← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
First Amendment Fallacies
00:42:20
When data-scraping is speech, but whistleblowing isn’t, we might need a new frame.
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A
Hello, Slate podcast listeners. Help us make a better Slate by answering our survey. It will only take a few minutes, I promise, and you can find it at slate.com survey.
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Some people are looking to the First Amendment to be the solution to our problems in the digital public sphere. And I think there's a real question, can the First Amendment be a solution here? But there's also a question, is the First Amendment the problem?
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A
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court and the rule of law. I'm Dahlia Lithwick. I cover some of those things for Slate. This past week has seen confirmation hearings for Merrick Garland to serve as the new Attorney general, bitter division around a Covid relief pact, and bitter division around a voting rights bill. And we're also seeing some signaling from the Supreme Court about the future of voting rights in the courts. But we wanted to turn our gaze up and out this episode to talk about the First Amendment. Everybody everywhere, I promise, is mad right now about somebody taking away their right to speak. But if the First Amendment is unerringly the answer, it's at least possible we might be asking the wrong question. So we wanted to consider speech and the regulation of speech, all the ways in which, as I am at least coming to understand it, this, the so called marketplace of ideas is at the mercy of a real life market. And all of this touches on our current global politics. Who regulates speech on Facebook and on Twitter, and who gets to impose consequences when speech is inciting of violence. Later on in the show, Slate plus listeners are going to get to hear from the wonderful Mark Joseph Stern for an exclusive segment looking at the new shape of the Supreme Court, some hints on voting rights, and also the uncanny commonalities in who gets hit with what amounts of vitriol. In the ongoing confirmation process for Justice Department positions. Slate plus members get benefits like zero ads on any Slate podcast, bonus episodes of shows like Slow Burn and Dear Prudence, and extra special members only segments like My Conversations with Mark. And you'll be supporting the work we do here at Amicus and across the rest of the magazine. It's really only $35 for the first year. It means the world to us. To sign up, go to slate.com amicus plus. The issue for us this week is speech. It's pardon me for mixing metaphors. It's the water we swim in. It's what we argue about, even when we think we're arguing about politics or law or the Constitution or democracy. Who gets to speak where? And who decides what we see and what we say? And what, if anything, does the First Amendment have to do with any of this? Our guest today is Jamil Jaffer. He is the executive director of the Knight First Amendment Institute at Columbia University. Before that, he was deputy legal director at the ACLU and director of their center for Democracy, where He oversaw the ACLU's work relating to free speech, privacy, technology, national security, and international human rights. Jameel has litigated some of the most significant post 911 cases that lie at this intersection of national security and civil liberties, including the lawsuit that resulted in the publication of the Bush administration's torture memos and the litigation that resulted in the publication of the Obama administration's drone memos. He has argued in multiple appeals courts as well as in the U.S. supreme Court. I am such a fan of his work and the way he thinks. Jamil Jaffer, welcome to Amicus.
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Oh, thank you for inviting me. It's great to be here.
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A
So I think I've had a post it note pinned to my screen saying, do a First Amendment show for like three years and it sweeps in every news cycle from the Facebook, quote, unquote, Supreme Court. Your own litigation around Trump's tweets cancel culture, the speech defenses that came up at the impeachment trial. And I think of the First Amendment as a framework that governs all of those things. But of course, it implicates less and less of those things. As you suggested to me when we were thinking about this show, the First Amendment is, quote, everywhere but nowhere. And I wonder if you could talk a little bit about this tension where the Supreme Court is protecting more and more activity under the First Amendment. But as private actors flood this zone, the First Amendment actually matters less and less. Is that an accurate description of what is going on?
