Tech Refactored

Platforms, Media, and the First Amendment

August 26, 2022 Nebraska Governance and Technology Center
Tech Refactored
Platforms, Media, and the First Amendment
Show Notes Transcript

In the first episode of Season 3, Gus is joined by Nebraska Governance and Technology Center faculty member and First Amendment scholar, Kyle Langvardt. Together they examine how platforms and media are regulated, the similarities between ride sharing apps and newspaper from a First Amendment perspective, and much more.

Follow us on Twitter @unl_ngtc

Links
Nebraska Governance and Technology Center

This is Tech Refactored, a podcast in which we explore the ever changing relationship between technology society and the law. I'm your host, Gus Herwitz, the Menard director of the Nebraska governance and technology center.

We're kicking off season three of tech refactored by talking to Kyle Langvardt. I'm a professor here at the law college. I'm a faculty fellow in the Nebraska governance and technology center. Kyle is a constitutional law scholar whose work focuses on the first amendment and online speech and how we regulate online platforms;

everything from Facebook and TikTok to ridesharing apps and blockchain, and really the nature of democracy, easy stuff. We start our conversation with some background talking about what online platforms are and why we might think that something like a ridesharing app is similar to a local newspaper.

And some of the puzzles that this can create from the first amendment perspective. Later in our conversation, we turn to some of Kyle's current work, including some ideas about how the government can support local media like newspapers in a way that doesn't violate the first amendment and also some of the problems with these ideas.

And then we have some discussion about whether the blockchain and cryptocurrency might be protected by the First Amendment. Narrator says they aren't

You work on platforms mm-hmm  and you do a lot of free speech, first amendment stuff. So let let's just start, um, what, what is a platform? Well, you know, it's kind of a broad concept, but I guess I, I would say that a platform is kind of like the organizational structure behind what's sometimes called web 2.0. So on web 2.0, you don't have to go and build your own website to go and communicate with others.

Instead you can sign up, establish some kind of account with a big website that will allow you to set up, uh, profile. That's kind of standardized and, and that allows you to, uh, exchange information with, with others in structured ways. You could maybe think of a platform as something that makes sure that everybody is communicating in the same format with everybody else.

And that does all of the early technical work of just getting on the internet and setting up some kind of presence in the first place. Social platforms, I guess are the, the first thing that I think of, but you could also think of, uh, something like, like Uber as a, as a platform, you know, Uber sets up a way for cab drivers or, or, or car owners to transact with potential passengers and to give

a share of cab fairs to, to the company. What, what the platform does, is it standardizes this entire operation so that the cavities don't have to go and do that up front really interesting that you start with, uh, web 2.0  for thinking about platforms, in part, because, uh, later on, we'll talk a bit about cryptocurrency regulation and mm-hmm, uh, uh, the blockchain concepts and, uh, there's this new thing that some folks are pushing web 3.0, but the more useful thing is to juxtapose this back to

web 1.0, and of course with 1.0, you just called it the web , um, or the, the internet, um, and back in the nineties, uh, or even before, um, when, when some of us were getting online, you would set up your own web server, you'd set up your own website and you would have to provide all the infrastructure and then go out and do marketing or word of mouth, or get people to come to your site,

but that relationship has been reversed in the, uh, web 2.0 era. Um, now you don't start your website. You, as you say, you go to Twitter and create your account or your profile and all that standardization is done. And it's not just users. You can think of Amazon and Amazon sellers. Amazon is a platform for

uh, storefronts to come and start selling. Um, and I, I really like that you use the, the Uber example as well, because, uh, you, you don't even need to be a, a cab driver. You, you could go back to the car 1.0 version of taxis. And, uh, that, that was the era of- of hitch hiking, um, and, uh, uh, individual riders negotiating with individual drivers, and Uber is a, a platform.

They provide a lot of the, the tools and mechanisms to match drivers with users and a lot of the infrastructure, the, the billing, a lot of the safety infrastructure, um, and stuff like that. So, I guess, uh, follow up question to what is a platform. Uh, I had expected that you would not go straight to web 2.0, and I'm gonna ask my follow up question.

