 Welcome everyone. Thank you for coming and the people who are not in the room with us that you can send us questions on chat at any point and we'll take a look at those once we get open to get to open discussion. Our guest today is Martha Minow, who has started Harvard Law School and where she's also served as dean since 1981. In addition to saving the news, which is why the Constitution calls for government action to preserve freedom of freedom of speech, which is the book we're talking about today. She's the author of when should law forgive from 2019 in Brown's wake legacies of America's constitutional landmark from 2010 among many other books and articles. She's an expert in human rights and advocacy for members of racial and religious minorities and for women, children and persons with disabilities. She also writes and teaches about digital communications democracy privatization military justice and ethnic and religious conflict. I am Heather Hendershott, director of graduate studies and comparative media studies, and I work on political media right wing media news media, and I've got a book coming out this late this fall called when the news broke Chicago 1968 and the polarizing polarization of America. And my last book was on William F. Buckley's firing line and the one before that was on Cold War right wing broadcasting so those are the books that I've done that are sort of most relevant I think to our discussion today. What we're going to do is take about 45 minutes or so it's flexible for for Martha and I to go back and forth and talk about her book and I expect she'll do most of the talking because she knows more about her book than I do but I read it with great interest and made a tons of I'm surrounded by pages with notes on them around me here so I did bring in a few ideas, and then we'll open up for general discussion and Q&A with the idea of ending somewhere between 17 and 630. So, this book saving the news is, it's a tight 150 pages but I feel like I've read 1000 page book, because there's so much material in it, so action packed and packed with detail and my encourage you all to procure it and to read it. I'll just give you the spoiler that there's there's four chapters and then there's a coda at the end that is almost like an op ed to just like condense everything from the book into it so it's a great way to get the really key ideas of the book, before you dive in. And the structure is great you've got two chapters sort of setting up the problem and two chapters setting up the solution and the viability of various solutions. The problem is is is laid out as you know the crisis in news right now on on various fronts on technological fronts, you know the crisis of the way that algorithms work the crisis of the creation of echo chambers. And, in particular, in the beginning of the book. Martha talks about the decline of print journalism and local newspapers in particular, and she emphasizes the firing of staff layoffs reduction, you know, and and how this is a sort of a threat to democracy or rather. You know how important the existence of journalism is to democracy in the US and in fact she ends the book dramatically by saying you know constitution calls out you know one business the news business explicitly, because we need news to have a thriving democracy. And then in the second half of the book, she asked him does the First Amendment forbid permit or require government support of news industries. How could we find ways to support news industries within the parameters of the First Amendment which we absolutely can she argues. And what you know what kind of reforms could we make. So I wonder, we don't have to be too rigid but we could sort of start by taking the book in order, and look at that first half about how she lays out the problems that that we're facing in the crisis, if you will. And I'm going to read just one. I'm posted, I'm a post it person I've got 1000 post it's here, and they're all like read this a lot read that aloud. And it's really too much but I did mark one passage from early on from page 34 that I thought was particularly interesting that I'm going to read to you just to kick it off a little bit. I'll give you sense of the pros style. She writes the government was once assumed to be the main threat to the quote marketplace of ideas through punishments or bans on publication, but now the greater danger comes through overwhelming individuals with messages that swamp meaningful communication. Although quote more is better once seemed a sensible approach to freedom of speech. The more provided by digital resources may destroy professional journalism, undermine public confidence and information, and negatively affect the provision and absorption of information needed by the government. The current situation differs from prior disruptions because now the very viability of news enterprises of getting local regional national and international news to people is under siege. You know that there's a sense in which and we can talk more about the scarcity rationale for previous regulation as we move forward but you know the rationale for FCC and other kinds of government sensor or not censorship but regulation used to be the notion of scarcity that we have a broadcast spectrum that is scarce and allocated and it's a scarce resource that is owned by the public, and you might say that excess is the new scarcity, in a sense. Now there is too much out there and that this is, you know, the flip side but also rationale for certain kinds of regulation or action to be taken. So having said that I wonder, Martha, if you could unpack for us a bit. The parameters of the the crisis that you delineate in the book the problems that you see. Thanks so much and thanks for the introduction and for the background I'm a huge Mary Tyler more fan. So, what what I can say is that there really is a confluence of multiple events that have joined together to create a world in which we have simultaneously decline shrinkage of the numbers of people who actually make a living as journalists, pursuing some back based accounts of what's going on, or even accountability investigative journalism, dramatic decline, particularly in the local news over the last 20 to 30 years, you know, something like half to two thirds of the numbers of people who made a living as journalists now no longer do. That's one problem. Another problem is the flooding, particularly in digital context but not only also in cable and broadcast of information into people's worlds, but it may not just be information it's communications and many of them actually not reliable. Many of them either the product of people deliberately trying to mislead or the product of bots the problem of foreign governments of people who are making money simply by creating click bait. So that's the second problem that's creating this doubt about the reliability of any information. The ran corporation calls it truth decay and suspicion about any source. And then there's a third problem which is the decline of any kind of trust in any institution in this country, and in particular the fragility of democracies in this country, but also in other countries around the world and it's the confluence of those three that really led me to write this book. The causes of the decline that first crisis are multiple. One is the introduction of the internet. Every new technology has jeopardized the press, which is Heather said is the only private industry that's mentioned in the United States Constitution and not only mentioned but given its own distinct constitutional protections. So when we move from printing presses to radio people worried this will be the end, but it certainly was not same with television, but it certainly was not. Each time there was a successive creation we can include telegraph as well. As a result of a new media it actually opened up more information and more, more desire more demand for information, sometimes shifting where people get their breaking information from where they get their more detailed background information. But the internet is a little different. The good news is everyone knows is it lowers the barriers to entry, the costs are low. It's not over your data. That's about it. But the difficulty is in the very strength is also the weakness the elimination of an intermediary or a clear intermediary who is judging whether or not what's being amplified is worth being amplified means that now there