The Chilling Effect: The First Amendment, The Fourth Estate, and The Trump Administration

CORY BARKER: In July, the Pentagon quietly introduced a new policy allowing officials to revoke press credentials from journalists who “don’t maintain positive relationships” with the Department of Defense. That line “positive relationships” sent a chill through newsrooms. Because it implied that reporters who publish stories the Pentagon doesn’t like could lose access entirely. Many see this unprecedented policy as an attempt to control the flow of information by punishing journalists for doing their jobs. At the same time, another kind of tension is playing out in the cultural arena, like the cancellation of Stephen Colbert’s late-night show, which signals a larger reckoning with speech, satire, and public discourse. In an era of fragmented audiences and online outrage, even comedy, one of our most protected forms of expression, is caught in the crossfire. Together, these stories point to a bigger question: What does the First Amendment really protect in an age where power, technology, and public opinion collide in real time?

MATT JORDAN: To help us unpack this question, we’re joined by Dr. Amy Sanders, Penn State’s John and Ann Curley Chair in First Amendment Studies. She’s a lawyer, former journalist, and internationally recognized scholar on free expression, media law, and the regulation of emerging technologies. Amy’s work examines how democratic values, media freedom, and access to information are being reshaped by social media and government regulation. She’s also the co-author of the casebook First Amendment and the Fourth Estate: The Law of Mass Media. We’re going to talk about what it means to protect democratic values in an age where speech is global, platforms are private, and disinformation flows freely. Amy Sanders, welcome to News Over Noise.

AMY SANDERS: Thanks. It's great to be here.

MATT JORDAN: So, we're going to start, just with a kind of ground rules thing. What is the First Amendment and what does it do?

AMY SANDERS: Oh, well, thanks for the softball, I appreciate it. The First Amendment is actually the First Amendment to the US Constitution, right? And it gives us five fundamental freedoms speech, press, religion, petition and assembly. And those rights, those expressive rights are really foundational to what it means to live in a democratic society.

MATT JORDAN: So, I'll just ask a follow up. So why have people have been arguing for one of those, the free press, since the 17th century. What is it about the free press that’s so important for society?

AMY SANDERS: Well, fundamentally, if you think about freedom of the press as being a structural right separate from freedom of speech, what it does is essentially creates the press as what we call the fourth estate. And the function of that press is then to serve as a watchdog over the other three branches of our government.

MATT JORDAN: So, are there kinds of speech are the kinds of speech that are not protected?

AMY SANDERS: There are absolutely categories of speech that the First Amendment doesn't protect. In fact, a lot of people misunderstand they think I can say anything I want, anywhere I want, anytime I want. That's absolutely not true. Typically, when we're thinking about unprotected speech, there are five categories of speech that the Supreme Court has historically rejected protection for. They kind of fall into some similar categories, so, I’ll group them together. The first is fighting words. So, sort of face-to-face epithets that are designed to provoke violence. Right. True threats which is pretty self-explanatory. We've seen a lot of arrests for true threats recently, right? Incitement or this type of speech that encourages imminent lawless action. Those all kind of grouped together because the court has historically seen that kind of speech as not having a lot of value. Right. The goal is to bring about violence, unrest, not to add to our discourse. Other two types of speech that are historically unprotected are a little bit different. The first of those is obscenity, and that's not what we think of as pornography. We're talking really hardcore, explicit, an unhealthy interest in sex when we're thinking about obscenity. And there's a lot of confusion right now about what's obscene versus what's just pornographic. And then the last type is false advertising. Of course, we want to limit, protection for commercial speech to truthful and non-misleading commercial speech.

CORY BARKER: You mentioned there there's a lot of confusion right now about what is what falls under that obscenity category and how pornography may, may or may not play a role. Can you talk a little bit more about that?

AMY SANDERS: Absolutely. So, one of the trends that we've seen, particularly in, these government attempts to ban books, has been an attempt to ban books about sexuality, either books about LGBTQ topics or books that talk about healthy sexual activity. And there's even been cases where people have referred to the drawings, like cartoonish drawings, as being obscene. None of that even enters the realm of obscenity. One of the more recent cases where the Supreme Court talked about obscenity was a case that involved animal crush videos, which, trust me, don't look these things up. You can never unsee them. But they are a sexually explicit video, that some people find arousal from. Where, typically women wearing stiletto heels crush small creatures to death. That, of course, is very far removed from thinking about some cartoon pictures of people with genitalia.

MATT JORDAN: So, what you're talking about there is something that we often describe as standards, right? And standards for broadcasting, standards for editorializing; is abiding by standards for broadcasting or editorial standards, as is the current rage on the right to say, is this the end of days, bad censorship type of type of thing?

AMY SANDERS: You know, any time we get into the government regulating the viewpoint of content, I think we're in dangerous territory because, of course, if we're allowing the government to regulate this, viewpoint, the particular viewpoint that's in power, of course, is going to embolden speakers that support that particular ideology. And then sort of crush out dissent or minority viewpoints. And so, when the courts look at restrictions on speech, what they're looking for is, are we discriminating based on viewpoint? Is the government favoring, say, a pro-Palestinian message? Right. And pushing back, a pro-Israel message that wouldn't be permissible.

MATT JORDAN: And it's not the same if a company that is, say, the publisher is doing that right.

AMY SANDERS: Absolutely. Another really common misperception about the First Amendment is that it protects all of us and all of our speech rights. The First Amendment was passed at a time, was ratified at a time when the founding fathers in the framers of the Constitution were concerned with government power. So, the First Amendment specifically protects us from the government regulating our speech. But if Twitter wants to take you off of the platform, if Starbucks wants to tell you can't say something in its stores, those are private actors, and the First Amendment doesn't constrain them.

CORY BARKER: You mentioned a couple of misconceptions that the public often has about the First Amendment. Are there others that come to mind that you're often dealing with or talking to students about, that there are things that even in, you know, sort of popular discourse, we hear this is what the First Amendment is. This is what it protects. This is what it doesn't that are not, you know, actually true or not upheld by courts.

AMY SANDERS: Oh, all kinds of them. And the first one that I'm here to share is people say all the time; you can't yell fire in a crowded theater. You absolutely can yell fire in a crowded theater if there's a fire right. The second thing that's perhaps more relevant to many people who are listening, is something that's been in the news lately, and that's whether or not you can burn an American flag as a form of political protest. Of course, this seems to be one of President Trump's pet peeves, right? He keeps saying, “We're not going to allow people to burn flags. We're going to prosecute them for this.” There's actually a case from the late 1980s, 1989, I believe, called Texas vs. Johnson, where the Supreme Court said that the First Amendment absolutely protects burning an American flag in protest. So that's something that a lot of Americans get upset about. They feel like it's unpatriotic. And that's fine. It's perfectly fine to be upset about that. The First Amendment protects lots of speech that's going to make us upset.

CORY BARKER: This might be a loaded and maybe even an easy question, but why do you feel like there are so many misperceptions or just, you know, full on inaccuracies that people believe about the First Amendment?

AMY SANDERS: Well, all of the research shows that many people can't even name the Five freedoms in the First Amendment. So that's the first challenge that we have to overcome in terms of educating people about these fundamental rights. But I think the other thing is the First Amendment does protect a whole range of offensive speech. Hate speech, for example, is protected. That's another common misnomer. I don't like hate speech. I don't want that kind of speech in my life. I don't want to hear people saying, and I'm not friends with people who engage in that kind of speech, but I would argue every single day to protect it because of the danger of the government drawing lines and where to regulate speech. And so, it's really easy to say, I'm pro-free speech or I love the First Amendment, if what I mean is, I love the First Amendment when it protects the speech that I like and I value and that I agree with, we don't give First Amendment rights that way. You have to take both sides of that equation.

MATT JODRAN: I've seen a lot of journalists using the phrase weaponization to just to describe the discussions about freedom of speech, and is, is that what you're getting at is that some people have, like, intentionally misconstrued this, as they say, communicate to the public?

AMY SANDERS: Absolutely. There's this, misconstruing of what the First Amendment protects and doesn't protect. But the other thing that I think we're seeing when we talk about weaponization, and I use this, this word in my class a lot… we are seeing a really interesting period in time right now that's actually reminiscent of what was happening in the civil rights era. So, there's a very famous First Amendment case called New York Times vs. Sullivan has to do with, an advertisement that was placed in The New York Times soliciting support for, Doctor Martin Luther King and the civil rights movement. And that ad really upset a lot of southern officials. And so, they started suing news organizations for defamation. And pre-1964, it was very easy for a public official to win a defamation suit. And what was happening at the time is all across the South. Southern officials were suing the Northern Press for what would be the equivalent of billions of dollars today. And the whole goal was designed to keep them from reporting on the civil rights movement, right? They didn't want this northern press coming in and influencing public sentiment about the civil rights movement. We're seeing that happen again today, right? We're seeing President Trump, in particular, but other political officials and appointees who are trying to use the law to silence the press, all right? We've seen President Trump sue CBS over the Kamala Harris interview on 60 minutes. That's a lawsuit that CBS should have easily been able to win. There's a similar lawsuit pending in Iowa against The Des Moines Register and political pollster Ann Selzer. Trump just recently threatened the BBC with a billion lawsuit. All of these lawsuits are an attempt to weaponize the law, to create what we call a chilling effect, to make people afraid to criticize government officials.

MATT JORDAN: So, when people look at, chill. And that's a phrase that, I mean, if there's a case that I look back at, it's, the first big Red scare, post-World War One where the, the, the postmaster general basically shut down the radical press in America. And this was always described as a chill. There's kind of seems like there's a fine line between chill and censorship. So how does that get delineated or argued in court?

AMY SANDERS: You know, that's a really difficult line. And one that we're seeing this gray area sort of expand today. So, I mentioned the CBS case. Well, there's obvious attempts by the government to try to stop people, but to get engage in prior restraint. We just are seeing right now whether the Texas A&M Board of Regents are going to require professors who teach courses that involve race and gender ideology to get those courses pre-approved. That's clear prior restraint or censorship by the government. But there's also what I would call this soft pressure. And there's a lot of that happening right now, and that's designed to chill speech. And it's more subversive. For example, with the CBS case, CBS, their parent Paramount had a merger pending before it, the Federal Communications Commission. And they really wanted this merger with Skydance to go through. The FCC had sat on it for a while and not approved it. And one of the reasons that CBS likely settled was because they knew that if they were fighting this, the government would hold off on this merger. So, because media companies today own entertainment interests, they own news interests, it's really easy to have this sort of soft government regulation serve as this kind of chilling effect to get news organizations to step into line.

MATT JORDAN: So, that makes me think, you know, again, if we think about, you know, I learned in grade school, I think that there was when the spirit of the law and the letter of the law and often when we think about the law, we think of it as a kind of a semantic argument that is passed out by really smart people in court and so what is it about the spirit of the law that wants to prevent chilling or censorship? Why is that important?

