 Our next speaker who's going to talk for about 10 minutes is a fellow named Jeffrey Rosen Jeff is someone I've got to know pretty well over the last year or so Actually, I first met him at an event that was hosted by the an American Antitrust Institute by Bert Faurr Who's that Frank Faurr is dead about three four years ago? but Jeff is the president and CEO of the National Constitution Center in Philadelphia and He is also a professor of law at George Washington University He's author of a book called the Supreme Court the personalities and rivalries that defined America. I also know He's got a book coming out. I believe in June Which is about? Louis Brandeis Who was probably the most important? Jeffersonian thinker in the 20th century and really helped to establish the intellectual Foundations for what took place under the Wilson administration and then the Franklin Roosevelt administration between 1913 and 1945 in which we saw a real distribution of power in this country and Certainly during a period in which the kind of concentration of power that we see in Amazon Would not have been allowed to exist. So anyway So Jeff's going to talk for about 10 minutes and give us a little perspective on how folks I believe He's going to give us a perspective on how folks would have viewed this A century 80 years ago a century ago Thank you so much and great to be here So it is indeed a good time to talk about Louis Brandeis tomorrow is the hundredth anniversary of his nomination to the Supreme Court and June 1st is the hundredth anniversary of his confirmation and Brandeis as Barry says was the greatest Jeffersonian Critic of what he unforgettably called the curse of bigness in business and government in the 20th century He has more to tell us about the effects of monopoly power on Democracy and equality and liberty than any other thinker of the 20th century He also has more to tell us about the challenge of translating values of free speech and privacy in an age of new technologies So therefore it is helpful as it is when you face any contested constitutional question to ask the following immortal Query Wbd what would Brandeis do and I want to briefly give some history of his Thoughts on the curse of bigness and then channel him on the subject of today's conference Which is how to protect free expression in the age of Amazon so Brandeis serves on the Supreme Court from 1916 to 1939 he's the leader of this very distinctive Jeffersonian tradition He's a progressive champion of small government and small business But he also embodies a bipartisan constitutional tradition that's gaining traction today on both sides of the aisle from the populist Sanders Left to the Tea Party right and that is a defender of personal and economic liberty and a foe of Centralization in business and government so at a time of great polarization between Conservatives and libertarians who prefer small government and free enterprise and liberals and progressives who want a more energetic regulatory state Brandeis Represents and blends both sides of this crucial debate He endorsed the Jeffersonian ideal of small business and local democracy But applied these ideas to uphold state regulations that tame the excesses of big business and monopoly It's really important to right remember how central this anti monopoly tradition is in American constitutional history Both Jefferson and Brandeis viewed American history as a battle between the forces of consolidation and decentralization between agrarian producers and monopolistic financiers in responding to the proposed Constitution Jefferson who remember wasn't at the convention. He was in Paris at the time Expected that America would be divided into self-governing agricultural units of the smallest scale possible Brandeis also insisted that decentralization in government and economics was the only way to protect the liberty of Farmers industrial workers and small producers. Obviously, we no longer live in an agrarian age but it is arguable that the small independent producers of today are the authors and freelancers and Creative writers who are trying to make a living It is important to remember also if you want a historical pedigree for this tradition The Boston Tea Party which sparked the American revolution was a rebellion against the government-granted monopoly held by the East India Company and after the Constitutional Convention Jefferson complained to Madison that the Constitution had no bill of rights protecting restrictions against monopoly and Jefferson actually supported the following constitutional amendment Monopolies may be allowed to persons for their own productions in literature and their own inventions in art for a term not exceeding a certain number of years But for no longer term and for no other purpose That is how central his views about the connection between monopoly and creative expression were Brandeis obviously was not a strict constructionist But he's sympathetic to Jefferson's views on political economy and he developed Jefferson's distinction between merchant bankers Who lent their own capital capital for productive enterprises and monopolists who? Underwrote risky instruments with what Brandeis? Unforgettable called other people's money and rereading that classic of 1913 is highly salient in the election of 2016 the monopolies of Brandeis's day were not government chartered banks like the Bank of the US which was Jefferson's concern or Amazon and Walmart instead. They were the web of private investment banks and railroads Controlled by Brandeis's nemesis JP Morgan and in other people's money Brandeis denounced Morgan for the oligarchic economic and political power That his control over the quick capital of others allowed him to wield Morgan and other oligarchs made reckless bets on complicated instruments whose value they couldn't possibly