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B
Yeah, I think so. You know, when I said that the First Amendment is everywhere and nowhere, I was thinking about first, the fact that the Supreme Court does keep expanding the First Amendment's reach to more and more kinds of expression, or even not just expression, but speech very broadly construed. And I'll just give you one example. There's a case called Sorel from a few years ago, which involved data mining and drug companies efforts to market their drugs to doctors. And the Supreme Court held that this particular kind of commercial activity was speech. And there's a stray phrase in Justice Kennedy's opinion which says something like information is is speech, data is speech. And there is this kind of thread in recent Supreme Court jurisprudence that is consistent with that very broad conception of the First Amendment, this idea that the First Amendment protects not just speech as colloquially understood, but any effort to convey information. And if you're a First Amendment enthusiast, then maybe your first reaction to that is, well, isn't that great? Isn't it great that the First Amendment is getting attached to more and more things? Well, it might be. Might be great, or might be not so great. The consequence of attaching the First Amendment to new forms of expression or speech is that it becomes much harder for government to regulate those activities. There's a case in the courts now, in the district court now, involving Clearview, which is a company that scraped millions and millions of photographs from the Internet in order to build a facial recognition app. And the ACLU and others have sued Clearview under a state law, an Illinois state law that applies to the collection and sale of biometric information. Clearview is actually represented by Floyd Abrams here, who is a legendary First Amendment litigator. Clearview is arguing that their activities are protected by the First Amendment and that this Illinois law is unconstitutional as applied to its activities. And that's, you know, that just sort of gives you a sense of, you know, what's at stake in these debates about the scope of the First Amendment. Because if you interpret the First Amendment very, very broadly to encompass the right of a company like Clearview to scrape photographs from the Internet and build facial recognition apps of this kind, then you have really disabled legislatures from enacting laws that many people, including me, think are necessary to protect individual privacy and maybe even necessary to protect the integrity of public discourse, which is supposed to be what the First Amendment is all about. So the First Amendment is everywhere in the sense that the courts are extending the First Amendment's application to more and more kinds of activity. But it's also true, I think, that the First Amendment is kind of strangely absent in some places where we really should want it to be present. And some of them have nothing to do with the digital age. And some of them are just much more places where we, for a long time, would have expected the First Amendment to be, but it doesn't seem to be so. And I'm thinking about, you know, protest rights, for example, or whistleblower rights. Right. During the Black Lives Matter protests over the last year, there were all kinds of abuses by police, abuses of protesters, abuses of the media, journalists being prevented from reporting on important public activities of the police, individuals being prevented from protesting when they had a right to protest. And the First Amendment seemed to do very little work in protecting those core First Amendment rights. And I would say the same thing with respect to whistleblowers. The Obama administration infamously used the Espionage act more than any previous administration against whistleblowers who are sharing information with the press. And the Trump administration sort of continued that trend. And the First Amendment is really nowhere to be found when it comes to the right of whistleblowers to share information, national security secrets with the press, where those national security secrets would inform the public of the abuse of power by government officials, for example, or large scale waste or fraud on the part of government officials. The First Amendment doesn't seem to be doing very much work. So the First Amendment is. Is it everywhere? In some senses and nowhere in other senses.
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A
What you're saying is there are benefits to being able to regulate some of this under First Amendment doctrine, but they're real harms. And one of the harms is then it falls almost entirely onto private entities. In some ways that's a good thing. I think you would contend right from the beginning, we don't want the government whatever we don't want the government doing, we don't want them deciding what is speech. But you're saying that the cost of saying, you know what, this has nothing to do with the First Amendment. It's entirely a private entity and they should regulate that. It might be what the framers wanted, but it creates a whole host of new problems.
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Well, I think all that is true now. We have these private entities that are doing a lot of the work of regulating speech. Right. So, you know, when we engage in political speech now, it's often on social media platforms or on new communications platforms that are controlled not by the government, but by private corporations. And those private corporations now have a very significant role in determining who gets to speak and what can be said and what ideas get traction, you know, in the public sphere. And that I think is a new thing and one that we haven't collectively quite figured out how to deal with.
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A
I'm just trying to get the Venn diagrams in my head, Jamil. It feels as though part of what you're saying is the Supreme Court has been diligently beavering away and we all stipulate this is the most speech protective Supreme Court right probably in history, creating new free speech rights in all sorts of contexts, that there are these archaic rights. I think you were flicking at Assembly. Right. Which is something that we don't quite know what it fallen into disuse. The doctrine is aged, so it's not actually doing the things it's meant to be doing core functions of speech. Protective. What the framers would have thought as core political speech is not doing those things. The circle is expanding to encompass a whole bunch of other stuff. And then there's this other circle that is completely a separate sphere from government regulation of speech, which is all these private actors that are subject to. We keep falling into this habit of thinking of them as First Amendment problems. They're entirely separate. But whatever they're doing is sort of happening in some other universe where, say, the Supreme Court of Facebook is working it out as they go along. That's the table.
