Lee Bollinger & Geoffrey Stone

How Democracy Survives Disinformation

Air Date: April 11, 2022

Columbia University president Lee Bollinger and University of Chicago scholar Geoffrey Stone discuss their book “Social Media, Freedom of Speech, and the Future of Our Democracy."

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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome the co-authors of a new book “Social Media, Freedom of Speech and the Future of our Democracy.” Columbia University President Lee Bollinger and University of Chicago scholar and professor of law, Geoffrey Stone, welcome gentlemen.

 

BOLLINGER: Thank you.

 

STONE: Thank you.

 

HEFFNER: Let me ask you to begin with Professor Stone, how much of this in your mind, in this terrific anthology that includes guests we’ve hosted like Renee DiResta, Senator Amy Klobuchar, scholars of the first amendment and digital disinformation, how much of this project was an endeavor to redefine free speech, Professor Stone?

 

STONE: Well, I think it was not so much an effort to redefine free speech as much as it was to understand how in a world of changing technology, free speech has to be adapted if at all to ensure that it serves the goals that it’s intended to serve and that it promotes our democracy.

 

HEFFNER: President Bollinger, let me ask you from the perspective of a university president, a public intellectual and someone who understands the jurisprudence of free speech, where do you see the future of free speech in a moment when there are absolutists who would say, we must allow for the disinformation to spread online about anti-vax, at the same time, we must forbid the restriction of banning critical race theory or the teaching of slavery or racism, you know, I really think of it through those two lenses in this contemporary moment, the disinformation associated with the pandemic and the new Jim Crow to try to restrict or suppress the teaching of racism. Do you kind of look at it through, at all those lenses?

BOLLINGER: So I think the, you know, this book, it is really an effort to say we have people making very dramatic and serious claims about this new technology of communication, the internet and social media platforms. And people, very irresponsible, people are saying, we cannot live, we cannot have a democracy if these institutions new institutions are allowed to proceed unchecked. Their profit motive encourages speech that is extremely harmful to American democracy, spreads disinformation, spreads hate speech at a level we’ve never seen before. And we really need to think about this in the traditions of the first amendment that we’ve developed over the past 100 years. That is the motive behind the book. You know, that’s a very big question, how do we tackle that? How do we think about it? The first amendment is, you know, incredibly complex, very resilient over time, only a hundred years old as Geoff and I have written in an earlier book. And how will it be applied? And should it be applied in this new context with these claims? That’s the problem we try to address.

 

HEFFNER: And do you think that we’ve lost a sense of the history in the current debate, President Bollinger, we’ve lost a sense of history. We have some amnesia in the way we are perceiving some of the disinformation connected with the pandemic in particular?

 

BOLLINGER: No, I don’t feel, I mean, I think the first amendment is very strong in American life. And so it’s not that we are on the precipice of losing the first amendment. The real question is, it’s, you always have to think about what values are at stake. How does the experience that we’ve had over the past hundred, 200 years apply to this? To what extent does it need to be adjusted because the circumstances are different? I mean, these are hard questions, so people can take, very responsible people can take very different views about that. And our goal was to try to elicit that controversy in a very serious way, and then try to say some very concrete things about what might be done.

 

HEFFNER: You write in your introduction to this anthology of contributors, “What is the right thing to do when we are uncertain what to do?” which was what you were getting at, President Bollinger, “without prejudging the questions on the table about regulation of the internet and social media platforms, is it worth bearing in mind that uncertainty does not always necessitate inaction? There is value in considering the range of options to us, as we assess the risks and benefits of the current arrangements.” Professor Stone, was there any unifying principle or consensus from these essays from technologists in the private and public sector, from advocates in the private and public sector, who understand the dangerous incentives that have been proliferating disinformation on platforms like Facebook and Twitter and social media. Was there any kind of unifying principle that you gathered from these contributions about what to do?

