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Social Media and Public Health: A Conversation Featuring State Attorneys General
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- [00:03]
A
Hello, friends. I'm Jeffrey Rosen, President and CEO of the National Constitution center, and welcome to we the People, a weekly show of constitutional debate. The National Constitution center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week, the National Constitution center hosted a conversation with two state attorneys general, Doug Peterson, Republican of Nebraska, and Phil Weiser, Democrat of Colorado, to discuss social media and public health. It turned out to be perfect timing as the Supreme Court just blocked Texas from enforcing a law that would prohibit social media platforms from removing posts based on Viewpoint. Today on we the People, we discuss the role of state attorneys general and state law in addressing the potential harms posed by social media platforms to public health, privacy and competition, as well as constraints on regulation imposed by the First Amendment. This conversation was presented in partnership with the center for Excellence in Governance at the national association of Attorneys General and was streamed live on June 1, 2022. Enjoy the show. Thank you so much for joining Attorney Generals Peterson and Weiser. All of us are learning in real time about this Texas decision that just came down yesterday. So I'm just going to read a broad summary from it. The Court issued an order which has a separate statement by Judge Samuel Alito, and then we'll read through it in real time and discuss its possible implication. So reading from the New York Times summary, the Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. The Court didn't give reasons and in fact there was an unusual coalition with in dissent with the most conservative members, Justices Alito, Thomas and Gorsuch, joined by Justice Kagan that had more to do with the question of when the Court should intervene, not their views on the merits. But Justice Alito wrote a separate statement where he said the issues were so novel and significant that the Supreme Court would have to consider them at some point. And he actually laid out some arguments for and against the Texas law. So the Question is a groundbreaking Texas law that addresses the power of dominant social media companies to shape public discussions on important issues of the day. It applies to social media platforms with more than 50 million active monthly users. So it's the big ones Facebook, Twitter and YouTube. And it essentially requires platforms to be treated common carriers that have to convey all of their users messages. And it's an attempt to combat what critics call censorship of conservative views. So with that very broad introduction, General Weiser, based on what you know about the case, and I know we're all learning about it in Real time. What can you tell us about this Texas law, how unusual it is and what you think the legal arguments for and against it are.
- [03:17]
B
So, Jeff, with the appropriate caveat that I've not had the chance to really analyze it carefully, I do want to highlight a few points. The first point is the dominant role of these social media platforms in our discourse, in our economy, in our society, is going to warrant increasing conversations about how they play a role in shaping our politics. Media attention on this is deserved. The mental health of our kids is affected and something that General Peterson, I have worked closely on, the competition innovation in the Internet age. This case is obviously about what type of open discourse can happen and what type of editorial role can be played. I do want to underscore that the argument made by those challenging this law is that the First Amendment is a shield, if you will, against public regulatory oversight. And what's interesting about the Alito opinion is the level of deference towards public oversight and the skepticism of this First Amendment. I'll call it Lochnerism, which is a threat. And this is a threat. That's not new. I've written about this 20 years ago. If the First Amendment means you can't have public regulation, be it for competition purposes or protecting privacy or, or kids mental health, you're basically going to have the Internet as a regulation free zone because the First Amendment will be used as a complete shield. There's a lot of skepticism in this dissent citing favorably a case involving must carry rules that were upheld by the Supreme Court and an earlier decision involving a shopping center, the Pruneyard case, which allowed for some rules of the road to protect public discourse. And so I think what is significant about this is a it acknowledges something that General Peterson I have been working on. These dominant social media platforms warrant public attention and oversight, number one. And number two, to the extent they thought that the First Amendment will be a full shield and will immunize them from any public oversight or accountability, there sure seems to be a lot of reasons to think twice about that, at least based on the Solido opinion.
- [05:28]
A
Thank you very much for that opening intervention for calling our attention to what you call First Amendment Lochnerism. Lochner was the case that struck down maximum hour laws for bakers under the due process Clause. And General Weiser is saying that the Court in some cases is employing the First Amendment to strike down regulations of the platforms in similar ways. And he notes that Justice Alito seems, without committing himself to be more sympathetic to state regulation of the platforms. General Peterson, if you could Share your initial thoughts on the Texas decision and Justice Alito's opinion. That would be great, Jeff.
- [06:06]
C
If you can just give me about 10 minutes of dead time, I will.
- [06:10]
A
Absolutely. Sorry to ambush you. And you know, this is constitutional learning in real time here at the ncc.
- [06:16]
C
No, I read the article and it was my understanding that the Supreme Court was saying that they would go ahead and stay the application of the Texas law at this time time pending further review. Is it not simply a stay?
- [06:30]
A
Correct.