AMY SANDERS: I think when you think about the spirit of the law and you go back to the founding of this country, right? The founders came to what is now the United States, in part because of their complaints about tyranny in England. Right. And their quest for religious freedom. And if you look at this idea of allowing the government to control speech, allowing the government to control the democratic discourse, right, that really goes against sort of those foundational freedoms that we brought over from this country. It's interesting, if you go back and you look at the Declaration of Independence because you're kind of a nerd like I am, many people would say that a lot of the grievances that we hear today about President Trump echo some of those grievances that the early colonists lodged against the King of England.

CORY BARKER: We're talking about them now. So, what, if anything, has surprised you about the second Trump administration's handling of First Amendment related issues is and, you know, to that point, like, is this a similar approach to what we saw in the first Trump administration? Is it, you know, a huge shift? Can you tell our audience a little bit more about that?

AMY SANDERS: So, I think what's changed, the first Trump administration, I think was designed to lay the foundation to pit the American people against the press. We heard very divisive rhetoric. Enemy of the people. He would encourage, people who attended rallies, right, to yell at the press, to spit on the press. That laid the foundation for what we are seeing in this term. And that is a rapid escalation, not just of rhetoric, but of actual physical violence against journalists. Whether we're talking about confrontations against journalists and citizens who are trying to report ICE, whether we're talking about the access restrictions kicking the Associated Press out of the, white House, excuse me, Oval Office, the access restrictions that are coming up at the Pentagon that caused a majority of the Pentagon press corps to give up their press credentials. All of those things, I think succeeded so rapidly because unfortunately, the press doesn't have a lot of public support right now. The press doesn't have a lot of public trust. And the entire first Trump presidency was about undermining the public's trust in our core institutions, whether that is higher education, science, the press, all of those things. And that has allowed, I think, in the second term, this just very rapid depreciation in rule of law and fundamental freedoms.

CORY BARKER: One of the things that you said there has me thinking about conversations that I've had with, you know, friends and family, students and thinking about, you know, the way that that corrosive distrust of news institutions then plays out in circumstances like this where, you know, people are skeptical or, you know, distrustful of news organizations, and then they sort of cover some of these issues with a real gusto. Right? The like when it's about them, it's sometimes the public is sort of like, wow, you're really invested in telling this story about how your individual employees or people in your field are being impacted by this. But, you know, maybe you're not covering my community in a way that I feel is valuable and that only further, like contributes to that destruction, that skepticism. Right?

AMY SANDERS: Absolutely. I mean, listen, I grew up in rural Missouri. I am a little embarrassed to admit that it took until I went to grad school in Florida to hear the term flyover country and to really understand what that meant. There is no doubt in my mind that, as an institutional press, we have an elitism problem. You know, you can't have, major news organizations like CNN, The New York Times, The Wall Street Journal flying into parts of this country to cover a story for one day and assuming that they understand what's going on. I was talking to a group of, news executives recently, and I said, you know, one of the real problems that we have is that news organizations are covering the stories of people being laid off in rural America who had federal jobs and voted for Trump, or people who are suffering because of food stamps, right? Because of their Snap benefits being cut off. The news is covering that in a very gotcha kind of way. Like, look at this rural bumpkin who voted for Trump and now is suffering the consequences of their actions. That's offensive to me. As somebody who grew up in rural America. That is not helpful in terms of earning the public's trust in the press back, this, this kind of attitude like, oh, look, there are actually smart people in the center part of the country, and people seem to be shocked by that.

MATT JORDAN: So, to get back to the to thinking about the founders and why they might have wanted press and, I mean, I'm kind of drawing from the stuff from the 17th century on here, but part of it could be argued that in democratic theory, we want a kind of a certain type of deliberation to happen where there's a free exchange of ideas, where we get, you know, people from a different range of experiences, all pooling their collective wisdom together, and that anything that would get in the way of that is a problem. And certainly, we've seen, communications law tilt in that way for various times after a kind of an overreach of stuff. So, I'm, I'm wondering, I can always kind of come back to this, my metaphor for thinking about this is always, Mr. Smith Goes to Washington. Right? So, Mr. Smith Goes to Washington, and he bumps up against this big corporation and, you know, they're he's about to expose their graft and corruption. And Jim Taylor, the evil villain in the thing, muzzles the press. Right? He says I'll make public opinion. I've made it all my life. And for any, news outlet out there who won't play ball, he says, “Buy it or wreck it.” So that always makes me wonder… and, you know, Capra was a New Deal guy, and he was trying to get over the hangover of those courts at the end of the Gilded Age that were basically, judicial oligarchy, you might say. And so, the FCC and whatnot emerged from that area where they were trying to kind of make the all voices equal. Right? So, I'm wondering if we really should be thinking more about media ownership as a freedom of the press issue.

AMY SANDERS: There's no doubt in my mind that the deregulation that has occurred over the past really well, since the Telecom Act of 1996 has played hand-in-hand with the decline in local news, has played hand-in-hand with the decrease in public trust, has played hand-in-hand with decisions by media companies that run counter to journalistic values. Right. The idea that Jeff Bezos owns The Washington Post. Well, you know what? Jeff Bezos is going to make decisions that are in the business interests of Jeff Bezos, and those often run squarely against the interests of the average American. And so, when we get to that point to where that starts to influence how The Washington Post is covering news stories, democratically speaking, that's a problem.

MATT JORDAN: Yeah. In the case of The Washington Post right there, they he fired as somebody who called that out, right. The Pulitzer Prize winning, cartoonist Ann Telnaes was fired because she did a cartoon of everybody begging for Trump's, approval. And Bezos wanted to spank.

CORY BARKER: Yeah. And to that point, you know, a lot of the coverage of you know, sort of corporate maneuvers in this realm, like the cancellation of Colbert's Late Show or the temporary sidelining of Kimmel at ABC, have generally been referred to as, you know, acquiescing sort of directly or indirectly to demands from the Trump administration or folks, you know, in Trump world. So, I guess beyond money, what's actually in it for the leadership of these media corporations or their investors to acquiesce? Right? I mean, it's easy to say, you know, a new merger with Skydance allows Paramount executives to cash out investors to make more money. But are there other things going on here, or is it just pure corporate greed?

AMY SANDERS: Well, let's talk about the legal liability, right? If you're talking about a publicly traded company, your legal obligation is to your shareholders. So, at that point the loyalty is that about democratic society. The loyalty is not about what's in the public best interests. Right. These media owners have a fiduciary duty to their shareholders to make money. That's the whole point of publicly traded companies. And so, when you inject that into this sphere of ideas and information, it is corrosive.

MATT JORDAN: So, what, just to play devil's advocate here and take the side of, I can't believe I'm going to do this, the CEOs who are have fiduciary duty, could they claim the Paramount people? Oh, we're just showing editorial discretion. And wouldn't that be protected?

AMY SANDERS: Editorial discretion itself is absolutely protected. But editorial discretion has to do with the stories that you're covering, photos that you're choosing, the headlines that you're writing. Historically in journalism, since the rise of what we might call objective journalism in the United States, we have seen this sort of firewall between the business side and the editorial side. That firewall is gone, right? The business side of the bus is driving it. Right. And that's problematic, I think, if you believe that the core values of journalism should be independence, transparency, accountability. It's pretty difficult to uphold those values when you're answering to someone who's saying, make money or we're going to get rid of your newsroom staff.

MATT JORDAN: Do you think there also might be some ideological alignment? Like, I'm just thinking about the Paramount deal, right, what happened after that merger went through, right? The Larry Ellison's boy Nepo baby David Ellison bought got the whole company. And, then they installed a very friendly, you know, CBS news, the crown jewel of the American news system, you know, the Edward R Murrow's place.

AMY SANDERS: Walter Cronkite is rolling over in his grave.

MATT JORDAN: Right. Because now it's Barry Weiss, right? Who, when there was the heist at the Louvre, suggested as an editorial decision that they call the guy who wrote The Da Vinci Code—

CORY BARKER: Dan Brown. Let's remember his name. Put some respect on it.

ALL: [Laughter]

MATT JORDAN: Yeah, but, you know, so there's they're clearly not concerned with journalistic values. But this is a this seems an ideological thing even more than a fiduciary thing.

AMY SANDERS: Well, now I'm going to say something that's going to get me kicked off the journalism faculty: that starts from the premise that partisan news is bad. And there's an assumption there because at the founding of our country, the press was indeed highly partisan. And so, my response to that is always: partisan press is not bad. But we need to know what we're getting. And that brings us back to Matt, what I know is your favorite topic, which is media literacy. Right? And so, having a partisan press isn't bad as long as people know what they're consuming. And as long as we grow our citizenry with an appetite for all kinds of news, right? Rather than getting them stuck in, I'm only going to read The New York Times, or I'm only going to read The Wall Street Journal. Well, let's pit them against one another. Let's let them duke it out and see what happens. The problem is, right now we're having completely separate conversations in completely separate spaces. And those ideas to go back, you made sort of a reference, a loose reference to the marketplace of ideas. Those ideas actually aren't fighting one another. We're not having that debate because we're not talking to one another.

MATT JORDAN: Right.

CORY BARKER: You said this momentarily or a moment ago. Now I feel like I'm going to do it to sort of play devil's advocate or let's go back a little bit. I think what we hear now in some of these cases, with the Trump administration pressuring these media companies, one of the things that's coming out quite a bit is, you know, when Biden was in the white House, that his White House, in some ways, maybe pressured the social media companies to alter how they were handling misinformation related to the pandemic, vaccines, masks, those sorts of things. Obviously, Trump being at the time sort of banned from those platforms, being sort of fed into that. So, from your POV, what is different about how Trump two administration is handling this versus some of the things that the Biden administration was doing 3 or 4 years ago?

AMY SANDERS: All right, so two things. First of all, every presidential administration since George Bush and 9/11 has been horrible in terms of access to information, government accountability, transparency, right? One thing that there's bipartisan agreement about in Washington, DC is we don't like a watchdog press. Right? And that what you're talking about, the Biden administration, there's a fun term for it that most people hear and think like, what the heck is this called jawboning. Right? And Jawboning is essentially that sort of soft regulatory pressure that I was talking about. Right? How can we get companies to do what we want as a government without really like laying down the law on them? Well, there are all kinds of ways that you can threaten companies, right? Like, we'll start to look at your tax records. We'll start to look at your FCC filings. But if you would do us this favor, then maybe we won't. Maybe we'll hold off on that. And jawboning is problematic because it walks us down the path of capitulation, right? You do us this one favor, and then we come back and we want another favor. I mean, this is what we're seeing. President Trump do with universities, with law firms who have given in, right? The deal that you strike to get out from under the government's thumb is never the final deal. They're always going to come back for a second bite at the apple. And that is really, really dangerous in a democratic society, in part because oftentimes we don't see it happening. We didn't know as the public, who was consuming social media at the time, what was going on. And that's the real challenge now that a number of our conversations have switched from, you know, I think old school colonial days, like being in the town square to being online, is who's moderating those conversations ,right? In the town square, when we're all standing together, having this conversation, we know what I know what your interests are. I know what your interests are. When Facebook is moderating the conversation, when WhatsApp is moderating the conversation, Instagram is moderating the conversation, we don't know what's going on behind the scenes, and so it makes it harder for us to evaluate what's happening.