can be crazy stuff that's amplified all the time. So that's, that's a big problem, but there's a financial dimension to it as well. So the migration of advertising from conventional media to the internet, about 75% of advertising is now that used to be for television or print media is now on the internet and it's escalating even beyond that. And we all know why is because there can be the targeted ads. There can be the sculpting of the message for some groups, some people call it digital gerrymandering, and it's even cheaper. And that has really kicked out from under conventional media, one of the pillars of its financial model, another pillar of its financial model also decimated by the internet is the subscription. So subscriptions why subscribe when you can see someone tweet the headline, why subscribe when you can see someone cut and paste the results of three months of investigative journalism without charging at all. And, you know, conventional media made a mistake initially thinking well we'll just give our stuff away for free. And without building a paywall, you know only the Wall Street Journal figured out you start with a paywall. But retroactive clawbacks trying to get some kind of payment for copyrighted material is just totally failed. So that's the second pillar of the traditional finance model for media. So if you don't have subscriptions and you don't have ads, what do you have. And, and yet, and here's just one more piece. Most of the print local news is still making money. It's not making the kind of money that lots of investors want it's not double digits, but it makes money, and that has made it an attractive target for venture capitalists and market equity, which buy up local papers and chains of papers and even radio stations and even television stations, and then proceed to strip mine them for their assets, and that has accelerated the firing and the elimination of actual staff. Newspapers that are ghost papers that have no staff, and they circulate, you know, features that are written that are very at nine and don't actually pertain to anything about a unique community. And no surprise subscriptions diminish and adds diminish so it's a very vicious cycle. So all that adds up to there's a financial crisis for the news industry, specifically, but for traditional media generally. Talked about late in the book, unbundling, and the kind of, you know, once Craigslist appeared and people could get their classifies online then they didn't need to pay for classifies in newspapers. But I think another key issue there was that once entertainment content, whether for cooking sports become separate out from hard news. I think that the picture there is that those features and here I'm thinking like in particular Matthew Pressman spoke on press right on the rise of lifestyle features. Sure. Way to make a ton of money and also to support the hard news. And once those things become extrapolated out and you can get say all your cooking articles without subsidizing the news reporting, why subsidize the news reporting right. So, um, I thought that was just another important angle on this I don't want to jump too far ahead to solutions because that's, that's later in the book later. But that's a great point and the cross subsidy of the of the traditional media. Just as you're describing actually also carried with it another consequence that we're losing which is serendipity bumping into something that wasn't already something you signed up for or that it was targeted based on everything you've seen before. And that really contributes to polarization that people are seeing entirely different materials, and they're not living in the same universe. I wonder if you could talk also about some of the sort of really helpful history lessons that you give in the book to help us understand that the, the government subsidizing of the press, and of, of public utilities and infrastructure in the US is really relevant to thinking about the present because I don't think most people who think about the crisis and news today are like, what happened with canals railroads. You know, or even like what was arpinette you know so I wonder if you could fill us in on that history and why that's relevant not just something that history nerds need to know but like relevant to thinking about the present. So thanks so much. You know the First Amendment is written as if the government just his hands off that no state shall make a law restricting the freedom of expression or the freedom of the press. But the history, I actually looked for somebody to tell me the history and I couldn't find it so I had to write it. I found, you know, a lot of fantastic studies about sub elements but I tried to put it together and it is a fascinating story about three ways in which government has underwritten subsidized or structured communications technologies in the United States from the post office on the first is actual money subsidies from the post office on the post office is right there in the Constitution, Congress can create a post office, and from the very beginning of the post office. And then subsidies to newspapers, it created a cheaper rate for their distribution and actually made free the distribution of one newspaper to another newspaper. And that kind of subsidy has continued on into the present other areas where direct subsidies exist we are all familiar with public broadcasting that's a subsidy. And there, there are others as well so take for example development of telegraph, you know the United States government, the Navy was the first purchaser of telegraph machines. And then there are somewhat more subtle forms of government support. For example, the way in which the government actually took land. How does the power to take private land if it gives compensation it took land to make it available to telegraph providers to the same way it did for railroads. And of course, it took the licensing power. This is the second way which the government has structured media the licensing power you refer to dealing with the scarcity of signals for radio and then television, but also even for cable. You know, regulatory oversight, restricting the numbers of people so that there won't be too much interference, but also then layering on some public service obligations so that's the second way the government structuring markets, regulating then the duties attached to the markets. And the third way is a little more complicated which is the bundle of rules from antitrust to public utility to other areas where the law actually does a combination of subsidy structuring markets, creating liabilities creating immunities. And just as an example, section 230 of the communications decency act is in essence a subsidy to the internet platforms but not to conventional media, because the internet platforms are literally immunized from legal rules that apply to everybody else rules against defamation rules against any other kind of consumer protection violation. And that makes it cheaper for the internet companies to operate. Other examples as you know, you know the government very much. This is states and federal government invested in the creation of an infrastructure during the 19th century and the 20th century. Some of that was communications infrastructure. The internet is self is a perfect example. The Department of Defense paid for the research and the building of ARPANET, which then became the internet. The National Science Foundation gave a grant that led to the very first algorithms of Google. And we can go on and on and on. So the government actually structuring the possibilities investing in the development of new technologies, regulating the market structure, deciding when to enforce antitrust law and when not to has all meant that the government's fingerprints are entirely all over the current situation. I agree with a lot of what you're saying I want to push back or complicated one thing and ask you to expand on another thing. The first is that I think throughout the book when you talk about past regulation that has worked really well in certain ways. You tend to paint that regulation in a in a very positive or benign light. And I think some people would push back against that I think like when I'm reading your work I'm thinking about like Robert McChesney writing about the amateur radio movement and how government regulations ultimately like help corporations and help Americans get access to media and so