Nabiha Syed, Vice President and Associate General Counsel at BuzzFeed, gave the 11th Annual Richard S. Salant Lecture on Freedom of the Press at Harvard Kennedy School’s Shorenstein Center on Media, Politics, and Public Policy, November 14, 2018.
Ms. Syed, a well respected lawyer who has spent her career specializing in free speech law, laid out her position on the role of the media in our current moment in history. She advocates for the idea that journalists should act as “guides” rather than “gatekeepers” to information, in the effort to create a better informed and more cohesive democratic society.
Watch the full video of her remarks and a fascinating Q&A session that followed:
Transcript of the 2018 Salant Lecture on Freedom of the Press
Nicco Mele: What a day to have a discussion about freedom of the press and the first amendment in this country. We have CNN filing a lawsuit against the White House. Fox News joining the lawsuit on the side of CNN. All kinds of interesting and terrifying things afoot. And our speaker tonight, Nabiha Syed, is on the front lines of this. [BuzzFeed] had a reporter in Seattle arrested on Monday simply for trying to interview someone. On January 22, she’s in court for a major case over the Steele dossier, and then a whole range of other litigation beyond that. She is right in the heart of this work. And to just talk for a moment before I read you her compelling introduction and bio about the importance of this work – I was reading an essay by Rachel Kleinfeld and David Solimini at the Carnegie Endowment for International Peace titled “What Comes Next: Lessons for the Recovery of Liberal Democracy.” They looked at 11 democracies in the last 40 years that descended into some kind of authoritarian rule, and some of them emerged back to democracy again. And they were trying to understand by looking at these case studies what is necessary to protect democracy. And I highlighted, they say in all caps, “Do not expect political parties and legislatures to protect their prerogatives or democratic norms.” But they also say that “the institutions of justice are a consistent source of resilience” and that a free media is essential. If we are going to hold power accountable, if we’re going to counter authoritarianism, it is crucial that both the courts and the press remain active, vibrant, and free. And Nabiha is right in the thick of this, is a warrior in the courts for the freedom of the press.
I want to start for a moment and just tell you about Dick Salant, in whose name this lecture was endowed. Dick Salant was the president of CBS News. And what I think is just incredible about Dick Salant and his contemporaries, and his boss, Frank Stanton, is that these were men that — in 1948, television was remarkably small in the United States. You’d be lucky to reach a couple hundred thousand people with television in the United States in 1948. By 1960, you could reach every American on television. I think it was something like 95 percent of households watched during prime time. And so, in a very short period of time, then, 15-20 years, this new medium emerges and it’s enormously lucrative – thus, in part the endowment of this lecture (laughter). So, this incredibly lucrative industry, and a group of businessmen, who were also interested in making money, also cared about the press. And in many ways Dick Salant and his contemporaries helped imagine and invent television journalism as we know it. It was Dick Salant, who really pushed his team to experiment with the format of the evening nightly news. It was he who helped birth 60 Minutes, the investigative news magazine. There was such a commitment to public service journalism. There was such an interest and an understanding about this explosive, incredibly lucrative media, that news had to be a part of it. News with integrity had to be a part of it. And I think of that today when I think of how we have over the last 15 years had a comparable technology just totally change our public sphere, with the internet. And about the importance and need to carve out a space for news, for holding power accountable, for communicating with the public, for creating a meaningful public sphere, one that has integrity. That’s what the news is about.
But unlike the ’50s, when we have a visionary group of businessmen at the forefront of the creation of this media and they understood and wanted to birth something in the news space for television, I don’t think we’re quite in that space right now with the way the Internet has developed. It doesn’t feel like even the idea of a public sphere is being carved out in anywhere near the same way and certainly not at the expense of profit, which was the case.