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B
I think that's a good map. It might complicate it in one more way, which is that, yes, it's true that these private companies are not bound by the First Amendment. And in that particular sense, the First Amendment, you know, doesn't have anything to do with, you know, their decision. I should say that that's all true under current doctrine. There are many, you know, serious First Amendment theorists who think the current doctrine is wrong and that the First Amendment should have something to do with whether Facebook, for example, can tell somebody that they can't use Facebook. But under current doctrine, that's not governed by the First Amendment. Facebook is free to make whatever decisions it wants. But the reason I say, you know, we can complicate this in one more way, is that when governments try to regulate the technology companies, often the technology companies are relying on the First Amendment as a means of challenging the legitimacy of those regulations. And the clearview case is a good example of it. But it's not the only example. There's another case that my institute is tangentially involved in Maine involving an Internet privacy law that restricts what Internet service providers can collect about their customers and how they can use that Data. And the ISPs are challenging the law on First Amendment grounds. They're saying this law prevents us from collecting certain kinds of information and from doing targeted advertising on the basis of that information. And that's a restriction of our First Amendment rights, and the law needs to be struck down. So it's not just that the First Amendment doesn't regulate the activities that these companies are engaged in. It's that when Congress tries to regulate those activities, these companies rely on the First Amendment to challenge the legitimacy of the regulations. So this is why I think that it's not at all. You know, some people are looking to the First Amendment to be the solution to our problems in the digital public sphere. And I think, you know, there's a Real question, can the First Amendment be a solution here? But there's also a question, you know, is the First Amendment the problem? Is the First Amendment, as currently understood, an obstacle to the kind of legislation and regulation we need to protect the integrity and the vitality of the digital public sphere.
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A
Now, let's return to our conversation with Jamil Jaffer. He's executive director of the Knight First Amendment Institute at Columbia University. Let's make this just one notch more complicated before we solve everything, and that is that this confounds any right left construction that you could put on it. And I think you are going to give me all the examples of why. But I'm thinking about Clearview, and I'm thinking about the piece that you wrote about Clearview, and I think it's really worth saying that a lot of the groups that fundamentally objected to the kind of scraping and tracking facial recognition sold to law enforcement agencies in Clearview in the Clearview litigation, were completely delighted when the same kinds of technologies were being used by private individuals or by law enforcement to bring the Capitol rioters to justice after January 6th. Right. So this is, I feel like, and I know that the valences, the political valences are complicated, but I also feel like in many, many ways, Jamil, part of the problem. And I know I've tracked you how you've been thinking about Donald Trump and Twitter because it's similar. Right. You can be on both sides of this or neither side, depending on whose ox is being gored.
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B
Yeah, I mean, you're definitely right that the politics of all of this are very complicated. The ideological lines are all tangled up. Part of that is just that people who are operating in good faith are dealing with tensions between principles that they hold dear. Like, you know, I strongly believe that it's a problem that these big technology companies have so much control over what can be said and who can say it. On the other hand, I strongly believe that we need a digital public sphere that is not overwhelmed with harassment and abuse and, you know, hateful speech. And, you know, sometimes these two things come into conflict, and it's not obvious how we should resolve those kinds of kinds of tensions. But I was just reading this piece this morning that was arguing that we need something akin to the Fairness Doctrine for social media. In other words, we need to restrict the social media companies from kicking off their platforms on the basis of political view. And I think this is a totally legitimate argument and a serious argument. But this argument was coming from the right, and I associate this argument with the fairness Doctrine, which is a doctrine that we normally associate with the left. This is now kind of routine that I see arguments that I would ordinarily have associated with one end of the political spectrum, but being made most forcefully by people on the other end of the political spectrum. And then there are also some actors in this space who are not good faith actors at all. I'm thinking in particular the debate around section 230, which is, as you know, the statute that effectively immunizes the platform companies for the speech that their users engage in on their platform, at least immunize them from civil lawsuits. And there are a bunch of politicians out there who claim to be concerned about the integrity of public discourse and are saying that the solution to all of this is repealing section 230. And I don't actually think that anybody who's genuinely concerned about the health of public discourse would think that repealing section 230 is the solution. I just don't see those things as connected. I think it's really about section 230 has become a kind of flag to wave in a cultural war. And that's what that is about. I don't mean to suggest that amendments to Section 230 aren't worth considering. And there are serious proposals out there that I think are maybe good ones. But when Senator Josh Hawley, for example, says repeal section 230, I don't think that's the result of a good faith effort to try to figure out what's really ailing our public sphere. I don't think that's what it's about at all.
