The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The first panel, on Trusted Communicators, is up, at JournalOfFreeSpeechLaw.org; we'll be posting the other panels over the next several days. Here's the Introduction, by both of the editors:
The internet has remade both the media and the social institutions that surround the media. Speech was not cheap in the twentieth century. News organizations had to buy newsprint, paper, distribution networks, transmitters, spectrum licenses—all kinds of things that cost much more than a Facebook page—if they wished to reach an audience. But the few news organizations that could cover these costs held a safe market position, and from this perch, they wielded a great deal of epistemic and moral authority in their communities. They became "gatekeepers" with the power and the responsibility to decide what information, and what claims, were fit to print. Much of media law, and particularly First Amendment law, seems to have developed around the assumption that news organizations could and would play this gatekeeping role, and that the government should therefore rarely need to.
That world is gone. Competition from the internet and social media has decimated the business model that underwrote the twentieth century's gatekeepers. And those twentieth-century media institutions that have survived disruption—institutions such as the New York Times or the major television networks—are in no position to play gatekeeper. News consumers mostly get whatever flavor of "news" they wish, and individual speakers mostly decide what kind of speech is fit to post. There are gatekeepers in this environment, but they are institutions like Facebook, TikTok, or YouTube that bear little resemblance to yesterday's news giants and that wield their power in ways that lack any clear twentieth-century analog. The law is only beginning to catch up.
This project gathers sixteen scholars in law, media, technology, and history to consider these changes together. We divided into four groups of four, with each group considering one broad facet of the situation. The Essays gathered here as a symposium will ultimately be published as a book through Cambridge University Press, Media and Society After Technological Disruption.
Group 1: Trusted Communicators
We asked this group to write on the decline in trust that traditional media institutions have suffered in recent years. Authors reflected on the implications of this decline in trust for media's ability to shape and convene public discourse. They also considered the causes of this loss in trust, and what might be done to get it back.
Group 2: Defamation and Privacy
This group of authors wrote on the law's role in policing communications that inflict privacy and reputational harms. This group paid particular attention to the role of technological development in driving a proliferation of harmful speech, and also to the law's emergent response.
Group 3: Platform Governance
We assigned this group to write on tech platforms and the role they play as private regulators of the content they host. Authors wrote on how this regulation plays out in practice, and more generally, on its costs, benefits, and risks. The group also considered changes to regulatory or technical architecture that may improve the system of content moderation that is in place today.
Group 4: Sustaining Journalistic Institutions
This final group wrote on traditional media institutions' struggle to maintain financial solvency in the twenty-first century. Authors compared the failure of some models (newspapers) with the successes of others (television, social media), and considered various regulatory proposals to stanch the losses.
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This has been an ambitious, complex project, and it would not have been possible without the substantial financial support that the Nebraska Governance and Technology Center received from the John S. and James L. Knight foundation. Nor would it have been possible without the institutional support of the University of Nebraska and its College of Law, which housed the Nebraska Governance and Technology Center. Finally, we wish to thank the many assistant researchers and editors who supported us at various stages on this project, and in particular Sarah Burns, the late-stage editor who consolidated these essays into a single work and whose thousands of small, sharp edits elevated the material in so many ways.