MATT JORDAN: One of the things that has happened in the last ten years, so maybe we could go back farther, but I'll just say last ten years with the rise of digital platforms has been this debate about the role of the moderator or the algorithm. And, you know, one of the ways that we have talked about this, you know, there was this moment in, you know, to late 2020 where the where there was a kind of a reckoning. They were said, oh, maybe things didn't go so well when we let these people incite violence. So, after January 20th, there was, or January 6th , sorry, 2020, there was all the platforms said, oh, we're going to do better moderation. We're going to deplatform people. We're going to, you know, we're going to limit the reach and we're going to freeze people's accounts. We're going to do all these things because we need to be more responsible. And, you know, that moment I was like, well, this seems a lot like what communications law I used to do when the FCC was trying to promote public interest. This is good. That last a very short amount of time. And what happened is that they started framing it as censorship. Right?

CORY BARKER: Yep.

MATT JORDAN: And that's now the… So, explain to our audience why moderation and maybe limiting the reach of things or, or making the really, really bad faith action of communication go away. Why that isn't, why that is in the First Amendment problem.

AMY SANDERS: So, the moderators, whether we're talking about Twitter, I will never call it X. That's stupid. Whether we're talking about Twitter or we're talking about Facebook, right? We've talked about the fact that they don't have to follow the First Amendment because they're not government actors. They're private. But the role of moderation, is not necessarily naughty in and of itself. Right? If you look back at the institutional press, the institutional press has always had a gatekeeping function. That's a form of moderation. And historically, that moderation function that gatekeeping function was designed and carried out in a way that promoted, for better or worse, a sort of national agenda of what stories, what topics were important, what things we should be discussing. Right? If you want to be all cutesy and think back to like Mom and Dad and the kids in front of the TV watching the evening news together and talking about the issues of the day, that didn't happen in my household, but apparently it happened in some, that gave us an identity across the country of these are the stories or the issues that are important that moderating function brought together our national conversation. Now, I want to be just really clear, so people don't think I'm some naive woman. That conversation left out a lot of people's issues, right? It left out rural issues. It left out issues for historically marginalized communities. But nonetheless, we were all kind of thinking as a country about the same topics. There was no individualized moderation. What algorithms are allowing these platforms to do is to individually curate our content so that you, Cory, and I all see something very different. And that changes how we view what the challenges are that are facing our country, how we should think about those challenges, who the bad guy is, who the good guy is. And so, we're no longer participating in this sort of singular conversation about how we move forward as a unified country. Now, you know, I'm pissed off at you because my feed shows me something different that says that you're the bad guy, and your feed shows you something that says that I'm the bad guy. And so, in that way, this individualized moderation has broken down. What I would say used to be a sort of national conversation about how we move our democracy forward.

CORY BARKER: To that point. I feel like the story about the, the Pentagon, you know, requiring reporters to sign this agreement that they essentially won't do reporting if it's not in a press release, and the, you know, Disney ABC's decision to temporarily suspend Kimmel, those stories obviously captured national attention. But as these as these things go today like only for a brief amount of time. Right. So, what's your sense of the impact of these sort of controversial decisions that tend to, you know, snap up into the media cycle, take up a lot of attention and then get washed away with the next thing, whether that's part of an intentional strategy by the Trump administration or just new newsworthy things occur. Right? How does you know the sense of these things popping up and then going away enable the administration to kind of keep pushing anti First Amendment, you know, activities and decisions because they feel a little bit more individualized and sporadic as opposed to part of a much larger, you know, long term strategy.

AMY SANDERS: I think the campaign is about overwhelming. Right? And, you know, listen, this is what I do for a living. And every morning I wake up and I feel like it's something new. And because these kinds of issues are happening so fast and so rapidly, very few of us can keep up with what's happening. It seems like there's one thing that gets us upset and emotional after the next thing after the next thing, after the next thing. Ultimately, what does that do to many people? It makes them feel helpless, right? But I want to go back to the two things you talked about, the two examples, the Pentagon press corps and ABC and Jimmy Kimmel, because I think this is the way forward. Right? Why did ABC put Jimmy Kimmel back on the air? Because the public was outraged and they did something about it, right? They canceled their Disney+ subscriptions. They hit Disney where it mattered, which is in the wallet. Right. That kind of collective action, which is the exact same collective action we see at the Pentagon. Right. So, all of the legacy news organizations give up their hard passes. And the Pillow Guy brings in his podcast, what nothing against podcasters, but the Pillow Guy is now covering—

CORY BARKER: Our colleague, our colleague Mike Lindell.

AMY SANDERS: Yes. Your colleague is now covering the Pentagon. That didn't shut down the Pentagon press corps. We are still hearing stories about how the Trump administration is bombing these ships in the Caribbean with no legal justification. Right. Those reporters are still doing their job. That collective action worked. It drew attention to what was happening. It aligned conservatives and liberals. Listen, when my dear old friend Ted Cruz from Texas, who, you know, used to be the bane of my existence when I lived there, came out and referred to Brendan Carr, like, what did he say? Called him, like, a mafioso? Ted! Where have you been, my man? Like, we agree on something. It's those kinds of things that unite people across the political spectrum, this collective action that is really, really the only way to push back.

MATT JORDAN: Well, you know, in a way, part of the jurisprudence or the kind of a paradigm that we're in right now that makes collective action more problematic, is that the bar for how big the collective action has to be to reach the threshold of how big the media corporations are, has gotten a lot more. And part of that has to do with legal decisions, right? First amendment is now extended to money. Right? That—

AMY SANDERS: I mean, you can say it: Citizens United was the downfall of our democratic society.

MATT JORDAN: Right. Because, I mean, it's an abom— it's a terrible reading of the First Amendment right? Where corporations which are already indemnified from, you know, on one hand, they're now granted they're the Bill of rights stuff, right? So, their speech is protected, meaning their ability to spend money is protected. And that's led to venture capital gutting local news. It's led to the Ellison boy buying out, CBS and everything else he can. Right. That creates enormous power that, makes it so we're not having an equal conversation. We're just having, you know, the people who have a lot of money, kind of… so this brings me to should those ultra wealthy, powerful people who have that and are controlling much of what we see and do and fake through and social media platforms and whatnot, should these be considered kind of like, government agents or should we be should they be able to kind of control the press in the way they do? And I would just wanted to get your, your thought about the reading of, of Citizens United and then, maybe asking a follow up question from that.

AMY SANDERS: So, I talk to my students all the time about, you know, why are things different in Europe? To some extent, right. And some of it's about priorities, right? Like funding public media through taxpayer subsidies. You know, it would be great if we actually did that here in a meaningful way. But some of what's different is the role of money in politics, right? And this idea that candidates can spend an unlimited amount of money to get themselves elected. I mean, here in Pennsylvania, we just had a supreme Court retention election. Nobody ever votes in these things that spent millions of dollars trying to unseat three Supreme Court justices. This is crazy, but it's the role of money in politics. And I don't know how we pull that money back out of politics in this country, but I think we have to if we want to go back to having meaningful, deliberative discourse. If you'll allow me for just a second, I'm going to go back to theory, because, you know, one of the predominant theories justifying freedom of expression is marketplace of ideas. Right? This idea that we bring all of the ideas to the table, we debate them. And, you can't see my air quotes, but my air quotes say the good ideas win out and the bad ideas are abandoned. Well, there are so many assumptions in that that just don't work today. Right? And one of them is this power differential. There are other First Amendment justifications or justifications for free expression that talk about the role of the First Amendment is not to make sure that everyone can speak, but to make sure that all the ideas are heard. And those are different, right? The three of us don't get the opportunity to say the same thing over and over again. What we want is this plurality of views. And that's what I think we really need to focus on. That's where I think the government needs to find a way, and I'm going to be burned at the stake by some of my attorney colleagues for saying this, to help incentivize competitive markets that will ensure that we have a plurality of views. Some of that is, in fact, ownership limits. And you know what? You and I own the public airwaves, right? CBS doesn't own the public airwaves. ABC doesn't own the public airwaves; Sinclair doesn't own them. We own them. And once, a long time ago, they were actually regulated in the public interest. And so, I think we need to go back to doing that. But that's not content regulation. And that's what Chairman Carr wants, is I want the people I agree with to be able to speak, and I want nobody else to be able to speak. That's not what we need.

MATT JORDAN: Another thing that people with extraordinary amounts of money as power, have is the ability—

AMY SANDERS: It’s almost like, you sense that I don't have extraordinary money.

ALL: [Laughter]

MATT JORDAN: But another thing that the ultra-wealthy do, is SLAPP suits. Right. Can you explain to our audience what a SLAPP suit is?

AMY SANDERS: Yeah, this connects back we were talking about weaponization of the law. Right? And SLAPP stands for Strategic Lawsuit Against Public Participation. And SLAPP suits aren't new, per se. These are instances where ultra wealthy people who don't like criticism about something file seemingly vexatious or frivolous lawsuits trying to tie either, a news organization or now today, even more like, environmental organizations like Greenpeace just had a big verdict against it. Tie them up in court to make it expensive to engage in freedom of speech. Right. And we've seen this happen because, you know, it doesn't cost a lot of money to file a lawsuit in court, but it costs a lot of money to defend against a lawsuit in court. And while you're defending and I've seen this firsthand, working at a newspaper that was being sued for defamation, while you're defending against that lawsuit, you're less likely to take risks. You're less likely to do the hard-hitting journalism that needs to be done. And so, these lawsuits have been very, very effective, at getting people essentially to shut up. And thankfully, we have seen a growing movement of state legislatures, passing what we call anti-SLAPP statutes. And these are a mechanism that sort of allows an off ramp to get defendants out of court quicker and cheaper in these lawsuits that are just absolutely vexatious and frivolous.

CORY BARKER: You mentioned states there. I think, you know, we spend a lot of time, obviously, talking about the Trump administration and these things kind of happening at the federal level. But you've written a lot in your career about how states with leaders across the ideological spectrum, including here in PA, are also increasingly hostile to our right to freedom of speech, our right to know certain things. So, what should our listeners understand about those various efforts, maybe more at the state level, sometimes affiliated with state universities, for instance, to limit, you know, what we can say or know about the powerful institutions in a given state?

