Breaking Down the First Amendment in a Digital World with Clay Calvert

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From common misunderstandings about the First Amendment to the Supreme Court's decision on the TikTok ban, this episode offers an enlightening look at how free expression is evolving in the digital age. Our guest is Clay Calvert, one of the foremost experts on First Amendment law. Clay is a nonresident senior fellow at the American Enterprise Institute. He is also a professor of law emeritus at the Levin College of Law and Brechner Eminent Scholar Emeritus at the College of Journalism and Communications, both at the University of Florida. Clay, it's great to have you with us today.

Thank you very much for having me. I really appreciate the opportunity to talk with you.

Well, I'm thrilled to have you with us because there's just so much happening in the First Amendment space. But I guess to start off, let me ask you, how does anyone grow up to become a First Amendment scholar? Why not a baseball player or a fireman or something like that?

Well, my athletic skills were not that good, so that helped direct me in a more academic direction for sure. You know, I like journalism. I was co-editor-in-chief of my high school newspaper. And because obviously the press is protected by the First Amendment, I really kind of segued from my background in journalism. I was a communication major as an undergraduate. I wrote for my college newspaper. So I think the ties were kind of natural from go to journalism to the First Amendment space in media law, given that the First Amendment Press Clause protects journalism and is very important in a free society that we have this watchdog role of the press, that we trust and respect the press. So I think that's how I kind of segued from the journalism space into the media law space.

So with all of your experience and all these years later, after having been a student journalist to a scholar now, what would you say are the biggest misconceptions people have about the First Amendment?

Sure. I think the biggest misconception is that it protects us from censorship by private entities and private officials. I mean, the First Amendment only protects us from government censorship. Censorship by government officials, government entities, government agencies. And so I think that's a huge mistake. People don't say that, oh, you're violating my First Amendment rights. Well, it takes a government official to do that. So the example I typically use with my students is when the NFL told Colin Kaepernick that he couldn't take a knee in protest of police brutality. People thought, oh, that's a First Amendment violation. And I'm like, no. Sometimes the NFL clearly acts like it's the government, but it's not. That was contractual relations between the NFL and the NFL Players Association. So I think that provides an easy example. Another would be, let's say, go back to the days when people actually bought CDs, right? And you wanted to sell your CD, or maybe it's a video game at Best Buy or Target, and they didn't want to sell it because it's too violent or has misogynistic lyrics, whatever it is. They're not violating your First Amendment right because they're private entities and private businesses. So I think that's really the biggest misconception is that people tend to believe the First Amendment protects censorship by private individuals and private entities. It doesn't. It only applies— that's why it says Congress shall make no law abridging freedom of speech. Congress means any state, local, or federal government entity official, but it doesn't include private.

Once you explain it that way, it becomes pretty clear then, then that these social media platforms where everyone is saying, you can't censor me or you can't moderate my content, but the platforms are not government-run. These are not only corporate entities, but huge corporate entities. So moderating content in and of itself is not a First Amendment violation.

Well, I mean, in other words, the social media platforms that we tend to think about, the Facebooks, the Instagrams, the Xs, Because they're not government entities or government officials, they can censor your speech all they want to, essentially. They can create their own terms of use and policies and guidelines regarding what speech they'll allow, what speech they won't. So most of them do not allow hate speech. Hate speech generally is protected by the First Amendment unless it's used in a particular fighting words context or true threats or incitement to violence. But social media platforms, because they're private entities, they can establish their own rules of the road. And they're not violating anyone's First Amendment rights by doing that. In a case last term that the Supreme Court heard, it called Moody, Moody versus NetChoice. The Supreme Court actually, a plurality, well, not a plurality, majority, 6 justices actually made it clear that when social media platforms, and in particular, the Facebooks of the world, and YouTube on its homepage, and Facebook on its newsfeed, when they choose how to moderate content, they're protected by the First Amendment. It's almost as if they were editors of newspapers, and the editors of newspapers obviously have First Amendment rights. The government can't tell you, you have to run this story, you have to print this article. And so the Supreme Court in Moody kind of broke some new ground and made it clear that indeed, at least as it applies to the newsfeed on Facebook or your feed and to YouTube's homepage, Mm-hmm. that that type of content moderation, what they choose to host, where it's placed, higher or lower, that's their First Amendment prerogative to do that. And when the government tries to tell them, oh, you can't do it that way, that raises serious First Amendment concerns.