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A
If I'm trying to tease you into anything, it's to help me back into some first principles here, because I think were agreeing that tech companies that claim to be both subject to First Amendment protections but immune from liability, claiming to be publishers of material, and sometimes not publishers of material. There's a slipperiness here, I think that makes it really hard to figure out what it is that we think we need to be building towards if we're going to really protect speech in the new media era. And I think one of the questions I had for you was about Twitter, because you spent years at the Knight foundation litigating Donald Trump's decision to deplatform, I think seven right of his critics on Twitter saying that no, hey, this is a public forum under the First Amendment and you prevailed at the district court and affirmed in the Second Circuit. But. But weirdly, you, I think, are also on record being fine with Trump himself being deplatformed. Bounced completely from Twitter. And so, again, I find myself trying to square those two in order to figure out what the actual principle is.
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B
So I'll tell you how I square them, and you can tell me if it's persuasive or not. The litigation we brought was a challenge to, as you say, Trump's decision to kick seven people off his account or out of his comment threads because of their criticism of his administration's policies. And the sort of factual context here was new. Twitter is a relatively new platform. Social media is relatively new. But the principles we were relying on are very well established First Amendment principles that if you have a space that is opened up to the public by the government for expressive activity, that's a public forum under the First Amendment, which means that government actors can't constitutionally exclude people from the space on the basis of viewpoint. That's the argument we made in the district courts, argument made in the Second Circuit. We won, as you said, case is still pending before the Supreme Court for some strange reason that we've won in the lower courts, and we've won essentially the same case in other circuits. Now, I think that that's pretty straightforward, even though the application of the public forum doctrine to this new technology is novel. Now, when it comes to Twitter's decision to de platform Trump, Twitter isn't subject to the First Amendment. Twitter is not a government actor. So Trump doesn't have a First Amendment argument to invoke in this context. To the contrary, it's Twitter that has the First Amendment argument to invoke. Twitter is saying we have the right to shape the expressive platform that we've created. And part of that is deciding who can speak and what the limits of the forum are. And that's what Twitter did. In this particular case, I actually think that Twitter was right to keep Trump's account up for as long as it did. I'm glad that it did. I think that the public has a kind of. I don't mean a First Amendment right here, but a kind of more general right of access to the president's speech. We learned a lot from the president's tweets. Sometimes what we learned was horrific, but we nonetheless learned a lot from his speech on Twitter. And even when what the President was saying was offensive or untrue, I think Twitter was right to kind of rely on other users, Twitter's users, to respond to that speech. And in some contexts, Twitter itself responded when what the president was spreading was disinformation about the election. Twitter itself attached labels to the president's tweet saying that this is untrue. And I think that in general, that was exactly the right way for Twitter to respond. The reason I say I'm okay with Twitter taking, ultimately, having taken the President's account down, is that on January 6, what the President was doing was not just speaking in ways that were offensive or wrong, but encouraging immediate unlawful activity. Not just unlawful activity, but violent activity. And I think in that situation, as the kind of First Amendment theory matter, you can't rely on the marketplace of ideas to solve the problem of incitement. By definition, incitement doesn't leave time for considered responses and debate. What the President was doing was calling for. It's like telling your dog to attack. You're not participating in the marketplace of ideas if that's the kind of activity you're engaged in. And I think that at that point it became untenable for Twitter and the other social media companies to continue to host the President's speech. I tend to be very critical of the social media companies, but in this particular context, on this particular issue, I think that they basically got it right. I think that they were right to keep his account up for as long as they did and right to take it down when they did.
