Stuart Brotman on Content Moderation and the First Amendment

Stuart Brotman on Content Moderation and the First Amendment

Sarah (00:00):

Hi, and welcome back to Two Think Minimum. Today is Friday, October 14th, 2022. I’m Sarah Lam, Senior Fellow at the Technology Policy Institute, and I’m joined by Scott Wallsten, TPI President and Senior Fellow. Today we’re delighted to have as our guest Professor Stuart Brotman. Stuart is the Alvin and Sally Beaman Professor of Journalism and Electronic Media Enterprise and Leadership at the University of Tennessee, Knoxville. He has served in four presidential administrations on a bipartisan basis and has taught students from 42 countries in six separate disciplines. He also has advised private and public sector telecommunications, Internet media, entertainment, and sports clients in more than 30 countries on five continents. Thank you, Professor Brotman, for joining us.

Stuart (00:50):

It’s great to be here.

Sarah (00:51):

So first off, can you give us an update on the Texas and Florida litigation on content moderation laws there?

Stuart (00:58):

Absolutely. And there’s a lot going on and it looks like all roads are leading to the Supreme Court. There are two separate pieces of state legislation, one enacted in Texas, one enacted in Florida. They have similarities, but also some differences. The Texas law is more expansive than the Florida law. So essentially, these laws would require social media platforms to carry certain content. In the case of Florida, it would be political content by political candidates, and in Texas it would be basically any viewpoint that was expressed, whether it was by a political candidate or not. So the Texas law is more expansive, but the basic notion there is government essentially telling private sector actors that they are required to, essentially, not do content operation and instead they’re all viewpoint communication in Texas. So those two cases went to those jurisdictions in Texas, that’s the Fifth Circuit, in Florida, that’s the Eleventh Circuit.

Stuart (02:12):

And we have what is called a circuit split, which means that one circuit found in favor of the law; the other essentially found in this favor, meaning that it violated the First Amendment. So the 11 circuit found that this restriction is essentially mandated, that government indicated that private sector, social media companies could not content moderate political speech. That was a restriction. But the First Amendment, because obviously there are private entities involved, the government is the actor on the other side. And when you look at this in a classical First Amendment analysis that’s had the very unusual Fifth Circuit decision, which I think a lot of people are scratching their heads about because that went the other way. That’s essentially saying that, yes, government can force private sector actors, in this case the social media companies to not content moderate, meaning that they need to carry any viewpoint that’s being communicated there.

Stuart (03:19):

And that tends to sort of run counter to classical First Amendment thinking. But in any event, you’re headed to the Supreme Court that’s processed known as certioraripetitions. So obviously, the Supreme Court has to decide whether it will get the case. And so that tends to increase the chances that the Supreme Court will take it. Obviously, it involves that the Supreme Court would grant area. So unclear whether or not that would be heard in this term or in the following term. And right now, both parties in the Fifth Circuit have essentially agreed that they would apply for a stay. So we won’t know actually about enforcement until this goes to the Supreme Court.

Sarah (04:06):

Yeah, just this week on Wednesday, the Fifth Circuit granted an injunction for the Texas law, like you said, so they’re waiting for the petition to the Supreme Court. So if the Supreme Court takes it up, when would that be?

Stuart (04:20):

Well, it depends. I mean, the Supreme Court occasionally will grant cert. and then take it on an expedited basis. I don’t know all of the cases in this year’s docket, and so it may be that the Supreme Court decides to accept cert. but hold it over until the next term. But we’re at the beginning of the new term. And so I would suspect that the Supreme Court would grant cert., probably would hear the case maybe later in the term, sometime in the spring.

Sarah (04:51):

What do you think about the merits of the case? Do you think it’s a pretty straightforward solution under First Amendment jurisprudence or does it matter the composition of the Supreme Court right now?