- [06:31]
C
Yeah. Which. The fact that the court wants further time to analyze the case or further time to deliberate doesn't surprise me because I think this is a very complicated issue. I have not read this opinion by Justice Alito. It is interesting that Justice Kagan joined in the vote but did not join in Alito's opinion. I think it's interesting also that I think the Supreme Court has signaled a couple times now that they are concerned as to the concentrated ability of these platforms to control speech in such a way. I know Justice Thomas also had entered a dissent opinion of probably about eight months ago with regards to the Trump and Instagram. I believe it was with regards to the power of these platforms and how this needs to be addressed. So I think this is going to be one of the key economic issues that it's going to be in front of the Court in a variety of different ways, whether it's state laws that are trying to open up platforms to free speech or whether it's in the antitrust area or in the privacy area. I think this is coming quickly to a head for the Supreme Court to hopefully give some guidance as to the ramifications in the area of antitrust and in the areas of free speech.
- [08:02]
A
Thank you so much for that excellent introduction and signaling the importance of the case. I think it might be helpful in the spirit of reading the text, which we always want to do, to actually take a beat and read parts of Justice Alito's opinion together because we're all learning about it in real time and. And friends who are watching. Dear National Constitution center friends, remember, it is always crucially important to read the opinion yourself, both the majority, if there is one, and the concurrences or the dissents so that you can make up your own mind. But after reviewing the parties and some of the procedural issues that our friends have flagged, Justice Alito emphasized that the law is novel. And then he cites some previous cases. He says appellants claim that the law interferes with their exercise of editorial discretionary and they maintain that this interference violates their right not to disseminate speech generated by others. So that's a core of their free speech claims, namely, that the platforms should have editorial discretion to disseminate whatever speech they think is best and to not disseminate speech generated by others that they find hateful or contrary to their policies. And he says, under some circumstances, we let organizations define themselves, like the Boy Scouts can exclude gays and lesbians from their parade. And then a newspaper doesn't have to admit all comers to its pages. But then there are cases on the other side. General Weiser mentioned them. A shopping mall is allowed to be required under some circumstances to open itself up to all comers. And cable operators have their editorial discretion lessened because they're common carriers. Justice Alito said it's not clear how we should apply this to the age of the Internet, which is different from cable and different from a shopping mall. But this raises hard questions. And the main question that he flags is whether the platforms are like cable operators, just conveying ideas that they've endorsed. In other words, are they neutral platforms or do they exercise editorial responsibilities? And then he says there's this irony that the platforms are claiming that they're just neutral disseminators invoking immunity under the Communications liability Act, Section 230. This is this footnote number two. But then they're turning around in this case and saying, hey, we should have editorial discretion to ban hate speech if we think that that's right. I haven't found a definitive view, but I think this is a really important case. All right, General Weiser, we were reading that together, and you're better at reading decisions in real time than I am. Take another beat. First, give us more about the argument on the other side that the platforms themselves do have a First Amendment right not to be forced to disseminate the speech of others. And then more on Justice Alito's dissent.
- [10:45]
B
Sure thing, Jeff. But I have to underscore you passed over one of any state attorneys general favorite cases. If you go down just a little bit. New Ice Age versus Leben, which has the famous phrase of the idea that states are laboratories of democracy. Here, though, it's a different proposition. It's being cited for that. The states are often addressing changing social and economic conditions.
- [11:09]
C
And.
- [11:09]
B
And that is very much what's happening in the Internet age. Colorado, for example, has passed a law that is governing Internet privacy issues. The federal government has not passed that law. As Brandeis put it, in that case, we're conducting a brave experiment. So I couldn't resist acknowledging that as well. Back to your question, which is an important one. What is the First Amendment argument? And I want to underscore back to the cable case I mentioned. That's the must carry case. Turner. There was a First Amendment argument there too, which is a very similar argument, which is when you are providing a service to the public, how you package your service reflects an editorial judgment. And there's something that is easy to do here, which is how do you package a service about a social media platform? Is there a role you can play in saying there are rules of the road that we are going to have that are part of our brand, part of our speech interest, if you will. And companies have the right in the First Amendment to again convey that they are a certain type of platform or to use the example you said they might have a certain type of parade, if you will, and they don't want to be told they've got to include something else. What this court held, by the way, in that cable case was arranging your channels in a particular way. Was it such of an absolute speech interest that you couldn't be told you got to carry certain channels that otherwise could be excluded for reasons that raise competition concerns? So there's a real tough a priori question here, which is where's the cart? Where's the horse? Is there a public interest in ensuring that certain voices can get heard, or is there a private interest in having your own brand not be diluted or otherwise changed by requirements to allow certain type of speakers who might not be consistent with what you stand for?
- [13:05]
A
Wonderful. Thanks for articulating those two interests so well, General Peterson, now that we've read a little bit more of it together, further thoughts both on Alito's reflections and does your state take a position on laws like this and do you think that the Texas laws are good, good idea or not?