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A
That's the response I read that you had when people like Eugene Volok and I think Angela Merkel, I mean, people were very, very worried about the precedent being set by Twitter shutting the President down. And I think your point was the one you just made so forcefully, which is, y', all, this is just incitement now, like it is clearly incitement. And I wonder if we're back on the shoals of where we started, which is the entire impeachment defense was this isn't incitement under Brandenburg. This isn't. There was no face to face requirement. There was no knowledge of imminent unlawful action. And so again, I feel like you've just put us back, she says accusingly into that loop of if we're going to rely on First Amendment incitement doctrine to say it was completely appropriate to shut him down at that moment, it doesn't get us there. Right.
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B
You're right. And I probably shouldn't have used the word incitement. Let me just say that Twitter appropriately concluded that the President was encouraging people to engage in imminent violence. And it doesn't matter to me whether that meets the First Amendment standard or not. Twitter is not a government actor. Twitter doesn't have to satisfy the First Amendment. But I think that for the same reasons that we generally allow the government to shut down speech when it rises to a particular level. Twitter was justified in shutting down the president's speech when it became First Amendment incitement adjacent, even if it wasn't incitement under the First Amendment standard. Now, with impeachment, I think that that was just kind of almost. I don't know if category mistake is exactly the right phrase, but there too, it doesn't matter whether the president's speech rose to the level of incitement under the First Amendment. That's not the relevant standard. Right. The relevant standard is effectively, is this the president we want? And it's not the relatively stringent Brandenburg test. You can impeach a president for all sorts of reasons that don't relate to incitement of immediate unlawful activity. So I think that that was kind of a mismatch. But that kind of mismatches, as you have suggested, routine these days that we take the language of the First Amendment and we use it in context where the First Amendment doesn't apply or at least doesn't apply in any direct way. And maybe that just suggests that we need some new language for these contexts in which we're often referencing the same kinds of arguments that are referenced in the First Amendment context. But the First Amendment doesn't actually operate as a legal standard. We probably do need that language.
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A
That's a perfect segue to my question about Facebook and its Supreme Court, because that seems like an absolutely perfect manifestation of what you're describing, which is going to construct something that actually has nothing to do with the First Amendment legal regime that has existed for centuries. But we're going to kind of give it the trappings of that. We're going to certainly colloquially call it a Supreme Court, and we're going to people it with First Amendment scholars. And I know you read the Kate Clonick piece about the construction and how the court is working, how that board is working in the New Yorker, but I do wonder if it's a little bit the same problem. I know you decline to be on that board, but the sense I get from reading Kate's amazing piece, and this is a sense I got, this must be so familiar to listeners of this podcast that you just have to believe in it, because there's no plan B, right? If we don't believe that that regulatory board is eventually going to get it right, I think in the article, liken it to Peter Pan and believing in fairies. If you don't believe that they are going to find some perfect algorithm for regulating speech On Facebook, then we're well and truly screwed. Right? So your critiques notwithstanding, here's the problem. There just has to be a supreme court for Facebook.