Stuart (05:02):

Well, it matters in a very profound way. I mean, we are now in a new era of what’s known as the six-three Supreme Court and with that sort of alliance, obviously virtually anything can happen. We’ve seen that in the Dobbs case, and we’ve seen Justices now dropping hints about ways that they may think about cases that previously were not the way that cases were thought about, particularly in terms of either originalism, which is this notion that you go back to the absolute text and period when the Constitution was written and only decide cases on that basis, or whether or not you’ve sort of fundamentally disagree, as Justice Alito did in Dobbs with the premise of the case. And therefore, as Justice Thomas suggested, maybe that rationale can be carried to other cases. So it’s sort of a jump ball at this point in terms of what the Supreme Court would do. If you indicated classically what would happen, I would suspect that the Eleventh Circuit reasoning would be the correct reasoning. And even if Chief Justice Roberts aligned with Kagan, Sotomayor, and new Justice Jackson, that would only result in a five-four split. And still we would have Barrett, Thomas, Gorsuch, Kavanaugh, and Alito aligned consistently. And so it’s possible that they could actually decide in favor of the Fifth Circuit instead of the Eleventh Circuit.

Scott (06:42):

So as the non-lawyer, I’ll ask the non-lawyer question. So you’re saying that it’s more likely that it was in the past that the Supreme Court would not hold the First Amendment to be as sacrosanct as it has been.

Stuart (06:56):

Chief Justice Roberts takes great pride that the Roberts court has been the most protective of the First Amendment, and I think he clearly would like to see the court continue there. And I think if you look at some of the cases that have been decided while he was Chief Justice, they are highly supportive of the First Amendment. So the question is whether or not his colleagues, particularly his newer colleagues, want to go along with him and support this notion of a highly protective Supreme Court with regard to the First Amendment. But I think Dobbs raises the question of whether or not the court of six months ago will be the court of tomorrow. And I think it’s very unclear at this point.

Scott (07:45):

You don’t have a prediction as to how they’ll vote?

Stuart (07:48):

I don’t. Again, I would say if [you] look at all of their precedents, I think it would have to be similar to Dobbs. They would basically have to throw a lot of things out the window in order to find in favor of the Fifth Circuit, which means that the law would require that social media platforms not do content moderation and carry everything. I would suspect at the end of the day that may be too far a road to travel.

Scott (08:19):

Under the Texas law, how far does the law define content moderation? I mean, when somebody posts something and you type it in, whether they keep it up there or not, that’s one kind of content moderation. But someone might argue that even the algorithm is content moderation, it decides who gets to see it, its prominence, and so on, and almost any rules that they apply [are] a form of content moderation because somebody’s making a decision. Could somebody make that argument?

Stuart (08:46):

They could, and very interestingly, there are two cases that the Supreme Court already has granted cert. on which address some of those issues. So we will have an interesting Supreme Court with respect to content moderation. So there are two cases, one against YouTube and one against Twitter. The first, the YouTube case, dealt with algorithms and whether or not YouTube essentially had liability in its algorithm when the algorithm essentially was utilized by terrorists or people with terroristic inclinations who ultimately murdered a woman. And so there was a civil suit against, obviously, YouTube for damages, and YouTube said, “No, we can’t be sued. There’s Section 230 of the Communications Decency Act, which immunizes us from liability.” And so now, the Supreme Court has taken that case, which may be a sign that the court is interested in judicially narrowing the scope of Section 230. And so that also, depending on how that case turns out, that may affect the cases that we’ve just talked about, the Fifth Circuit and the Eleventh Circuit case[s]. And then there’s a second case the Supreme Court already has granted cert. on, and this is against Twitter, and again, it involves terrorism, but a specific application of anti-terrorism law. And the question there is whether or not, under Section 120, Twitter has liability under the Anti-Terrorism Act, even though Section 230 essentially grants them immunization from liability.

Scott (10:39):

So I imagine that the people who support the Texas law and don’t want social media companies to censor, as they call it, there’s a very large intersection of the people who would like to see YouTube prosecuted for this use of the algorithm. But aren’t those two exactly the opposite? On the one hand, they don’t want social media to censor, but if you want to prosecute YouTube for this, then they’re saying you absolutely must censor.

Stuart. (11:03):

Absolutely. I mean, what we have here, we have a scrambled egg, essentially. We have these two different concepts here that have essentially been put into this mix and now ultimately the Supreme Court may wind up having to unscramble all of this and try to sort it out. I think that makes it even more interesting as an ongoing development.