understand and in this sense Brandeis's opposition to bigness in business and government is connected to his pragmatic understanding of the limitations of human knowledge So what about Amazon? WWBD when it comes to the question of Amazon and free expression Brandeis I think would have been concerned by the internet's tendency to increase the trends toward digital monopoly By eliminating physical barriers to consolidation such as the cost of real estate The result is vast network power by online mega stores from Amazon to iTunes That can more easily crush their rivals than the chain stores that Brandeis so Denounced this fulfills Brandeis's worst fears about the transformation of citizens into consumers The suppression within citizens of the support of the consciousness of being producers and the isolation of producers and consumers from each other The decision to suspend traditional enforcement of antitrust laws in the 1980s as well as the globalizing powers of the internet Have accelerated the powers of distributors like Amazon Setting in motion a tremendous concentration of power in the hands of the mega stores that makes Brandeis's fear of the power of chain Stores to crush independent businesses look understated as a result giant chain stores Stores like Amazon can sell products for less than they pay for them in order to drive less well-capitalized retailers out of business The mega stores can also set different prices for the same product pitting producer against producer and bankrupting many of them in the process This trend has also put pressure on independent producers like authors and publishers Who are no longer able to set prices for their creative work in the face of the power of the giant distributors And it is important to remember that for most of American history It was the producers not the distributors and retailers who set prices I Think Brandeis might have supported efforts Controversial efforts to check the power of Amazon and restore the power to set prices to producers such as the fixed price agreements That were just mentioned in the last panel that countries in the European Union have allowed Bookstores to adopt to promote less popular but culturally significant books rather than concentrate only on best sellers He might also have been sympathetic to the US publicers who are trying to maintain the price of ebooks against Amazon's decision To use its 90% market power to sell ebooks for less than it paid for them He might even have approved of the side deal between Apple and five of the biggest publishers that would have allowed the publishers To set ebook prices but guaranteed that books distributed in Apple's iBooks always had the lowest price Remember that antitrust regulators shut that practice down Charging it was a classic case of horizontal competitors colluding to force Amazon to change its business business practices Europe is very different European regulators have launched antitrust Investigations into Amazon Google and Facebook that Brandeis would have supported for Brandeis book pricing should offer reasonable rewards for the Individual creative author as Frank Forges said not the giant distributor And he might even have tolerated a looser definition of cartels as a way of maintaining competition in the pride in the publishing industry Brandeis might have been surprised by the fact that authors and freelance artists are now the most visible representatives of the producing classes and that small tech startups can imagine no greater success than being acquired by tech Giants like Google and Google's decision to improve its Wall Street balance sheets by Disaggregating its various units into a decentralized holding company called Alphabet would have given Brandeis only one satisfaction so The economic evidence is mixed today as it was in Brandeis's day about whether laws protecting small businesses by regulating megastores help or harm Consumers economic productivity efficiency and ultimately communities and democracy But Brandeis believed it was permissible to sacrifice some efficiency if this preserved self-governance and democratic participation But now that the internet has created other operatunities for participation the cost and benefits of the Protectionism he believed necessary for democracy are worth Reexamining with an open mind I can't end to talk on Brandeis free expression and monopoly without quoting his beautiful words from his Whitney concurrence the most important free speech Defense of the entire 20th century And here they are Those who want our independence believe that the final end of the state was to make men free to develop their faculties and that in its Government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means They believe liberty to be the secret of happiness and courage to be the secret of liberty They believe that freedom to think as you will and to speak as you think are Means indispensable to the discovery and spread of political truth That without free speech and assembly discussion would be futile that with them Discussion affords ordinarily adequate protection against the dissemination of noxious doctrine that the greatest menace to freedom is an inert people That public discussion is a political duty and that this should be a fundamental principle of American government There is much to unpack there But that notion that democracy cannot survive both ignorant and free and that citizens have an Obligation a duty to educate themselves about the facts that are necessary to make informed decisions in democracy And that only with a vibrant press and a well-working literary marketplace can those facts become available Remains today as salient as ever as Brandeis put it if we would guide by the light of reason we must let our minds be bold Thank you so much and we're looking forward to the rest of the discussion