta be broken up, it seems like.”
Abrams says he recently was part of a panel, sponsored by The Washington Post, as was a representative of Google, “and we were talking about its power.”
“They spend a lot of time preparing their algorithms. I don’t believe, this is my personal opinion, that either Facebook or Google want at all to be controversial about what they’re putting forward or how their algorithms work.
“They have problems at the most basic level. They try to prevent or to bar racist speech. Well, I mean, that puts them in an editorial role. Now I happen to think that’s a good thing because I think there is some speech they shouldn’t carry. Now, the First Amendment would protect that speech.”
“The question is, what would we like, suppose it were up to us to decide, what would we like Facebook to carry? What would we like Google to carry?”
“How would they respond to the prime minister of England saying you really have to be more careful about carrying the sort of incendiary language which could incite people to join ISIS and drop bombs all over London? The prime minister has said, ‘I may introduce legislation, I want these entities to play a role in assuring that sort of pro-terrorist, terrorist-inducing language doesn’t appear.’
“And A, that’s not easy, and, B, the question is … what sort of editorial role do we want them to play?”
Also after the last presidential election, Abrams says, there was the example of “some crazy guy going into a pizza place because a fake news entity said Hillary Clinton was basically abusing children there.”
“A guy went in there with a gun and started shooting it up. There was a lot of public pressure on Facebook—‘do something, why do you carry stuff like that?’ And, so, they are. I don’t really know where they’re at in their thinking on that. But I know they’re spending a lot of their time and effort trying to cut through this.
“So, on the one hand, they’re not really playing a major or serious editorial role but on the other, they’re not carrying stuff that is both false and has some reasonable likelihood of casing very serious crime.”
In today’s world, with its social media and so many people writing blogs and podcasts, “I’m sure that has clogged up the courts … I certainly have, as I mentioned to you, litigated these issues before,” Hartman tells Abrams.
Abrams agrees: “Now that we have the mechanism of communication which is genuinely open to the public, which is basically free, which allows just about anyone to say just about anything to a potentially enormous audience, new sorts of issues arise.
“Sometimes people on Facebook get sued for libel, right? But they’re not like big newspapers. They don’t have insurance, they don’t have policies. An ordinary person who wants to spout off and denounce someone else doesn’t know, but should, that, yeah, he could get sued for libel.”
People have gotten sued for Yelp reviews as well, Hartman notes.
“They do,” Abrams says. “It’s very important that people be free, in my view, to put out Yelp reviews, but one of the problems is some of those are ‘fake news.’ There are reviews that are submitted by competitors, which make believe that they’re really reviews of services, and that’s another complexity.”
“And sometimes, the reviews are positive, submitted by the organization themselves,” Hartman says, with a laugh.
“Yes, yes, absolutely,” says Abrams. “I mean the lesson of that is, don’t depend too much on that. I mean, don’t go around saying, ‘I read it on the internet.’ The fact that you read it on the internet doesn’t tell me anything about whether it’s likely true or not.”
Abrams’ book is available at Amazon and bookstores around the country and has drawn rave reviews for the “thoughtful and concise” content contained within its mere 139 pages.
“There are lots of things that I do for a living, lots of things I testify about which are not in the book,” Abrams says.
“But I do talk in the book about, most of all, about how different we are than every place else in the world, every place else in the democratic world, in terms of how much (First Amendment) protection that we have.”