Sarah (11:27):

How do you think this set of laws compares with Europe? Europe doesn’t have a strong regime for the First Amendment. Are they already down this road?

Stuart (11:37):

Obviously, they’re further down this road than we are, but again, it’s not a footnote. I think it’s really a headline, which is that we have a First Amendment, and the First Amendment is a bedrock principle of our country. And so therefore I think everything we have [has] to be view[ed] through a First Amendment prison. Europe and other countries don’t have that restriction so they could act differently. But this is an example where there’s American exceptionalism and certainly as cases are decided, they’re going to be decided based on the First Amendment.

Sarah (12:10):

But in Europe, do YouTube and Twitter…I think in England they have a regime where they are content moderated. Are these global tech companies already complying with rules abroad?

Stuart (12:23):

Yes, some of them are. And I think one of the interesting questions or issues now is, how are the tech companies dealing with the possibility? Well, obviously, they’re dealing with two different laws at this point, but with respect to Texas, how are they either thinking about complying, or actually complying? I mean, what’s interesting now is there is no enforcement regime, because obviously there is a stay on the case. So we’re really talking about what’s called a facial challenge to the laws, which means the laws on their face either violate the First Amendment or don’t. Then we have the second area which we haven’t even gotten into, which is the “as applied” area. So if and when these laws are enforced, particularly the Texas law, how will it actually be enforced? And there could be a second First Amendment challenge based on the enforcement of that as distinct from the basic text of the statute itself.

Sarah (13:29):

And do you follow at all, like, you know, technologies like Metaverse? How is this whole version going to apply to that space?

Stuart (13:37):

Well, again, it could add it to a three-dimensional environment, basically, because in the current social media environment, we’re primarily not dealing with all of the dimensions that the Metaverse has. And when you talk about virtual reality, for example, with this being that anyone who has a viewpoint would have an absolute right to be part of a virtual reality program or system. Again, that may be an applied issue, which comes later on if the Supreme Court upholds the Fifth Circuit and does that in favor of the Eleventh Circuit. This is an area I think that is going to go on now for many years because there will be challenges based on the enforcement as well as the actual statutory language.

Sarah (14:27):

You can just hypothetically think a political candidate could have a rally in the metaverse. You know, they could have events and the platform could make venues for them to speak. That’s aside from people having individual viewpoints.

Stuart (14:43):



Do you think SCOTUS can meaningfully make a decision here in the circuit split? Like, could they narrowly send these laws back to the states to say, “Try again?”

Stuart (14:56):

They could. Again, I think if we’re talking about the Supreme Court of six months ago as opposed to this new Supreme Court, there was so much good presidential case law in favor of the Eleventh Circuit, which means that these laws do violate the First Amendment. It should be a relatively easy case to decide. And again, with Chief Justice Roberts as a vanguard or leader in First Amendment jurisprudence, he should be able to get the other justices to go along with that. But as we saw in the Dobbs case, he was not successful in being able to do that. He has the six-three split now. Obviously, he had to go along with the majority in Dobbs, but clearly he wrote an opinion which indicated he would’ve decided it a much narrower ground. At the end of the day, my optimistic side says the Eleventh Circuit is the opinion that would be upheld, but again, we’re still in this jump ball environment.

Scott (16:02):

More generally, do you think that the First Amendment is under more attack today than in the past? I mean, just by virtue of it happening to social media companies, that makes it big because everybody’s involved in that. But in other areas, are you seeing more First Amendment cases or issues that could be First Amendment cases than in the past? Or is it just where we’re hearing more about it because of social media?

Stuart (16:26):

No, I think this is more across the board. Florida, obviously, is a hotbed for many of these issues. They enacted the law that we just talked about, which was struck down by the Eleventh Circuit, but in Florida, there was a[n] ongoing controversy where three professors at the University of Florida, which is a state institution, were prohibited from offering expert testimony in litigation because that litigation was against the state of Florida. And so, essentially, they were not allowed to apply their expertise, which they have developed for years at the university, because that would be adverse to the state’s interest. And the state said, therefore, “You cannot be an expert here.” That became a political controversy. Ultimately, the University of Florida sort of modified its rules, but now there’s a piece of legislation that would classify all university staff and faculty as government employees. And if you do that, it means that all of that would be considered government speech and that would not be controlled by the First Amendment anymore. So essentially if that happened, the University of Florida could tell all of its professors, “You can never testify against us in a case.”

