Business and the First Amendment

The First Amendment is literally the first line of defense against the abuse of power by government. What might not be clear, however, is how exactly the amendment plays into business and the corporate world. To talk about that, we spoke with Shanlon Wu, former federal prosecutor and partner at Wu, Grohovsky, & Whipple; Thomas Clare, specialist in complex business disputes and reputation attacks and partner at Clare Locke; and Richard Levick, show regular, chairman and CEO of Levick, a public relations firm that specializes in crisis communications for business and government entities.

ABERMAN: Let’s begin with: what is the First Amendment?

CLARE: Well, let’s start with the text of it. The First Amendment says Congress shall make no the law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble, and to petition the government for the address of grievances.

So, cutting through all that legal sounding stuff, this is the the First Amendment to the Bill of Rights, and it defines the rights of the people to express themselves, to have a free press, and limits the government’s ability to restrict freedom of speech, freedom of religion, and freedom of expression, more generally.

ABERMAN: For Americans, everyone talks about freedom of speech. Is this why the First Amendment is so critical? Shan, I know you spend a lot of time thinking about this on college campuses. I know, I teach on a college campus, people talk about the First Amendment all the time. Do they really understand what the heck they’re talking about?

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WU: I really don’t think so. There’s a huge debate on college campuses about the First Amendment, and how it intersects with this notion of safe spaces. And you would think, on a college campus, and I hear this a lot with faculty members and the administration, I’m on the board of trustees at Sarah Lawrence College, there’s a concern that there should be a free exchange of ideas, and therefore people should speak their minds and apply critical thinking to it.

But there’s also a counter-current right now, which is that there’s a big concern that certain kinds of words may offend people, may trigger certain traumas. So, they’ve tried to create this concept on campuses of the safe space, where you’re going to be sensitive to the words. So, there’s a big collision going on on the campuses, which is, how can you be respectful of people’s feelings and their experience as minorities, people of color, and at the same time, you want to foster the free exchange of ideas. So, there’s been a lot of collision there, a lot of adversarial positions being taken, so that’s a big issue on the campuses.

ABERMAN: Now, it’s interesting, Shan, thinking about what you just said, and what Tom said a minute ago. Tom, you framed the First Amendment, it’s not that I should be free of you saying something that upsets me, it’s that I should be free of the government putting constraints on my ability to express my free speech, right?

CLARE: Well, that that’s exactly right. I mean, we look at the text of it, it starts with: Congress shall make no law abridging those freedoms. And that’s the way the First Amendment is framed. I think the way that people understand it, though, is different, and it leads to these sorts of conflicts, because people will invoke the First Amendment, and their right to free speech, to support all sorts of things that aren’t necessarily really First Amendment issues. It’s really just, I want to be able to say what I want, and I don’t want you to be able to offend me with the things that you say.

ABERMAN: Richard, I’m going to bring you into the conversation, because you spend your life helping businesses and countries express themselves, often in ways that are going to upset people. How do you react, as a business person, when somebody says, well, I’ve got my First Amendment right to my opinion? How do you manage mine field of free speech?

LEVICK: You know, I think it’s a lot different now than it was before. One is, we’re traveling all over the world. So, obviously, the First Amendment only applies to these United States. But I think most people define, in this country, to find the First Amendment as protecting whatever it is that I say, but not speech that I don’t like, and that I think is an absolutely an opposite of the Jeffersonian ideal of the First Amendment, which is the marketplace of ideas.

One of the concerns that we have right now is that the way in which Donald Trump acts is so intimidating to at least raise, theoretically, if not legally, questions of prior restraint. It certainly feels that the press, he’s trying to intimidate the press from doing its job. He’s trying to intimidate individuals, at times, from having their communications. And although he tries to have it both ways, at once the President of the United States but at the other time simply tweeting on his own personal phone, it raises, I think, questions of fear in this transparent age that most of us have not had to deal with since the McCarthy era.

ABERMAN: Well, let’s expand that a little bit, because I think, and certainly one of the reasons why I wanted have you in the studio is that I’m pretty concerned that a president should be talking about exercising a restriction on private businesses like Facebook, Google, or others, their speech. I find that troubling, knowing what I know about the First Amendment.