Dick Salant was also famous for his vibrant defense of the freedom of the press. There’s a famous story about, despite pressure from the sitting President of the United States, they aired an investigative piece on the nightly news. And over and over again, Dick Salant not only helped imagine what news might look like in the dawn of television, but he helped to protect some of the basic freedoms and the values that make journalism powerful and important today.
And so, it’s in that context that I want to turn to Nabiha, who you are actually here to listen to, not me. Nabiha Syed has been described as one of the best emerging free speech lawyers by Forbes magazine. She’s currently the vice president of legal at BuzzFeed, where she handles all manner of terrifying and strange disputes. (Laughter) Prior to BuzzFeed, she was an associate with Levine Sullivan Koch & Schulz, a leading first amendment law firm and she was name the First Amendment fellow at the The New York Times. She’s worked on legal access issues at Guantanamo Bay, counseled on whether to publish hacked or leaked materials — Steele Dossier — (laughter) and advised documentary filmmakers for the Sundance Institute documentary film program. When I asked her what she was most proud of in her bio, she said that she was the co-founder of the Media Freedom and Information Access Legal Clinic at Yale Law School, and that the clinic models in law schools for helping underserved communities, was critical. That in many ways journalists are increasingly underserved, and finding ways to support them is critical. She is a graduate of Johns Hopkins University and a school I’m not really familiar with — Yale? Yale Law School? (Laughter) I hear it’s in Connecticut. We look forward to our victory on Saturday in the Harvard-Yale game. (Laughter) She attended Oxford University as a Marshall Scholar and has been a non-resident fellow at both Stanford Law School and Yale Law School. At Columbia Journalism School she has been adjunct faculty teaching media law to journalism students. She serves as vice chair of the Student Press Law Center, and I did want to highlight the Student Press Law Center for one moment. It provides legal aid to student journalists. There are a number of state capitals, where the majority of the journalists covering those state capitals are actually students from a university newspaper. And so, as journalism collapses in different locales around the country, the role of student journalists gets more important. They challenge power and their legal protection is more and more important. She’s treasurer for Upturn, which if you haven’t heard of it, check out — kind of leading edge looking at some of the unintended consequences of our technology. And she is on the American Bar Association Communications and Media Law Committee. I really am looking forward to her lecture. Afterwards, we will hopefully have a robust and compelling discussion, so be prepared. All of you in the room — I have no doubt you’ll come armed with some compelling questions. And please join me in giving her your full and rapt attention. (Applause)
Nabiha Syed: Good evening, everyone. It is such an honor to be here. I am thrilled to be here. No one in this room is more thrilled than my Dad, who is right there, and my Mom. (laughter) (applause) My Dad’s been wearing a Harvard polo shirt since 1984, we think. None of his kids actually went to Harvard, but I do think after this, he probably earned another shirt. (laughter)
Mr. Syed: I need another one. (laughter)
Nabiha Syed: You know, when I was sitting down to think about what to share with you today, I thought (laughs) “Nothing’s really happening in media law. There’ nothing to discuss.” I do think back to just ten years ago when I was eyeing media law as an area and a very esteemed, seasoned media lawyer looked at me and said, “Oh, Nabiha, it’s such a shame you weren’t alive in the ’60s and ’70s. That’s when the real fight happened. (laughter) Now, easy.” You couldn’t have predicted these dramatic twists and turns. But before we get to today, I want to ask you to time travel with me just a little bit, so we can think about the history that got us here, before we try to forecast and divine what might happen tomorrow.