- [13:21]
C
It's very interesting to see some of the states leading out, started with California and then Colorado, Phil, I believe Virginia and Utah or other states that have passed privacy laws. And the industry somewhat gets frustrated by the fact that, well, wait a minute, we need uniform laws. We don't need, you know, 50 different versions of what we need to comply with. But frankly, this goes to very much the state labs and the ability to see how we can address these issues. So that's why I'm not surprised that Texas stepped forward with this type of law. We have not in Nebraska considered a similar law. I think to a certain extent the industry brought it on themselves because some of the Examples that you become aware of as how restrictive they've become on speech, pulling people down who expressed opinions that seemed very much within the public debate and reasonable. They weren't the extremes that some would clearly identify as dangerous. They were simply opinions. And so for the, for the platforms to take such a strong hand in controlling it, I'm not surprised that they brought on state action like this. And then the question becomes whether the state action falls within the appropriate constitutional authority to do that. I think this other real challenge to the court is this. It's almost like a bipolar response by these platforms. They throw up Section 230 as protection, but then again say that they should be entitled to be the deciders of truth and information. And it's kind of like we're really getting far removed from what the purpose of section 230 was when it was passed back in the late 90s.
- [15:03]
B
If I could follow up on that. The 230, if you will, immunization from liability was premised on two things. This was a nascent industry where regulation would interfere with their growth and secondly there would be responsible self regulation so we can trust them as good stewards of the platform with the public interest in mind. The first point is so plainly not the case. These are the largest companies in the world. So the idea that to take Facebook is an obvious example, needs to be protected from any public oversight because it could squelch its development as an entity is a laughable proposition. The second one about responsible self regulation, it's worth noting, and this is implicit in what Doug said. There's two types of harms. There's you have content that's taken down based on some standard that upon some reflection or even at the time is really questionable. Or secondly, there's content that's left up that's really harmful and could be injurious to the public in a number of ways. And the hard question for society right now is how do you oversee both types of decisions in a way. So it's not only up to a company or self regulation, but there's some sense of a broader public interest. So that I'll give you an example, when someone says I want to suggest there was a chance that the COVID 19 pandemic started in a lab in China that was a controversy that today there's still questions about at one point people suggesting that might have been the case, the lab leak theory, if you will, that content got pulled down because some of the companies said that was problematic. Now that is to me a different issue than someone saying vaccines are planting microchips in your brain. You know, something we have every scientific reason to believe is just not happening and is dangerous. But the lab leak hypothesis, you know, as some articles have noted, is something that warrants discussion. And that's the hard question is how do you figure out what's the dangerous misinformation, disinformation and what's legitimate discourse.
- [17:10]
A
What do you think of that distinction, General Peterson, between the tough questions about what to leave up and what to take down and General Weiser's suggestion that it's laughable that Section 30 is working the way it was intended to and that the platforms actually are just neutral hosts?
- [17:24]
C
Well, certainly on the section 230, I really agree. I think a lot of people evaluated that said, the original intent of that no longer applies and it needs to be re examined as to content and the ability of platforms to basically exclude those thoughts that they disagree with. And the COVID Lab origin is a good example. But I think what the industry did is it prompted such a frustration certainly in the state of Texas to say we're not going to let you be the gatekeeper of information when they're playing such a heavy hand. And as Phil noted, there's a real distinction of real crazy stuff and just stuff you disagree with. And what they did is they went and they closed down stuff they disagreed with. And people said, wait a minute, this. The citizens of Texas, I assume, certainly said wait a minute this. If you're going to have the platform, let us express our opinions. And as long as we're not harming or putting out serious misinformation in the state of Texas, you can't be the arbitrator of what is true and not true. And I think it's not a surprising response by the state to do that. And I think it's going to be really interesting to see how the Supreme Court analyzes this whole issue.
- [18:41]
A
What's so interesting about our discussion so far is that both of you from different perspectives are in some broad agreement about the need for state regulation, about the inadequacy of the existing federal statutory framework, and about the idea that the First Amendment shouldn't necessarily serve as a bar. General Weiser, all of us are kind of reading this in real time, but what would you say if I said, if I suggested, you know, the Supreme Court, once it finally decides this on the merit, may well disagree with you and invalidate the Texas law on First Amendment grounds, on the idea that the platforms do have the First Amendment right to set their own content policies and also that it's not appropriate for states to be serving as laboratories of democracy here because these are international platforms and requiring different regulatory regimes state by state doesn't make sense. What would your response be?
- [19:37]
B
So on the first point, I agree. The First Amendment applies. The question is whether the First Amendment is an absolute shield. That's what I called First Amendment lockernerism or allows for what was the case in the Turner must carry decision, intermediate scrutiny or as some have referred to it, the o' Brien test of a sort. So I'm a believer of leaving some room for regulatory oversight over these social media platforms, whether you're purposes, competition. That was the case in the Turner case. Privacy or other interests around ensuring that the public is not harmed. If you give them full immunity under the First Amendment, I believe you are making a mistake. Number two, if you're giving them full immunity against state regulation on some theory that these can only be federal rules, you have overturned the case. I noted the new Ice Age case that Justice Brandeis famously decided. And you have taken a position that I believe is antithetical to the American system of federalism that allows for experimentation by states. The idea that you can't experiment in online data privacy, I believe is wrong because we are doing it right now. California has a different model and a different law than Colorado. And we are committed in Colorado to allowing compliance with both regimes or interoperability with both regimes. That's a challenge we have to take on. I'm also aware that part of what we're doing is incubating alternative models that could be adopted by the federal government. We could talk about ultimately what that might look like. And that has happened in a range of regulatory regimes and is healthy. So on both the points you noted, should the First Amendment give full immunity and bar any public regulatory oversight of social media platforms? I believe that would be a mistake. Like I said, First Amendment locknerism. Should the states be barred from activity in the area on the theory that you need only national action? I believe that would be a mistake as well.