Scott (17:53):

The Chronicle of Higher Education also had a story recently saying that, I don’t know if it’s the same law, but that professors did not have the right to freedom of speech in the classroom.

Stuart (18:04):

Well, that’s starting to extend in that area, and obviously we’ve seen that in the so-called “Don’t Say Gay” law in Florida, but this notion, which is a traditional notion, that there are more strict barriers in places like classrooms where the government can control certain speech in that environment where it couldn’t control it outside. So I think [the] “Don’t say gay” law will be challenged and now we have of course other laws or legislative proposals which will not just be for elementary school students or for little kids, but now going into the college classroom as well. So yeah, this controversy or these series of controversies is very widespread. We also have on the freedom of the press area, a number—actually there are about a hundred—bills across the country dealing with whether or not citizens have the right to record police. That’s a major First Amendment issue. It’s not a freedom of speech issue; it’s a freedom of press issue. And there’s an Arizona law which will be tested which essentially restricts the ability of someone to pull out a smartphone and to make a video of something that they’re seeing while the police are on scene or it’s part of a crime investigation. Obviously, that raises some serious First Amendment concerns.

Scott (19:33):

And there was a related case, right, with the Sixth Circuit, that basically said you’re not allowed to criticize the police.

Stuart (19:40):

Absolutely. So we had a case where someone, I believe on Facebook, criticized the police. That person was prosecuted, and now that case is being appealed. And The Onion, the satirical magazine, actually filed a very thoughtful and great brief in support of the person who had done the posting. But yes, we see all sorts of tensions and conflicts now with police, because police are under a great spotlight now. And certainly, post George Floyd in particular, because police now have body cams, sometimes the body cam does not show what is actually happening because it has a relatively narrow viewpoint. And so what happens if you have someone pull out a smartphone and video that same event, and then when that case goes to trial, you have two different views of what that event looked like, and what if you had 50 people do it, so you had 50 different views? So it really raises very interesting points there. And of course, are we all now part of the press, or is there still something called an institutional press? Does it make a difference that the person who pulled out the smartphone works for a television station or just happens to be a bystander who saw that event?

Scott (21:02):

This is maybe just a side question, but police have the ability to turn off the cams that they’re wearing. And whenever video is made public and the camera’s turned off, you immediately think something suspicious is happening, or else why would they have turned the camera off? How do courts look at that?

Stuart (21:19):

Well, often police will say it wasn’t working or the police were not trained to do that, so we’re really in this whole new area of body cams. Even when they’re required, it doesn’t mean they’re always turned on, but it may be for perfectly innocent reasons and it may be for very malicious reasons like the ones you indicated there. That would really be something decided on a case by case basis. But in any event, the body cam technology only will record what the police person sees or is experiencing, and we know that is a pretty limited view of any particular event.

Scott (21:59):

Right, of course.

Sarah (22:00):

Well, it seems like on so many dimensions, it’s because of the technology that has changed our interactions with the First Amendment because now everyone has a smartphone or you can get distribution to a wider audience so quickly, within a click. Do you think intermediate ways of dealing with civil society and norms around the First Amendment are meaningful in this time of transition? Like, what do you think of the Facebook Oversight Board model? And I think you’ve also mentioned at TPI Aspen the importance of education in the First Amendment. What do you think about this time of transition that we’re going through, old school newspapers to now highly connected digital life?

Stuart (22:43):

Part of it is to really articulate and experience what you’ve just mentioned, which is we are in a time of transition. There’s some conflict there with legal principles, because when you establish precedents, those precedents tend to take more time or be more effective than when a particular technology is in place. So we may wind up with, as usual, the law being far behind where technology is. That could create even more problems in this area. So I think courts have to be very wary of it. And I think generally as a society, we have to say “Yes, we are at a period of transition.” We need to be working through this almost on a year-by-year basis and going back and considering it. And of course, if we look back on the past few years, there’s so many new technologies and new iterations that have come up that it seems antiquated to apply even things we were thinking about five years ago to the current situation.