on, but they help corporations by shutting out amateurs, but also help corporations by not letting the navy have a monopoly on radio. And, you know, that that, or even the going back further to thinking about like the railroad like taking land is not a benign thing who had that land was land right land exactly exactly. So I wonder if you could unpack that a little bit for us. And the, the, the second part is, I'd like to take some more time to talk about section 230 but I think before I ask you that I want to want you to respond the first part and then we can switch a little bit to talk about section 230. You know, I think a very fair criticism of my work is that there's a tendency to glorify parts of the past, which had their own major problems, even in its heyday when mainstream media was financially doing very well and was distributed widely. There were real difficulties for the black press. There were exclusions for women as journalists really until what became known as the yellow journalism that's when women really broke in and started to do features and what's called yellow journalism I think has to be recast it's often women going incognito and exposing locked insane asylums and backdoor backdoor abortions but in any case women had been largely excluded from the media. And, and yes, the, the big companies have always tried to exclude anyone entering whether it was conventional, the newspaper owners that would buy up competitors, or the, the people who created networks in broadcast and really shut down some alternatives so all of that's true. There are choices being made their choices being made though I just want to underscore not just in these very obvious areas where government is overtly acting their choices being made when government is supposedly not acting, because when government's not acting there are also rules that apply. And so all of this is to public policy. This is all choices. What do we want and who's accountable. To this day, we have large internet platforms that in some ways are begging for regulation, in part because they're subject to competing rules from different states and even different countries, but in part because the big platforms would benefit, because they could shut out competitors they have the market capitalization that would allow them to comply. So those are always problems, but having given that acknowledgement I just want to say it's not like there's an alternative without choices there will be choices. There's no such thing as natural markets, the property rights underlying the markets or themselves structured by law and by government. So in that sense, it's what choices and whose choices. Right the hands may be invisible but the hands are there doing things making choices. I was thinking about Frank Stanton's line I think it was Frank Stanton of CBS who at one point said, you know the licenses from the government are like a license to print and the news divisions justify it. And I thought that was it was a rare moment because usually they just talked about how great their news divisions were but he was pointing to the fact that the that we do public service through the news, and that helps completely right. The Beverly hillbillies and whatever we want to put out to to sell ads and and to make money. And that you know that was like a cynical take on it at the same time that there are sort of some good reasons to romanticize that era in news. I think, you know for sure. And then just add another layer to it there's this sense that in the past the news divisions were in serving their public service doing public service performing public service and so on. And they were kind of a lost leader for television when in fact they make quite a bit of money, right like Huntley Brinkley took in huge amounts of money. And what you know I can't I don't remember the exact numbers but you know they're running five days a week and selling tremendous amounts of ads. And, you know, in the short term bringing in more money than something like gun smoke which was blockbuster hit in the long term they're not because they're not syndicated and that's you know the money right indication, but just to kind of like we long for that era but we also need to complicate that era I guess is what I'm. Well, totally right and let's just recall it was an era of two and a half networks. Yeah, ABC only went to half the country. So there was a kind of, you know, a oligopoly of just a few providers. And the model of national networks that then created content that most of the locals carried was was a way to make money for sure. But even then the local channels could for a brief period make money in the news, but mostly you're right it was cross subsidy by entertainment and then we have a wonderful movie broadcast news to tell us about the conflicts can news itself be entertaining and all of those pressures about how do you make news of interest to people and if it bleeds it leads etc etc but you know during very key periods in American history the very fact that there was such a shortage, such a limited availability of of shared news meant that we had shared experiences. So if there was a national crisis there was an assassination of a president, everybody could tune in and watch the same funeral. If there were other events, everyone could tune in and get the same account that we do not have. So you compare, let's forget the internet compare Fox News and MSNBC the overlap in the topics, not just the point of view, the topics is a minority of what they cover. Yeah, and I would also add that in that network era of news. I mean already by the 60s people are getting more news from TV than from newspapers right you see a decline. But I mean Walter Cronkite himself of CBS News said that the news is a headline service in a way that one someone once in the newsroom to sort of poke at him put up the front page of the New York Times and underline the parts that he could have read aloud on the news and it was like, you know half the front page of the New York Times, and the point being that like there was 500 more pages that didn't get covered. And you know actually his, his, his sign off he was never really happy with was you know and that's the way it is. But he used to in the early days he signed off by with something like and to learn more read your local newspaper. Because the assumption was I'm just giving you like some leads for what is interesting today and now you should go learn more from. And interesting that's kind of coming back with podcasts so that people can actually dive deeper behind the headlines. And those outlets that are succeeding are finding that the viewership on podcasts is going way up. The only problem is no one's figured out how to make any money on a podcast. Let's, I, I, I, I previewed that I wanted to talk about the section 230 of the of the communications decency act. And I wonder if you could unpack that force a little bit and, and, and your book is it's very concerned you express a lot of concern about this protection from liability that section 230 allows. And then, you know, on the flip side, there are various kinds of political positions from which people speak who would like to eliminate 230 and some of it as you point out in the book like at one point Trump was saying we gotta get rid of this yet and it showed a complete misunderstanding of what it actually meant which is no surprise at all. Like, you didn't really get it. But then you have, I mean, well you just have competing voices who would like to eliminate I like you to talk about that a little bit and also concerns about what it would mean to get rid of it for example in terms of the citizen journalism in terms of me what if, if you, if you eliminate section 230, and then platforms decide well we're not going to show videos of any kind of police officers, because we may get in legal trouble for that we're reliable, and therefore if someone has footage of police brutality, police violence, we will choose not to show it because it's, it's the safer choice. And I think that I've seen a number of op ed saying you know that the awareness about George Floyd's murder for people being able to post this, this horrific video as evidence that this thing happened and that if, if platforms reliable that video never would have been allowed. And that may or may not be an overstatement but I'd like to hear your take on, on that angle. So thanks. When the communications decency was act