- [21:35]
A
Wonderful. Thank you for that. Thank you for invoking Justice Brandeis, my own hero as well as yours, who of course might have found this a tough case. On the one hand, as you say, he emphasized the importance of experimentation in states as laboratories of democracy.
- [21:51]
B
And.
- [21:52]
A
And then in his Whitney in California case, he also wrote the greatest free speech opinion of the 20th century. If I may be so bold as to suggest that suggesting very strong protection for freedom of conscience and speech. General Peterson, your Thoughts on those two points. First, what do you make of my suggestion that the Court may be likely to strike down the Texas law on First Amendment grounds? And second, should states be able to reach different regulatory decisions in this area?
- [22:19]
C
I'll start with your second question. I do think it's important that concepts of federalism, that states be allowed to address how they believe platforms should operate within their states and then in our privacy areas, I think it's real frustrating for the industry because they say, you know, to operate in such a way, but frankly, they're global operators and they're dealing with numerous laws in other countries and in the European Union. So I support the concepts of federalism in each state being able to address particularly the privacy issues. And I think you're going to see more of that, and it'll be interesting to see how states can protect themselves with regards to the opinion of the Court in the First Amendment issues. As I said, I think the Court's already indicated that they have a real concern of the dominant position that some of these platforms have and how much control they have. And so I think it's going to. That's why I bring up the antitrust issue, because I think that's another factor in this type of control and dominance of messaging. I found this one somewhat interesting that Justice Kagan joined, although she wasn't a part of the opinion. I think it's very common for all of us to kind of step back when we look at votes and try to speculate as to what it might mean. I frankly think that although the federal authorities have been trying to address this, both the FTC and the Department of Justice and Congress, I think all of us are somewhat. As it comes with regards to First Amendment, we're all very curious as to how the Supreme Court's going to play this out. And I think we can take stabs at it from the state side or we can take from federal legislation, but this is ultimately going to rest with the Court's analysis of how the First Amendment applies to social media platforms and big tech.
- [24:21]
B
Jeff, I can just quickly comment. I'm not familiar with the exact requirements of the Texas law, but let me just mention an imagined law which could be a federal law that says any dominant social media platform defined in a certain way, way, has to have some procedure to allow an appellate procedure of some outside, you know, neutral decision makers to evaluate either leaving content up that they decide not to take down or taking content down that arguably is fair game. And Facebook has done that. They created their own kind of call it Facebook Supreme Court without a requirement. My point though is a procedural requirement like that I mentioned is in service of free speech interests. So the free speech interests are not only on the platform to say we want to do what we want. They're for the speakers who use the platform. And that was part of what pruneyard recognized as well.
- [25:16]
A
Very important model that the Facebook Supreme Court offers. As you say, I think the Texas law had a disclosure and transparency requirement, although not a requirement requirement of review. But you're right to suggest that that might well affect the First Amendment analysis and as you suggest further First Amendment values rather than thwarting them. General Peterson, you mentioned antitrust and both of you have been involved in a nationwide effort to push antitrust law into the First Amendment area. And you, you and General Weiser joined in submitting joint comments on the FTC's and just department of Justice's joint initiative to revise the horizontal merger guidelines in April, which are used by federal antitrust agencies and state attorneys general to review proposed mergers. Tell us about that nationwide initiative and why it's important.
- [26:12]
C
Well, you know, the guidelines and our comments. That is just a part of, I would say, Phil, probably three year process that both Republican and Democrat AGs have been going through together. And it all comes back to what we were originally talking about, the dominant position of these platforms, the ability to control markets. And so I thank this coalition and I've appreciated how well the states have worked together in this and I've appreciated working with my neighbor Phil on these issues because I think they are really common concerns for both Republican and Democrat ags with regards to proper competition within our markets, proper opportunities for new businesses to have the ability to enter into the market without being excluded by a dominant player. So a lot of these issues go to the I guess the one simple word is power and the state's ability to make sure that dominant power does not affect not only our markets but also our ability for people to participate in public debate in an open and free way. The antitrust case has a variety of different cases going. We have ours is focused on search is what Phil and I have been working on quite a bit. There's the lawsuit going on against Facebook, which is led out by New York, and some of the acquisitions that they acquired and the impact on markets. I think these are important cases because frankly, what I found within the Republican AG world that we've been pretty proactive in trying to make sure in federal courts that the federal and state authorities stay within their proper constitutional authorities making sure the balances of power stay balanced. And we've been doing that quite a bit. But frankly, the third pillar or the fourth pillar of the three pillars of government, the fourth pillar, I think that's now a power play question is the application of our antitrust laws to companies that are developing power that we think is dangerous to our overall economy and to our overall states in the country. So I've found it very interesting in the application we can look at making sure the executive branch is not exceeding their authority of the administrative or that, you know, the states have proper state rights. But now, frankly, we see the extent of power held by these monopolies and feel that that's also something that we have to be engaged in to protect our citizens.