Anyhow. Um, is a newspaper a platform? Like a 1950s, 1970s era newspaper. Is that a platform? Well, you could, I mean, you could say so in a really broad sense, and I mean, people use the word platform sometimes that, that way, you know, they'll, they'll say that a newspaper or even something like a speaking series or a, or a TV show, uh, gives a platform to certain types of speakers.

And I think what- what they mean by that is that if I get an oped published in the Lincoln Journal Star, that takes a lot less work than me setting up my own, like, uh, leafleting operation that'll reach everybody in town. That same way, the Lincoln Journal Star has already bought the, the presses that they need.

They've set up the distribution networks that they need to communicate speech to lots of people in a print form. And if I wanna run my oped there and they pick up the oped, then I get to kind of ride on the back of all that work that they've already done in the front. And so in, in that sense, a 20th century newspaper was somewhat similar to the types of platforms that we have today.

I think the, the big difference is that today's platforms because they're on the internet where the cost of everything is just much, much lower. Today's platforms don't have the same kind of limits in terms of how many people they're going to admit. So an old newspaper can only print so many op-eds in any given day.

TikTok, it's- it's basically unlimited how many videos they're gonna run. So I guess we could say there was newspaper 1.0 as well, uh, that the mm-hmm  back in the day of, uh, Thomas Payne and I guess Martin Luther pamphletiers  uh, going around printing, uh, your version of op-eds as, uh, flyers mm-hmm . Uh, short books or nailing up them up onto, uh, the, the local front door of the church.

Um, that, that was kind of the pre- newspaper, uh, version of getting ideas out. And then you have newspapers and they're a, uh, they provide the infrastructure, they connect, uh, readers, uh, with writers, um, and they provide a range of functions, including some filtering and editorial selection and discretion and stuff like that.

And the reason that I wanted to jump from platforms in the technical modern sense to the traditional newspaper sense of course, is when we think about the first amendment newspapers, at least for some of us come to mind. And, uh, mm-hmm , you are, uh, first and foremost, a first amendment scholar. So Kyle, can you in 30 seconds just tell us what the first amendment is,

and then we'll, we'll talk about some of the, the reasons it's so challenging and interesting a, a field nowadays. Yeah, well, the, the first amendment provides protections for the free exercise of, of religion. It blocks the- the government from establishing a religion. What- whatever that means provides protections for speech press, right to petition the government for a redress of grievances.

And these last three, the, the, the petition right, and the speech right and the press right; they all just get kind of rolled up into what we call the freedom of speech. At least that's, that's the way the first Amendment's read today. Now, the first, the first Amendment's always been interesting, but at least as far as the platform discussion goes, the first amendment is interesting here because it's not yet clear how we should be think.

Of these platforms in first amendment terms. So the platforms, and I think I've already gone beyond the 30 seconds. Yeah. You're- you're doing well.  The platforms take the position that they're basically like newspapers. For a lot of the reasons that we were describing earlier, it's not- it's not very hard to draw an analogy there.

And on top of that newspapers and platforms, both play roles in deciding what kind of- like you could call it third party content they're gonna carry. So it's tough to get an oped into the New York times. They have all kinds of standards that they'll apply. You can't use a lot of like profanity in your op-ed the, the New York times will

cut that they'll, they'll censor it. And similarly, on a big modern platform, you, you know, a Facebook there's stuff that you're not allowed to say on- on Facebook and some of that stuff, let's say we're talking about, I don't know, child sexual abuse material or something like that. Odds are, it's not even gonna post in the first place because, uh, algorithms, will i- identify it and, and cut it off at the source.

Well, so a lot of the controversy around platforms these days has to do with this role that they play in– uh, I think we could say– censoring speech, though that there's a lot of kind of emotional freight around that language, maybe re- regulating speech. They would say editing speech. Now some people– and I would include myself in this group–

view what the platforms are doing as basically a form of regulation. I mean, I think that's the, that's the upshot, a lot of this regulation is important, but I think it basically amounts to regulation. And once you look at a platform like Facebook as a kind of, of regulator, like a really important regulator that's big enough that it can do things like, you know, block a former president of the United States.

Well, naturally people are gonna come in and say, "well, I thought, I thought we had these free speech rights," and- and it  seems like the, the free speech rights don't work the same way on Facebook as they do in the first amendment tradition. Facebook's answer to that is to say, okay, first of all, we're not the government.