 

STONE: I think there were two major unifying judgments which were in conflict. One of them is that the current state of affairs, with respect to social media is potentially quite dangerous to the functioning of our democracy.  So that these large entities have enormous power to manipulate, to distort, to polarize, in ways that are in their economic interests but are potentially quite dangerous to the aspirations of democracy. On the other hand, one of the things we have learned over the past century is that we should be very, very cautious about empowering government to regulate the marketplace of ideas, because if we empower them to do that, then the danger, which has often occurred, is that they will regulate the market in a way that is designed to manipulate it and to benefit themselves politically. And so we have two deeply held views, which are incompatible with each other. And the real question is not, which is right, and which is wrong. They’re both right. The question is, is there a way to accommodate them so as to reduce the risk on the one hand and to improve the quality on the other without enabling government to utilize these very powerful means of communication to benefit whoever’s in power. So it’s an extremely challenging issue. And no one who thinks about it should imagine that there’s a simple solution.

 

HEFFNER: How do you do both things. President Bollinger? How you do both things fundamentally?

 

BOLLINGER: I mean, right, right. So Geoff captured this perfectly on one side, let’s say again, great scholars of the first amendment and people who are very responsible advocates in in the public realm who say we’ve spent all these decades developing really strong commitment to free speech and free press, of just not allowing the government to intervene in the marketplace of ideas, absent some very, very rare exceptions. And we should do the same. We should follow the same path here. And on the other hand, there are people, as Geoff said, who think this is different at a level and magnitude that we just can’t accept and continue to have a functioning democracy. Well, those are two extremes and there are people in the middle. One thing to keep in mind that we point out and that people in the book talk about, is that actually the first amendment tradition is fairly complex as it usually is on very hard problems.

And over the past century, one of the things that happened in the Supreme Court blessed in a unanimous decision in the late sixties was when the new technology of broadcasting radio and TV came on the scene. People had very similar years with respect to that new technology and the government intervened, actually required licenses to operate radio and TV stations, and then regulated them, not for censorship that was forbidden, but in order to expand the number of voices, not to let just rich corporations or individuals control these incredibly powerful new media; demanded that there be some sense of responsibility in the editorial functions of the radio and TV. And that’s, continues actually to exist to this day. It’s been modified over time through legislation and actions of the Federal Communications Commission. And it’s very complicated to understand the rationale for, and whether it makes sense and whether it applies in the context of social media platforms. And we can go into that if you want incredibly complex. But the main point is that when you look in the traditions of free speech in the United States first amendment, there are places to sort of, you know, use by analogy. And that’s one of the things that we develop in the book.

 

STONE: One of the, one of the interesting challenges about that is that the Federal Communications Commission applying the fairness doctrine, most people agree, worked quite well. And it provided fair and balanced news and information over ABC, NBC, CBS, and radio by government basically setting the ground rules. The problem is at that time, there was a largely uniform understanding that this was a serious problem that we all needed to address. Today we are so polarized and so divided that it is almost impossible to imagine government officials coming together in embracing what say say Lee and I would regard as a responsible and appropriate method of regulation. They don’t trust each other. They don’t trust each other to have that power. And that’s a major obstacle to finding a way for government to regulate.

 

HEFFNER: And this is a truly American problem. You identify the Fairness Doctrine. I mean, the whole phenomenon you’re explicating here is really began with the stigmatization of the Fairness Doctrine, the idea that there was something wrong with fair time for, you know, two arguments and it seemed to have gone downhill from there. Or at least the FCC abdicated its responsibility, not just as it relates to the internet, but television as well, Geoff?

 

STONE: Well, the FCC had no authority over the internet. The FCC only had authority over radio and, and network television, not cable. And the, in the Reagan administration criticisms were made that the fairness doctrine was not operating in a fair, IMB, balanced manner, the way it was supposed to. I actually don’t know the answer to the question of whether that was a fair set of criticisms or not. I suspect probably not, but I don’t know that. But what I do know today is it would be almost impossible to find a group of people who both the Republicans and the Democrats would trust to be overseeing all of this in deciding what speech is okay, and what speech is not okay. And that’s a major part of the problem. Some of that is due to the internet itself, which has exacerbated the polarization.

 

HEFFNER: Well. And also the reality is that Facebook now META, Alphabet, all these companies are actually saying, regulate us, right? And, and we know that it is their vast lobbying infrastructure for many years that prevented any of that regulation from happening in the first place. From a legal perspective, President Bollinger you know, any kinds of contemplations of a new framework around this would have to meet constitutional scrutiny, you know, if the Facebook Board of Overseers, you know, decides X, it doesn’t really matter if the Supreme Court of the United States says, no, that’s not the way it is. So have you gathered anything from these essays about, you know, the way to approach it, knowing that government is likely going to be inactive? You know, as Professor Stone said, the political process is going to change this. So knowing that what’s the best way for these other stakeholders to create something that makes sense?