- [28:59]
A
Thank you very much for introducing this bipartisan initiative. It's really striking that you and General Weiser and other AGs, both ours and Ds, have been working together to curb, as you say, the power of the platforms. And I'd love our listeners to learn more about it. General Weiser, give us a high level introduction to this bipartisan antitrust initiative. Once again, I might have thought before learning from both of you that antitrust was just a federal concern. You know, how is it that the states are binding together to push curbs on the power of the platforms? And what are the some of the main highlights of this antitrust initiative that you're doing with General Peterson?
- [29:39]
B
Jeff, let me offer four points on this. First, the opinion you referred to earlier also cites the Associated Press case, noting that these entities in that case it was the Associated Press. Here it's social media entities are not immune from public oversight and competition protecting measures like the antitrust laws. In the Associated Press case, there was an effort to say the First Amendment prevents the Associated Press from having any antitrust scrutiny that was turned away. Number two, to your point about cooperative federalism, the antitrust laws quite deliberately empower state enforcers to enforce the antitrust laws alongside the federal government. And in fact, the national association of Attorneys General had their first meeting ever in Denver, Colorado to discuss, yes, wayforward antitrust issues and oversight of Back then it was Standard Oil. Today it's Google, Facebook, and other behemoths who are in a position to undermine competition. So state AGs in this world of antitrust is not a new thing. And the very purpose of our federal antitrust laws is to authorize a cooperative federalism where both the states and the federal government have the authority to enforce federal antitrust laws. Third, to your point about the bipartisan nature, it's, I think, a credit to the culture around State ag. Something that Doug and I have talked a lot about is an initiative I'm leading as the head of a group called the Attorney General's alliance, called the Ginsburg Scalia Initiative. Something that I think fans of the National Constitution center can appreciate, which is we have a commitment to respectful engagement around the rule of law and bipartisan problem solving. Whether it's these issues of privacy, of competition, or of the impact of these social media dominant firms on teen mental health or our democratic discourse, we're not going to agree on everything. But the culture is one that we will have respectful engagement, a commitment to wherever we can, collaborative problem solving, and a respect for the rule of law. We are not seeing that level of collaboration, that level of respectful engagement in our United States Congress. Unfortunately, it has existed in times past. Think you know, President Reagan and Tip o' Neill or Orrin Hatch and Ted Kennedy. But I'll tell you, in the world of state AGs, the relationship of Doug and I is not an exception. I think it's more the rule that we have a culture of this engagement. And antitrust is a great critical area. We work together, but opioids and others are high on the list as well. Finally, on the substance of the work we're doing, we need to recognize that our economy has changed. Technological change right now has put these Internet companies, Google, Facebook, others, into an incredibly important position. And Doug's point is one I would totally subscribe to with that level of market power. So significant market power, there is an ability to undermine competition, to thwart new entry, to put a thumb on the scale, to hurt innovation. That's all bad for consumers. And so it's our job to be vigilant in this area. And I give Doug huge amounts of credit for seeing this concern and proactively building a coalition to do something about it.
- [32:56]
A
This is so inspiring to learn about the Scalia Ginsburg Initiative, which, as you say, is very much in the spirit of the National Constitution Center. And it is so meaningful to learn about your joint efforts. Absolutely wonderful. That idea of concentrated power is of course, crucially Brandeisian. As Brandeis said, nothing could demonstrate more clearly the concentrated power of corporate interests than antitrust incidents that arose during his own confirmation hearings. And I want to now return to some of the other aspects of this joint initiative that you both are part of. General Peterson, you'd mentioned Facebook. You said New York is leading the effort here, but several states, including yours and General Weiser, have joined in this multi state investigation into alleged willful practices by Facebook that harm children. Tell us about this aspect of the initiative and what issues it raises.