So the first amendment doesn't apply to us. And, and in fact, the, the first amendment protects our right to choose what speech we're going to allow on our platform, because we also are protected by the first amendment. Well, and that's, and that's the second stage of this. So, you know, if the first amendment doesn't prohibit Facebook to

block some speaker, then somebody might come in. I mean, we're seeing this right now in like Florida with Ron DeSantis and they might write a bill, they'll say, okay, you don't have protection under the constitution. Well, we'll give, we'll give social media users protections under a statute. Well, this is the step

when, you know, as you're saying there Gus, the platform's gonna say, "Hey, the statute's bad too, because in fact, we're editors, we're, we're like the New York times. And if you tell us we can't block the president, well, you might as well be telling the New York times that they can't block the president

and, and that's an infringement on our editorial rights." Now it's a clean argument. My sense is that it is probably a little, a little too clean.  I think there are all kinds of reasons why we should be wary about having the government set rules for what Facebook will allow and- and what Facebook can block. But I think it probably goes a little too far to say the government can't have any role at all in regulating that.

And I, and I think there are a couple of a couple reasons for that. You actually are working on editing right now, a book that explores several these topics because you and many others, myself included, are- are working on these issues and exploring some of these. Um, but for listeners, if you could just briefly summarize what some of these reasons are, um, that that would be wonderful.

Uh, you know, I think one reason to treat it differently is that if you read the New York Times, or if you watch Fox News, there's an editorial tone. There's a, there's a clear voice there. And even if the newspaper is running op-eds that supposedly don't speak for the newspaper, there's an understanding. I think most people would recognize that the newspaper isn't just accepting

all comers, certain voices are going to get run at the New York times and certain voices are not gonna be run. And that that's a, a basically editorial choice. Now I think if we're talking about, let's say Facebook and it's setting rules regarding hate speech regarding, I don't know, sexual harassment, what, what, whatever it is.

I am not necessarily going to view those rules as an expression of editorial tone. Instead, they seem more to me like what Facebook calls them, which is community- you know, the community standards, they look more like laws. And the question is just how much credence we're going to give to the argument that these kinds of rules, which Facebook itself, you know, frames as rules, how much credence we're going to give to the fact

that Facebook is a private, rather than a public institution. Yeah. So that this is just a conceptually subtle and fascinating point. Um, ba- basically what you're saying is the New York Times is biased. They have an editorial perspective and anyone who reads it or any other newspaper knows this newspaper has a point of view.

And mm-hmm  that makes it both politically valuable, so meriting some amount of first amendment protection from a, a Madisonian perspective, and that that's a gloss for, uh, listeners, um, that there are longstanding debates about what the purpose of the first amendment is. And Madison argued that the purpose of the first amendment is to promote, uh, political discourse and debate and a healthy democracy.

Um, mm-hmm  so political speech, like a newspaper with a point of view is particularly valuable from that perspective. But if the platforms are not saying we have a perspective, or even if they do have a perspective, but most users don't realize it. It's kind of hidden mm-hmm  and only comes out at the 64,000 foot view.

Well, maybe we need to be thinking about this from a, a different perspective. Uh, on first amendment grounds, the thing that the platform is doing is different and because it's not overtly engaging with a point of view um, maybe we need to protect it less or differently, but we definitely need to think about it differently that that's a, a really powerful and, uh, subtle sort of argument there.

Yeah. And I mean, here's one kind of thought experiment to do. Let's say the government bought Facebook. I think that if the government bought Facebook, it would be pretty clear that the rules on Facebook, even if they didn't change, would be subject to First Amendment. These would be governmental regulations of speech.

Now the government might try to make this argument that "Hey, we are just speaking. All we're doing is just sending a message to the public." This is called the government speech doctrine. Under this government speech doctrine, the government is entitled to say, for example, "wear a mask." They don't have to present the argument for not wearing a mask.

They can decide what their message is gonna be. If the government puts on a panel of experts, they don't have to include cranks. That's not a First Amendment decision.  But now say that the government bought Facebook and said, "Well, all of our rules for Facebook usage are actually just governmental messaging. And so the first amendment doesn't apply to them at all." My sense–

and, and I admit that a lot of this is almost just kind of a gut thing that my sense– is that  that argument would be just obviously wrong. You know, the government would obviously be involved in regulation rather than just pure speech. And so if that's the case, then this all really comes down to just how much do we wanna make of the fact that one entity is public and one entity is private.