AMY SANDERS: Well, the most important thing is that state, state and local elections matter, and they matter a lot. We saw that in school board elections over recent years. We saw that here in Pennsylvania with the Supreme Court election. Right. These justices were being challenged in their retention election because they voted in a case to say that Partisan gerrymandering violated the Pennsylvania state constitution. Every citizen of the Commonwealth should want that to be the case. And why is that? And this is this is what's so crucial that people need to remember. Yeah, we have a Democratic governor right now, but we've had Republican governors before. And so Partisan gerrymandering goes both ways. These things cut both ways depending on who's in power. And the important lesson that I try to tell people, you know, a lot of people said to me, oh, you moved out of Texas, and you moved to Pennsylvania, right? Right. And I said, listen, the most amazing thing about a state like Pennsylvania, democracy works best in a purple state. Democracy works best when we have elected officials from both parties, because then we have to have that give and take. We have to have that discussion. Leaving a state that had not had a Democrat elected to statewide office in decades. Right. There's no need to negotiate, right? At that point. Whether the state is controlled by Republicans are controlled by Democrats. Right. The lawmakers can hold the public hostage. And that's what we see going on around the country right now. Democracy requires that people from both sides of the ideological spectrum come together, have conversations, and govern together.

MATT JORDAN: So I'm going to kind of pivot to another case that I saw the other day that I thought maybe you'd have some thoughts on, there was a big Reuters exposé that just came out that, about 10% of Facebook ads, ad revenue was coming from fraudulent ads, and they've had internal documents that basically say, yeah, we're aware of this. In fact, we're going to charge them more for it than the big tech platforms have kind of stake their business model to a corporate libertarian view of how platforms, should just basically allow is anything that goes right. It's kind of anything goes, thing. So, they've, I guess, decided that it's better business to just pay the fines and take that was like $16 billion annual revenue that comes in through this, which is kind of staggering.

AMY SANDERS: I think I just found my retirement project.

MATT JORDAN: There you go. Fraudulent ads. Should Facebook and meta platforms have the right to publish and monetize communication that knowingly deceives me as a user?

AMY SANDERS: So, this is another really interesting area where the public is often confused about the First Amendment because a lot of people say that the First Amendment doesn't protect false speech, and that's absolutely untrue. There are a number of instances where the First Amendment absolutely protects false speech. In fact, in New York Times vs. Sullivan, the case that I was talking about, says essentially that if a news organization publishes a false statement about a public official, but they don't publish it with actual malice or reckless disregard from the truth for the truth, the First Amendment will protect them. And that's important in a democracy, because as we're discussing, as we're conversing, false statements are going to be made right. People are going to make mistakes. And the framers of the Constitution saw that right. The Speech or Debate Clause, which protects lawmakers on the floor during debate from liability for their speech, is designed with that in mind. The difference is the, the knowing and intentional promotion of false speech. Now, here's the problem. Is that bad? Of course that's bad. I'm not going to argue that's not bad. How do we know? And that's where it gets hard. Now, in this case, we have some kind of smoking gun emails, it sounds like. Right. But that's not always the case. Right. And so, it gets really tricky sometimes to sort of figure out where do you draw the line at? What I would call misinformation. Right. False information that gets into the marketplace of ideas and disinformation, false information that is intentionally injected into the marketplace of ideas, either for profit to sow mistrust, right to cause chaos, to undermine faith and political institutions, that disinformation is a real problem. And we have not figured out how to deal with that yet.

MATT JORDAN: So just to follow up on that a little bit, there's, a lot of the big tech platforms haven't, kind of hidden behind a kind of a clause in the telecommunications law of 1996, the section famous section 230 that basically says, “We're not publishers, we're just a platform.” Where there are people out there that are the publishers. There's a big case right now, by several state attorney generals in relation to this, that, it just, they just decided the judge just decided it would go to jury. This could be fairly large, right? Because if there's anything juries don't like right now, I think it's big tech.

AMY SANDERS: Yeah. So, you know, the idea behind section 230, I think was well-suited to the time. Right? One of the ideas behind section 230 was that if we hold these platforms and let's think about when this was, right? We're talking about the mid 90s. Like this is still like, dial up internet. Right?

MATT JORDAN: MySpace.

AMY SANDERS: Yes. So, you know, the idea behind section 230 was if we hold these teeny tiny little companies that are innovating in this space responsible for what their users are doing, we will bankrupt them out of business. This is fundamentally the marketplace of ideas. I mean, Justice Stevens uses that metaphor in In Reno vs. ACLU. And it worked. Protecting them from liability worked. And they grew and they grew and they grew and they grew. And now they are behemoths. Well, one of the things that we have to remember is if the law isn't working, we can change it. And we can change it a number of ways, right? We can change it through our collective action. That gets bad actors to act differently. Right? We can change it by electing different representatives in Congress that will regulate in ways that we like. Right? We can change it by voting with our feet and not being a part of that. And we're seeing Europe take these steps because they don't like what's happening in their speech environment and to their democratic discourse. We hear a lot of people throw up the First Amendment flag very quickly. Listen, for better or worse, we have a Supreme Court that seems to be totally willing to throw decades of precedent out the window. So maybe we just need to think about what precedent we would like to throw out the window. Right. No, I think section 230 had a purpose. I don't think it's serving its purpose. Now, what people don't realize is section 230. There are two parts. There's the part that everybody knows about the protects the platforms from liability for all of the terrible posts that users post. There's also a part of section 230 that protects platforms who moderate. I think what happened is Congress hoped that platforms would take that approach. I would call that the high road. Unfortunately, what happened, as is so often the case, is the platforms chose the low route road because it was more profitable.

CORY BARKER: Well, and to connect a couple of these threads, just having this Reuters article pulled up here, one of the things that you know, that the documents show and that Facebook folks or meta folks have said to Reuters reporters, you know, is essentially that, you know, some of this information has been found through Facebook's internal efforts to, like, try to reduce the you know, the just the amount of scam ads on their platform. And so, there's a sense that, you know, publicly, they're always sort of, you know, working the proverbial referee to say like, “Well, we're trying, right? Like we tried to do a certain amount of thing to either curb disinformation or misinformation after certain elections that people are upset about,” or in this case, to, you know, cut down on these scam ads. But the platform is so big, there's so much content that even if they are taking the proverbial high road, there's so much that, you know, they can't even totally control it. And so, it feels like they're able to navigate around a lot of these questions by, you know, kind of throwing their hands up and saying, “Well, we're so big and we're trying and we catch things after the fact. So, shouldn't that be good enough to protect us in the long term? And we don't need to reconsider things like 230.”

AMY SANDERS: So, let's talk about the difference between how section 230 works and how the Digital Millennium Copyright Act works. Right? Section 230 immunizes platforms, protects them legally for defamatory content that you post about me. Right? And the Digital Millennium Copyright Act, immunize is platforms for content that is posted, copyrighted content that is posted by you that violates my content, copyright, but only if they comply with notice and takedown. Right. What does that mean? That means that I, as the copyright holder, go to YouTube and say, right, “Matt and Cory are infringing on my copyright in this particular video.” YouTube has an immediate obligation to take that content down and investigate. If they don't do that and the content stays up, they become contributory or vicariously liable for that copyright infringement. And listen, who am I going to go after if I want to sue for copyright infringement? You guys, you're university professors. You don't have deep pockets. I'm going to go after YouTube. We can set up the same scheme under a section 230-like provision. Notice and takedown. You post something defamatory about me. I notify the platform. They have an obligation to take it down and investigate. And if they do, they're protected. And if they don't, they're liable. If it works for copyright, why can't it work for section 230-type concerns?

MATT JORDAN: So just to finish up here, I just want to ask one more question. The US has been once again downgraded in the World Press Freedoms Index. Alas, falling deeper into the flawed democracy territory. What do you think we the people could do to kind of turn things around?

AMY SANDERS: I think there are a couple of important steps that we can take. The first and foremost is vote early, vote often, vote in every election. I think people mistakenly believe that, like the presidential election makes the most monumental difference. I mean, listen, we see the headlines, but your school board elections matter. The local judges that you elect to office matter. And most people don't educate themselves very well about local elections. So that's the first step. I think the second step is we have to engage in this collective action. Right. And I'm proud to say for the very first time, maybe I'm embarrassed to say for the very first time, I emailed my Senator on Monday morning and said, Senator Fetterman, I think you should resign. I am so angry that he caved after putting residents of the Commonwealth through a month of a shutdown, and we got nothing. You have to take that action. It's every single one of us taking these actions to stand up for what we believe in, right. And I think the other thing that we have to really do as a community is to reengage in civics and to re-understand how our government works, what role we play, where are the levers that we can push to hold these people accountable? We haven't been doing that. And that means things like reading and supporting local news, because how else are you going to know what's going on in your community? Right. As Americans and I include myself in this, we have sort of fallen asleep at the wheel. We've taken our democracy for granted, and now it's kind of in a nasty relationship with us and kind of wants to break up with us. And so, we need to, like, woo it back and remember what made the relationship great, to start and think about those kind of fundamentals.

MATT JORDAN: That's a great way to finish up. Amy, thank you so much for being with us today.

AMY SANDERS: It was my pleasure.

CORY BARKER: So, Matt, really great wide-ranging conversation with Doctor Amy Sanders. What are your primary takeaways from that chat?

MATT JORDAN: That just how much, we need to be doing a better job on the journalists need to be better. Doing a better job of explaining what freedom of the press is, what First Amendment covers, all those five different things that nobody knows about. You know, all of these things are things that we use that word freedom of the, you know, First Amendment so often, but we usually just use it as a bludgeon. And I think that it's, you know, reengaging with, conversation about what the Constitution says is also a great way to invigorate, reinvigorate democracy.

CORY BARKER: Yeah. Her point near the end of our convo that about how we have in some ways come to take democracy for granted, I think is such an evocative one that, you know, we've talked about in different ways on this show, but just thinking about how I end up discussing these things with students or friends and family, other colleagues about, you know, these isolated incidents or incidents that seem isolated to us at first related to potential, you know, pushback against First Amendment or right to know things, that we don't necessarily always connect the dots about how they're all related. And part of this, you know, chilling effect that we've talked about or even, you know, full on censorship, depending on the context and having a sort of better awareness of the ways in which these pieces fit together, I think will give us a better opportunity to do more of the collective action that she talked about that can start with something as small but meaningful as, you know, canceling a streaming service to fight back against a, resist a corporate decision, related to, you know, who they employ at any given time. So, more things like that that help us be, you know, as we always say, more informed, will I think enable hopefully more collective action.

MATT JORDAN: I think, yeah, just and we, we often talk about trust, trusting the press. Right. Which is a historical low. But I think it's also that's a reflection of the lack of civic engagement. We don't trust each other. Right. And the more that we engage in civic life, the more that we go to a school board meeting, listen to people talk, think about what they're saying. All that stuff rebuilds trust in one another. And that's that trust is really what democracy depends on. That’s it for this episode of News Over Noise. Our guest was Dr. Amy Sanders, Penn State’s John and Ann Curley Chair in First Amendment Studies. To learn more, visit at news-over-noise.org. I’m Matt Jordan.

CORY BARKER: And I’m Cory Barker.

MATT JORDAN: Until next time, stay well and well informed. News Over Noise is produced by the Penn State Donald P. Bellisario College of Communications and PSU. This program has been funded by the office of the Executive Vice President and Provost of Penn State and is part of the Penn State News Literacy Initiative.