I want to take you to 1889, which is the height of the Gilded Age. Iola, who we’ll focus on for a second, Iola’s dear friend had just been lynched. It was her godson’s father to be exact and it appeared to be for the grave sin of having a grocery store that competed economically with a white owned grocery store across the street. Today we would call that economic anxiety. (Laughter) Thanks for that. Got the joke. Now, the Gilded Age was an era of industrial capitalism pockmarked by political corruption and vast inequalities of wealth. But Iola and her friends were not poor. And perhaps that was the biggest offense of all to her Tennessee neighbors. Iola made some money by teaching, though she had just gotten fired for criticizing the conditions in colored schools. She made a little bit more money as the editor of the anti-segregation newspaper. She knew she had to write about what happened to her friend, but she knew that the research would cost money, so she went to a number of black women’s clubs and raised $500. With that money, she researched to uncover a common narrative. The reason behind the lynchings was that apparently some white women felt that they were under threat by some black men, and that that was an offense punishable by death. The strength of this narrative accounted for the collective shrug from both polite whites and well-to-do blacks, who thought that this was not a problem for them. Iola knew this narrative was not right. So, in 1892, three years after the murder of her friend, she abandoned her pen name and, Ida B. Wells, as she’s more commonly known, self-published a pamphlet arguing that black people were lynched for competing economically with their white neighbors, for being joyful and loud in public, for not being as deferential as they should be. Many in Memphis were unsurprisingly unhappy with her pamphlet. A local newspaper carried this complaint. “The fact that a black scoundrel is able to live and utter such calumnies is a volume of evidence as to the wonderful patience of southern whites, but we’ve had enough of it.” There was no commitment to free speech for Ida. None of these were empty words. Because when Ida went away for a business trip in Philadelphia, a mob burnt her office to the ground.
Ida’s story reminds us that the free press doesn’t just happen. Truth telling requires struggle, making do with what you have to take a stand for your values.
The eye-popping tabloid headlines peddled by people like Pulitzer and Hearst in Ida’s time had given way to this professionalized norm of objectivity, norm of neutrality.
I underscore that story, because it’s actually the gold standard of being a media gatekeeper.
At its best, the gatekeeper wields its power for the public interest.
What we see in these cases and many others of that era is the court experiencing two epiphanies. The first is that the court recognizes that mass media can uniquely shape the public at scale unlike any other entity before it. They’re strong enough to call lies “lies” and put the spotlight on scandals. That is a great power. Second, because there’s now way too much information and limited time and resources, someone has to organize the marketplace of ideas out of which truth will somehow arise. The that responsibility goes to the press. The press will decide who participates and who should be amplified at scale. That’s a great responsibility.
All of that seems really obvious now when we think about how we think about the press. But it was radical then, because for much of our Republic’s existence, including in Ida’s time, the First Amendment wasn’t much help for the press, really. The jurisprudence really got going around this time as the press professionalizes an institution. One might argue it took a professional media, a powerful media to tip the scales to a new approach.
For much of our Republic’s existence, including in Ida’s time, the First Amendment wasn’t much help for the press.
Language can erase, distort, point in the wrong direction, throw out decoys and distractions. It can bury the bodies or it can uncover them. And that power of language was given to the media to wield as an organized marketplace of ideas.
Despite that, the marketplace remained an attractive model for those drawn to neutrality, especially for profit driven reasons. You just feed facts into the marketplace and a faceless public makes its choices. But there’s no reason to think that that version of the marketplace is natural. It’s a product of a certain time and certain values. So, what happens, like in the last 15 years, 10 years, when competitors enter that marketplace? Everything you might expect.
Whereas the first Gilded Age of Ida’s time created dramatic economic inequality because of industrial capitalism, the second Gilded Age has the same dynamic because of information capitalism. And as technology companies gobble up advertising revenue and spit out the news for free, information capitalism benefits them far more than it does the media.