enacted which is where section 230 was created. The internet was a fledgling entity it was barely in existence, and the concern that the legislators had was, how to shield this vulnerable new technology from the competition from the behemoth large broadcasters and others. And so this immunity was invented as a way to create a space where there wouldn't be the kinds of liabilities, if you will that attached to mature actors adult organizations in the world that are responsible for their actions. Newspapers haven't shut down in the face of defamation actions. And so the idea that now the largest companies in the world, the most profitable companies in the world, the very large internet platforms would be jeopardized by facing the same liabilities that now their puny rivals face is kind of laughable. And yet of course it's you know very convenient for the internet companies to claim that they still need this protection. But let's be clear I'm not necessarily arguing for eliminating it I'm arguing for modifying it perhaps by using it as a way if it's so attractive to the large companies to make it conditioned on some public duties. You can still have your immunity. If you have some public service obligations that you also have to fulfill. But now I have to do a little constitutional law 101. A lot of the people who have argued from the Trump perspective to eliminate section 230 are confused about the First Amendment, and say that when there's a deep platforming of someone say, Donald Trump, that that's a violation of the First Amendment. Constitutional law 101 private actors do not violate the First Amendment. The First Amendment restricts the action of government, no state shall make the law. And therefore there is no First Amendment issue. If there is moderation. If there is a decision about who can amplify their voice and who can't. Conlaw 102 the right to speak is not the right to be amplified. There is no right to have your voice go for free to everyone in the world. And Conlaw 103 is that in fact the internet platforms just like the newspapers just like the media networks they have First Amendment rights. Include editing that include the choices about what to show what to amplify when and where those are protected by the Constitution so the debate about section 230 has been distorted by people who don't know constitutional law. There are last count something like two dozen bills that have been introduced into Congress to alter modify or eliminate section 230, but we could put aside about half of them for this mistaken view. Moreover, they, they themselves would violate the Constitution because they then our government action government action calling for there should only be material that shows the following or there should be no material that shows the following that is the First Amendment. So what's left are a variety of actions proposals, some of which are the kind that I'm in favor of that would put some quid pro quo, you want this immunity, then in exchange, there's some duties that attach like responsible to moderation, or like opening up the layer of internet platforms that does moderation to competition, or making transparent the criteria by which moderation is performed, none of which are currently required. So if you think about basic consumer protection law, which is also not applicable because of section 230. If we were in any other industry, there'd be obligations to disclose the contents disclose the practices to comply with the service terms of service agreements that the companies don't even comply with their own terms of service agreements because they're allowed to say this can at any time. So just basic responsible action that we apply to adults who run companies, I think, could attach to these internet platforms. And I like the idea of making a quid pro quo they want some immunities and there should be some duties. I understand that argument about the quid pro quo. And also, we're saying about basic misunderstandings of what the First Amendment is like very useful context needs to be said. Part of what I was getting at was would be with the elimination of section 230 and I don't know if this would be relevant with the modification or quid pro quo kind of situation with section 230. I'm also just, you know, asking if there could be a chilling effect on on speech because unlike in the newspapers newspapers, don't just put out what a bunch of people who don't work for the newspaper say in the way that platforms let anyone come in and say their stuff. Would citizen journalism be basically could put because if a company is like yeah we're going to censor this up because we don't want to deal with liability issues. Does that mean that you we don't see someone's video footage of being pulled over. I'm a little perplexed about what exactly is the liability. So, so what the police officer is going to sue saying that this is defaming me. But truth is a defense to a defamation action. And the fact that it, there is video footage, it might be in fact useful against deep fakes, where it's a serious problem. But if it actually happens. That's, that's not going to produce liability. I guess, I guess, I'm thinking not. I'm thinking about preemptively people just being like, well, you know, in a way, it's like with the fairness doctrine where technically the fairness doctrines that broadcasters are obliged to cover controversial issues of public importance and when they do so. They are obliged to cover, you know, give both sides. And so when they did cover controversial issues, they showed both sides, or tried to or most often did, found a way to balance out the coverage at least over the course of their schedule. But one effect was sometimes a that an avoidance of showing controversial issues of public importance, and especially on the local level I would say more than the national level. Let's just not even get into this, this crisis because it's controversial. It's too much workforce. And so I'm, and so there is, I think the fairness doctrine was well intentioned and had some flaws, but it did sometimes have a chilling effect on speech. And I'm just wondering if adjustments to section 230 might also have a chilling effect on speech, regardless of the fact that it shouldn't because defamation, you know, if you show a crime, it's not defamation. It shouldn't work that way. But if platforms decide, well, we'd rather not take any chances, then you have that sort of chilling effect. So I get the question and yes, the fairness doctrine in particular did lead some mainstream broadcasters to say we want to stay out of this because we don't want to even figure out what are the competing points of you, which was intention with their obligation to cover issues of importance. So it was really up to the enforcement will of the Federal Communications Commission, whether or not they actually demanded compliance with both of those duties and that varied depending on the administration. But I don't think that's the issue that's presented. Those dynamics are not presented with section 230, or maybe more better way to put it is we have the lessons of the misapplications and negative effects of the fairness doctrine that should guide any revisions of section 230. We can learn from experience. And I just want to underscore again that the platform companies currently edit, they moderate, they do all the time, they take down all the time. And that's not the question. The question is what incentives do they have and whether that we can learn in fact from their compliance with the copyright laws. So we can create a safe harbor that they can allow third parties to post anything until someone objects, because it's a copyright violation and if they take it down they don't face a liability. So there could be a similar kinds of approaches towards material where there's a borderline question. Yeah, I appreciate that notion that like let's learn from the fairness doctrine where succeeded where it failed and kind of apply that moving forward and also I think a lot of liberals and progressives point to the fairness doctrine say if we could just get that back we fix all of our problems. And your book notably does not do that. And in fact, I didn't, if I had a PDF and could have done a search like FCC versus FTC, I feel like the FTC comes up more than the FCC, and that you're thinking about like consumer protection. Yeah, an FTC model more than an FCC model and I wonder and this takes us into