Stuart (23:48):

And that’s why I always go back to this notion of culture, meaning that we as a society need to make cultural decisions about how we want to deal with some of these areas, and in particular, cultural decisions about the First Amendment. The First Amendment, as you know, is a legal construct. It’s a constitutional construct. It’s enforced and protected by the courts, but free speech and free press, which are values in the First Amendment, extend well beyond the confines of the First Amendment. And so I generally talk about, what is it like to have a free speech and a free press culture in this country? And so much of what people are talking about in terms of wokeness or cancel culture, those are not First Amendment issues. Those are more broad free speech or free press issues. One thing that I think we probably could all agree upon is that we really don’t have a free speech and free press culture in this country. And so the question is how do we make people more sensitive to free speech and free press issues and maybe even more reverent for the First Amendment? And so I’ve advocated, as I did at the TPI forum in Aspen, that these are not issues that necessarily are ones that we need government involved in promoting. We could be doing this as a society and particularly private sector actors in some key areas of culture could be very influential in helping us to start talking as a society about free speech and free press.

Scott (25:37):

One issue where it comes up a lot is fact checking. And I wonder how you feel about that. Somebody then has to decide what’s a fact and what isn’t. And some things that people think are facts turned out to be wrong. With Covid, for example. But then there’s the question of whether the government should be involved in that at all. We don’t want the public to be misinformed about certain things, but it’s hard to know what truth is. How do we think about that?

Stuart (26:06):

Well, again, we have two different ways to think about it. If we think about it in the First Amendment context, that means do we want the government to control information or how that information is communicated? That’s one area. And then the second area is, if government isn’t involved, obviously we have loads of people talking about a lot of different things and that’s called social media, and how do we want to restrict that or not restrict it, and what do we want to do in a social media environment? And I think they’re two different questions there. In the government context, again, looking more classically at the First Amendment, I would argue that the government has probably no role or a very minimal role to play in terms of that. I mean, we do have labeling, so we certainly know that the government can say to tobacco companies, in order to distribute tobacco, you need to have this warning label, that’s not an infringement on the First Amendment. And we’ve had that in a number of other areas. We have the Agriculture Department and the Food and Drug Administration. So we have a lot of those sorts of informational assets that I think the government promotes and are good for society. And I think that affects what you call misinformation because I think for example, if people believe that tobacco is not harmful, well that’s not good information. And the government, essentially, is correcting it.

Scott (27:39):

It worries me because it feels like we have kind of attacks on the First Amendment coming from the left and the right. They both want censorship in certain ways or some on both sides; one is for fact checking and so, hopefully mos hearts [are] in the right place, and the other is for censorship. But they both require disregarding the First Amendment in one way or another. Do you think that’s accurate?

Stuart (28:05):

Well, I think that gets back to the second area I talked about, which is the fact that both of these sides of the political spectrum don’t have, fundamentally, a sort of cultural understanding of free speech and free press. And we’re not promoting that as a society, and still, why would you expect things to be any different? I think the larger point here is we as a society need to say, “Let us begin to promote free speech and free press.” I mean obviously, and it’s a great value. We are now promoting diversity, equity, and inclusion in our society. We see that on a widespread basis. And clearly we are changing as an American society for the good because of that. Why can’t we do something similar with respect to free speech and free press? These are larger social issues, but we know we can do this. And there are other models that we could be looking at.

Scott (29:07):

What changed to make the First Amendment less sacrosanct recently? Were we doing something in the past that made people appreciate the First Amendment more that we’re not doing anymore? Or is it something broader in society that happened to make us think differently about it that requires us to start a new, I mean, you wrote something about teaching about the First Amendment in schools early on so that people know what it is. But is there something new recently? Why is it different? Why did attitudes change?

Stuart (29:34):

Well, I think [the] spectrum of the Constitution, I think certain groups and individuals began to think of other amendments in the Constitution as ones that should be promoted. So there really has been, for example, a fifty year campaign to promote Second Amendment rights. That became a cultural change in society over fifty years. So these changes really take a generation or two generations. I’m suggesting that we need to start somewhere. I’m not suggesting we’re going to see the outcome of it immediately, but let’s look at what happened over the past fifty years with respect to the Second Amendment and see whether or not we can create that sort of cultural change for the First Amendment as well. And there are a number of different reasons. I mean obviously with the Second Amendment we saw an easing of restrictions in how people could get guns. We saw obviously cheaper and a wider range of guns available.