So, what we have is this: We have the decentralized media with fractured reach. We have the ability for people to connect directly without the media as a middleman. We have an environment where the power of corporations exceeds the power of many governments. We’ve an openly adversarial relationship with the executive branch, who has the ability to investigate, subpoena, and imprison — they don’t seem afraid to use it. And because of crumbling business models, no money. So, truth telling in this era just got a lot more complicated. Think about that. Our current predicament has all of the responsibility of mass media in CBS’ time, in the ‘60s and ’70s — in Salant’s time — with the inhospitable terrain of Ida’s time. And worse yet, keeping the Cronkite era gatekeeper mindset is actually now not just a stylistic choice, but a glaring vulnerability in the networked marketplace of ideas. And here’s how. Let’s take the coverage of so-called migrant caravan. You all remember it. It was two weeks ago. Apparently it’s all anyone can talk about. This is a group of asylum seekers, largely women and children, coming from Central America, who have been thrust from their homes by violence. During the week of the white supremacist, far right, and anti-Semitic violence, and just before the mid-terms, senior administration officials thought they would divert attention to the entirely imaginary threat of this caravan. They did so when the caravan was over a thousand miles away from the border, and when people are traveling by foot. On message boards like 4chan and Reddit, a conspiracy theory emerged. The caravan was secretly funded by George Soros, they alleged. Note this is a bankrupt and anti-Semitic theory. And yet, all of a sudden it was amplified by well networked people on Twitter and it was on a variety of blogs, and then it was on Fox. And then mainstream media decided that they would comment on it, debunking it for the most part, but still giving it attention. Other media, fully illustrating the gatekeeper mentality, decided to invite commentary about the not-so-looming caravan and conduct interviews with the director of ICE as if this was actually a matter of concern. So, why give the caravan phenomenon, or the related Soros conspiracy, any oxygen at all if you’re a mainstream media organization? One theory is, because of who’s saying it, a government official, it’s inherently newsworthy. Others might say the volume of discussion on social media is a separate barometer of its newsworthiness. Everyone’s talking about it, we should too. Still others might have mundane reasons.
In the networked marketplace that we have today, truth telling requires navigating the noise and doing so with speed. No matter what gatekeepers might believe, the old gates are down and the public is vulnerable to anyone who has mastered these platforms
When speech battles occur on private company terrain without the government as an adversary, it’s not clear how the First Amendment can be helpful.
At the very least, from this position, thinking back to Ida, we might employ a more nuanced understanding of how power works. One example. Over a year ago, BuzzFeed reporter Megha Rajagopalan investigated military sponsored violence against Rohingya Muslims in Myanmar. She didn’t focus on the gory details of violence. She could have; there were a lot of those.
What does truth telling require when the media is in a position of weakness and not strength?
To put a fine point on the difference between a gatekeeper and a guide, I want to turn to the activist and writer Arundhati Roy. She provides the following analogy about the American political system and I’m going to repurpose it and also make it more appropriate for Harvard and how classy it is here. (laughter) Let’s say you see a pile of…trash. This is me repurposing what she said (laughter) and in the middle of a room. One approach to reporting on that pile of trash would be to say, “When did this arrive? Why is this here? How large is it? What do two people have to say?
We need the media’s truth telling role to be deciphering the hidden systems that result in observable facts.
This is what we need now. We need the media’s truth telling role to be deciphering the hidden systems that result in observable facts. Four aspects of the guide mindset are critical.
The first is that guides understand their terrain. Guides understand the way that the networked marketplace of ideas works. They know it’s their job to guide us through the thicket to make sense of the overabundance of speech that, as Zeynep Tufekci explains, makes our attention a truly scarce resource. Importantly, guides understand how exactly technology warps reality, not only through propaganda, but also, say, in bias in algorithms responsible for sentencing. Understanding that terrain means that guides also see the nexus between public and private power. They might also have specific expertise like computer science or environmental science in order to cut through spin.
Second, guides have a direction. The New York Times journalist Nikole Hannah-Jones put this succinctly. “Journalists exist to hold power accountable.” That is not a neutral stance. If a journalist is working to expose wrongdoing, you clearly want something to change. Instead of championing neutrality, guides are comfortable advocating for substantive democratic norms. You need that now.