I mean, here's the precursor that I would point to: you know, today, I think most people have some level of acquaintance with the law. Well accept it as common sense that yeah, of course you don't apply the same kinds of rules about speech to a private institution as a public institution. First Amendment's about regulating the government, but

now think about civil rights. There was a time in the 1950s when you know, voices that were regarded as at least within the realm of respectable discourse at, at the time today, they, they wouldn't be, but they argued that, um, if a shop owner wants to discriminate on the basis of race, if an employer wants to discriminate on the basis of race,

well, that's a, that's a private decision. And so the constitutional rules against discrimination on the basis of race therefore don't apply to that private employer, that private shop owner. And in fact, some of these thinkers would even go one step further and say, there's a, like an associational freedom dimension of here.

This is a- this is basically a Liberty question. If we're on the private side of this public private line, then these private actors should be able to associate with whomever they, they please. And the people they exclude, perhaps even on the basis of race, well, they're also free to associate with whomever

they- they please. Now, today, you know, we look at that line of thinking as, as obviously wrong, like it, I think most people would say it it's perfectly appropriate for the government to step in and set up human rights rules that prohibit private actors from discriminating on the basis of race. But I think that's not at least not yet the way that we think about speech, the way that we think about speech today

still looks, I think quite a bit like the way that we thought about race or that many thought about race in the early 20th century, which is a way of thinking that said, everything comes down to this line between public and private. I expect that that's gonna change over time. And the reason for that is just that these

private institutions have a kind of power to restrict speech that they just didn't really have, uh, before the internet. So the, a whole lot that we could, uh, jump into there, I guess I'm only going to let myself ask one question though. The gatekeeper on these issues ultimately is the Supreme court, or I guess you could say mm-hmm,  ultimately it's the, uh, the citizens and the population through the amendment process, but that is so difficult with our constitution.

That mm-hmm,  really, the gatekeeper is the Supreme court and our current Supreme court has very complex and mixed views, I think on speech issues. Mm-hmm, , um, a lot of doctrine, uh, they've been changing, um, in recent years, but not necessarily in a way that is pro or anti any established understanding of speech principles from the last 20 years.

I'll- I'll um, mm-hmm  postulate. So I guess my question is reading the tea leaves filtered through the lens of a, uh, a crystal ball and a, uh, dark mirror. Um, but what, what do you think, uh, is going to happen on these issues with the current Supreme court over the next five years or so? Well, the first thing I'd say is the law as it stands is just crystal clear.

All the arguments that Facebook is making, there are some kind of subtle, subtle objections here, but I think it's pretty clear that. Facebook has the winning side of the argument today. At least the, the lower courts have treated platforms as the equivalent of newspapers. They've said that all this stuff is editorial and protected by the first amendment. Going forward?

You know, there's a couple of really interesting developments here. One is that since the Trump presidency and 2020 in particular, there's a lot of energy on the right in favor of regulating platforms, ability to regulate speech and the most prominent example of this is this Florida law, which wasn't very well well written, uh, but a Florida law that imposed a bunch of restrictions on what platforms can do with speech by political candidates.

And it's been struck down in court. And so, you know, there are at least a couple of right wing, you know, Republican justices on the court, who are, I think curious about the idea of treating platforms as something like common carriers, but here's what's really interesting about this. I think the argument that I was making a little bit ago where I kind of asked, "what if we looked at the freedom of speech, the same way that we look at discrimination?"

You know, personal discrimination issues involving race, that kind of thing. What if we were to try to take some lessons from the civil rights era about the relationship between state institutions and powerful private actors? The thing about that argument is that argument is actually a pretty natural fit for  I think the left and Democrats who are, who are on the court. In fact, a few years ago, when everybody thought that Hillary Clinton was going to win the presidency and- and set up a- a Supreme court that had a lasting liberal majority,

I started to write a paper about- well, what's this liberal majority going to do? And, um, this was one area that I identified, you know, e- even before I was really thinking about these issues a lot, I just thought, well, it's kind of a natural thing I think for legal progressives to question the accumulation of power by private corporations.