Stuart (30:39):

So there are a lot of different regions why you had it, but at the end of the day, you had a lot of groups that said, we are going to make this our issue. And we’ve seen that also in the abortion context. So we saw over the past fifty years that we had a whole political and social movement built around what is called the pro-life movement. And again, it takes about fifty years. So I know we’re not terribly patient about these things. Some of us may not be around for those next fifty years, but these are really important things to start thinking about and at least to start developing some baby steps in that direction.

Scott (31:22):

And it seems like—people would hate this comparison—but the ACLU would be like the NRA for the First Amendment as opposed to the Second Amendment. But by its very nature, it also has to defend extremely unpopular views. Whereas with something like guns and abortion, whatever you think about them, people have their views and it’s always the same issue more or less. Whereas with the First Amendment, you’ve got to be on record supporting Nazis’ right to talk and so on. And how can you get people to embrace a long term campaign when part of it is inherently so unpopular, even though so important?

Stuart (32:01):

Well, the First Amendment is much more complex because, as you know, it involves five separate freedoms. And we haven’t even talked about religious freedom, right? And there is a major movement in that area, particularly among conservatives who say, “Our religious freedom is being threatened,” and that is a First Amendment issue as well. And of course, the other parts of the First Amendment include assembly and petitioning. So I’m not suggesting that we could take all of the First Amendment immediately, I would just maybe focus on the free speech aspect of the First Amendment and use that as a baby step to get people to start thinking about what free speech means. And to also get them to understand that this is something that is a core aspect of the First Amendment, which in turn is a core aspect of a democracy. And when we’re talking about the large issue of, how do we retain our democratic principles, you can’t do that without a First Amendment and without free speech.

Stuart (33:09):

Getting back to the issue that you talked about, Scott, the other thing that I think has changed, and I think many of the people I spoke to in my book, The First Amendment Lives On, talk about it, is this notion that when we were growing up, there used to be something called civics education. So there were actual classes where you learned how a bill becomes a law, and what the branches of government are, and all of that. That really is not part of the general public school curriculum anymore. And so we don’t have a formal educational process in the way that we had it thirty or forty or fifty years ago. I don’t think that’s coming back. I don’t think we’re going to have classes now in civics education anymore. I think that ship has sailed. So what I suggest is that we begin to look at some of the other ways that we are educated out of the classroom and not just people who are in schools now, because we need to educate the population at large.

Stuart (34:14):

How do we learn things and what do we like to go to that helps us in our lives? So one, obviously, are sporting events. I’ve suggested that maybe for Major League baseball, NBA, NFL, maybe before every sporting event, we already sing ”The Star-Spangled Banner” and we have people rise. How about right before that? We flash on the screen, say, “Now before we sing “The Star-Spangled Banner”, let’s all recite the First Amendment of the United States, 45 words, and put it up on the jumbotron.” And I think if you do that for every game in every one of these leagues, which is then televised and screened, you’re going to have this massive education of people who will for the first time, just like we all know the Pledge of Allegiance, they’ll be able to say the 45 words of the First Amendment. Then let’s bring that same concept into movie theaters.

Stuart (35:15):

We all know when you go to a movie theater, there are coming attractions. Now, there are a lot of commercials. What if, as part of that package, one of the first things that was flashed on the screen was the First Amendment? The First Amendment protects your ability sitting in the theater to see all the movies that you’re going to be seeing. And what if we didn’t have something flashing on the screen? What if Tom Cruise comes on right before the new Top Gun movie shows and says, “I really value the First Amendment, here’s what it means to me,” and then have the movie show. That would be a tremendous educational aspect for our culture, and it’s far different and more contemporary in thinking than [imagining] we’re going to now have classes dealing with constitutional law or civic.

Scott (36:06):

I was going to say, but of course you don’t want the government to mandate that.