- [33:54]
C
Yeah, I think one of the things that allow attorneys general to come together in a bipartisan way is a lot of times we identify the harm. It's a mutual harm. It's not a harm that is distinguished between red and blue. It's pretty clear one of the issues that we've moved forward on is social media platforms and what type of harm, particularly harm done to our young people. Well, frankly, it's pretty easy to get buy in by all the AGs. In that particular case, we have all the states and many of the territories joined in an investigation. So that's what I think Phil and I have found and why his the Ginsburg Scalia initiative is just a better form, I think, to really encourage us as ags not to allow this partisan world to affect our ability to take on real mutual challenges. And so we're far better off having 50 states looking into social media platforms. So we're far better off to have so many states that are engaged in our antitrust efforts because we stay focused on both the law and the harms being caused and what we can do in and our responsibilities in our offices as attorneys general. And so what I appreciate about working with Phil is it's rare that I can ever think of a time where he and I were not focused on harm, basically focused on mission. And that's what's made the relationship so advantageous. Now don't bring up marijuana because that's a whole different issue. But we can agree on, we can really agree on the importance of this tech. The digital economy is a real concern as to the harms that could be caused and so it's allowed us to do that. And with regards to the social media platform, the harm to our young people, I think we're becoming more and more aware of and it concerns all of us because we have children and grandchildren and we see them looking at those phones. We know the mental health issues that are starting to arise and more study is needed in that area. But that's very easy to get cooperation and cohesion among the ags in addressing those things.
- [36:22]
A
Wonderful to hear about. General Weiser. In May, you pressed Facebook to explain its plans to launch a version of Instagram for children under the age of 13. We've posted in the chat a New York Times piece which says state attorneys general open an inquiry into Instagram's impact on teens. Tell us about that initiative. And what kind of regulations you think might be a good idea.
- [36:43]
B
For those who've been following this issue, I think it's fair to say the whistleblower who testified for Congress and talked about the impact of algorithms gave everybody a valuable education. For those who are not as in the weeds as Doug and I, it's worth explaining. An algorithm is the method by which a online platform will figure out, if you liked watching this video, you'll like watching that video. And so the benign version is, I'm watching a video about the Colorado Rockies chances this year, and they say, oh, you might also like to see about the Denver Nuggets because you're a Colorado sports fan. That's a pretty benign use of an algorithm. Or think about Amazon. You liked this book, that was a James Bond book. You might like this other book, which is another spy thriller. However, for kids, if you're a young girl and you're on Instagram and you're looking at videos around how I might lose weight, and you start getting videos sent to you, suggested for you because of the algorithm that say, here's how you can harm yourself, here's how you can engage in bulimia, and here's how you can commit, take your own life and die by suicide. All of a sudden we're in a whole different situation where the platform and its algorithms are directly suggesting encouraging dangerous behavior. Now, why would that happen? It doesn't necessarily mean that the platforms are willfully trying to harm people. The algorithm can be automated machine learning. And what the algorithm may teach itself is that users who think about losing weight also might be vulnerable to self harm or bulimia, or to take their own lives. And if you give them the content of their darkest thoughts, they will be engaged for longer. And the goal of the auger is keep people engaged. To the extent that companies know that is happening and are doing nothing, shame on them. What I would say is the worst form of capitalism is when a company says, I can make money and I'll be hurting people, but I'm looking the other way. So I mentioned earlier Opioids was an example of a company, Purdue Pharma, making money by encouraging enabling addiction that cost lives. To the extent Instagram or TikTok is making money by keeping people engaged for longer, by taking them down a dark hole, shame on them. And your question is what to do about it? Well, there's a lot you can do about it. Obviously, age verification is a concern, parental awareness is a concern, and a level of awareness about the type of content that's being suggested to people. And is it content that is harmful to teen mental health? We are in a teen mental health crisis right now. That's the Surgeon General's words. These social media platforms, as Doug noted, are part of the problem. I'd like to see them stop being part of the problem and actually become part of the solution.
- [39:51]
A
Thank you for that very much, General Peterson. General Weiser just noted a bunch of solutions, from age verification to learning about the harm of the content. What do you see as some of the possible solutions to harms of teens on Facebook and Instagram?
- [40:05]
C
Yeah, Jeff. One of the things that's so interesting is the suggestion that, for example, when Facebook tried to do the Instagram for kids and that they wanted to partner with parents to show how best to engage in the Internet. That's so disingenuous. As Phil said, the whole business model, the whole business model is about engagement. And the engineers are awarded for designing greater and greater engagement, and they're being very successful at it. The average, it's increased with the period of COVID but the period of time that kids average on the Internet is now around six hours a day. Think about that. Of the waking hours for a lot of kids, it's even worse. The harm caused by that. The lack of engagement in normal engagement with friends and with community and with interest are all compromised to people looking at their screens. And it's by design because engagement allows the extraction of data, and data allows the accumulation of profiling this person in such a predictable way, they don't even themselves know how predictable it is with the accumulation of that data. So it's really a concerning process. And it's not limited to young people. All of us are subject to the fact that they're pulling out data and developing our profiles and then seeing where they can manipulate it here or there for their own benefit. One of the things that I think is still in the I think more and more evidence. It's a little bit early to come out with conclusive studies, but there's some pretty good work that's going on right now as to the impact on the mental health and the correlation, because right now it appears to be a very interesting correlation of the mental health issues increasing, the suicide rates increasing, and the amount of engagement correlated. And that needs to be further developed with study on that. But the harms that I think so many of us see in the stories we hear about the shaming and sex extortion that goes on in kids taking their lives, it's just incredibly troublesome and one video that I would suggest to listeners that I think is really very interesting is one put together called childhood 2.0. And what it does is it contrasts three generations of what life was like, the quality of their young life. And it starts with like an 80 year old woman and then goes to some parents in their 30s and then goes to their children. And you have six young women and six young men explaining the impact the depression, the social shaming and things of that nature. And it was just an eye opener of how our kids lives have been impacted so much and how it's important now we, Phil and I could be engaged in doing the investigations and the legal effects that we have authority to do as ags. But really we as a culture, I think need to step back and look at our young people and see how we as parents and as communities can get better engaged to let these young people understand that there's so much more to life than not sitting and trying to be an influencer on TikTok.