solutions even more. The second half of the book. If you could talk about what that means to use a consumer protection model, and what role the FTC could play in in reforms changes that are never great. Well, thanks. Federal Trade Commission versus the Federal Communications Commission and of course there are state counterparts, consumer protection and also regulation of media at the state level and even localities you think about the local cable monopoly. Governments have a role to play here that they have not exercised and could actually be much more vigorous in requiring public service dimensions when they award a monopoly to a cable provider. So three buckets of solutions are what I propose none of which alone will solve this problem and even all together. They're not going to solve the problem but I think that they could make some dent in the problem. The first bucket is to as I've already been suggesting to hold the internet companies, the large platforms responsible for their actions as if they were adult companies, and there are several areas. Copyright enforcement, I would go further than the current takedown practices and require payments for the circulation of copyrighted material. Australia required Facebook to actually pay when a third party posts copyrighted material. And initially Facebook said then we're leaving and a week later they came back. The European Union has similarly said copyrighted material that's circulating on social media. There's a virtuous circle that's supposed to be represented by copyright that then protects the time and energy of those who developed these stories so that they can then go and report a new one. If a third party can just distribute it without any payment, there goes the possibility of new investment and new reporting. So that's another example. We've talked about section 230. And yes, I do think that there are other kinds of responsible actions, including actually making making child safe zones. I mean, there's ways you could design portions of the internet that are safe, or are better for different kinds of viewers disclosure about what are the practices that they're using as I've already mentioned would be another. The second bucket are ways in which the government regulation could strengthen the news industry, whether it's digital or not digital. By actually developing antitrust exceptions, for example. So if local news providers were exempted from antitrust problems they could collaborate around back office expenses. They could collaborate, even in doing investigative journalism. You think about the model of Pro Publica, which is a national organization, but it invests in, for example, building a big database about which doctors are abusively using their prescription powers in the opioid area. There's a database available to local news providers, who then can write in the local story. If you think about similar kinds of commons that can be created. The Associated Press is another example where can we bring that up to date for the internet age that required construction interpretation of the antitrust law. So that the Associated Press could not exclude new participants in it. So, in order to maintain the small players allow different kinds of aggregation and collaborations. Another aspect in this bucket of the laws that govern conventional media. And also the internet would be privacy laws, consumer protection laws that could apply to the internet companies. And how about protecting our data. So that when we supposedly are getting these internet services for free, that maybe we get paid, or at least we get some kind of disclosure or something like that. The third bucket is direct subsidy, plus public education, critical media education, everybody coming to MIT or elsewhere, but also direct subsidies like public broadcast. Why can't we have a public internet that has public service duties. Why can't we actually have even more investment in public media. It has to be carefully separated from any content decisions so it's not the government making those choices. I should disclose I'm on the board of WGBH here in Boston, which is very mindful of that and tries to have plural sources of funding. But another kind of subsidy that I think could take even more importance is recognizing the role of the tax code. So the role of the tax code in giving tax credits, for example, to advertisers who pay for ads in local outlets for taxpayers who subscribe to a new service. It could be a tax credit that those are elements of the currently pending local news sustainability act, which actually has bipartisan support Joe Manchin supports it Kristen cinema supports it, because if you're a politician you know you need local news. Another kind of subsidy in that tax area is actually the whole area of nonprofits. So a nonprofit organization is subsidized indirectly by the government by the fact that it is not taxed and donations to it produce tax benefits to the Those are ways in which the government can boost nonprofit organizations and I think it's one of the reasons we're seeing conversions of some news outlets from the from the for profit to the nonprofit. We just saw that happen in my hometown Chicago, where a radio station merged with a for profit newspaper to become a nonprofit to share their back office and their digital services but also to have the benefits of this tax to be able to get foundation grants and other kinds of grants. So I think that those are examples of subsidy and I'm sure that there are others critical media education I do think is really important. So that digital natives above all, learn to assess where's this coming from. If there's no name attached to it, why do I trust it. And, and how do I understand what I'm seeing and what I'm not seeing. One of the points in the book where I got the most excited I never thought I'd be so excited about learning more about the tax code and but but when you're at the end and you're talking more about 501 C threes. And this as a as a venue for journalism I thought this is this is quite brilliant this is like a really clear sort of roadmap for certain kind of change that could really help your tax breaks for say making more hires to a local news source kind of thing. And your point about politicians needing local news I think is is a good one and I think the sort of flip side to that is like C span years ago being invented in part as a venue for politicians who want to be seen more outside of the so called filter they don't want to be edited into a camera to be seen, and local news as something that could be boosted at the other end of the spectrum, like C span was, you know, years ago, could be a sort of path forward. I will ask you one last question then and then I see we've got issues in the room and I want to open it up. But create making transform your local newspaper into 501 C three is quite doable. You can look up how to do that that can happen people can innovate from the bottom up to make that happen. In the same way that say art movie theaters could be totally destroyed it become 501 C threes is the only way for them at this point right there are other kinds of support the Brattle Theater. Absolutely. That was my next thing support the Brattle. That's the only way for for so many venues now is going to be seeking 501 C three status they, they, you know, they need it. So I see a clear exact sort of how that would work. There are other parts of what you call for that I see how they would work in theory, but then I'm like, Well, given the way Congress is right now, given the the far right take over of the Republican Party, how can we make any of these changes happen. Is it, you know, are there you've listed your, your sort of bucket list here you know your list of 123 right. So what are the practical step forward to actually enact these things is it about legislation is about, you know, what are the different levels that would have to be in play to make some of these changes really happen. It would be great to improve the government generally but in the world that we currently live in. One approach as I've already suggested is to find those topics where there is bipartisan support and there surprisingly is a fair amount in this area. And that even includes expanding the jurisdiction of the Federal Trade Commission. So there's legislation that's possible, but there's also administrative action. And if you elect a president who appoint someone to run the Federal Trade