 

BOLLINGER: So I mean, just taking what you said, and then what Geoff just said, which I think can give people who are listening to this a sense of the development over time as to what has happened. If you go back to the 1960s, seventies, and then into the eighties, up until the point where Geoff said that the Reagan administration decided, and the FCC under the Reagan administration decided to back off of regulation of radio and TV. We had monopoly of the print media, all, every city, town in America had a, just one daily newspaper. I mean, my father ran one in a, one in a small town in the west. So it was a monopolization of journalism. Then there was radio and TV, which had a government regulation. If you looked at both of those up until the late eighties, there was an ethic within the journalistic community that you wouldn’t publish a political ad that contained obvious falsehoods. The Washington Post, the New York Times would reject political ads that had falsehoods. The radio and TV were more or less required to do that. That was the journalistic ethos of that time. Post-1980 into the nineties and the development of the internet, the voices just exploded, and the attitudes about any kind of government intervention in this new medium, and the range of views about how to conduct debate just completely broke, had broken down. So you have now on radio and TV, and some of the authors in the volume make the point that it’s not just a social media problem that the American democracy is facing. It’s also a broadcast problem, because we have moved to a stage where people can run radio and TV stations, or radio in particular, and absolutely promote one point of view and an extreme point of view.

 

And and so this, this kind of you know, holding on to the great journalistic institutions that we have, and the ethos that went into the broadcast regulation model is something that is a major question for a modern democracy. And the first amendment is kind of where it ends up. It also ends up in the culture of these institutions. It ends up in legislative possibilities, but it also ends up in the first amendment. And those are the things we want to unpack in as sophisticated a way as we possibly can. What the…I mean, the challenges are very significant.

 

HEFFNER: They are immense. There’s no doubt about it. But what is also immense is the degree to which I allude to the abdication of what ought to have been the FCC’s mandate. I mean, it would have been in their, in their avenue,

 

BOLLINGER: Right.

 

HEFFNER: To consider the regulatory approaches for the outset of the internet web 1.0 2.0 3.0,

 

BOLLINGER: It could have taken a different course. That’s absolutely. I think,

 

HEFFNER: And you know, I do wonder if FCC commissioners themselves consider the remaking of that kind of authority or have, because it does seem to be appropriately in their jurisdiction. I mean, if you just follow the logic of it.

 

BOLLINGER: Yeah. Geoff, do you want to comment about that? I mean, cause some of our authors do come, do think about that.

 

STONE: Right. I mean, it seems to me that there there’s several different challenges that we face here. One of them is that when the internet came into being Congress decided to envision it as a huge public park where every individual would have the ability to say what he or she wanted to say. And to facilitate that they provided that unlike newspapers and TV stations and radio stations, the social media platforms were not liable for anything that you or I, or Lee posted on their sites. Now that’s not the case with the New York Times, the Washington Post or ABC News. If they put an advertisement on, because they have limited space. They have to pick and choose and everything that appears there, they have chosen, and they therefore can be held accountable for that. And that helps to avoid a lot of falsehood. On the social media platforms, Congress in section 230, basically immunized, Facebook and Twitter and so on for whatever you or I would put up there. And that meant an enormous amount of inaccurate, misleading and false speech can go there and the platforms have no legal accountability for it. Now the problem is if you make them accountable for it, then in theory, they have to censor everything that any person wants to put up cause they could be held liable if I put up something that, that defames Lee and that would completely destroy one of the appealing characteristics of social media, as we’ve now come to understand it, which is tens of millions, hundreds of millions of Americans can just go there and say whatever they want. And there’s no, there’s no censor who’s intervening. So the problem is how to maintain that value of social media while at the same time reducing the risk of it.