And so we might see this, this kind of updating of, of speech. Well, if there's existing energy on the, on the right, for this kind of move, and if it's a kind of move that the left has traditionally gotten behind in, in other areas besides free speech, uh, I, I think that that suggests that over at least a, a long term, the, the court might begin to accept, uh, more and more regulation of these platforms.

So I, I want to turn now to talking about a bit of your current work. One of the areas where you've been working is on really kind of the, the flip side of a lot of these issues, media subsidies, and how we shore up local newspapers. And in particular, how we can do that in a way that would, uh, work with the first amendment, or I guess, survive, uh, first amendment challenges.

And I characterize it as the flip side of what we've been talking about because at, at some level,  if we had a robust marketplace with lots of different, uh, voices and media outlets, then we would have far fewer concerns about the amount of power that anyone has, mm-hmm  because there's more competition. Mm-hmm

But what we've seen over the last, uh, 15, 20 years has really been a gutting and shrinking of the local media marketplace in particular. So, uh, can you just tell us a little bit about this work and, uh, some of the challenges that you're trying to work through? Yeah. At the beginning of our conversation, we were talking about the ways that platforms lower costs for lots of speakers to, to get in and, and publish. Well-

so it's a lot cheaper now to publish to large groups of people that than it used to be. The upshot of that– if these early, you know, front end costs are a lot lower– is that you're gonna have a lot more competition in the journalism sector. Well, if there's a lot more competition in the journalism sector, that's bad news for traditional news institutions.

And the reason for that is that traditional news institutions incur really heavy front end costs, you know, just by undertaking investigations and engaging in quality reporting, that kind of stuff is really, really expensive. And you need big profits to cover those costs. Before the internet, when there wasn't a lot of competition from speakers who were running like really cheap, you know, low cost operations, it was actually possible for newspapers

to get profits of 20, 30%. And the reason for that is that there could only be a few institutions in any given community that could afford to run a newspaper. Most cities in, in the United States had one, you know, at most two newspapers, they, they had this kind of monopoly position. Well, now that monopoly position is gone.

So now that these newspapers can't make monopoly, monopoly profits, they're kind of withering away. So huge numbers of newspapers have closed all, all around the country. Most local newspapers that are left are kind of diminished. They've had to lay off lots of reporters. There are  a few institutions that have, you know, like- like the New York Times, like the, the Washington post to a lesser extent that have managed to go really big and set themselves up as- as national organizations with huge audiences.

But they're really the- the exception. And so what it looks like in this market that we have today is there's just no natural profit path for the traditional local news operation. Yeah, it's a, a major loss for a, a community. There's money that's lost when, uh, corruption isn't uncovered. There's maybe kind of a loss of, of community cohesion

if, if people don't know what's what's going on in the community, I think this may contribute to polarization because, uh, people wind up paying more attention to, to national news, which is highly emotional, kind of abstract, and- and less attention to local. And so I kind of, I start from this assumption that the market's not gonna figure out a way to bring back local news, at least local newspapers. Or if, if the market does figure out a way it's probably not gonna come fast enough, we need something in the next negative 10 years.

Yeah. Negative 10 years. Uh, and so if, if the market's not gonna provide it well, that that pretty much leaves the government.  Now, there are a couple of ways to do this, and both have precedent. So one is public broadcasting. So PBS NPR and the corporation of public broadcasting, other public broadcasting we don't think so much about domestically might be operations like voice of America or radio free Europe.

These are, uh, journalistic operations that operate abroad. There's a stars and stripes, a a military newspaper. One way to make up for this loss of local news would be to just really beef up the, the corporation for public broadcasting and just have state funded media on a much broader basis. You might call this like the BBC model,

this would be kind of similar to what happens in the UK. The other way to go would be to take these existing private institutions and just subsidize 'em. And there's some, some precedent for this too. So if, if we go pretty much all the way back to the founding era, there's this long tradition of postal subsidies,

laws that that say that newspapers can distribute for free within some set radius without having to pay for postage. That, that winds up being a form of, of subsidy. That kind of thing continues today. Uh, magazines pay a lower rate of postage. There's also stuff like non-profit status, so some journalistic institutions have said that they're nonprofits,

now they don't have to pay taxes. But those only go so far, those kinds of subsidies they're critical, but they're not gonna restore the same kind of cost and, and revenue structure that these newspapers had way back. So the other way to go, besides just really beefing up the corporation for public broadcasting would be to start cutting like really substantial checks to local news operations.

