5 Questions: Law Prof. Tim Wu on the First Amendment, Social Media and Net Neutrality

Georgette Jasen
December 20, 2017

Tim Wu, the Isidor and Seville Sulzbacher Professor of Law, is perhaps best known for coining the term “net neutrality,” the idea that internet service providers should treat all data equally and not block, speed up or slow down traffic based on their own agenda. The Federal Communications Commission adopted net neutrality rules in 2015, but led by its new chairman, Ajit Pai, revoked them on December 14.

Wu, a scholar of the media and technology industries, is the author of three books about them: Who Controls the Internet, The Master Switch: The Rise and Fall of Information Empires and, most recently, The Attention Merchants: The Epic Scramble to Get Inside Our Heads. In 2006 he joined the Columbia Law School faculty, where he teaches antitrust and criminal law. This spring he and Jonathan Knee, a professor at Columbia Business School, will co-teach a course on the regulatory and business issues facing the media.

A former law clerk to U.S. Supreme Court Justice Stephen Breyer and to Judge Richard Posner, who served on the federal Court of Appeals in Chicago until earlier this year, Wu has written about challenges to the First Amendment and other issues relevant to both journalists and citizens. This fall he authored the first in the “Emerging Threats” series of research papers on challenges to free expression, published by the Knight First Amendment Institute at Columbia.

“We need a top-to-bottom rethinking of what free speech means now in the United States,” he said, “and we need to be cognizant of the idea that we are under attack by forces—domestic and foreign—that use very intense techniques of speech control.”

Q. You have called the First Amendment obsolete. In what way?

A. Most of its operating assumptions are obsolete. The First Amendment was conceived at a time when speech was expensive. You had to have a printing press or the ability to mail things to a huge number of people. Government was considered the principal threat to free speech, with a belief that as long as government stays away there will be a free marketplace of ideas. We now live in an era of cheap speech. It’s easy to have a Facebook or Twitter account, or you can have robots speaking for you. I don’t want to say that the First Amendment is useless, that government censorship isn’t a problem, but most of the profound challenges to speech and speakers are coming from private parties. The government, while not irrelevant, is a bit player.

Q. Why is this a problem? 

A. The major speech platforms have enormous power over what gets heard or doesn’t get heard. How do you feel about Facebook and Twitter controlling the speech environment? Their business model depends on how much time you ultimately spend on their sites, so they try to hook you into emotional responses. There are flooding techniques [algorithms that can overwhelm a network with content to effectively shut it down], various forms of propaganda and attempts to discredit the press. These are threats to democracy that can’t be ignored. The traditional paradigm that it isn’t a threat to free speech if the government isn’t throwing someone in prison doesn’t work anymore. Some of the guardians of that tradition need to come to grips with the new reality.

Q. Can the internet and social media be regulated?

A. If it wanted to and thought it was important enough, Congress could institute something like the Fairness Doctrine [a policy set by the Federal Communications Commission in 1949 that required broadcasters to present both sides of controversial issues] for social media, particularly around politics. Or it could require Facebook, for example, to distinguish between fake news and real news. But that would be very challenging and could be heavy handed. I’m concerned about putting the federal government, which I’m not sure how much I trust, in charge of social media. Public pressure could generate more results. With great power comes great responsibility. Facebook has allowed the line between rumor and fact to become eroded. Twitter as well. The tech companies should be more accountable; they should embrace some core journalistic values. Journalists have one really important ethic: They don’t print rumors as news unless the stories they hear can be substantiated.

Q. The Federal Communications Commission is responsible for enforcing communications laws and regulations. Does it have a role in journalism?

A. The current FCC has basically withdrawn from any oversight of journalism. It views itself as having no role at all. The final element of that is a proposed withdrawal of ownership limits, the set of rules governing ownership of media in a single market. Currently, for example, one person or company can’t own all the radio stations in a town, or control both its newspapers and television stations. If that initiative goes forward that would completely remove the FCC from its last role having anything to do with journalism. The Fairness Doctrine was revoked in the 1980s. Right now they’re out of the game.

Q. How does the end of net neutrality fit into all of this?

A. It could be the death of the internet as we know it. The cable and telephone companies now gain the power to block any site on the internet, power usually associated with entities like the Chinese government. That power may be misused by government and companies to block critics and competitors. One aspect in particular, not related to journalism at all, relates to startups. We’re in a world where if you want to start the proverbial “garage company” you have to first ask Comcast, or another phone or cable company, for permission. They can decide how it affects their business model and their business partners. Giving the phone and cable companies so much power takes the golden goose of the American economy to the slaughterhouse.