Third, guides do not assume trust. Guides consider newsworthiness very carefully. They are not reactive when it comes to the newsworthiness analysis. So, when they do this, say by exposing conventional wisdom as Ida did, they do not presume that trust is automatically owed to them, as an institution might. They earn trust by saying, “Look, here’s what we know. Here’s the documents. We’re linking to them. Here’s the photos. Here’s the data. Here are the footnotes. Here are the sources. Tell us if we’re missing something.” The Internet, unlike a print newspaper, uniquely allows guides to do this and guides embrace it. It’s particularly valuable for freelancers and independent journalists, both of which are growing in number given trouble in the media business. And they can develop trust through transparency in their reporting methods.
Fourth, and final, is that guides know they’re leading, but they don’t walk alone. Guides are an audience-oriented group of people and they’re rooted in their communities. Specifically, they understand that their audience has their own ability to gather the news, whether it’s a police murder caught on cell phone video, or lived experience with voter suppression. So their audience isn’t only a passive recipient of wisdom. They’re participants. But what guides can offer to them is context, history, and depth for their audience to build on. And reporting in that symbiotic way can situate stories within larger movements — within #MeToo, or Black Lives Matter, or the Parkland students, many of which mobilize on the very same platforms where the news is being consumed.
So, guides show us how truth telling in this strange and evolving time requires a particular mindset.
Flashlights in hand, guides lead us down the dark alley ways of the twisting paths to show where we’ve been, and what dangers lie ahead.
Now, finally, truth telling in this era will also require something from all of us. To take on networked power, the guides need a networked infrastructure of their own. Journalists can’t rely on the resources that might have been presumed within these big institutions like CBS or CNN or The New York Times.
To take on networked power, the guides need a networked infrastructure of their own. Journalists can’t rely (anymore) on the resources that might have been presumed within these big institutions…
First, I am a lawyer, so I’m going to think about legal resources and the law. It’s true that the First Amendment these days sadly tends to favor the more powerful and is less the People’s First Amendment than some might want it to be. That’s all the more reason to exercise the press rights we already have, lest they atrophy. We have to provide direct services to underserved journalists. Almost ten years ago, a few friends and I started one of the country’s first media law clinics with this mission in mind. And while there are now a handful of similar clinics, we need more. Could we build out a full-service legal aid for journalists in every state, so people could walk in and ask their questions, help gather the news, see if a libel threat is real or just a PR flak trying to bully them? Given that the press is increasingly no longer seen as invincible, this is a thing that we need and we can start building it now. We should also breathe life into the areas of the First Amendment that can help us affirmatively. The First Amendment right of access is part of a theory that says the public needs access to quality official information in order to understand their world. That theory is why journalists can get access to things juror names or court records. A month ago, I argued in New York Supreme Court that the First Amendment right of access should extend to NYPD disciplinary records. We’ll see how that goes, but these are the fights that are worth trying these days, maybe even trying again with spaces like prisons and jails, where the right of access was not successful, but it’s been a while, maybe it’s worth trying again. Now, given the changing nature of the federal courts, I think it’s also a good thing to experiment in state courts – you can call it “access federalism.” We can push the law there. One avenue I’ve been exploring at BuzzFeed and — stay tuned for 2019, what we’ll be doing the next quarter — we’re looking at theories that might let us access information about private companies carrying out critical, outsourced public functions. Perhaps now it’ll take a tenacious media to tip the scales towards a better newsgathering set of protections.
Second, insurance is an invisible puppeteer of behavior. Without it, when threatened, I have seen reporters who censor themselves. And that’s the rational thing to do if someone’s saying they’re going to sue you for all you’re worth. You might not even have enough money to make it through the litigation, even if you’re ultimately right. We have to develop a media insurance model that is affordable and accessible.