Commission who cares about these things. Then the Federal Trade Commission can actually shift its resources to this area. To enact regulations, use its subsidy powers which it has use its investigative powers. They already have those powers. It's a question about is that a priority. Similarly, elect a president who actually cares about the antitrust laws and wants to and makes appointments to the Department of Justice antitrust division and the Federal Trade Commission of people who actually believes that the antitrust law applies to the large internet companies. Another thing that's possible though is to recognize state governments. State governments are currently considering some of these subsidies using state taxation. For the nonprofit news and even the for profit news low local news sustainability Act versions have been introduced in several states, and I have a group of students who are working on having it introduced in Massachusetts. In addition, fascinatingly this is kind of a pool bank shot. If there are a couple of states that start to regulate guess what the large internet platforms and the large broadcasters will go to Congress and say please would you legislate because we are subject to these competing rules in different states. So, actually there's a lot that can be done to motivate Congress or to work with other actors. I do think that philanthropy matters a lot from my third puppet. And the, and I think that universities have role to play, you know in many states in the country right now if you go to the state capital. The only journalist who is covering what is going on is a university or high school journalist. There are serious proposals that local news actually now is in many places, a function of colleges and universities. Well, if so, then let's actually support it. It will require philanthropy it may require public dollars, but if that's the only place that's actually covering the legislation that's being debated, or the corruption that's not being exposed. There's some, some public commitment to cover it. You know we have evidence that those communities that lose local journalism, have it notable measurable increases in corruption, corruption by the government and corruption by private governments, Flint Michigan. I am so haunted by the story of Flint Michigan and the lead in the waters. And I talked to the public health official there, who said well actually we were lucky and I said what are you talking about. She said we were lucky we had really good local journalism. And then she said this sentence that I still can't get out of my mind she said we have hundreds of Flint Michigan's in the United States but there's no one covering it. So I think that there are lots of steps that can be pursued public actors, private actors. You know you talk about citizen journalism. I think one of the interesting possibilities is how new platforms can be created where citizen journalism can be amplified. Right that's very helpful and it's very just really specific I appreciate that and, and I just was going to add as a side note like the college and university point I think is so important and it also makes me think about radio and how radio has. It hasn't died people are making millions of dollars on it right but you know you got a local radio station is not local in any way there's a pre product playlist the local DJ just might say words between the songs that he or she has been told to play whereas college radio is where people actually make programming decisions and could potentially be doing say local reporting. Playing unusual music, you know so I think that that pointing to college radio is another good example. I want to switch to, we can have some questions from people whose faces that we can see for sure but we also have some in the Q amp a here. There's one here from Ed Burschinger. Many right wing loves to cite justice Brandeis saying that we need more speech not less. Many right wing pundits are also original list. As I understand it justice Brandeis was not an original list consistency maybe too much to ask but is there an effective response to those who insist on free speech above all other rights. If consistency mattered, we would have a very different kind of jurisprudence. You know we have conservatives who claim to be originalists until they're not. So, the, what I tell my students all the time is we just have to know how to speak all of these dialects. And, and it is possible to make arguments about speech as an originalist as a pragmatist as a structuralist all the other aspects. What I think is probably most valuable here is actually to point to justice Brandeis his own beliefs in the market but in a regulated market and to identify the ways in which he and others on the court that you need a regulation in order to have freedom. And that's true about free speech. If people really want to be originalists, the most amazing thing is that the First Amendment would not apply to the states. The First Amendment actually says Congress shall make no law. So it wasn't until the Civil War and the Civil War amendments that were enacted that and then gradual decisions over the course of the 20th century that the courts decided to apply the First Amendment to the states. The court official said no idea that this was going to happen. This is all judge made law. And I would just go a little bit further and say the creation of protection for commercial speech. That's something that courts invented. This is what was protected. The definition that speech applies to any digital communication including an algorithm. That's not in the Constitution. That's judges who are making the decision. These are therefore decisions that can be argued with and debated. Thank you. I see your hand is up. Hopefully my internet is still working good enough. Thanks for a really interesting conversation point. I found the comment and the work of thinking about the FTC rather than the FCC really interesting way in and it reminded me of Neil Citron was kind of trying to get folks to reframe thinking about harm in cyberspace as civil rights violations and I as somebody who works in kind of internet studies I found that a really generative move really useful. So my question is are there other existing levers or rubrics or legal frameworks that might also you know to add to the pile of come at it this other way that's going to get us into the interesting productive terrain. Thanks. Thank you. Thanks for that comment and for a shout out to Danielle Citron Citron whose work is so terrific. I'm a huge fan. She has a new book coming out very soon. What I can say I'm sure that there are many but one that comes immediately to my mind is public utilities. So the idea that there are some goods that are so necessary that the and yet the structure of the markets are such that they're so capital intensive that they won't produce real competition. So people have to buy water have to buy electricity have to buy phone service and there isn't real competition that led to the creation of this idea of a public utility privately owned but public duties. So yes you can go ahead and take advantage of your market position but only if you make sure that your services universal you do not discriminate on the basis of fill in the blank etc etc. Public utility is a framework that I believe could be applied to the big Internet platforms and they would remain private they could make scads of money but they'd have duties. Yeah thanks and you know I just got me thinking about the rural electrification administration and how after World War two they basically decide phone service is not a luxury it's not just for business and or for urban people how can we get phones everywhere everywhere in rural America because it's it's a public utility it's not just Right Lyndon Johnson his project and it came from being a school teacher in Texas and seeing what people's lives are like. Yeah, yeah. Now I'm thinking about Robert Carros. Yes. Opus and how one of the big stories is is Johnson getting electricity back to you know he's absolutely made him like just getting electricity. Right. He made his career in certain ways. Um, there's two questions here that are somewhat historical from Suzanne Singer one is you know why not bring back a modified fairness doctrine, and this might be a good chance for you to talk about what you call at one point I think the awareness doctrine. And the other question also from Suzanne