Shan, turning to you and the university example, from my experience, teaching, that people who have right wing ideology often find campuses really hard places to be. I’ve been told that they feel unwelcome, I’ve had to be very mindful of this. You talk about safe speech in the classroom, I find when I teach, I need to be mindful of being inclusive about about all types of ideologies, because otherwise I offend. It seems like it’s just that lots of people are feeling like they want to impose their way of thinking by using this First Amendment.

Where does freedom end? Does my right to say what I want end when I punch you in the nose? What are the guideposts we’re supposed to use in this society?

WU: Yeah, I think that’s a really hard question to answer, particularly on college campuses, but I can tell you that the feeling is that there is a conflation of safe spaces, and hate speech, and free speech, and that’s the question that is really hard for me, as a lawyer, to often answer. Because for example, we have hate crimes, and actually, it’s really interesting.

When I was a prosecutor in D.C., they often did not like to charge anything as a hate crime, even when it was obviously a hate crime, because they were worried about having to prove the hate aspect of it, in terms of the First Amendment constriction. So, I think that’s something I’d be curious as to your views, as to where the line comes between hate speech and the right to speech?

CLARE: Right. Well, I think that’s a really insightful point, and I think one of the things that we’ve seen in both legal circles and in the way people talk about it colloquially, is this notion of a hate crime, or hate speech. And I think, just as you said, historically, people were reluctant to attach that label, or it was reserved for only the most extreme of things that had a clearly racial component to it. Now, I think the pendulum has swung, on college campuses and elsewhere, just in the way we talk about things, as dramatically the other direction, where now everything is a hate crime.

Everything is a hate speech, if it’s something that I don’t agree with, and that label has lost some of its meaning, and I actually think that that’s a real detriment to our society. Because there ought to be some sort of an elevated classification of speech for things that truly are motivated by hate. But it’s become so overused, now, in our common parlance, that I think it’s lost its meaning, and especially in today’s political arena, where we have a lot of overheated rhetoric that really doesn’t apply to what’s actually being said.

ABERMAN: I wonder if some of it is, to be blunt, that there’s money to be made in outrage these days, and the media may have, speaking to somebody who has been in the media for years, a place where it’s great to get clicks. It’s great to get people to follow. I mean, are we basically falling into this trap where we’re fanning outrage, and losing the ability to actually regulate society?

LEVICK: We have books and media selling at all time highs. These are stone age media, which are at an all time high, why? Because just like NASCAR wouldn’t exist without the accidents, we would call it traffic, the same is true for challenges without adversaries. We are addicted to the battle of Donald Trump, whether we are Donald Trump supporters or Donald Trump opponents. It is the accident nature of it. The conflict. And we have now conflated California and Hollywood with Washington and politics, as if entertainment and reality television are how one runs a powerful country.

ABERMAN: I don’t disagree with any of that, but I don’t really think that, if we limit this issue just to Donald Trump, we’re missing the point.

LEVICK: Absolutely.

ABERMAN: The point, as I see it, is that you can’t have freedom unless you understand what freedom means. And right now, I think a lot of people have confused it.

LEVICK: Jonathan, the First Amendment is not a fickle mistress. The First Amendment is not outcome determinative. That is, that we can no more oppose speech we don’t like, than only encourage speech that we do. And I think both the left and the right, whether we look at Donald Trump, or we look at the Me Too movement, that is often not interested in the accused being able to defend themselves, and in fact call it harassing speech, or hate speech, not necessarily always interested in due process or the statute of limitations. And I know I will probably be criticized for saying this, but the First Amendment is something that is, while not absolute, is supposed to be applied blindly as justice.

ABERMAN: I asked that we spend a little time thinking about communicating the rules of the road in this new world. It strikes me, as we come back into the conversation, we live in a really interesting moment in time where so many of the channels that are being used for communication of speech are privately owned or publicly held for-profit businesses. They’re not regulated by the Federal Communications Commission. There’s no Fairness Doctrine, but yet they become almost utilities. Tom, I’ll start with you. What’s a Facebook or Google supposed to do in the current environment, with respect to First Amendment speech?