And it's, it's the second approach that I was really looking at. And, and the reason that I've focused more on, on the subsidy approach, is that the corporation for public broadcasting has been under fire. It's had kind of a, a political target on its back. Almost since- since the outset there have been, uh, multiple attempts to shut it down together.

It just seems really politically unlikely. We can just, uh, look at national public radio, which actually isn't yeah uh, government supported, uh, like the corporation for public broadcasting  NPR is a network of local affiliates that do their own fundraising and subsist largely based upon, uh, corporate, uh, sponsorship and, uh, perhaps some university sponsorship for local stations.

Mm-hmm  but, uh, they're, they're not a corporation for public broadcasting style, media outlet, but there's calls for them to be shut down. Yeah. So, you know, this kind of move has, has traditionally been really controversial in the United States. You know what we've done domestically with the corporation for public broadcasting is a pretty small program.

So I, I don't think politically we can hope to get anywhere close to a, a program, large enough to make up for the loss of local journalism.  so then we have the subsidy option. Now I expect big subsidies would also be politically controversial, but maybe a little less controversial. And, and part of the reason I say that is just that a big subsidy program doesn't set up an entity like the corporation for public broadcasting that you can affix a target to.

Part of the reason is that these, these subsidies have just been around a long time and people have gotten used to them in the past. Well, so what I was thinking about. You know, what are the first amendment consequences of, of doing this? If the government was to take the corporation for public broadcasting type approach and just set up public media, there's a high likelihood that the government wouldn't have to worry about the first amendment, uh, at, at all.

And the reason for that is there's this government speech doctrine that we were talking about earlier, the government's free to set up its- its own message. Now, of course you don't want a state media operation that's just propaganda, that kind of thing. But historically organizations like the corporation for public broadcasting or, or even Radio Free

Europe or, or Voice for America. Uh, those have all had these, these guarantees of journalistic independence, all indications are that that approach would be fine for first amendment purposes, it's just that the politics are so bad. So that leaves subsidies. With subsidies, the big difficulty is that if the government is going to offer subsidies on a broad basis, a content neutral basis, a viewpoint neutral basis,

you know, they include protections for editorial independence. They guarantee newspapers "we're not gonna withdraw the subsidy because you criticize, uh, the, the governor or the president, all that kind of stuff that we would want a subsidy program to include." Well, at that point, kind of perversely courts are going to say, okay, now the first amendment applies because what you've done is you've established a public forum of newspapers.

You know, you've said that this subsidy goes to everybody. Well, the first amendment requires the subsidy to really go to everybody. Now, more specifically, the rule that would kick in here is that the subsidy would have to be truly viewpoint neutral. Now that might not sound like that big an ask. You know, obviously it makes sense to say we wouldn't discriminate on the basis of partisan orientation or something like that.

If we were distributing a subsidy, but if you are a lawyer who's familiar with the Supreme court's first amendment work you'll know that they read the word view. Differently from the way that most people would viewpoint is a very, very broad conception. And what you could get is basically a world where like the AP, okay.

They have one viewpoint, and like, you know, Breitbart  this really, you know, low quality institution, well, they have- they have another viewpoint. And so my concern is that in setting up a subsidy, it would actually be very hard for the government to set, uh, minimum standards for journalistic quality without potentially crossing this viewpoint line.

Yeah. So it seems to me that either of these approaches, uh, have, uh, immediate concerns, and I, I think that they both turn into the, the same concern, which is really if the government were to try and do either of these would hoi polloi th- the people, the population, citizens, um, would we actually allow this to continue on for mm-hmm  any extended period of time, because I'm, I'm just thinking let's go

the first route, the government has its own voice and it establishes a domestic media platform, um, it seems exceptionally difficult to prevent that– especially in our current environment– from being characterized by the other side and ultimately becoming a voice of partisan views. I'm I mean, I'm certain that if we had had that established in the, uh, Obama era, that in the, uh, Trump era, it would've become Radio America First.