Singer was what about anti trust legislation that used to be enforced RE how many TV stations and other media one company can own in one market which is something that is quite relevant to the book that made but maybe yet. Great to two wonderful comments and questions. Let's say something about antitrust first and then go to the fairness doctrine so the antitrust law is another, you know, era of Louis Brandeis, the recognition that large corporations actually can exercise power of the sort that concentrated governmental power jeopardizes personal freedom and democracy. Progressive era produced the very first antitrust laws, and the idea that actually private power can jeopardize democracy. Fast forward to that 1970s University of Chicago. Economist developed an idea that the antitrust law shouldn't actually be concerned with democracy. It shouldn't be concerned with consumer prices. It shouldn't be concerned with concentrated wealth or concentration of market power should only look at other consumers, having a cheaper price. They were successful without even changing the legislation. Their theory was adopted by judges who interpreted the law and prosecutors who interpreted the law. There are no prices. And so the idea that there's any check checked on is there too much being charged or not being charged. It's one reason there's been so little antitrust action with regard to the internet. Well, there are currently now a bunch of people are saying let's go back to the original idea about antitrust they concentrated private power is a problem. That it's a problem for democracy. It's a problem for markets. And then there's some people actually suggesting that the internet is not for free. We are giving over our data. We just need to be a little bit more imaginative to understand what a price is. And then we could actually regulate here. So Lena Khan, who's now, you know, at the Federal Trade Commission, the Department of Justice, Tim Wu, who's in the White House, these are people who believe what I've just described, whether there will be action or political will. I don't know. But it just goes to show that antitrust remains a viable tool if we have the political will and the legal enforcement. But if it doesn't happen at the national level, it could happen at the state level antitrust is a power of state governments as well. Fairness Doctrine. Well, as Heather said before, the justification for the fairness doctrine was predicated on the scarcity of the signal that in order to get a license to operate a radio or a television station. And then had to promise to fulfill certain duties. And one of the duties was to provide coverage of controversial subjects coverage of local news, and a fair sampling of competing viewpoints. We don't have a scarcity rationale for that kind of regulation when we're dealing with the internet, nor with newspapers. Those kinds of issues about fairness and competing points of view have never, never applied to those outlets for that very reason. Fairness Doctrine was upheld legally in the Supreme Court, because of this anomaly this unusual circumstance. But it's an exception to the usual rule that editors have free speech rights that viewpoint is itself protected. And therefore, the editorial judgment by a internet platform by a newspaper by cable is actually protected by the First Amendment as you have written about Heather, the top radio and the development of right wing media is all about the First Amendment. And there's not any constitutional way. And I'd be worried about someone coming up with one that would force Fox News actually to have competing viewpoints. Also, it might actually make people think that they're really doing that because they're not. In any case, I think that the Fairness Doctrine also faced a political demise. The big broadcasters in particular organized even after the Supreme Court victory. And it lost the political support. And so ultimately, under the Reagan administration, it was really disconnected and it really took a while to the Clinton administration for it to go off the books finally the FCC eliminated it all together. I had a student though in who responded to my telling of this history who said well why can't we have an awareness doctrine. And I love this idea and I give him credit in the book. And the way that I've tried to flesh it out is how about a doctrine that simply requires the disclosure of the parameters being used for moderation of content on an internet platform. To go a little bit more affirmatively to give an option to people to actually elect to see information that is different than what their preferences would amplify. So a group of undergraduates at the University of Chicago in one semester for a class project came up with something that they called flipside using, you know, the algorithmic tools machine learning to study content. To be able really cheaply to identify competing viewpoints in publicly available media about various topics. Now I have no disrespect for undergraduates at the University of Chicago, but if they could come up with that in one semester. Imagine what the genius engineers at Metta at Twitter could come up with. If we really actually required or maybe even just gave incentives for them to come up with awareness techniques for their users to actually find ways to have serendipity to encounter content that's not just amplifying what they have looked at before. I love that example of flipside from your from your book and you know just the kind of the way that these students found a way to. I mean it seems to me all about the interface like you can't just be like it can't be like click click click and you make the point in your book that it would take the average person 250 hours per year to 250 hours each year to read everything they click off on that they're agreeing to like terms of you know yeah this this this right. Because nobody reads that stuff so you'd have to find a system where people actually want to engage with the choices that they're making about how their data is being shared and what's being shown to them right. The other thing I wanted to add was about the history of the fairness doctrine in its fall is that when it was starting to kind of teeter one thing that I find really interesting is that there were so many conservative and right wing groups. They actually wanted to keep it. Whereas now they you know they call it the hush rush live and was trying to make a rush limbaugh shut up by bringing it back but you know Phyllis Schlafly was in support of the fairness. The NRA supported the fairness doctrine, because they're like if people are going to go out there and attack us we need a legal way to attack respond and exactly right of reply well, you know we used to have people supporting democracy and elections. Yeah, exactly. And that's nice. Yeah. Um, we have a question from one of our graduate students that's in the Q&A area over here I'm going to read it to you. Thomas Thomas Guarno from CMS here. The note on section 230 as subsidy and public investment in early Internet infrastructure is extremely interesting. It does seem like this public investment ended about 20 years ago, and today it would maybe be unlikely that 230 were passed. Do you see a change here in how the US government invests in communicative infrastructure and how would you make sense of it. Wow, very interesting. You know, I don't have access to the defense budget, but the Defense Department still is investing dramatically in infrastructure that includes communications infrastructure. And remember the internet itself was a DARPA project and the boost to the telegraph came from national security concerns. And so I think there might well be investments that I'm just not aware of. But I agree, we have had kind of a falling off of what was the big tradition in the United States 19th century, especially early 20th century, especially but 1950s 1960s government priming the pump by investing in infrastructure. You know, to some extent, that's been the argument of the Biden administration, not to get partisan about it, but a build back better is to invest in the infrastructure to invest in roads and bridges. And you know, a big part of that bill is broadband. There's a whole internet portion a very serious commitment about tech investment. So they're just at the moment is a political logjam. Why has that fallen off? Well, we've had, you know, about the 3040 years of an attack on government