The third is distribution. Great reporting is worthless if not read, if it doesn’t break through all of the noise. And so, on one hand, Twitter, Facebook, and YouTube are ready-made infrastructure to reach audiences where they already are. And it has the potential for scale. It’s a lot easier than self-printing your pamphlet by crowdfunding from a bunch of different clubs. On the other hand, the cost of distributing online is subjecting yourself and your users to potential surveillance and censorship. Is that a trade we’re willing to make? Is there an alternative distribution option? Is there anything that we can do about that situation? We need the brightest minds on this problem and a variety of the infrastructural problems.
What truth telling will require from us now is that we struggle to build or rebuild the media we need for today and for tomorrow. It’s not 1968. It’s not 1889. It’s now, with our own unique constraints and the cards we have to play.
I look forward to discussing all of this and more with all of you. Thank you so much, what an honor to deliver the Salant Lecture on the Freedom of the Press. Thank you. (applause)
Nicco Mele: We can’t depend on well-heeled, centralized institutions -. I think that is what we call speaking truth to power. (laughter) I have so many questions for you. I’m just going to ask a couple questions and then we’ll open it up to the room. I guess my first is that, when you think about the legal framework in the United States and our history of jurisprudence, you really talked about the gatekeeper role and that the courts see the press as the gatekeeper, and that role is an important one. And how do you then think about — if the press has to shift to be more of a guide, is there any jurisprudence, and how will the courts see that?
Nabiha Syed: It’s a great question and, I know, we have to rely on the courts somewhat. We’ll see how all of that goes. But I do think looking at news gathering protections is a really important way forward. We have a lot of protections for the publication of things, right? And that’s the First Amendment protections we saw in the ’60s and ’70s and thereafter. Those are the same protections that private companies can now avail themselves of – “we’re publishers too,” if they wanted to say that. The news gathering function, right, pushing for the right of access, thinking about whether there may be any room to play within the press clause, for example, as Professor Sonja West has written about rather quite a lot, I think is all part of shoring up the protections that guides will need to dig up the information that we want. So, it’s looking at a slightly different part of the First Amendment, but I think it’s possible that we could do it.
Nicco Mele: You eventually touched on the idea of the overabundance of speech, and I immediately think about Tim Wu, who wrote this essay, “Is the First Amendment Obsolete?” And in many ways I think our last two Salant lectures, both of the speakers I would say basically took opposite sides of that. You seem to almost side step it. It’s not a matter of “is it obsolete in a legal argument sense,” it’s a matter of “is that the real issue we’re facing?”
Nabiha Syed: It’s part of the issue, but I think the issue is so much bigger. When people focus on “what’s the doctrine that’s going to guide us out of this?” I think it’s a much larger systemic set of questions. “What is the press right now? Is the press up to this task? Is it up to this task or does it need help economically? Does it need help culturally?” Because a lot of what we’re seeing in the form of the attack on the press isn’t yet explicitly legal, right? It’s not, “Oh, we’re throwing journalists in jail right now.” It’s these normative erosions, right? Calling us the enemy of the people, trying to change the mindset, which I think will pave the way for — if it’s successful — further abuses of the press. It’s the culture that we live in. And I think that’s actually the important thing about the First Amendment, is that it exists as a doctrine, but it also exists as something that captures public imagination. That’s when someone says, “Well, I have a First Amendment right to do this.” We’re like, “Do you?” I mean, that’s not really what we’re talking about. The First Amendment stands for a particular type of liberty. And I think it’s important to think about it as sort of a cultural phenomenon as well as a set of legal doctrine that should maybe grow in a different way.
Nicco Mele: You had not worked at a media company before. Is that right?
Nabiha Syed: So, I’ve been at the Times as a fellow and then BuzzFeed now.
Nicco Mele: And what has surprised you about your experience at BuzzFeed? What is something you didn’t expect?
Nabiha Syed: Well, one thing about being sort of a younger, scrappy upstart that’s venture funded is that we’re coming now to the questions about how business models should work. We had a very strong business model in native advertising. Now we’re diversifying this business model, but I think I came to working in this space because I love the issues, because I care about free speech. And then having to think about how do you actually support it? What are the practicalities of these big picture philosophical problems? I think that’s been the most surprising.