[END OF TRANSCRIPT]

CORY BARKER: In July, the Pentagon quietly introduced a new policy allowing officials to revoke press credentials from journalists who “don’t maintain positive relationships” with the Department of Defense. That line “positive relationships” sent a chill through newsrooms. Because it implied that reporters who publish stories the Pentagon doesn’t like could lose access entirely. Many see this unprecedented policy as an attempt to control the flow of information by punishing journalists for doing their jobs. At the same time, another kind of tension is playing out in the cultural arena, like the cancellation of Stephen Colbert’s late-night show, which signals a larger reckoning with speech, satire, and public discourse. In an era of fragmented audiences and online outrage, even comedy, one of our most protected forms of expression, is caught in the crossfire. Together, these stories point to a bigger question: What does the First Amendment really protect in an age where power, technology, and public opinion collide in real time?

MATT JORDAN: To help us unpack this question, we’re joined by Dr. Amy Sanders, Penn State’s John and Ann Curley Chair in First Amendment Studies. She’s a lawyer, former journalist, and internationally recognized scholar on free expression, media law, and the regulation of emerging technologies. Amy’s work examines how democratic values, media freedom, and access to information are being reshaped by social media and government regulation. She’s also the co-author of the casebook First Amendment and the Fourth Estate: The Law of Mass Media. We’re going to talk about what it means to protect democratic values in an age where speech is global, platforms are private, and disinformation flows freely. Amy Sanders, welcome to News Over Noise.

AMY SANDERS: Thanks. It's great to be here.

MATT JORDAN: So, we're going to start, just with a kind of ground rules thing. What is the First Amendment and what does it do?

AMY SANDERS: Oh, well, thanks for the softball, I appreciate it. The First Amendment is actually the First Amendment to the US Constitution, right? And it gives us five fundamental freedoms speech, press, religion, petition and assembly. And those rights, those expressive rights are really foundational to what it means to live in a democratic society.

MATT JORDAN: So, I'll just ask a follow up. So why have people have been arguing for one of those, the free press, since the 17th century. What is it about the free press that’s so important for society?

AMY SANDERS: Well, fundamentally, if you think about freedom of the press as being a structural right separate from freedom of speech, what it does is essentially creates the press as what we call the fourth estate. And the function of that press is then to serve as a watchdog over the other three branches of our government.

MATT JORDAN: So, are there kinds of speech are the kinds of speech that are not protected?

AMY SANDERS: There are absolutely categories of speech that the First Amendment doesn't protect. In fact, a lot of people misunderstand they think I can say anything I want, anywhere I want, anytime I want. That's absolutely not true. Typically, when we're thinking about unprotected speech, there are five categories of speech that the Supreme Court has historically rejected protection for. They kind of fall into some similar categories, so, I’ll group them together. The first is fighting words. So, sort of face-to-face epithets that are designed to provoke violence. Right. True threats which is pretty self-explanatory. We've seen a lot of arrests for true threats recently, right? Incitement or this type of speech that encourages imminent lawless action. Those all kind of grouped together because the court has historically seen that kind of speech as not having a lot of value. Right. The goal is to bring about violence, unrest, not to add to our discourse. Other two types of speech that are historically unprotected are a little bit different. The first of those is obscenity, and that's not what we think of as pornography. We're talking really hardcore, explicit, an unhealthy interest in sex when we're thinking about obscenity. And there's a lot of confusion right now about what's obscene versus what's just pornographic. And then the last type is false advertising. Of course, we want to limit, protection for commercial speech to truthful and non-misleading commercial speech.

CORY BARKER: You mentioned there there's a lot of confusion right now about what is what falls under that obscenity category and how pornography may, may or may not play a role. Can you talk a little bit more about that?

AMY SANDERS: Absolutely. So, one of the trends that we've seen, particularly in, these government attempts to ban books, has been an attempt to ban books about sexuality, either books about LGBTQ topics or books that talk about healthy sexual activity. And there's even been cases where people have referred to the drawings, like cartoonish drawings, as being obscene. None of that even enters the realm of obscenity. One of the more recent cases where the Supreme Court talked about obscenity was a case that involved animal crush videos, which, trust me, don't look these things up. You can never unsee them. But they are a sexually explicit video, that some people find arousal from. Where, typically women wearing stiletto heels crush small creatures to death. That, of course, is very far removed from thinking about some cartoon pictures of people with genitalia.

MATT JORDAN: So, what you're talking about there is something that we often describe as standards, right? And standards for broadcasting, standards for editorializing; is abiding by standards for broadcasting or editorial standards, as is the current rage on the right to say, is this the end of days, bad censorship type of type of thing?

AMY SANDERS: You know, any time we get into the government regulating the viewpoint of content, I think we're in dangerous territory because, of course, if we're allowing the government to regulate this, viewpoint, the particular viewpoint that's in power, of course, is going to embolden speakers that support that particular ideology. And then sort of crush out dissent or minority viewpoints. And so, when the courts look at restrictions on speech, what they're looking for is, are we discriminating based on viewpoint? Is the government favoring, say, a pro-Palestinian message? Right. And pushing back, a pro-Israel message that wouldn't be permissible.

MATT JORDAN: And it's not the same if a company that is, say, the publisher is doing that right.

AMY SANDERS: Absolutely. Another really common misperception about the First Amendment is that it protects all of us and all of our speech rights. The First Amendment was passed at a time, was ratified at a time when the founding fathers in the framers of the Constitution were concerned with government power. So, the First Amendment specifically protects us from the government regulating our speech. But if Twitter wants to take you off of the platform, if Starbucks wants to tell you can't say something in its stores, those are private actors, and the First Amendment doesn't constrain them.

CORY BARKER: You mentioned a couple of misconceptions that the public often has about the First Amendment. Are there others that come to mind that you're often dealing with or talking to students about, that there are things that even in, you know, sort of popular discourse, we hear this is what the First Amendment is. This is what it protects. This is what it doesn't that are not, you know, actually true or not upheld by courts.

AMY SANDERS: Oh, all kinds of them. And the first one that I'm here to share is people say all the time; you can't yell fire in a crowded theater. You absolutely can yell fire in a crowded theater if there's a fire right. The second thing that's perhaps more relevant to many people who are listening, is something that's been in the news lately, and that's whether or not you can burn an American flag as a form of political protest. Of course, this seems to be one of President Trump's pet peeves, right? He keeps saying, “We're not going to allow people to burn flags. We're going to prosecute them for this.” There's actually a case from the late 1980s, 1989, I believe, called Texas vs. Johnson, where the Supreme Court said that the First Amendment absolutely protects burning an American flag in protest. So that's something that a lot of Americans get upset about. They feel like it's unpatriotic. And that's fine. It's perfectly fine to be upset about that. The First Amendment protects lots of speech that's going to make us upset.

CORY BARKER: This might be a loaded and maybe even an easy question, but why do you feel like there are so many misperceptions or just, you know, full on inaccuracies that people believe about the First Amendment?

AMY SANDERS: Well, all of the research shows that many people can't even name the Five freedoms in the First Amendment. So that's the first challenge that we have to overcome in terms of educating people about these fundamental rights. But I think the other thing is the First Amendment does protect a whole range of offensive speech. Hate speech, for example, is protected. That's another common misnomer. I don't like hate speech. I don't want that kind of speech in my life. I don't want to hear people saying, and I'm not friends with people who engage in that kind of speech, but I would argue every single day to protect it because of the danger of the government drawing lines and where to regulate speech. And so, it's really easy to say, I'm pro-free speech or I love the First Amendment, if what I mean is, I love the First Amendment when it protects the speech that I like and I value and that I agree with, we don't give First Amendment rights that way. You have to take both sides of that equation.

MATT JODRAN: I've seen a lot of journalists using the phrase weaponization to just to describe the discussions about freedom of speech, and is, is that what you're getting at is that some people have, like, intentionally misconstrued this, as they say, communicate to the public?

AMY SANDERS: Absolutely. There's this, misconstruing of what the First Amendment protects and doesn't protect. But the other thing that I think we're seeing when we talk about weaponization, and I use this, this word in my class a lot… we are seeing a really interesting period in time right now that's actually reminiscent of what was happening in the civil rights era. So, there's a very famous First Amendment case called New York Times vs. Sullivan has to do with, an advertisement that was placed in The New York Times soliciting support for, Doctor Martin Luther King and the civil rights movement. And that ad really upset a lot of southern officials. And so, they started suing news organizations for defamation. And pre-1964, it was very easy for a public official to win a defamation suit. And what was happening at the time is all across the South. Southern officials were suing the Northern Press for what would be the equivalent of billions of dollars today. And the whole goal was designed to keep them from reporting on the civil rights movement, right? They didn't want this northern press coming in and influencing public sentiment about the civil rights movement. We're seeing that happen again today, right? We're seeing President Trump, in particular, but other political officials and appointees who are trying to use the law to silence the press, all right? We've seen President Trump sue CBS over the Kamala Harris interview on 60 minutes. That's a lawsuit that CBS should have easily been able to win. There's a similar lawsuit pending in Iowa against The Des Moines Register and political pollster Ann Selzer. Trump just recently threatened the BBC with a billion lawsuit. All of these lawsuits are an attempt to weaponize the law, to create what we call a chilling effect, to make people afraid to criticize government officials.

MATT JORDAN: So, when people look at, chill. And that's a phrase that, I mean, if there's a case that I look back at, it's, the first big Red scare, post-World War One where the, the, the postmaster general basically shut down the radical press in America. And this was always described as a chill. There's kind of seems like there's a fine line between chill and censorship. So how does that get delineated or argued in court?

AMY SANDERS: You know, that's a really difficult line. And one that we're seeing this gray area sort of expand today. So, I mentioned the CBS case. Well, there's obvious attempts by the government to try to stop people, but to get engage in prior restraint. We just are seeing right now whether the Texas A&M Board of Regents are going to require professors who teach courses that involve race and gender ideology to get those courses pre-approved. That's clear prior restraint or censorship by the government. But there's also what I would call this soft pressure. And there's a lot of that happening right now, and that's designed to chill speech. And it's more subversive. For example, with the CBS case, CBS, their parent Paramount had a merger pending before it, the Federal Communications Commission. And they really wanted this merger with Skydance to go through. The FCC had sat on it for a while and not approved it. And one of the reasons that CBS likely settled was because they knew that if they were fighting this, the government would hold off on this merger. So, because media companies today own entertainment interests, they own news interests, it's really easy to have this sort of soft government regulation serve as this kind of chilling effect to get news organizations to step into line.

MATT JORDAN: So, that makes me think, you know, again, if we think about, you know, I learned in grade school, I think that there was when the spirit of the law and the letter of the law and often when we think about the law, we think of it as a kind of a semantic argument that is passed out by really smart people in court and so what is it about the spirit of the law that wants to prevent chilling or censorship? Why is that important?