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B
Well, it depends what you mean by that. Part of what facebook is looking for here is the appearance of constraint, right? They want to be able to convey to everybody that they don't actually have all this unconstrained power. In fact, they're subject to oversight, hence the name of the name of the entity. Part of the reason they have created all that is to head off the possibility that governments around the world will themselves exercise the kind of oversight that we need them to. There is a little bit of a disconnect between the oversight that the oversight board is engaged in and the oversight that I think we need governments doing to be engaged in. You know, what the oversight board is focused on is content moderation decisions. That's really it. Basically, when facebook takes something down, was facebook right to take that thing down or not? That's really the limit of the board's authority. And content moderation decisions are sometimes important, but part of the reason they are so important has to do with facebook's design decision, its engineering decisions. Right? So facebook decides what shows up at the top of your news feed. And facebook's policies relating to political advertising determine how granularly targeted is that the word that political ads can be? And whether those ads can be responded to if they include false information. And those kinds of decisions, those human and algorithmic decisions that go into facebook's design, are ultimately much, much more consequential than these decisions about content moderation. And to the extent that content moderation decisions are consequential, it's largely because of these design decisions that facebook has made previously. The oversight board has this very narrow jurisdiction, and by design, narrow jurisdiction. Facebook doesn't want to turn over to the oversight board decisions about the algorithms, because the algorithms are what determine whether facebook makes money or not. And facebook doesn't want to give these law professors the authority to make decisions that affect how much money facebook makes. And nor could facebook actually turn those decisions over, because facebook is a private corporation that has obligations to its shareholders. So I think that it's too bad that the oversight board jurisdiction is so narrow, but it's also entirely unsurprising that the oversight board's jurisdiction is so narrow. And rather than look to the oversight board to solve all our problems, we should be looking to governments, actual governments, not facebook created governments, whose members are all determined by facebook and whose resources come from facebook. But real Governments and real governments should focus not on content moderation, but on these deeper questions about the structure of the social media platforms and even broader questions about how technology companies deal with the privacy of their users. Questions relating to transparency and accountability to the public for the decisions that they're making. There are lots of ways that governments could improve the health of our digital public sphere. Privacy regulation is where I'd start. But also antitrust interoperability mandates, which would make it easier for people to leave one platform and move to another. Transparency mandates that would require the companies to be more accountable to the public for the kinds of decisions that they're making. There are lots of ways that actual governments could regulate these companies. And I see the oversight board as in significant part an effort to preempt or SAP the energy, the political energy that would otherwise be put behind those efforts at legislative reform.
- [32:20]
A
We'll be right back. I think you made a version of this argument really recently in the New York Times and you said effectively what you just said here, which is treating Facebook as though it's some vast public square for speech purposes and then having a board of people determine what can and can't be pulled down really elides this huge design problem, which is that Facebook is a money sucking, privacy sucking entity that feeds you information for reasons other than purely marketplace of idea reasons. And it does bring me back to this one first principle question I wanted to poke at with you, Jamil, which is that metaphor. The marketplace of ideas has been so completely corroded, I think we're so fond of it and there is just an abiding, I think like very sweet American notion that good speech is always going to be the cure for bad speech. But the marketplace of ideas is, I mean, much smarter people than I have offered critiques for decades about how ass backward that marketplace of ideas is as a metaphor when it's absolutely not in any way a marketplace and it's certainly not surfacing all ideas so that consumers can pick the best ones. Do you have for the digital age a more workable or more apt metaphor for how to think about this? Given that I think the marketplace ultimately that we're looking at with these online platforms is for us.
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B
Yeah, I mean, you're right that it's a deeply problematic metaphor. Whether it's problematic because what we have isn't a marketplace of ideas or because what we have is a marketplace of ideas, I'm not sure. Maybe there's a little bit of both, that it's problematic in both senses. But even if you do subscribe to the marketplace of ideas, even if you think that that is an apt description of what we have or what we should be aspiring to. Part of the challenge with social media platforms is that they insulate, or they can insulate people from views that are different from their own right. And maybe the main insight of the marketplace of ideas, or the main component of that theory is that bad speech will be corrected by good speech. But the structure of the social media platforms sometimes interferes with that possibility. It deprives people of access to or shields them from the good speech that would correct the bad speech. I don't actually know how big a problem. I think that is a problem. And there are filter bubbles on social media, and social media companies have an incentive to create those filter bubbles, or the filter bubbles result from the incentives that the social media companies have. How much of that is responsible for the defects in our larger sort of political discourse? I'm not actually sure, but I just say that because I think that even if you love the marketplace of ideas, you might still wonder whether the social media platforms are serving public discourse or serving the needs of our democracy. What happens on social media platforms doesn't resemble the marketplace of ideas as usually described.