- [43:26]
A
Thank you so much for that. Thanks for suggesting the childhood 2.0 video and for your poignant reminder that now that kids are spending six hours a day on screen, it is transforming their lives in ways that were just beginning to understand. I would like to put on the table, if I may, General Weiser. The nationwide investigation into TikTok which you and General Peterson joined. TikTok is being investigated for promoting its platform to children in ways that may cause harms. And AGs are examining whether the company violated state consumer protection laws that put the public at risk. Tell us about the investigation and the way that state consumer protection laws may provide redress.
- [44:11]
B
So we were just talking about Instagram. Basically take everything we just said and change the Central character to TikTok. And so this is not about one specific company. It's about, as I think Doug put it, well, a business model. Business models need regulation because if you allow people to say I'm going to do whatever I can within the law to make money, but there are no laws limiting conduct which harms teen mental health. That's a problem. To your point, there is a law. It's general. You sometimes hear the phrase udap, unfair and deceptive trade practices. That's a broad category that we are able to act in. And the question is, is it fair to keep young people on a platform suggesting dangerous content that their parents don't know about with potentially having given people a very different impression? Because TikTok, you hear, oh, it's fun dance videos, but then there's A lot of other content on TikTok too. And some of it, like the situation I mentioned with the person looking for dieting tips, ending up getting self harm tips. You can see that same story playing out on TikTok which also has algorithms which also keep people engaged. And so we use this broad authority that goes after any unfair and or deceptive trade practice and use it to investigate business activity which can have the effect of harming people in these very impactful ways. And Doug said it so well. With how much time people spend online, the ability for harm, encouraging self harm, for example, is something that demands our attention.
- [46:02]
A
Fascinating. General Peterson, you joined this nationwide investigation into TikTok and one thing that the investigation is looking into is whether techniques utilized by TikTok to boost user engagement, including increasing the duration of time spent on the platform and frequency of the engagement. It sounds like the very business model that some have called enraged to engage is being investigated as a potential violation of consumer protection laws. Do I have that right? And tell us more about the TikTok investigation.
- [46:32]
C
Well, I think one of the important things is in the investigation our primary focus is young people and that there's a lot of questions there. There's the federal COPPA law issues of what are they doing to monitor the age. There's also questions of consent when they allow their data to be utilized. Do they have the legal capacity to make that determination? I think one of the things that in the investigation we want to learn is the methods they use to increase engagement. What are the tactics that they use? There's so much involved in the psychology of what goes on on the Internet and the developers know that. Justin Harris in the Social Dilemma makes the comment and I think it really strikes home with a lot of us is when you compare a 15 year old girl who's going through maybe some depression or some issues on body image and she sits at that screen and she starts watching the TikTok videos and then maybe Instagram and looks at the ability to how some edit photos and things of that nature and they pick that up in the algorithms and the machine learning says, okay, to keep her engaged, we're going to take her down this road. The type of harm that's done there is so concerning in the fact that the reason they're doing that is simply to enhance their ability to gather more data. And that's why when we issued the letter on Instagram for kids is that we said, wait a minute, this is clear that what you're doing is there's business value to you. As a tech company to gather data on the young people and then go into the market and say to the marketers that hey, we have the ability and the intel on these young people that we know how to target very well and we can use the data and to use it for business purposes while understanding to get them to be engaged that long they're harming people is pretty reprehensible. And it's why we've become so engaged in this is because it's not a fair fight. It's not a fair fight for that 15 year old has no idea that she's being manipulated in this way and she's very vulnerable. Frankly adults seem to be just as vulnerable sometimes as far as their own psychology and how that's manipulated. That process has been around for a long time. There's Stanford University has trained a lot of these developers in the persuasion lab as to the different techniques to use to keep people so likes become important. They know just our subconscious of how to continue to keep us engaged. And you know, some of it's really age old psychology but it's, it's with machine learning it's getting so much more out of balance among the user and the, the developer. And so I think that's a point in which you have to step in to try to stop the harms using the authority that we have under our consumer protection laws.