AMY SANDERS: I think when you think about the spirit of the law and you go back to the founding of this country, right? The founders came to what is now the United States, in part because of their complaints about tyranny in England. Right. And their quest for religious freedom. And if you look at this idea of allowing the government to control speech, allowing the government to control the democratic discourse, right, that really goes against sort of those foundational freedoms that we brought over from this country. It's interesting, if you go back and you look at the Declaration of Independence because you're kind of a nerd like I am, many people would say that a lot of the grievances that we hear today about President Trump echo some of those grievances that the early colonists lodged against the King of England.

CORY BARKER: We're talking about them now. So, what, if anything, has surprised you about the second Trump administration's handling of First Amendment related issues is and, you know, to that point, like, is this a similar approach to what we saw in the first Trump administration? Is it, you know, a huge shift? Can you tell our audience a little bit more about that?

AMY SANDERS: So, I think what's changed, the first Trump administration, I think was designed to lay the foundation to pit the American people against the press. We heard very divisive rhetoric. Enemy of the people. He would encourage, people who attended rallies, right, to yell at the press, to spit on the press. That laid the foundation for what we are seeing in this term. And that is a rapid escalation, not just of rhetoric, but of actual physical violence against journalists. Whether we're talking about confrontations against journalists and citizens who are trying to report ICE, whether we're talking about the access restrictions kicking the Associated Press out of the, white House, excuse me, Oval Office, the access restrictions that are coming up at the Pentagon that caused a majority of the Pentagon press corps to give up their press credentials. All of those things, I think succeeded so rapidly because unfortunately, the press doesn't have a lot of public support right now. The press doesn't have a lot of public trust. And the entire first Trump presidency was about undermining the public's trust in our core institutions, whether that is higher education, science, the press, all of those things. And that has allowed, I think, in the second term, this just very rapid depreciation in rule of law and fundamental freedoms.

CORY BARKER: One of the things that you said there has me thinking about conversations that I've had with, you know, friends and family, students and thinking about, you know, the way that that corrosive distrust of news institutions then plays out in circumstances like this where, you know, people are skeptical or, you know, distrustful of news organizations, and then they sort of cover some of these issues with a real gusto. Right? The like when it's about them, it's sometimes the public is sort of like, wow, you're really invested in telling this story about how your individual employees or people in your field are being impacted by this. But, you know, maybe you're not covering my community in a way that I feel is valuable and that only further, like contributes to that destruction, that skepticism. Right?

AMY SANDERS: Absolutely. I mean, listen, I grew up in rural Missouri. I am a little embarrassed to admit that it took until I went to grad school in Florida to hear the term flyover country and to really understand what that meant. There is no doubt in my mind that, as an institutional press, we have an elitism problem. You know, you can't have, major news organizations like CNN, The New York Times, The Wall Street Journal flying into parts of this country to cover a story for one day and assuming that they understand what's going on. I was talking to a group of, news executives recently, and I said, you know, one of the real problems that we have is that news organizations are covering the stories of people being laid off in rural America who had federal jobs and voted for Trump, or people who are suffering because of food stamps, right? Because of their Snap benefits being cut off. The news is covering that in a very gotcha kind of way. Like, look at this rural bumpkin who voted for Trump and now is suffering the consequences of their actions. That's offensive to me. As somebody who grew up in rural America. That is not helpful in terms of earning the public's trust in the press back, this, this kind of attitude like, oh, look, there are actually smart people in the center part of the country, and people seem to be shocked by that.

MATT JORDAN: So, to get back to the to thinking about the founders and why they might have wanted press and, I mean, I'm kind of drawing from the stuff from the 17th century on here, but part of it could be argued that in democratic theory, we want a kind of a certain type of deliberation to happen where there's a free exchange of ideas, where we get, you know, people from a different range of experiences, all pooling their collective wisdom together, and that anything that would get in the way of that is a problem. And certainly, we've seen, communications law tilt in that way for various times after a kind of an overreach of stuff. So, I'm, I'm wondering, I can always kind of come back to this, my metaphor for thinking about this is always, Mr. Smith Goes to Washington. Right? So, Mr. Smith Goes to Washington, and he bumps up against this big corporation and, you know, they're he's about to expose their graft and corruption. And Jim Taylor, the evil villain in the thing, muzzles the press. Right? He says I'll make public opinion. I've made it all my life. And for any, news outlet out there who won't play ball, he says, “Buy it or wreck it.” So that always makes me wonder… and, you know, Capra was a New Deal guy, and he was trying to get over the hangover of those courts at the end of the Gilded Age that were basically, judicial oligarchy, you might say. And so, the FCC and whatnot emerged from that area where they were trying to kind of make the all voices equal. Right? So, I'm wondering if we really should be thinking more about media ownership as a freedom of the press issue.

AMY SANDERS: There's no doubt in my mind that the deregulation that has occurred over the past really well, since the Telecom Act of 1996 has played hand-in-hand with the decline in local news, has played hand-in-hand with the decrease in public trust, has played hand-in-hand with decisions by media companies that run counter to journalistic values. Right. The idea that Jeff Bezos owns The Washington Post. Well, you know what? Jeff Bezos is going to make decisions that are in the business interests of Jeff Bezos, and those often run squarely against the interests of the average American. And so, when we get to that point to where that starts to influence how The Washington Post is covering news stories, democratically speaking, that's a problem.

MATT JORDAN: Yeah. In the case of The Washington Post right there, they he fired as somebody who called that out, right. The Pulitzer Prize winning, cartoonist Ann Telnaes was fired because she did a cartoon of everybody begging for Trump's, approval. And Bezos wanted to spank.

CORY BARKER: Yeah. And to that point, you know, a lot of the coverage of you know, sort of corporate maneuvers in this realm, like the cancellation of Colbert's Late Show or the temporary sidelining of Kimmel at ABC, have generally been referred to as, you know, acquiescing sort of directly or indirectly to demands from the Trump administration or folks, you know, in Trump world. So, I guess beyond money, what's actually in it for the leadership of these media corporations or their investors to acquiesce? Right? I mean, it's easy to say, you know, a new merger with Skydance allows Paramount executives to cash out investors to make more money. But are there other things going on here, or is it just pure corporate greed?

AMY SANDERS: Well, let's talk about the legal liability, right? If you're talking about a publicly traded company, your legal obligation is to your shareholders. So, at that point the loyalty is that about democratic society. The loyalty is not about what's in the public best interests. Right. These media owners have a fiduciary duty to their shareholders to make money. That's the whole point of publicly traded companies. And so, when you inject that into this sphere of ideas and information, it is corrosive.

MATT JORDAN: So, what, just to play devil's advocate here and take the side of, I can't believe I'm going to do this, the CEOs who are have fiduciary duty, could they claim the Paramount people? Oh, we're just showing editorial discretion. And wouldn't that be protected?

AMY SANDERS: Editorial discretion itself is absolutely protected. But editorial discretion has to do with the stories that you're covering, photos that you're choosing, the headlines that you're writing. Historically in journalism, since the rise of what we might call objective journalism in the United States, we have seen this sort of firewall between the business side and the editorial side. That firewall is gone, right? The business side of the bus is driving it. Right. And that's problematic, I think, if you believe that the core values of journalism should be independence, transparency, accountability. It's pretty difficult to uphold those values when you're answering to someone who's saying, make money or we're going to get rid of your newsroom staff.

MATT JORDAN: Do you think there also might be some ideological alignment? Like, I'm just thinking about the Paramount deal, right, what happened after that merger went through, right? The Larry Ellison's boy Nepo baby David Ellison bought got the whole company. And, then they installed a very friendly, you know, CBS news, the crown jewel of the American news system, you know, the Edward R Murrow's place.

AMY SANDERS: Walter Cronkite is rolling over in his grave.

MATT JORDAN: Right. Because now it's Barry Weiss, right? Who, when there was the heist at the Louvre, suggested as an editorial decision that they call the guy who wrote The Da Vinci Code—

CORY BARKER: Dan Brown. Let's remember his name. Put some respect on it.

ALL: [Laughter]

MATT JORDAN: Yeah, but, you know, so there's they're clearly not concerned with journalistic values. But this is a this seems an ideological thing even more than a fiduciary thing.

AMY SANDERS: Well, now I'm going to say something that's going to get me kicked off the journalism faculty: that starts from the premise that partisan news is bad. And there's an assumption there because at the founding of our country, the press was indeed highly partisan. And so, my response to that is always: partisan press is not bad. But we need to know what we're getting. And that brings us back to Matt, what I know is your favorite topic, which is media literacy. Right? And so, having a partisan press isn't bad as long as people know what they're consuming. And as long as we grow our citizenry with an appetite for all kinds of news, right? Rather than getting them stuck in, I'm only going to read The New York Times, or I'm only going to read The Wall Street Journal. Well, let's pit them against one another. Let's let them duke it out and see what happens. The problem is, right now we're having completely separate conversations in completely separate spaces. And those ideas to go back, you made sort of a reference, a loose reference to the marketplace of ideas. Those ideas actually aren't fighting one another. We're not having that debate because we're not talking to one another.

MATT JORDAN: Right.

CORY BARKER: You said this momentarily or a moment ago. Now I feel like I'm going to do it to sort of play devil's advocate or let's go back a little bit. I think what we hear now in some of these cases, with the Trump administration pressuring these media companies, one of the things that's coming out quite a bit is, you know, when Biden was in the white House, that his White House, in some ways, maybe pressured the social media companies to alter how they were handling misinformation related to the pandemic, vaccines, masks, those sorts of things. Obviously, Trump being at the time sort of banned from those platforms, being sort of fed into that. So, from your POV, what is different about how Trump two administration is handling this versus some of the things that the Biden administration was doing 3 or 4 years ago?

AMY SANDERS: All right, so two things. First of all, every presidential administration since George Bush and 9/11 has been horrible in terms of access to information, government accountability, transparency, right? One thing that there's bipartisan agreement about in Washington, DC is we don't like a watchdog press. Right? And that what you're talking about, the Biden administration, there's a fun term for it that most people hear and think like, what the heck is this called jawboning. Right? And Jawboning is essentially that sort of soft regulatory pressure that I was talking about. Right? How can we get companies to do what we want as a government without really like laying down the law on them? Well, there are all kinds of ways that you can threaten companies, right? Like, we'll start to look at your tax records. We'll start to look at your FCC filings. But if you would do us this favor, then maybe we won't. Maybe we'll hold off on that. And jawboning is problematic because it walks us down the path of capitulation, right? You do us this one favor, and then we come back and we want another favor. I mean, this is what we're seeing. President Trump do with universities, with law firms who have given in, right? The deal that you strike to get out from under the government's thumb is never the final deal. They're always going to come back for a second bite at the apple. And that is really, really dangerous in a democratic society, in part because oftentimes we don't see it happening. We didn't know as the public, who was consuming social media at the time, what was going on. And that's the real challenge now that a number of our conversations have switched from, you know, I think old school colonial days, like being in the town square to being online, is who's moderating those conversations ,right? In the town square, when we're all standing together, having this conversation, we know what I know what your interests are. I know what your interests are. When Facebook is moderating the conversation, when WhatsApp is moderating the conversation, Instagram is moderating the conversation, we don't know what's going on behind the scenes, and so it makes it harder for us to evaluate what's happening.