CLARE: Well, they’re in a tricky spot, because there is, of course, all this public pressure on them to say, how can you allow this content on your site, whether it’s hateful speech, or whether it’s fake news, or external interference with our elections. There’s a lot of external pressure on them to be doing something. On the other hand, they tout themselves as being these neutral platforms, as literally being the modern-day equivalent of the town square, where people can come and exchange free ideas without regard to identity, and having anonymous speech and the value of all of those things.

And Congress has actually given those private companies immunity from defamation liability, because they purport to be the town square. The real challenge exists now because they’re wading into the territory of policing speech. They all have terms and conditions. We all know because we click on them, and say I agree to be bound by Facebook’s terms and conditions in order to have an account. And that says that I can’t post all these categories of speech on there.

But there are people at these private companies that are making decisions about what what qualifies as hate speech, or what qualifies as harassment, or what qualifies as defamation, and they’re calling balls and strikes on what content goes up or down, and those people are exercising that discretion in a way that is getting them in trouble, and getting them a lot of public notice.

ABERMAN: But, and this is where I think lot of the confusion about the First Amendment arises, none of that, as a private business, has anything to do with the the First Amendment. You can regulate speech however you want as a private business, right?

CLARE: Absolutely. And I think that’s something that’s very commonly understood. And a lot of the outrage you hear from people, including about data privacy issues, is, you don’t have a constitutional right to have a Facebook account. You know, this is a private business that is providing a service, albeit a very broad one. But if you’re going sign up for Facebook, if you’re going to post things on Facebook, if you’re going to participate in that, you’re agreeing, basically, to a contract with these private companies, and their terms of service.

ABERMAN: So if anything, this is a monopolization issue, this isn’t a First Amendment issue. And I’m not saying these are monopolies, but…

WU: I mean, I guess what I’m unclear on is, clearly the government’s interested. They’re holding hearings. They are coming down on Facebook, Twitter, etc, for not only allowing controversial people, who we often think of as hate speakers, but also for allowing all this automated, fake account activity, which may have been the Russians, or someone else, trying to influence elections. So, the government is definitely interested in this issue, and you know, possibly as they get more interested, then that government action perhaps does start to infringe the First Amendment.

LEVICK: There are legitimate and illegitimate reasons to be interested in social media. The accusations that Google or Facebook, or other social media, are biased against the right, is something that, personally, I have a very hard time swallowing, in large part because it was used, initially by the Reagan administration, as this extremely effective argument. Because anything that is than critical, you can dismiss as, well, of course, what would you expect from the New York Times, the Washington Post, Wall Street Journal, or others?

We have to get to a point where we, once again, are at least considering information that’s not necessarily consistent with our preformed arguments. I think, back in the eighties, Mark Hertsgaard did a study of, in fact, this alleged left wing bias in media, going back nearly two hundred years, and found it, in fact, not to be true, and I think we’ll find the same thing today. But the challenges are really fundamental. And that is a question I ask often of myself, is, does our constitution, a living, breathing document, does it keep pace with technology, which is raising issues far beyond what we have the capacity certainly to legislate, but maybe even govern?

ABERMAN: Regulation of speech. There’s another issue, and Thomas, you touched on it briefly when you last answered, defamation. There are limitations on Alex Jones’s ability to talk about Comet Pizza, or somebody’s ability to talk about something in a disparaging way. Where are the limits? And that’s not First Amendment, what is that?

CLARE: So, the First Amendment does not protect defamatory speech. That’s the legal issue, there. But defamation is a very defined class of speech, it’s a false statement of fact about a person, that is published to someone else, that causes reputational harm, and done with a certain culpable mindset, meaning you, under New York times versus Sullivan, that you either knew it was false when you said it, or you recklessly disregard the truth or falsity when you said it.

So, it’s basically a lie that you told about somebody, that you knew, or should have known, was false. I spend a lot of my practice, when clients come to me and say, I’ve been defamed, explaining to them the point that Richard made earlier. There’s a big difference between defamation and speech you don’t like. And I think for your audience, and for this discussion, the one big divide that’s important for people to understand is, defamation only applies to false statements of fact.