with the claim that it's not effective. And it's not, it's not an efficient way to allocate resources. What's really striking is the United States is likely to fall behind leave communications technology let's just talk about batteries. And let's talk about any kind of environmentally sustainable energy. Other countries have much more investment in those kinds of infrastructure than the United States is. And so if you want to buy a car that is an electric car now you're going to be using parts that are made in other countries that are underwritten by their governments. So if you just take it as a national security concern, we're going to have a competitive disadvantage from the failures to invest in public infrastructure. That's a great answer. We have several people in the in the chat who want to talk about Twitter and Elon Musk, and I'm going to read these two questions. One is from Nancy Weaver who asks, is Elon Musk assessment of Twitter as our new town square accurate and if so what do you think about his offer to purchase. Another question from Joseph Benzeman is a question on the current news item of Elon Musk attempted by Twitter. One reason I've heard many of his supporters give for desiring his ownership of the platform is that it is must approach to free speech would be more libertarian than its current ownership I'm wondering what are your thoughts on this situation is there a good way to handle must bid to own Twitter, and that's a good opportunity for you to talk about the libertarian weaponization of the First Amendment that you go into in some depth in the book. So two part question one just about the notion of Twitter as a town square and then this other one about the libertarian issues. You know, I think that some of the biggest users of Twitter in this country are journalists. All the journalists I know use Twitter to find out what's going on. I don't know if the vast public uses Twitter. So I'd be reluctant to call it a public square for that reason. In certain circles it's very, very common but in others it's not tick tock a little bit more dominant, I think. And also, you know the platforms, gaming platforms, which have much larger users than any of the conventional media and have their own messaging boards, which are outside of public view, all together. And Twitter is a very fascinating phenomenon that they've had a toxic culture at Twitter. And their own corporate board governance has been broken for a long time put aside their content or their, what it is that they actually promote in their services, just that that's been a problem in the board in general. And people that I know who have served on the board have said they have corporate governance problems. So I'm actually disappointed that someone like Elon Musk is not going on the board to straighten that out. Buying the company, you know, depends what he's going to do with it. I have no idea what he would do with it. The idea that he would eliminate editing is unimaginable. The vast majority of moderated activity on Twitter and on any of the platforms is to eliminate spam. You have to have moderation. There has to be moderation there will be moderation so the only question is along what lines. Another related question is when you're using machine learning tools to do the moderation which everybody has to do because the scale is so monumental is what level of error to people accept. It's something that is worthy of discussion I'm not singling out Twitter I think it's an issue for all of the platforms, and I just myself believe that if you look at the choices from the selection of the data sets, on which the machine learning is taught to the level of error that's accepted to the level of feedback and accounting that is used to then feedback into the system to modify the data sets, all of that. And those are choices that the company should actually be exercising much more responsible action over it and much more valuable than say let's make the algorithms transparent. Not only the people at MIT will understand the algorithms that's not what needs to be made transparent it's these choices that are made by human beings that are not made by by by computers. The libertarian idea about the First Amendment is very confusing because on the one hand it suggests no regulation. And as I've already indicated there's always regulation in conventional media there's editing in internet platforms there's always editing. There was a golden age in some ways of the internet that was fueled by a kind of libertarian ideology that claims this is the new free space we don't need a government. Well guess what, not true. My colleague Jack Goldsmith wrote a very important book about how the internet depends and internet companies depend more on conventional laws than other companies do, and turn to those laws to enforce their practices. They're not libertarian. It's a question about what policies you want or don't want. Which is in fact always the case. There is no freedom without some kind of control there is no private property without some kind of rules. The question is what are the rules. I would call a certain direction in Supreme Court jurisprudence libertarian First Amendment. What I mean is that there's a kind of ruthless hatchet being taken to any governmental regulation on the grounds that it's speech. And once we say it's speech the First Amendment prohibits government regulation it's kind of a mindless. I say hatchet or weapon. And it's bringing back what some people are calling it the new Lochner well Lochner was a decision made by the Supreme Court in the early part of the 20th century didn't use the First Amendment use the due process cause of the 40th amendment, but in the same effect, creating the power of five justices the majority of the Supreme Court to strike down democratically enacted laws on the grounds that it interfered with freedom. In that case it was freedom of contract, or the property rights of employers and using that theory, the Supreme Court struck down wages and hours like a legislation, any kind of workplace regulation rules about unions. And then when the new deal started the first three years of the new deal, the five members of the Supreme Court struck down the new deal saying it violates freedom of contract, private property. In both instances, the country rebelled. The country said this is a disaster we need health and safety regulations. And after the depression we need a new deal that's going to actually regulate the economy. And I suspect that will happen with this new Lochner the use of the First Amendment to strike down federal trade commission action, any trust action, because it goes too far. But in the meantime, there's a lot of damage that is occurring with the Supreme Court, you know striking down all kinds of laws saying that it's speech. Look, we have lower courts that have said anything on the internet is speech, even if it's a sale. And initially internet companies said that's why sex trafficking cannot be regulated because it's just speech on the internet. They actually rejected that and agreed to amend section 230 so that there's a carve out for sex trafficking on internet platforms is about political will. Well, I think maybe we could end on that extremely powerful note. Thank you so much, Martha, for joining us and for just unpacking all of these really complicated and interesting and important vitally important issues that you raise in this new book. It was just great to be able to talk with you about it today and thank you to our graduate students and all of our participants who showed up to as well and for the questions that you sent us via chat. I will just end by saying that we have just one more colloquium public colloquium event this semester which is on May 5 we're having Fred Turner from Stanford out here in person with Mary Beth me hand coming in from Providence to talk about their being Silicon Valley. So it's a it's a book of photos with with a text by Fred Turner, and I have a discount code if anyone wants to buy for 30% off as well from your I think it's yeah University of Chicago press. So feel free to drop me an email if you didn't. If you weren't on that list where I sent out the discount code, but I am hoping to see many of you there in person it's in person for MIT community and be a zoom from those outside of MIT. I hope to see many of you there, I hope, and a good night to everyone. Thank you. Thanks so much. Great questions. Thank you.