MATT JORDAN: One of the things that has happened in the last ten years, so maybe we could go back farther, but I'll just say last ten years with the rise of digital platforms has been this debate about the role of the moderator or the algorithm. And, you know, one of the ways that we have talked about this, you know, there was this moment in, you know, to late 2020 where the where there was a kind of a reckoning. They were said, oh, maybe things didn't go so well when we let these people incite violence. So, after January 20th, there was, or January 6th , sorry, 2020, there was all the platforms said, oh, we're going to do better moderation. We're going to deplatform people. We're going to, you know, we're going to limit the reach and we're going to freeze people's accounts. We're going to do all these things because we need to be more responsible. And, you know, that moment I was like, well, this seems a lot like what communications law I used to do when the FCC was trying to promote public interest. This is good. That last a very short amount of time. And what happened is that they started framing it as censorship. Right?

CORY BARKER: Yep.

MATT JORDAN: And that's now the… So, explain to our audience why moderation and maybe limiting the reach of things or, or making the really, really bad faith action of communication go away. Why that isn't, why that is in the First Amendment problem.

AMY SANDERS: So, the moderators, whether we're talking about Twitter, I will never call it X. That's stupid. Whether we're talking about Twitter or we're talking about Facebook, right? We've talked about the fact that they don't have to follow the First Amendment because they're not government actors. They're private. But the role of moderation, is not necessarily naughty in and of itself. Right? If you look back at the institutional press, the institutional press has always had a gatekeeping function. That's a form of moderation. And historically, that moderation function that gatekeeping function was designed and carried out in a way that promoted, for better or worse, a sort of national agenda of what stories, what topics were important, what things we should be discussing. Right? If you want to be all cutesy and think back to like Mom and Dad and the kids in front of the TV watching the evening news together and talking about the issues of the day, that didn't happen in my household, but apparently it happened in some, that gave us an identity across the country of these are the stories or the issues that are important that moderating function brought together our national conversation. Now, I want to be just really clear, so people don't think I'm some naive woman. That conversation left out a lot of people's issues, right? It left out rural issues. It left out issues for historically marginalized communities. But nonetheless, we were all kind of thinking as a country about the same topics. There was no individualized moderation. What algorithms are allowing these platforms to do is to individually curate our content so that you, Cory, and I all see something very different. And that changes how we view what the challenges are that are facing our country, how we should think about those challenges, who the bad guy is, who the good guy is. And so, we're no longer participating in this sort of singular conversation about how we move forward as a unified country. Now, you know, I'm pissed off at you because my feed shows me something different that says that you're the bad guy, and your feed shows you something that says that I'm the bad guy. And so, in that way, this individualized moderation has broken down. What I would say used to be a sort of national conversation about how we move our democracy forward.

CORY BARKER: To that point. I feel like the story about the, the Pentagon, you know, requiring reporters to sign this agreement that they essentially won't do reporting if it's not in a press release, and the, you know, Disney ABC's decision to temporarily suspend Kimmel, those stories obviously captured national attention. But as these as these things go today like only for a brief amount of time. Right. So, what's your sense of the impact of these sort of controversial decisions that tend to, you know, snap up into the media cycle, take up a lot of attention and then get washed away with the next thing, whether that's part of an intentional strategy by the Trump administration or just new newsworthy things occur. Right? How does you know the sense of these things popping up and then going away enable the administration to kind of keep pushing anti First Amendment, you know, activities and decisions because they feel a little bit more individualized and sporadic as opposed to part of a much larger, you know, long term strategy.

AMY SANDERS: I think the campaign is about overwhelming. Right? And, you know, listen, this is what I do for a living. And every morning I wake up and I feel like it's something new. And because these kinds of issues are happening so fast and so rapidly, very few of us can keep up with what's happening. It seems like there's one thing that gets us upset and emotional after the next thing after the next thing, after the next thing. Ultimately, what does that do to many people? It makes them feel helpless, right? But I want to go back to the two things you talked about, the two examples, the Pentagon press corps and ABC and Jimmy Kimmel, because I think this is the way forward. Right? Why did ABC put Jimmy Kimmel back on the air? Because the public was outraged and they did something about it, right? They canceled their Disney+ subscriptions. They hit Disney where it mattered, which is in the wallet. Right. That kind of collective action, which is the exact same collective action we see at the Pentagon. Right. So, all of the legacy news organizations give up their hard passes. And the Pillow Guy brings in his podcast, what nothing against podcasters, but the Pillow Guy is now covering—

CORY BARKER: Our colleague, our colleague Mike Lindell.

AMY SANDERS: Yes. Your colleague is now covering the Pentagon. That didn't shut down the Pentagon press corps. We are still hearing stories about how the Trump administration is bombing these ships in the Caribbean with no legal justification. Right. Those reporters are still doing their job. That collective action worked. It drew attention to what was happening. It aligned conservatives and liberals. Listen, when my dear old friend Ted Cruz from Texas, who, you know, used to be the bane of my existence when I lived there, came out and referred to Brendan Carr, like, what did he say? Called him, like, a mafioso? Ted! Where have you been, my man? Like, we agree on something. It's those kinds of things that unite people across the political spectrum, this collective action that is really, really the only way to push back.

MATT JORDAN: Well, you know, in a way, part of the jurisprudence or the kind of a paradigm that we're in right now that makes collective action more problematic, is that the bar for how big the collective action has to be to reach the threshold of how big the media corporations are, has gotten a lot more. And part of that has to do with legal decisions, right? First amendment is now extended to money. Right? That—

AMY SANDERS: I mean, you can say it: Citizens United was the downfall of our democratic society.

MATT JORDAN: Right. Because, I mean, it's an abom— it's a terrible reading of the First Amendment right? Where corporations which are already indemnified from, you know, on one hand, they're now granted they're the Bill of rights stuff, right? So, their speech is protected, meaning their ability to spend money is protected. And that's led to venture capital gutting local news. It's led to the Ellison boy buying out, CBS and everything else he can. Right. That creates enormous power that, makes it so we're not having an equal conversation. We're just having, you know, the people who have a lot of money, kind of… so this brings me to should those ultra wealthy, powerful people who have that and are controlling much of what we see and do and fake through and social media platforms and whatnot, should these be considered kind of like, government agents or should we be should they be able to kind of control the press in the way they do? And I would just wanted to get your, your thought about the reading of, of Citizens United and then, maybe asking a follow up question from that.

AMY SANDERS: So, I talk to my students all the time about, you know, why are things different in Europe? To some extent, right. And some of it's about priorities, right? Like funding public media through taxpayer subsidies. You know, it would be great if we actually did that here in a meaningful way. But some of what's different is the role of money in politics, right? And this idea that candidates can spend an unlimited amount of money to get themselves elected. I mean, here in Pennsylvania, we just had a supreme Court retention election. Nobody ever votes in these things that spent millions of dollars trying to unseat three Supreme Court justices. This is crazy, but it's the role of money in politics. And I don't know how we pull that money back out of politics in this country, but I think we have to if we want to go back to having meaningful, deliberative discourse. If you'll allow me for just a second, I'm going to go back to theory, because, you know, one of the predominant theories justifying freedom of expression is marketplace of ideas. Right? This idea that we bring all of the ideas to the table, we debate them. And, you can't see my air quotes, but my air quotes say the good ideas win out and the bad ideas are abandoned. Well, there are so many assumptions in that that just don't work today. Right? And one of them is this power differential. There are other First Amendment justifications or justifications for free expression that talk about the role of the First Amendment is not to make sure that everyone can speak, but to make sure that all the ideas are heard. And those are different, right? The three of us don't get the opportunity to say the same thing over and over again. What we want is this plurality of views. And that's what I think we really need to focus on. That's where I think the government needs to find a way, and I'm going to be burned at the stake by some of my attorney colleagues for saying this, to help incentivize competitive markets that will ensure that we have a plurality of views. Some of that is, in fact, ownership limits. And you know what? You and I own the public airwaves, right? CBS doesn't own the public airwaves. ABC doesn't own the public airwaves; Sinclair doesn't own them. We own them. And once, a long time ago, they were actually regulated in the public interest. And so, I think we need to go back to doing that. But that's not content regulation. And that's what Chairman Carr wants, is I want the people I agree with to be able to speak, and I want nobody else to be able to speak. That's not what we need.

MATT JORDAN: Another thing that people with extraordinary amounts of money as power, have is the ability—

AMY SANDERS: It’s almost like, you sense that I don't have extraordinary money.

ALL: [Laughter]

MATT JORDAN: But another thing that the ultra-wealthy do, is SLAPP suits. Right. Can you explain to our audience what a SLAPP suit is?

AMY SANDERS: Yeah, this connects back we were talking about weaponization of the law. Right? And SLAPP stands for Strategic Lawsuit Against Public Participation. And SLAPP suits aren't new, per se. These are instances where ultra wealthy people who don't like criticism about something file seemingly vexatious or frivolous lawsuits trying to tie either, a news organization or now today, even more like, environmental organizations like Greenpeace just had a big verdict against it. Tie them up in court to make it expensive to engage in freedom of speech. Right. And we've seen this happen because, you know, it doesn't cost a lot of money to file a lawsuit in court, but it costs a lot of money to defend against a lawsuit in court. And while you're defending and I've seen this firsthand, working at a newspaper that was being sued for defamation, while you're defending against that lawsuit, you're less likely to take risks. You're less likely to do the hard-hitting journalism that needs to be done. And so, these lawsuits have been very, very effective, at getting people essentially to shut up. And thankfully, we have seen a growing movement of state legislatures, passing what we call anti-SLAPP statutes. And these are a mechanism that sort of allows an off ramp to get defendants out of court quicker and cheaper in these lawsuits that are just absolutely vexatious and frivolous.

CORY BARKER: You mentioned states there. I think, you know, we spend a lot of time, obviously, talking about the Trump administration and these things kind of happening at the federal level. But you've written a lot in your career about how states with leaders across the ideological spectrum, including here in PA, are also increasingly hostile to our right to freedom of speech, our right to know certain things. So, what should our listeners understand about those various efforts, maybe more at the state level, sometimes affiliated with state universities, for instance, to limit, you know, what we can say or know about the powerful institutions in a given state?