It does not apply to statements of opinion. You can make the most outrageous opinions that you want, publish them as broadly as you want, and have zero liability for defamation. But once you start making up facts about someone, in order to support your argument, that’s when you get into a situation where defamation is at play.

LEVICK: You know, one thing, Jonathan, I would add is, and I think it’s important for us to remember, the First Amendment, as we interpret it today, is largely the evolution of an accidental train ride in a snowstorm a century ago between Justice Learned Hand and Supreme Court Justice Frankfurter. Learned Hand, in a lower court, had a much more progressive view of the First Amendment.

The First Amendment comes to us, as we believe it today and accept it today, in large part because of the Wobblies, many of whom were beaten or killed in the early Union days, anti-World War One protests, both of which were extremely unpopular speech, but it was through those initially unpopular movements that led to our appreciation as the most important speech to protect is in fact, the unpopular.

WU: One maybe counterpoint to that, and to your point about whether the Constitution has really kept up with technology. It seems to me that it clearly hasn’t. I mean, there’s the ability now to create tens of millions of fake accounts, putting out a particular viewpoint. And if you’re just leaving it to the marketplace of ideas for that to balance out, it’s no longer a fair competition. I mean, a real human being can’t possibly speak out against ten million bots, tweetings five hundred times a day. And so, that, for me, raises the question that you do need some legislation. You may need some government action or oversight.

ABERMAN: That’s kind of where I’m struggling towards as well, which is, it seems to me, we almost need to have, I don’t know how you’d do it, but an objective truths police. Defamation, is it possible to have fraud on the marketplace of ideas?

LEVICK This show now being broadcast by George Orwell…

ABERMAN: Seriously! How do you solve this problem without… Was it Moynahan who used to say you need to have shared facts? You can’t have facts without truth.

LEVICK: I think that both gentlemen here have addressed a critical issue, which is, free speech does not attach to robotics, through the bots, and two, there are limits on speech.

CLARE: One of the things that I see, and I’ve seen in my practice over the twenty years that I’ve been doing defamation work, is this erosion of trust in the media, and it’s not just the professional media, but it’s the erosion of trust in things people read online, or hear on television. And I do believe that there is a correlation between that erosion of trust, and the desire to make free speech consequence-free, that there’s no consequence.

The courts have spent a lot of time eroding accountability principles for speakers. And that is, generally, a good thing in a free society, that there isn’t severe consequences for people who utter speech. But given the fact that now there’s more irresponsible speech, there’s more falsehoods, there’s more robotics out there. There’s also, courts have struggled to keep up with things like the internet, and how do you deal with a hyperlink, and how do you deal with a retweet? How do these concepts apply and law that was crafted in the 1700s, the 1800s, the 1950s, when a lot of this law came out?

I think that is what has led to the erosion of trust in the media. Just one quick anecdote that I think would be interesting to your listeners: a year ago, we were the counsel for the University of Virginia administrator in the Rolling Stone gang rape defamation case, which is one of the last defamation cases to go to trial. We were picking a jury of a hundred people in the room for the jury selection process, and we asked the question, how many of you distrust the media? Ninety-six hands went up in the morning. Ninety-eight hands went up in the afternoon. And I think that is something we see all around the country, and it’s a function, I think, of a lot of the failures to keep up with the modern times.

WU: I think, to go back to the college campus issue: that, to me, is over dependence on the media. A 1960s kind of notion that Walter Cronkite delivers the truth to us, and I think that, on the college campuses, and even in middle school and grade school, we need to teach our students, and relearn ourselves, how we can be critical in terms of our analysis of this. And one doesn’t have to just say, all the media is always right, or they’re always wrong, you should be able to impose your own standards on that. And that will hold them more accountable, overall.

ABERMAN: I think that’s a great place, unfortunately, I have to end the conversation. Shan, that was a wonderful way to sum it up. I come away from this conversation a lot better informed about what the First Amendment is, but also realizing the enormity of how we’re going to deal with speech in the world that we now live in. Gentlemen, thank you very much. You’re listening to Shan Wu, Tom Clare, and Richard Levick. Gentlemen, thanks for joining on What’s Working in Washington.