Okay. Thank you so much for explaining that. I think you just nullified every argument going on on Facebook right now about how people's First Amendment rights are being violated when they're not, because they don't understand this. What I don't understand, I, I don't know in your school system if they did it growing up, but in my school system they didn't. They didn't teach you what the First Amendment meant. Yeah.

You know, I don't ever recall having anything in a, like a political science or social studies, I guess, or civics class really about the First Amendment. I, I don't recall that. Maybe that's just my bad memory, but I don't recall having even a unit on it. It really wasn't until I got to my undergraduate education when I actually had the course that I ended up teaching, basically an undergraduate law of mass communications course. In the, you know, the intro chapter in there, the first 2 weeks are really just about the First Amendment, what it is, what it applies, the clauses, the speech clause, the press clause, assembly. We often, we forget about that, right?

Yeah.

That it gives us the right to peaceably assemble, the right to petition the government for redress of grievances. And then of course the religion clauses. So I don't think it was really until I was an undergraduate that I actually had, you know, more than a brief talk about it, I'd say. Yeah, I think your point's well taken that if, that if we actually taught about First Amendment principles, you know, in not necessarily elementary school, but certainly in high school, when people went to college or became adults, they would understand some of these issues a little bit better than they currently do.

You know, and I think what you just said really helps set the stage for where we are now with, you know, just the digital landscape where everyone can contribute their voice. And maybe they don't necessarily understand that, you know, when they do that, they've entered the public conversation. As you know, younger generations, I'm sure you see it with teaching students, they don't really have that kind of connection with privacy. That older generations did, because everything plays out in public for them now. So I guess what I want to ask you is, how do we leverage, you know, our First Amendment rights with also balancing responsibility? Because we never talk about responsibility when we talk about the First Amendment.

No, and that's exactly right. You know, it's like, it's like the diploma people get from, from college. It says, With all rights, privileges, and responsibilities thereunto appertaining, right? And so we do that. With rights do come responsibilities. The internet is not, I mean, it is in many ways kind of this free-for-all, but the rules of the road, the laws still apply. If you defame someone on the internet, that could be a defamation lawsuit. If you publish a private photo or a photo that someone has that's private, that could be invasion of privacy. So Essentially the same legal liability standards that we have for things like libel slash defamation, for invasion of privacy, those principles do apply online. So I think people may be mistaken when they get on the internet and say, well, I can say something about anybody. I can threaten someone. No, we've seen a number of cases just in the past year about threats online, threats against individuals, threats against candidates for running for public office. And those are not protected. So even though people make them on the internet, if they would put a person in fear of imminent bodily harm or death, that's a true threat. If they're political hyperbole, they're protected, right? So when people say like, I could kill that person, generally we know they don't really mean it as a literal statement, right? But on the other hand, if it's the kind of statement that would put a person in reasonable and imminent fear of bodily harm or death, that's a true threat. And whether it's on the internet or in the real world, That's not going to be protected. So I agree with you. We have a lot of space in the United States to engage in free expression, and we're lucky to have that, right? They don't have that in Russia under Putin. You couldn't say half the things that we can say. We can criticize President Trump on the very day that he's sworn into office. We can make fun of him. Saturday Night Live can make fun of him, right? That's a great benefit to have. And we can do that because he is a public figure and now a public official again. And when it comes to public officials and public figures, the First Amendment gives us pretty wide berth to say things about them. But it doesn't give us that to make false factual statements about them, right? We can criticize their policies, we can attack their viewpoints. But if you were to accuse someone of criminal conduct, a false statement about that, false factual statements, then that person could probably sue you for defamation. But we're lucky again, because we don't live in China, we don't live in Russia. You couldn't say half the things about Xi or Putin, right, that we can say in the United States. So I think people need to understand that we're lucky to have it. And I think with that luck or fortune to have a First Amendment in the United States does come the responsibility that we don't abuse those freedoms.

