The US Senate vs. Twitter,
or Violating the First Amendment vs. Violating the Spirit of the First Amendment.
(A prominent media theorist and author of “Digital McLuhan: A Guide to the Information Millennium”, Paul Levinson from Fordham University in New York used my book “Postjournalism and the death of newspapers” in a lecture for his “Freedom of Expression” graduate class and his podcast Light On Light Through. Below is an adapted fragment of his lecture and podcast, in which Dr. Levinson discusses the “regulating forces” affecting freedom of expression in old and new media. – Andrey Mir.)
In the United States, we are counting down now almost by the hour to the most important election in the history of our country. But while that has been going on, the US Senate Commerce Committee has been grilling the CEOs of Twitter, Facebook and Google. It is raising some profound First Amendment issues.
… I think it’s wrong for Twitter and Facebook to take down the purely political ads. But I think it’s more wrong for the government to punish them for doing that. Why? And this raises an interesting classical juxtaposition: what it does is it pits violating the First Amendment against violating the spirit of the First Amendment. To give you a specific example, Twitter, by taking down a post it finds politically misleading, in my view, is violating the spirit of the First Amendment. Twitter is not the government – Twitter can do whatever it wants. But the government is explicitly violating the First Amendment by punishing a medium and telling it what it can or cannot do.
I do want to throw in one other point here. Fortunately for you, this class, I just came across this book a week or two ago. There is a media theorist, who now is in Canada, he teaches at York University in Toronto, his name is Andrey Mir. He has written a book that I think is the best media theory book written in the last 40 years – this is how good it is. It’s called “Postjournalism and the death of newspapers”. And one of the things that Andrey talks about in the book, which we have not really talked much about here and it does relate to freedom of expression, is the influence of advertising on the classical media – the press, radio, and television.
In addition to the government that may want to regulate them, they already have their own very strong regulating force. And that is advertising. Advertisers have put pressure over the years on television, radio or newspapers to stop broadcasting and publishing something.
There was a very famous example with the New York Post. In those days, the publisher of the New York Post was Dorothy Schiff. She was the publisher, and she owned the paper for many-many years. And this was a classic example of what happens when advertising controls the system. The New York Post was doing an exposé on supermarkets. And the way the exposé was done was reporters went to a supermarket and found things like a product, the price of which was set by the distributor or manufacturer, and the supermarket would put a higher price on the product but would still advertise that product at the lower price. So, a customer would come and want to get, let’s say, a box of cereal for a dollar-fifty, but the supermarket tells them, sorry, you know, the price was raised. By whom? Not by the company supplying the cereal but by the supermarket. They technically had the right to do this, but not lie about the selling price in advertising. This is what the exposé in the New York Post was reporting.
And, well, a big supermarket was caught in this. They got really furious and sent Dorothy Schiff an ultimatum, saying you better stop doing those exposés of our supermarket, because if you continue – and we spend a lot of money advertising in your newspaper – we will withdraw our advertising. So, what do you think Dorothy Schiff did? Well, at first what she did was, sadly, she stopped the exposés. She was concerned that the newspaper would lose too much advertising revenue. But then, there was such an outcry over that that she decided to resume the exposés.
As Andrey Mir points out in his book, the pressure of advertisers on the media had a systemic effect. It’s not just isolated cases that are actually easily seen by the public, as in the case I just described. Starting in the end of the 19th century and over the entire 20th century, advertising became the main way for newspapers and radio and television to thrive. By the end of the 20th century, as much as 80% of the revenue that the media got was from advertising. For newspapers, only 20% was from selling copies via subscriptions or at newsstands.
When things really got tough for The Village Voice – and I always had a soft spot in my heart for The Village Voice as they were the first place to publish any of my work – they must’ve been doing something right, right? But they were really struggling as people began reading online. And their last attempt to save themselves was to give copies of The Village Voice away for free, because they were hoping it would increase their circulation and help them get more advertising. But I and everyone knew that this was the last gasp. They were able to maintain that for a few decades, but eventually the advertisers sensed that if people were paying nothing for The Village Voice, who was going to take that publication seriously? And advertisers had moved online, too. And so, The Village Voice a couple of years ago finally went out of business. Advertisers had the decisive role as grim reapers in this old media business model.
Andrey Mir’s book does not directly consider the freedom of expression issue that we‘re examining in this class, but this issue also has a logical connection to what Andrey Mir is doing in his book, namely how the funding of the media affects their freedom and their content.
The exchange of public information has become prevalent in social media. And the question arises of who controls the information on Google, Facebook and Twitter? At first glance, it is we who control the information, meaning users can tweet anytime they want, and that is the model of Twitter and other social media for the most part. This is not some editor but we who now decide what to post. But that ironically makes it easier for Twitter and Facebook to say: we are not going to allow some kinds of tweets if they are politically false. And they are caught up in a new swirl of forces pressing upon them, consisting now of the government, political elites, and some of the same traditional advertisers. So, the struggle between political and economic interests, on the one hand, and freedom of expression, on the other, continues on the platforms of new social media in a new way.
I think censorship by social media is wrong. Such censorship does not violate the First Amendment per se, because Twitter is not the government, not Congress abridging freedom of expression. So, I consider such censorship a violation of the spirit of the First Amendment, and that’s wrong.
But wronger still is if the government punishes Twitter for violating the spirit of the First Amendment. One cannot try to correct a violation of the spirit of the First Amendment by violating the First Amendment. That’s my view in a nutshell.
Paul Levinson, 31 October 2020
(Based on Paul Levinson’s lecture for his “Freedom of Expression” graduate class and podcast Light On Light Through, Episode 153, from October 30, 2020).
From Left to Right: Paul Levinson, Marshall McLuhan & Eric McLuhan.
Photo by Mary Lou Bale, taken at the Tetrad Conference organized by Paul Levinson at Fairleigh Dickinson University, Teaneck, NJ, March 10, 1978. McLuhan Galaxy Blog.