Journal of Free Speech Law Publishing Symposium on "Media and Society After Technological Disruption"

The symposium was edited by Prof. Justin "Gus Hurwitz" & Prof. Kyle Langvardt, and will be published later this year as a book by Cambridge University Press.

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.

* * *

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.

Comments

[Rev. Arthur L. Kirkland]

Smart, educated, reasoning Americans continue to trust and read The New York Times, The Washington Post, and a number of other deserving newsgatherers.

The half-educated, gullible, downscale, disaffected audience has migrated to Facebook, Tik-Tok, YouTube, and clingerverse voices (RedState, FreeRepublic, Fox News, Volokh Conspiracy, Instapundit, Stormfront, Newsmax, Gateway Pundit, etc.).

You can't -- and society shouldn't -- compel people to be smart, exercise sound judgment, or be properly informed. Knuckle-dragging dumbasses, superstitious bigots, and disaffected culture war losers have rights, too.

[Stephen Lathrop]

Competition from the internet and social media has decimated the business model that underwrote the twentieth century's gatekeepers.

That seems at least controversial. How can anyone square that with the endlessly repeated assertion that if social media companies had to edit all their contents, the cost to do it would drive them out of business? Arguably, on a competitive field where internet content did not enjoy a legal privilege against liability for defamation—a privilege which traditional media do not get—the traditional media business model would come out ahead.

Or, possibly, even with liability for defamation, the internet model could hold its own. Why not downsize the giants, and proliferate social media outlets on the same basis of diversity and profusion which made traditional media a dynamic local presence in communities large and small throughout the nation? Lower the expense of editing by making each platform smaller. Add platforms everywhere. Social media giants are not well adapted to take on a gigantic national editing task. A publishing infrastructure composed of tens of thousands of smaller internet publications could mobilize vastly greater editing power.

It is also far from obvious that AI technology will not soon deliver software to whittle the editorial task of editing for defamation to an easily manageable size, making that a practical means to maintain and operate giant platforms. It is already true that only a tiny percentage of internet commentary is anything but pure opinion, which creates no liability risk at all. A reliable automated means to distinguish the few risky comments from the others—and route only the problematic ones to human editors would be a potential game changer.

Given ability of traditional media to avail themselves of the economic efficiencies of internet publishing, claims for inherently superior business models favoring giant platforms seem spurious. In fact, that appearance of business advantage was delivered by public policy favoring the giants, not by any inherent ability to compete better in a game where everyone plays by the same rules.

[Brett Bellmore]

"How can anyone square that with the endlessly repeated assertion that if social media companies had to edit all their contents, the cost to do it would drive them out of business?"

They were never going to have to edit all their contents. It was already established legal doctrine that, if they didn't edit their contents, if they just served as a passive conduit for content generated by others, they were no more responsible for that content than the phone company is responsible for what you say over the phone.

It's Section 230 of the "communications decency" act, remember: The purpose of the act was to take an uncensored internet and censor it! To that end they took platforms that were already free from liability if they didn't engage in moderation, and gave them the legal privilege of remaining free from liability even if they DID moderate, DID edit the contents.

Wipe that act out of the legal code, and the platforms aren't under any obligation to edit their content, that actually stands things on their head. They'd pretty much have to stop editing it.

[Stephen Lathrop]

Bellmore, it would be more work than I want to do to demolish your comment by citing and correcting every one of the ~ 7 falsehoods you put into it. There is no point doing that. Readers will see that you did nothing to address my point that social media giants do not have a superior business model compared to traditional media.

Subject both kinds of media to the same rules, and the social media platform model would prove ruinously more expensive than the traditional media model. Things may not stay that way forever. Perhaps AI can come to the rescue of the giant platform model. Until then, folks who ascribe near-utopian efficiency to social media platforms are just applauding a special government license for corner cutting.

By the way, if current internet giants are so efficient, how come they don't use that advantage to replace all the news gathering their specially privileged methods wiped out? If social media are just like the telephone company, how come the telephone company never wiped out smaller-market news gathering all across the nation, but the social media giants did do that?

[Rev. Arthur L. Kirkland]

I do not expect to find legitimate news reporting here. Entertainment, maybe. Disaffected opinions? Sure. Trustworthy content? No.

The people who prefer this rubbish to the Times or the Post, or can't distinguish clingerverse information from legitimate journalism, were the point of my observation.