Okay. I want to talk to you about TikTok and how it's being positioned as a threat to national security. And, you know, the precedent it sets that if If we don't allow TikTok to operate in this country, what happens next, I guess, is the question. Are we going down a road where censorship becomes easier?

Well, you know, I think TikTok is really an unusual case. So as we know, the Supreme Court upheld the divest, right? You either have to divest it, sell it off, or ban it type of situation with TikTok. So the Supreme Court actually upheld the federal government and the Biden administration's law that essentially would ban TikTok, right? In other words, the Chinese have to divest, the PRC has to divest itself of any ownership connection to it, and then TikTok can exist. If it doesn't, then it goes away. Now Trump is coming into office saying he's going to have this executive order saying, I'm going to allow TikTok to go on. That's an interesting question in and of itself, whether the president has the ability to supersede a federal statute that was signed in by a former president. And that's That's an interesting question 'cause that executive order may exceed his actual powers to trump, pun intended, you know, a statute that was passed. So just to take a step back on how the Supreme Court got there, 'cause you ask about national security interest, the Supreme Court found that indeed there really is a substantial or compelling government interest in terms of the data collection. And that's what it came down to. For the 170 million users in the United States of TikTok, They collect— TikTok collects a massive amount of data on them. And there was a fear that that data that is being collected, personal information, potentially damning information, could be used against those individuals later on down the line, essentially to blackmail them. That actually came up during the Supreme Court argument, right? The justices were concerned that if you collect information on all these people, you're gonna find some things that they don't want to come out. And because the Chinese government, the PRC, would have access to that data, and that's important to understand that it was never clear that they would not be allowed to do that because the government in China says, no, we have to have the ability to look at this data that you hold, even though it's kind of in this shell game of corporations in the United States, they can still get access to it. And so this is an unusual case because really it deals with a national security interest. And that argument held sway that this massive amount of data collected by TikTok can be used against individuals in the United States later on, and that that's going to harm national security because some of those individuals would be working in government positions of power. And so really, essentially the Supreme Court, and again, it was a unanimous opinion. There was no dissent. We had 2 concurring opinions by justices who wrote separately to emphasize different points. But they all agreed that the law was constitutional. And now with Trump becoming president, who, and he wants to have an executive order saying, well, I'm going to allow TikTok to exist. That's an interesting question because the federal statute is still on the books and the federal statute was just upheld. And now the president's coming into office saying, no, I'm going to allow it. And so that raises a separation of powers issue.

Okay. All right. So it's something we need to keep watching and monitoring.

Yes, definitely. I mean, and it can play out. I do think, again, it's an unusual case. As they say, you know, cases with bad facts make for bad law. I don't think this was necessarily a bad decision. It just involves national security interests. And the courts are very deferential. That's a concept I haven't mentioned yet, but should be in play here. How much deference is a court willing to give to the federal government when national security is in play? And the Supreme Court in the past, and then just last week in the Garland, the TikTok decision, is willing to extend a lot of deference to the government when it comes to national security interests that it's not in other areas of the law.

Okay. Listening to you talk though, I can't help but wonder, I mean, can the First Amendment survive this digital age where we just get to say whatever we want basically and let the cards fall where they may?