And if mm-hmm , uh, that, that would be entirely appropriate according to what you're saying from the perspective of the government voice and- which is kind of reverse. Exactly, –and then the same thing, uh, happens um, if we're in a subsidy model, um, we're going to have mm-hmm,  lots of, uh, subsidies going out to lots of different voices, lots of different perspectives, including let's say that we're in a 50/50  split world and we're, we're not by any means, but half of the population is going to be upset

about half of the subsidies. Mm-hmm  um, and probably there's going to be clever lawyering going on to, uh, make sure that the most partisan groups that probably should be excluded from either side are able to get some of this funding, which will politically de-legitimize it. So I, I guess I'll ask isn't the First Amendment intended to

prevent and protect against that sort of stuff, or is it intended to enable and facilitate that sort of stuff that that's hardball political speech? Well, I think that the kind of lawyering that you're talking about, you know, lawyering that would try to exclude, uh, certain types of voices from the subsidy.

You know, that's exactly the kind of thing that the first amendment should protect against. The problem is that I think administering a subsidy program would probably require a First Amendment that involved some degree of just kind of human wisdom or- or judgment about what's going on, as opposed to the just kind of logic chopping approach that the Supreme court tends to take to these things.

You know, there's a, there's an old case called National Endowment for the arts versus Finley that I think gets at some broadly similar issues. And this is a case that involved a grant program for artists that is really kind of a, a lifeline in the, in the arts world. It's pretty common for this to be about a third of an arts organization's budget.

But this, this program was set up to give subsidies to a really wide range of voices, uh, in including voices that were provocative, that were caustic, that criticized the government, that flouted conventional morality, that kind of thing. If you don't have those kinds of protections, you know, an art subsidy, uh, is not gonna be seen as legitimate.

It's a very similar kind of thing we should, uh, interject there. There are different views about the, uh, purpose and nature of art. If you believe that art is at its best, when it is critical and probing and challenges mm-hmm  um, then that is true. If you believe art is at its best, when it is a portrayal of overarching societal values and

capturing mm-hmm,  the, uh, fundamental aesthetic of beauty that a society holds to be true, well, then you might have different outcomes. So the ontological nature and purpose of art is a contested proposition.  Right, right. Yeah. Yeah. Uh, it's a, a bit like (unintelligable) speeches, I think. Or maybe what news is, but back around 1990, there were a few

works, and, you know, for- for example, there was a, a woman who had a performance piece where she was naked and, and covered in chocolate. Okay. So there's, there's an example. And so the whole program came under kind of heavy fire from conservatives mainly, and the program was amended to require the national endowment for the arts to consider decency and respect when deciding to make a grant.

So the work doesn't have to be decent, but the national endowment for the arts has to consider decency. Well, I think at a political level and, and I think probably if you want government to play a big role in subsidizing the arts world, This is probably a pretty decent compromise. If the national endowment for the arts had to underwrite this kind of performance art that might put the whole program in danger, because it would be subject to these kind of sustained attacks.

If the national endowment for the arts doesn't have to underwrite works that are gonna be politically poisonous, that's gonna be a, a good thing for the program's political viability. But at the same time, we don't have the government taking a particularly heavy handed approach and- and forcing the national endowment for the arts to cut funding for these kinds of works. Well

so this was challenged at- at the Supreme court and the Supreme court upheld the policy and it was kind of a muddled approach. I think what's more interesting actually than what the majority did, which I would view as kind of a political compromise, ultimately a wise political compromise. What's more interesting here, I think, is justice Scalia's concurrence in the judgment where he said the program didn't present any kind of First Amendment issue at all.

Because what we were talking about was a form of government speech. That the government is free to subsidize whatever art it wants. It doesn't have to subsidize art that is anti-American or that's hateful or, or whatever. It's simply not a first amendment question.  And at some level that's, you know, it's, it's kind of an appealing approach.

The problem is though that if we're talking about a program that is responsible for covering a pretty big portion of lots of arts organizations, budgets, you know, if the arts sector is really heavily dependent on this program, if the arts sector is infused with these kind of free speech concerns. And if the government doesn't have to follow any particular free speech rules in deciding who gets the money, well, now the government can actually play this pretty authoritarian role in the arts world.