Stuart (36:09):

No, of course not. No, no. I would want the National Association of Theater Owners to say, we would like all of our members. I would like all the movie studios involved. I would like all the professional sports leagues. I would like the NCAA. None of them were government. They’re all private organizations and they could do this tomorrow.

Sarah (36:29):

Do you think part of the education gap is understanding of government? I mean, like you said, the civics education. So it’s one thing to talk about free speech, but to really understand free speech, you have to understand the role of government and private actors in a society and history. How do you teach all of that? And I think to answer Scott’s question earlier, like I think maybe elites fifty years ago, a hundred years ago, who actually had access to the press and media, they had some basic better education. But now you have everybody as a Twitter expert. <Laugh> People can sound like they know what they’re talking about at any age, at any time, but they don’t have that background. How do you teach government principles?

Stuart (37:15):

That’s the fifty year campaign. I think, again, we have to start somewhere. I would probably look at sports and movies, which clearly are central to our lives. Now why don’t we start there and then we can build it out afterwards. But yes, I would love every major influencer to also, as part of their being an influencer, say, “I love being an influencer because of the First Amendment, and here’s what the first Amendment means to me.” If we had all the influencers starting to talk about it, again, a whole new

avenue opens up.

Scott (37:50):

Going to your point about [the] private sector voluntarily doing things like that, it makes me think of Schoolhouse Rock. Those of us who are Gen Xers and started every weekend with early morning cartoons and trying to watch them all the way through Saturday before your parents interrupt. Schoolhouse Rock had all these two-minute songs about ways the government worked. And I remember in school, every single person knew how to sing the preamble to the Constitution because of Schoolhouse Rock. I’m not saying Schoolhouse Rock was responsible for any great civic mindedness among Gen Xers, but it was something that every kid saw, and every kid knew the preamble, even if they thought it was a song.

Stuart (38:28):

And I think [of] “I’m Just a Bill,” which comes from Schoolhouse Rock. I think all people in that generation know that. It basically becomes part of their internal DNA. What I’m suggesting is we can actually affect this internal DNA in terms of thinking about free speech and free press, but you do it culturally and not having the government involved. And we have some major cultural forces now that can do this.

Sarah (38:58):

I mean, maybe Lizzo can pull out, you know, James Madison’s crystal flute. Well, I’ve heard people want to go to the Library of Congress and see the reality show of like all the historical artifacts. So that could be something cool, if somebody like her went through history and talked about government.

Stuart (39:16):

Yeah. And without being facetious, remember that Kim Kardashian is on her way to becoming a lawyer and possibly may want to start talking about the First Amendment more expansively. So yes, we have cultural forces that are out there. Let’s harness them.

Sarah (39:32):

As a final question, if any, how would you reform Section 230? With all these cases coming up, is there a need to have more clarity from Congress or aside from cultural and educational efforts, are there things that lawmakers can do?

Scott (39:49):

To add the non-lawyer’s dumb question to the end of that, doesn’t the First Amendment cover Section 230? Why is it redundant?

Stuart (39:56):

Well, I’m not sure which to answer first.

Scott (39:59):

<Laugh> Oh, I didn’t realize they were different. <Laugh>

Stuart (40:01):

Well, I think to Sarah’s point in terms of this being a period of transition, and again, if we recognize this as a period of transition, I would tend to disfavor, the legislation tends to freeze things as do court opinions. And so I think as a general matter, I would leave things alone, which means I would not reform Section 230 in any way during this period of transition. But in order to do that, we all need to say, “Yes, we know that we are in a period of transition.” I don’t think we’ve had that general discussion or acknowledgement, even though I think we all understand that, we haven’t agreed on that as a policy matter. And that’s really important in terms of the reform issue, in terms of whether Section 230 conflicts with the First Amendment, those are the two cases that I just mentioned that the Supreme Court has decided it would grant cert. on. And so we’ll know about that. We will actually have case law dealing with that probably by the end of this term, which is in June.

Sarah (41:11):

Great. Well, on that note, we’ll have to keep watch for the cases that come out in June and maybe have you back on to talk about what the Supreme Court decided. Thanks, Stuart.

Scott (41:22):

Thanks much for joining us.

Stuart (41:22):

Yeah, it’s a great, interesting time and I appreciate talking with you. Take care.

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