Yeah, I think the First Amendment will survive it. I think it will. You know, the First Amendment was adopted way back in 1791. So, so we're getting up there pretty— we're more than 230 years old now when it comes to the First Amendment. The key thing I think to keep in mind is that even though technologies change, the same basic First Amendment principles don't change. We don't allow viewpoint-based censorship. And by viewpoint-based censorship, I mean, that the government can't censor one side on a topic and not the other. So if the topic is abortion, the government can't say we're only going to allow pro-choice but not pro-life or vice versa. That's obviously going to be unconstitutional. Anytime the government takes sides in terms of suppressing private people's speech, right? That's going to be unconstitutional. The same principles of defamation law, of privacy law, about fighting words, true threats of violence, incitement to violence. Types of unconstitutional speech also, in addition to those I just mentioned, like fighting words, child pornography, obscenity, other categories of expression that are not protected. We're seeing how, you know, the law plays catch-up in these areas. Right now, AI-generated images of child pornography, right, not involving real children, or maybe based upon those, the law is having to play catch-up in these areas. But I do think we will survive. Again, like I said, if somebody says something false about someone on Facebook or X, and it's a false factual assertion, it's not just attacking their opinion or their viewpoint, but it's something that can be proven as false, verifiable falsity, we'd say in the law, then the person who's attacked and had that false statement made about them can sue for defamation. And we've seen a lot of those statements. We've seen in particular with Donald Trump and E. Jean Carroll, right? You know, Trump will come back and basically call her a liar. He will do it on social media, and he could be sued for that, and she's successfully sued him for that. So I think, again, we've talked about this a little bit earlier, but people need to understand that the same general overarching principles of law that have governed other types of media are going to apply. Now, again, we, the government cannot regulate the internet like it can broadcasting. As you well know, broadcasting can be regulated over the air. Free terrestrial broadcasting can be regulated much more closely than the internet or print, and that's because of spectrum scarcity, right? There are a finite number of airwaves, of frequencies. Broadcasters, over-the-air broadcasters don't own the airwaves. They've gotta go to the FCC. They've gotta get a license to do that. And the FCC requires them to serve the public interest, convenience, and necessity. It's different when it comes to print newspapers. Conceivably, anybody can own their printing, their own printing press as long as they have a lot of money. Now that's not easy, but it's the same thing with the internet. There is no spectrum shortage. There's no frequency. Anybody with the skills and education can create their own webpage, their own homepage, and have a voice as we started talking about earlier on the worldwide web. So the government has less power to regulate the internet and print medium than it does say broadcasting or even cable.

Yeah. Okay. First Amendment seems to be popping up a lot in topics today. How would you describe this era in terms of whether or not— part of me says, you know, we're going through a chill effect in some cases with the First Amendment, and other parts of me says, well, when I look at, you know, if we get rid of content moderation and that sort of thing, other fields are just blown wide open for anyone to say anything. Is there anything you can point to in history where you can compare this era, or is this just so unlike anything we've seen before?