- [36:00]
A
Before I say goodbye, I think I want to ask you, you've at least hinted at a whole bunch of different legislative, antitrust, regulatory fixes that could start to solve some of the problems that we've described here. But I wonder if we can pan back and just talk about the ways in which this is ultimately a global problem. And we can talk about Australia's efforts to regulate Facebook and Google, forcing them to pay publishers for news and shutting the whole thing down. But I wonder if part of what is worrying me is we get really myopic in the United States talking about this as a First Amendment problem. I think we've now established conclusively it's not only a First Amendment problem, but it's even beyond American problems and American fixes and American frameworks. And we've got a global problem. And I wonder if you or Knight or someone with a much bigger brain than me has a kind of overarching theory of how this gets done.
- [37:10]
B
Yeah, yeah. I mean, you're absolutely right that. And I, you know, I'm more guilty than most of this. But you're absolutely right that the debate in the United States is sometimes too myopically focused on the First Amendment. And that's a problem for multiple reasons. One of them is that the First Amendment is an American thing and nobody else cares about it. But the other is that it's not obvious that the First Amendment is offering us better solutions to these problems than Section 2B in Canada, for example. Right. There are many other countries that are struggling with these same issues, and some of them seem to have come up with better solutions than we have. So we should be open minded about what can be learned from the experience of other countries. But I agree that there's a global problem here. I don't know that that means that the solution should be global. Right. When I talk about what I think the right answer is, I often have, even if I'm not at that particular moment thinking about it in this way, I often have American institutions in the back of my mind. So when I say that, yes, it made sense for Twitter to keep Trump's account up for as long as it did, I have American institutions in the back of my mind, and I am taking into account the other kind of checks on government power. So, yes, I worry, or I worried that Trump would order the military to do some crazy thing, but I also knew that there are other checks on his power. Now, if we weren't talking about Trump or we were talking about Duterte instead. Right. Or we're talking about Modi in India, you know, it's a different set of institutions that are at play in those places. And whether the same solutions make sense in those places as makes sense in the United States, I don't know. You know, you have to talk to people who know those societies a lot better than I do. You know, whatever solutions we come up with are going to make sense against the background of some set of institutions. And those institutions are unlikely to be global. They're more likely to be local or national. And so I think that it may be that the problem is global, but that doesn't mean that one solution is going to be. There's a kind of one size fits all solution to that problem.
- [39:30]
A
So maybe if we can agree on one lingering principle for listeners today, it could be this. It's all really complicated and it's changing faster than we can get our heads around it. In some sense, probably if you and I had had this conversation three years ago, we would have talked about fundamentally, really different concerns. But that what isn't useful, Jameel, is to continue to stand up and say, cancel culture. Cancel culture. My right to speech. I have a right to publish this book. Everybody's silencing me. None of those. Yes, yes, we think flavors of speech conversation are useful. Right.
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B
I absolutely agree.
- [40:15]
A
Okay. Well, I think Maybe that's as good a place as any to conclude a conversation that I really feel like I'm only beginning to figure out how to think about. Jamil Jaffer is executive director of the Knight First Amendment Institute at Columbia University. Before that, he was deputy legal director at the ACLU and director of their center for Democracy, where he oversaw their work relating to free speech, privacy, technology, national security, and international human rights. I think I've known him since back in the days when he was working on national security around the torture memos. So it makes me feel.
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B
That's right, yeah.
- [40:54]
A
As though we are both very, very old and shaking.
- [40:58]
B
In fact, Valley, do you remember you came to an event, I think, at Sundance that we put on about the torture memos? Right. I'm just remembering that now. It must have been 2,000 in. I don't know, six or seven or eight. I don't know. I can't remember exactly when, but a long time ago.
- [41:15]
A
Jamil Jafra, I know you're crazy busy, and I know that a lot of us look to you in these confusing times to help us figure it out. Thank you for making time for us.
- [41:25]
B
Thank you so much, Talia.
- [41:28]
A
And that is a wrap for this particular episode of Amicus. Thank you so much for listening in. And thank you. Thank you so very much for your letters, your questions, your queries. You can always keep in touch@amicuslate.com or you can find us@facebook.com AMICUSpodcast Today's show was produced by Sara Burningham. We had research help this week from Daniel Halouf. Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior managing producer, producer of Slate Podcasts. Take good care of yourselves. It is a long winter. Be well, and we will be back with another episode of Amicus in two short weeks.