AMY SANDERS: Well, the most important thing is that state, state and local elections matter, and they matter a lot. We saw that in school board elections over recent years. We saw that here in Pennsylvania with the Supreme Court election. Right. These justices were being challenged in their retention election because they voted in a case to say that Partisan gerrymandering violated the Pennsylvania state constitution. Every citizen of the Commonwealth should want that to be the case. And why is that? And this is this is what's so crucial that people need to remember. Yeah, we have a Democratic governor right now, but we've had Republican governors before. And so Partisan gerrymandering goes both ways. These things cut both ways depending on who's in power. And the important lesson that I try to tell people, you know, a lot of people said to me, oh, you moved out of Texas, and you moved to Pennsylvania, right? Right. And I said, listen, the most amazing thing about a state like Pennsylvania, democracy works best in a purple state. Democracy works best when we have elected officials from both parties, because then we have to have that give and take. We have to have that discussion. Leaving a state that had not had a Democrat elected to statewide office in decades. Right. There's no need to negotiate, right? At that point. Whether the state is controlled by Republicans are controlled by Democrats. Right. The lawmakers can hold the public hostage. And that's what we see going on around the country right now. Democracy requires that people from both sides of the ideological spectrum come together, have conversations, and govern together.

MATT JORDAN: So I'm going to kind of pivot to another case that I saw the other day that I thought maybe you'd have some thoughts on, there was a big Reuters exposé that just came out that, about 10% of Facebook ads, ad revenue was coming from fraudulent ads, and they've had internal documents that basically say, yeah, we're aware of this. In fact, we're going to charge them more for it than the big tech platforms have kind of stake their business model to a corporate libertarian view of how platforms, should just basically allow is anything that goes right. It's kind of anything goes, thing. So, they've, I guess, decided that it's better business to just pay the fines and take that was like $16 billion annual revenue that comes in through this, which is kind of staggering.

AMY SANDERS: I think I just found my retirement project.

MATT JORDAN: There you go. Fraudulent ads. Should Facebook and meta platforms have the right to publish and monetize communication that knowingly deceives me as a user?

AMY SANDERS: So, this is another really interesting area where the public is often confused about the First Amendment because a lot of people say that the First Amendment doesn't protect false speech, and that's absolutely untrue. There are a number of instances where the First Amendment absolutely protects false speech. In fact, in New York Times vs. Sullivan, the case that I was talking about, says essentially that if a news organization publishes a false statement about a public official, but they don't publish it with actual malice or reckless disregard from the truth for the truth, the First Amendment will protect them. And that's important in a democracy, because as we're discussing, as we're conversing, false statements are going to be made right. People are going to make mistakes. And the framers of the Constitution saw that right. The Speech or Debate Clause, which protects lawmakers on the floor during debate from liability for their speech, is designed with that in mind. The difference is the, the knowing and intentional promotion of false speech. Now, here's the problem. Is that bad? Of course that's bad. I'm not going to argue that's not bad. How do we know? And that's where it gets hard. Now, in this case, we have some kind of smoking gun emails, it sounds like. Right. But that's not always the case. Right. And so, it gets really tricky sometimes to sort of figure out where do you draw the line at? What I would call misinformation. Right. False information that gets into the marketplace of ideas and disinformation, false information that is intentionally injected into the marketplace of ideas, either for profit to sow mistrust, right to cause chaos, to undermine faith and political institutions, that disinformation is a real problem. And we have not figured out how to deal with that yet.

MATT JORDAN: So just to follow up on that a little bit, there's, a lot of the big tech platforms haven't, kind of hidden behind a kind of a clause in the telecommunications law of 1996, the section famous section 230 that basically says, “We're not publishers, we're just a platform.” Where there are people out there that are the publishers. There's a big case right now, by several state attorney generals in relation to this, that, it just, they just decided the judge just decided it would go to jury. This could be fairly large, right? Because if there's anything juries don't like right now, I think it's big tech.

AMY SANDERS: Yeah. So, you know, the idea behind section 230, I think was well-suited to the time. Right? One of the ideas behind section 230 was that if we hold these platforms and let's think about when this was, right? We're talking about the mid 90s. Like this is still like, dial up internet. Right?

MATT JORDAN: MySpace.

AMY SANDERS: Yes. So, you know, the idea behind section 230 was if we hold these teeny tiny little companies that are innovating in this space responsible for what their users are doing, we will bankrupt them out of business. This is fundamentally the marketplace of ideas. I mean, Justice Stevens uses that metaphor in In Reno vs. ACLU. And it worked. Protecting them from liability worked. And they grew and they grew and they grew and they grew. And now they are behemoths. Well, one of the things that we have to remember is if the law isn't working, we can change it. And we can change it a number of ways, right? We can change it through our collective action. That gets bad actors to act differently. Right? We can change it by electing different representatives in Congress that will regulate in ways that we like. Right? We can change it by voting with our feet and not being a part of that. And we're seeing Europe take these steps because they don't like what's happening in their speech environment and to their democratic discourse. We hear a lot of people throw up the First Amendment flag very quickly. Listen, for better or worse, we have a Supreme Court that seems to be totally willing to throw decades of precedent out the window. So maybe we just need to think about what precedent we would like to throw out the window. Right. No, I think section 230 had a purpose. I don't think it's serving its purpose. Now, what people don't realize is section 230. There are two parts. There's the part that everybody knows about the protects the platforms from liability for all of the terrible posts that users post. There's also a part of section 230 that protects platforms who moderate. I think what happened is Congress hoped that platforms would take that approach. I would call that the high road. Unfortunately, what happened, as is so often the case, is the platforms chose the low route road because it was more profitable.

CORY BARKER: Well, and to connect a couple of these threads, just having this Reuters article pulled up here, one of the things that you know, that the documents show and that Facebook folks or meta folks have said to Reuters reporters, you know, is essentially that, you know, some of this information has been found through Facebook's internal efforts to, like, try to reduce the you know, the just the amount of scam ads on their platform. And so, there's a sense that, you know, publicly, they're always sort of, you know, working the proverbial referee to say like, “Well, we're trying, right? Like we tried to do a certain amount of thing to either curb disinformation or misinformation after certain elections that people are upset about,” or in this case, to, you know, cut down on these scam ads. But the platform is so big, there's so much content that even if they are taking the proverbial high road, there's so much that, you know, they can't even totally control it. And so, it feels like they're able to navigate around a lot of these questions by, you know, kind of throwing their hands up and saying, “Well, we're so big and we're trying and we catch things after the fact. So, shouldn't that be good enough to protect us in the long term? And we don't need to reconsider things like 230.”

AMY SANDERS: So, let's talk about the difference between how section 230 works and how the Digital Millennium Copyright Act works. Right? Section 230 immunizes platforms, protects them legally for defamatory content that you post about me. Right? And the Digital Millennium Copyright Act, immunize is platforms for content that is posted, copyrighted content that is posted by you that violates my content, copyright, but only if they comply with notice and takedown. Right. What does that mean? That means that I, as the copyright holder, go to YouTube and say, right, “Matt and Cory are infringing on my copyright in this particular video.” YouTube has an immediate obligation to take that content down and investigate. If they don't do that and the content stays up, they become contributory or vicariously liable for that copyright infringement. And listen, who am I going to go after if I want to sue for copyright infringement? You guys, you're university professors. You don't have deep pockets. I'm going to go after YouTube. We can set up the same scheme under a section 230-like provision. Notice and takedown. You post something defamatory about me. I notify the platform. They have an obligation to take it down and investigate. And if they do, they're protected. And if they don't, they're liable. If it works for copyright, why can't it work for section 230-type concerns?

MATT JORDAN: So just to finish up here, I just want to ask one more question. The US has been once again downgraded in the World Press Freedoms Index. Alas, falling deeper into the flawed democracy territory. What do you think we the people could do to kind of turn things around?

AMY SANDERS: I think there are a couple of important steps that we can take. The first and foremost is vote early, vote often, vote in every election. I think people mistakenly believe that, like the presidential election makes the most monumental difference. I mean, listen, we see the headlines, but your school board elections matter. The local judges that you elect to office matter. And most people don't educate themselves very well about local elections. So that's the first step. I think the second step is we have to engage in this collective action. Right. And I'm proud to say for the very first time, maybe I'm embarrassed to say for the very first time, I emailed my Senator on Monday morning and said, Senator Fetterman, I think you should resign. I am so angry that he caved after putting residents of the Commonwealth through a month of a shutdown, and we got nothing. You have to take that action. It's every single one of us taking these actions to stand up for what we believe in, right. And I think the other thing that we have to really do as a community is to reengage in civics and to re-understand how our government works, what role we play, where are the levers that we can push to hold these people accountable? We haven't been doing that. And that means things like reading and supporting local news, because how else are you going to know what's going on in your community? Right. As Americans and I include myself in this, we have sort of fallen asleep at the wheel. We've taken our democracy for granted, and now it's kind of in a nasty relationship with us and kind of wants to break up with us. And so, we need to, like, woo it back and remember what made the relationship great, to start and think about those kind of fundamentals.

MATT JORDAN: That's a great way to finish up. Amy, thank you so much for being with us today.

AMY SANDERS: It was my pleasure.

CORY BARKER: So, Matt, really great wide-ranging conversation with Doctor Amy Sanders. What are your primary takeaways from that chat?

MATT JORDAN: That just how much, we need to be doing a better job on the journalists need to be better. Doing a better job of explaining what freedom of the press is, what First Amendment covers, all those five different things that nobody knows about. You know, all of these things are things that we use that word freedom of the, you know, First Amendment so often, but we usually just use it as a bludgeon. And I think that it's, you know, reengaging with, conversation about what the Constitution says is also a great way to invigorate, reinvigorate democracy.

CORY BARKER: Yeah. Her point near the end of our convo that about how we have in some ways come to take democracy for granted, I think is such an evocative one that, you know, we've talked about in different ways on this show, but just thinking about how I end up discussing these things with students or friends and family, other colleagues about, you know, these isolated incidents or incidents that seem isolated to us at first related to potential, you know, pushback against First Amendment or right to know things, that we don't necessarily always connect the dots about how they're all related. And part of this, you know, chilling effect that we've talked about or even, you know, full on censorship, depending on the context and having a sort of better awareness of the ways in which these pieces fit together, I think will give us a better opportunity to do more of the collective action that she talked about that can start with something as small but meaningful as, you know, canceling a streaming service to fight back against a, resist a corporate decision, related to, you know, who they employ at any given time. So, more things like that that help us be, you know, as we always say, more informed, will I think enable hopefully more collective action.

MATT JORDAN: I think, yeah, just and we, we often talk about trust, trusting the press. Right. Which is a historical low. But I think it's also that's a reflection of the lack of civic engagement. We don't trust each other. Right. And the more that we engage in civic life, the more that we go to a school board meeting, listen to people talk, think about what they're saying. All that stuff rebuilds trust in one another. And that's that trust is really what democracy depends on. That’s it for this episode of News Over Noise. Our guest was Dr. Amy Sanders, Penn State’s John and Ann Curley Chair in First Amendment Studies. To learn more, visit at news-over-noise.org. I’m Matt Jordan.

CORY BARKER: And I’m Cory Barker.

MATT JORDAN: Until next time, stay well and well informed. News Over Noise is produced by the Penn State Donald P. Bellisario College of Communications and PSU. This program has been funded by the office of the Executive Vice President and Provost of Penn State and is part of the Penn State News Literacy Initiative.

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