I actually think it is kind of unlike anything we've seen before. Now, every new medium does come along and we've always been fearful of it, which is something to keep the context in mind. Movies, motion pictures at one time were not protected by the First Amendment. They were considered commercial vehicles, businesses, right? And that changed. We once feared comic books, that comic books would cause the penny dreadful novels to another category, that this would cause juvenile delinquency and minors to act out. So every new medium does come along and we tend to fear it initially. Violent video games, another category. In that violent video game, questions still do come into play, right? And lawsuits are still filed saying that video games are addictive, social media platforms are addictive. But I think, you know, we will survive this era. We have not, I don't think we've seen anything like it. As you mentioned before, I think you were kind of touching on the notion that Facebook recently, Meta, decided to roll back its content moderation practices on Instagram and Facebook, creating a model Mark Zuckerberg now has that is much more like X's, formerly known as Twitter, which is much more wide open. And so what Mark Zuckerberg and Joel Kaplan, I believe they're one of their chief executives, announced was that they are getting rid of third-party fact-checking. So third-party fact-checking is going away in the coming months and weeks and months on Facebook and Instagram. He said that, that the, it caused more trouble than it was worth, that the fact-checkers were perceived as biased. And so what they're going to do now is move to a community notes situation where members of the community, meaning communities on Facebook, in Instagram can post their own notes after a post and say, this is inaccurate because of, you know, A, B, and C, or here's some context that is missing. So it certainly does open it up for a much more free speech friendly type of a model in the marketplace of ideas. On the other hand, the drawback is, and Zuckerberg talked about this, is that probably a lot of misinformation may fall, may be out there. So it's a trade-off, right? How much free speech do we want? Anybody can say anything versus anybody saying misinformation, false statements of facts, and the harm that potentially can be caused by those false statements. So you're always going to have a trade-off in which model. And so whether the, you know, Zuckerberg was criticized essentially that he was just sucking up to Donald Trump coming into this as the new president, wanted to curry favor with him because Elon Musk is buddies with Trump. And Zuckerberg was trying to get on his own, you know, his good side. On the other hand, I think the Biden administration, through what we call jawboning, right? Jawboning is this notion of the government engaged in verbal arm twisting to try to get Facebook to take down content that it didn't like. And this came up, right, a Supreme Court case last term called Murthy versus Missouri. So jawboning is this notion that The government tries to convince or persuade on the one hand, or as Facebook might have it, unlawful coercion. Are you being coerced or are you being persuaded? And that's really the fine line there. Persuasion is okay. The government can try to persuade people to do what they want. Facebook, take down our message and here's 10 reasons why. Okay, that's okay. But what the government can't do is engage in coercion, basically threats of adverse consequences. So the government can't say, You know, Facebook, if you don't remove this content that we don't like, then we may revoke your protection under Section 230 of the Communications Decency Act. We might take these particular actions against you, and that's not constitutional. That's the government essentially engaging in censorship, right? So persuasion's permissible. Unlawful coercion is not permissible. So one theory that I have on this is essentially that I think You know, it's really a hybrid. Why did we— why did Facebook change its policies? Part of it might be, yeah, we're going to curry favor with the Trump administration. But part of it, I think, is because they had these policies in place and the Biden administration came in and said, nah, you can't allow this anti-vaccine, anti-masking, anti-business shutdown content. Now, whether or not you like it or not, right? Again, they're a private entity. They can do what they want. But when the government comes in and says, we want you to take that down, And not just, we want you to take that down, but if you don't take it down, this could happen to you. I think Zuckerberg said, this is too much. We want to get out of this business. And the more we say we're an open space and free, the less the government's going to be able to kind of leverage us and say, you got to take it down or you're in trouble.

Okay.

Does that make some sense on that?

Yeah. I think if I sum it all up, it's less of a headache the way they're doing it now without the moderation. Right.

That's true.

And you know, part of me also says though, the moderation was so erratic is the word I'm looking for, because you could post something one day and the next day it would be taken down with, with a little message from Facebook saying you violated their rules. I think part of the issue was their third-party fact-checkers. They had come out and said, you know, they, they use third parties in 60 different countries. And, you know, getting the message through that something was okay here, but not okay there. I think that was very confusing for people. You know? No, no, no.

I agree with you. I think the inconsistency in enforcement, if you're going to have rules of the road, right, for your terms of use, your terms of service, and if you're going to deploy third-party fact-checkers, there should be consistency across viewpoints, right? And so, Many conservatives tend to see, or they believe that their target was unfairly censored or demoted, right? If not completely removed, it didn't show up high in a feed. It was deprioritized. We might think of it that way in terms of where it appeared. That's kind of the conservative critique of social media. The more liberal critique is that social media platforms are not doing enough to police misinformation, disinformation, False statements of fact. So social media platforms really take heat from both sides, both the right and the left, for not doing enough on misinformation, disinformation on the one hand, and for pulling down or demoting conservative content on the other. Whether those critiques are right or wrong, that's beyond my pay level, as they say. But I think that that's really how both sides kind of attack social media in these situations.