 

And part of the problem is the way in which Facebook and Twitter and so on decide what to spread. So even though I have a right to post something that doesn’t mean Twitter has to send it to everybody in the world. And so part of the problem is they need to be more accountable for the way in which they decide to do this. And one way to do that in terms of ideology is to basically say that they have to, if they’re going to send you something that’s very right wing, they have to send you the flip side. So you don’t get only one point of view. You may not like that. That might annoy you, because you didn’t want to see those things, but at least it exposes you to it. And that’s what traditional media did within reasonable limits. One of the things social media does is to basically target people with the things that social media knows you want to see and that’s part of what polarizes everybody in the society today. And that’s, that’s a disaster,

 

HEFFNER: Right, and I do wonder if the majority of Americans do actually recognize they’re different arenas of, of speech. Just as we made the failure of recognizing that on YouTube you can have performances that are fiction and nonfiction. We ought to have conceived it as my friends John Palfrey and John Bracken would’ve thought as a library, not as a park. If we had thought of it as a library, we would have conceived of something like YouTube or Facebook differently in the perpetuation of knowledge or the, you know, in the imaginative knowledge framework, or fiction versus nonfiction. But let me just ask you, as we close in these minutes, President Bollinger, I can’t help but ask you because of course your name is recognized in the context of university decision making. We know the affirmative action cases, Gratz and Grutter v. Bollinger when you were at the University of Michigan. And I can’t help but ask you about this because you know, I’m fundamentally starting to think that the strongest argument for these universities to take, whether they’re public or private in the context of free speech now, is that it is their speech to admit applicants from a variety of backgrounds.

 

And I just wonder if that’s ever, you know, occurred to you in the context of this jurisprudence, because that, it seems to me is the argument that could actually hold up affirmative action if you will.

 

BOLLINGER: So I’m happy to say it has occurred to me that there’s a first amendment interest at stake. Academic institutions I think should be recognized under the first amendment as having a special role, special protections, in the way that the press has. That’s controversial too. Geoff and I have worked on that. We’re actually working on a volume now about affirmative action because the court is heading in a direction, it seems in which it may be prepared to rethink and worse on that. Yes, there definitely is a first amendment element and it has been, I mean, we put this in the briefs in the Grutter case and the court did allude to it. So, it’s there.

 

HEFFNER: Just so our audience understands, a first amendment argument that it is Harvard or the University of Michigan or Columbia’s prerogative that they can decide who they want to admit. And that is an act of speech, admitting applicants.

 

BOLLINGER: Yeah. Just like we have an interest in allowing universities to decide on their own what books to teach and, or what students to have,

 

HEFFNER: Serve a cake. Right. I mean, this is actually in recent memory of the Supreme Court, you know, conservatives have made the argument that, that Bakkers have the right to serve who they, who they want to they want to serve a cake, they have a first amendment, right to serve a cake. So why doesn’t the university have a first amendment right to,

 

BOLLINGER: Yeah. So I’m not sure I would go that direction in making the argument, but you know, there’s a key question here, which is what is the rationale for affirmative action and is it about universities making decisions about what is the best education. And that’s one rationale and the standard rationale. But is there another rationale that we should allow instead institutions like universities to try to help the society correct for centuries of severe discrimination against African Americans in particular, and especially. And that’s argument that appeals to Geoff and me, and we’re in the process of developing that/

 

HEFFNER: But do you think that that argument could resonate with the majority of the court? I mean, to not outlaw affirmative action because that’s the direction it’s headed.

 

BOLLINGER: Right. So I don’t – I mean, we’re still thinking about it. I mean, you can, you can see that while someone might be suspicious of a claim by universities that this gives the best education. I mean, maybe that’s if you switch or turn the rationale to, you know, we have, we have a severe problem of past discrimination and ongoing effects of that, and ongoing discrimination, invidious discrimination. And the society has to be sort of all in, in trying to deal with that. You know, it’s possible that may appeal to some people who are suspicious, skeptical about the former. I think both are powerful, but you can imagine, so we’ll see.

 

HEFFNER: Yeah. Well, I hope to continue this conversation with you both. It is of course an evolving and protean one, co-authors of the new volume “Social Media, Freedom of Speech and the Future of our Democracy.” Columbia University President Lee Bollinger, and Professor of Law, the University of Chicago, Geoffrey Stone. Thank you both for your time today.

 

BOLLINGER: Thank you for having us.

 

STONE: Thank you.

 

HEFFNER: Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access over 1,500 other interviews. And do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.