- [49:37]
A
Well, it's time for closing thoughts in this extraordinary discussion. I have to say how struck I am and how impressed I am by the, by the depth of the bipartisan engagement and the rigor of both of your engagement with this really complicated policy issue is and learning about the range of initiatives is illuminating. So I'm going to just ask each of you to give us a map of the regulatory horizon and to identify a number of potential lawsuits or state regulations or other regulatory approaches to the question of social media that you think might attract bipartisan support and that might be productive. And General Weiser, the first closing thoughts are to you.
- [50:22]
B
So I outlined a number of these points in a Denver Post op ed. Maybe your folks will find it. Where I talked about competition, team mental health, I talked about privacy and I talked about and here I will go Meta. Not capital M but small M Democratic discourse. Something I mentioned before, what you've seen here today with General Peterson and myself is what respectful engagement looks like. I mentioned the Ginsburg Scalia model. It is worth underscoring that social media platforms and their algorithms don't tend to encourage fact based, reality based problem solving discussions. With respect the norm, often encouraged again by the algorithms, and there's lots of written about this, is polarization, is demonization, where people are seeing rising hate for people they don't know they based on characteristics which could include their political party, their religion, etc. That is a threat to E pluribus unum from many. We are all that is a threat to the concept that we the people will govern together through a democratic republic. And so social media as a changing landscape for our information environment is a very big deal. We need public oversight to ensure we protect the public on a range of these realms. Right now that's not happening at the federal level. I hope it does. Doug and I have pushed for federal action that's appropriate in this area, but we're seeing experiments at the state level on competition, on protecting kids, on protecting democracy in our democratic discourse, and on protecting our privacy. It's critically important work.
- [52:09]
A
Thank you so much for all that. General Peterson, last words to you. Some future initiatives for our we the People listeners to learn about.
- [52:18]
C
Well, Jeff, I want to thank you at the conclusion here of your organization and the important work that you do. I would have to say I've been in this office seven and a half years and the importance of the Constitution and the liberties and the freedoms that they give to us here in the United States are so the insight and wisdom of the founding Fathers is amazing when it looks at the structure of government they created, the balance of power and the importance we have of maintaining those freedoms. I think now more than ever, the work you do is very, very important. And I want to thank Phil because Phil's not only a peer, but we're friends. And Phil has always been what I would call mission focused in the work that we do together. And his bipartisan perspective has made our working relationship excellent. And just appreciate that he understands that the rule of law and the state rights issues and things like that are all important foundational elements of our Constitution. And so he's been a pleasure to work with. And it makes it very easy to be. I don't think Phil and I think much, well, occasionally doing forums like this. But think bipartisan. Gee, that was a nice bipartisan phone call. No, that was a nice mission focused call that Phil and I were jointly working on. But I would say with regards to my initial comments about the importance and the wisdom found in the Constitution, I really think under the digital economy we've got to hold on to those anchors because they are the anchors to our civil society. And just pray for wisdom for these justices who have to kind of give us those guidelines or give us those rulings as to how this digital economy, the information age, is going to play out. And so we as ags do the best we can to try to apply those principles. But it's going to be a little bit of a difficult time period because these issues from a factual and legal standpoint, are not simple.
- [54:29]
A
Very well said indeed. I must thank you so much, Generals Weiser and Peterson, not only for the rigor, depth and thoughtfulness of your work together, but just for providing America with a model of how people of different perspectives can thoughtfully engage with each other and work together productively. On behalf of what you just called General Peterson, Mission Focused Solutions, it is urgently important, as you say, to provide models of just this kind of civil dialogue. That's what the Constitution center exists to provide, and we are honored to provide a platform for this discussion. I'm so looking forward to our next one on matters involving the Scalia Ginsburg Initiative or anything that you both are working on. And I'm also grateful for the center for Excellence in Governance of the national association for Attorneys General for co sponsoring this program with the National Constitution center and providing you, dear National Constitution center listeners from around the country with a model of civil dialogue at its best. Thanks all and look forward to reconvening soon. Thank you.
- [55:36]
C
Thank you, Jim. See you, Phil.
- [55:37]
B
See you, Doug. Thanks, Jeff.
- [55:43]
A
Today's show was produced by Tenaya Tauber, John Guerra, and Melody Rao, and engineered by Dave Stotz. Research was provided by Colin Thibault, Sam Desai, and Lana Ulrich. Please rate, review and subscribe to we the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone who's eager for a weekly dose of constitutional learning, elimination and debate. And if you're interested in future town Halls, visit constitutioncenter.org debate to find the full lineup of our upcoming shows. You can always join us on Zoom, watch us on YouTube, and watch the recorded videos after the fact in our media library. Always remember that the National Constitution center is a private nonprofit. We rely on your generosity, your passion, your engagement. Support our mission by by becoming a member@constitutioncenter.org membership or give a donation of any amount to support our work, including this podcast@constitutioncenter.org donate on behalf of the National Constitution Center, I'm Jeffrey Rosen,
- [56:55]
B
Sa.