What, what about when it comes down to cases where, you know, it's misinformation? Like the people that say, you know, COVID doesn't exist.

Right. And so, and so that, that, that I think is what worried the Biden administration, that vaccines are effective in many situations and that telling people they're not going to do it, telling people that they're going to cause autism, telling people that they're going to cause all these things. I think that's what the Biden administration was really concerned about. So then the question becomes, how do you deal with false information that's out there? You know, and that's a tough situation. The remedy we often think of is counterspeech in the First Amendment, you know, education. The remedy for speech that we don't like or that we think is false is to put more speech out there, the opposing viewpoint, the correct speech, right? The opposition view. So we call that counterspeech. The problem in today's world, whether it's right or left, is that we tend to live in our own little bubbles. And we don't, this is, you know, goes to what you look at, you know, we, we tend to see if, if let's say, let's stereotype it. Many conservatives will only watch Fox, right? Or Newsmax or something like that. And many liberals, if we stereotype it, would only watch MSNBC or CNN. Or conservatives will only read the Wall Street Journal and not the New York Times. And liberals only read the New York Times and the Washington Post and not the Journal. You know, and when we live in those little filter bubbles or our own world, it's very hard for that counterspeech to get through. I mean, it's a natural thing. We call it, you know, selective attention. We tend to attend to the media that already affirm or reconfirm our viewpoints. We don't like to be challenged. So getting those counterspeech messages to kind of cut through or to break through on either side, as I've suggested, is sometimes very difficult. But when we talk about good media consumption and being, as you suggested, a media-savvy consumer, it means exposing oneself to different viewpoints. I have subscriptions to the Journal, the New York Times, and the Washington Post. The Journal and the Times are through my academic subscriptions through the University of Florida, and the Post I pay for myself, right? And it's so minimal for the Washington Post, right? For a monthly subscription now. And it's pretty much that way for most newspapers, right?

Yeah.

And so, you know, if you see a story in one, you say, well, maybe I'll look it up on the other. Maybe there are different facts. And so, you know, the best thing one could do would be to expose oneself to different viewpoints, right? How is Fox covering it versus how is CNN covering it? You know, the night— the national nightly newscasts tend to be some of the best places I think to go. They get 30 minutes, NBC, CBS, and ABC. And generally speaking, Because they have to play it much more right down the middle, right? That they get 30 minutes and that's it. And they're trying to attract as large of an audience as possible. So don't forget about them also when you're trying to, you know, suss out what may be true and what may not be true. But again, big picture, try to expose yourself to as many different ranges and viewpoints as you can.

Yeah. Great advice. Great advice. We actually have to wrap up, so I want to leave with a very open-ended question. Which is, what do you think is the most interesting things happening out there in terms of First Amendment? What should we all be keeping an eye on?

Sure. So one of the big things right now is that there are a number of what we call social media addiction lawsuits coming down the pike. There are more than 1,000 of them. They are in— they're in consolidated cases, both in Northern California federal court and Southern California state court in California. And they're also spread out around the country. As a Massachusetts case individual. And all of these cases essentially say that social media platforms are designed with features that will addict minors to them. And that these addictive features cause minors to stay on social media, right? So much that they harm social— excuse me, that they harm minors' mental health and wellbeing. And so these are lawsuits that I would keep an eye on. This year, uh, there's gonna be a lot of movement in those. So I would say social media addiction lawsuits coming down the pike against all the major platforms filed by attorneys general from all the, most of the states, more than 40 states, but also on behalf of school districts, uh, parents on behalf of their kids, uh, local government entities. Watch out for those this year.

Okay. I know plenty of adults that are addicted to social media, so it's not just kids.

Yeah, I, I totally understand. And sometimes Especially during the pandemic, it was just a good idea to shut off, shut off social media for a while. The Fair Media Council is a 501 nonprofit organization advocating for quality news and working to create a media-savvy society. For more information about the Fair Media Council and upcoming Fast Chat shows, check out fairmediacouncil.org.