And actually that's exactly the same kind of thing that we've seen recently in a lot of countries that have been experiencing democratic backsliding, like, um, you know, hung. For example, the government coming in and playing a much more politically active role in deciding what kinds of arts organizations are going to get funding and which ones are not well, I think that's exactly the kind of thing that we would get with a news subsidy program

mm-hmm  if we said that a news subsidy just counted as government speech, that's not a good word. Uh, treacherous path to go down. Mm-hmm  well, Kyle, we are coming close to the end of our time, but, uh, I, I do want to take a brief moment to talk about another project that you are working on that looks at cryptocurrency regulation and the First Amendment

Um, and I- I expect knowing you and your work and also the, the little, uh, laugh that you just let out that, uh, you, you probably can tell us about this project and the punchline of it in a matter of a minute or so. Yeah. So, uh, have at it. Uh, yeah, well, so the cryptocurrency industry likes to say that their product is like secured by math and that all we're really talking about is just

uh, pure information here. It's decentralized in various ways, impossible to regulate. Well, turns out it probably actually is possible to regulate the markets for crypto products. And so the next best thing to being impossible to regulate is being unconstitutional to regulate. And so the argument is basically that, because these crypto products are just pure math or, or whatever,

well, then what they really are is pure speech. It's not even that they're math, it's they're- they're computer code. I, I wrote the computer code. Yeah. Just like I wrote a novel, mm-hmm  therefore it is my speech. It is protected by the First Amendment, government keep your mitts off. Right. I wrote the code, I'm using the code to communicate with

other visionaries about mathematical concepts, you just can't regulate crypto products the same way that you would ordinary money. Well, ultimately, you know, they have some First Amendment arguments that maybe make sense at some level, but there are ultimately arguments against like securities law generally, against like banking law generally.

If it's unconstitutional to regulate crypto, it probably means that securities law is unconstitutional. It probably means that banking law is generally unconstitutional. The one argument that they really have is this argument, that code is a form of speech, but basically this is an argument that always loses in court, and it should always lose in court.

And we, we should say the reason it keeps coming up. It didn't lose in court once. Yeah.  a, a district court case, uh, uh, the Bernstein case, which then involved, uh, encryption and, uh, export controls and regulation of encryption. If there is a truly expressive element to the code, then perhaps that particular instantiation of the code might have some First Amendment protection.

Yeah. But it's a, it's an overreading to say that "and therefore all code is expression and is protected strongly by the First Amendment." Yeah. There are a couple of cases where somebody got a favorable result with this "code is speech" argument. These are both cases involving academic communications. So somebody's giving a lecture on cryptography,

they wanna put up a slide that has the code on it. Well, of course they do, because that's the only way to give that lecture, you know, if you want to be a computer science professor, who can't put code up on a board, well, that basically means you can't be a computer science professor. That's a big First Amendment problem.

But the thing is this computer science professor isn't somebody who needs the "code is speech" argument. They're speaking because they're computer science professor; uh, they they're already speakers. And so you'll have other kinds of cases where somebody says, well, I wanna distribute code for cracking digital rights management software on a, uh-

on an MP3 or something, it's the- the early two thousands. Well, you know, that person didn't win, I would say largely because they were not a person who otherwise appeared to be engaged in speech. Well Kyle, speaking of speech for better or worse, the First Amendment does not require me to let you continue speaking.

We are at our time. So, uh, thank you for taking the time, uh, to talk with us today on tech refactored. Yeah. Anytime.

Tech Refactored is part of the Menard governance in technology  programming series hosted by the Nebraska Governance and Technology Center. The NG TC is a partnership led by the college of law in collaboration with the colleges of engineering business in journalism and mass communications at the university of Nebraska Lincoln.

Tech refactored is hosted in executive produced by Gus Herwitz. James Fleege is our producer. Additional production assistance is provided by the NGTC staff. You can find supplemental information for this episode at the links provided in the show notes. To stay up to date on what's happening with the Nebraska governance and technology center.

Visit our website NGTC.unl.edu. You can also follow us on Twitter and Instagram at UNL  underscore NGTC.