Nicco Mele: I wanted to just circle back and talk about one of your closing recommendations, which were excellent, very provocative. You talk about the freelance journalists, or the way the media, simply, is weak. And unlike, say, 40 years ago when many other local newspapers may have had substantial resources legally, today, many local newsrooms don’t, not to mention the proliferation of freelancers doing reporting and also a growing trend of citing individual reporters in law suits, not just the outlets they work for.
Nabiha Syed: Yeah, that’s one thing that we’re seeing even in the Dossier case, that was brought against [BuzzFeed] by oligarchs — a variety of oligarchs, I should say. It’s the institution as well as the specific reporter. And that’s not a mistake. That’s a form of saying, “Hey, I see you. Your institution may make a calculus that this is the cost of doing business, the cost of standing up for things, but, personally, are you going to be able to stand up to this?” And I think that sort of picking at reporters — and we saw that in the Gawker case too, right? A.J. Daulerio was taken for all he was worth in the course of his litigation — It’s meant to single people out. I think we see that with Jim Acosta too, singling people out and making them feel a chilling effect of the whole brunt of a large institution, whether it’s the state or oligarchs looking at you saying, “You sure you want to publish?” And if you’re a freelancer — so many freelancers I’ve worked with on a pro bono basis don’t have insurance. They think they maybe have libel insurance on their homeowner’s policy. You don’t. (laughter) It’s not a thing. It might be a thing in your weird policy, but it’s probably not. And so, they’re taking these tremendous risks. And they’re saying, “It’s true. I believe in it. It’s true.” And you’re like, “Right.” Sometimes it takes a lot of money to bear out that something is true. It takes a lot of courage. It takes a lot of waiting and patience. We saw that with Frank Stanton with sitting in front of the Congressional investigators, right? And if you don’t have the strength of an institution behind you, if you don’t have money, it’s a really hard call and we’re asking freelancers and independent journalists to be heroes to do that. And many are, but, man, it’s a hard position to put someone in and I think insurance might help with that.
Nicco Mele: Right. Do we have some questions from the audience?
Nancy Gibbs: I’m curious at a time when we’re talking about the weaponization of the First Amendment how do you think about the First Amendment rights of Alex Jones and InfoWars.
Nabiha Syed: That’s a great question. You know, some of what Alex Jones does looks more like reporting, some of it doesn’t. And that’s always been the case with reporting, right? There’s people who are saying things that I think are, frankly, sort of nonsense. I think looking at what they’re circulating and how they circulate it is important to me. A lot of what Alex Jones is doing appears to look like propaganda to me, but I’m much more interested, I think — well, I think there’s a set of questions that are interesting about what platforms should do about that and that’s one thing that’s sort of beyond the First Amendment rights questions. In terms of do I want to right now in this era start pointing fingers about who is and is not a journalist? That is something that I think would be a foolish fight to have right now. I think there’s a lot of room to start to say, “No, here are the norms that mainstream journalists have.” That is something that’s a process that we’ve been doing through historically, and let people conclude what’s in-group/out-group. But as a matter of the law, I don’t want to start creating those divisions, because I think that will be weaponized against us.
Nicco Mele: And I have a follow up. How do you feel about the power of the digital platforms then, and the way they effectively banned him? Or, asterisk, did they really ban him?
Nabiha Syed: So, what I think is so interesting about the digital platforms, like should they ban, should they not ban? Should they get involved, should they not? They have been getting involved in speech governance since day one. Well, maybe not since day one, but definitely recently. When Twitter organizes your feed to show you what you can see and what you can’t see, that is a form of moderation. It’s a form of making a choice. When Facebook says, “We’ll, surface some other things that you might like. You might like pictures of cupcakes right now and maybe some cute kittens,” that is also an organization of what speech you’re getting. So, the sort of tentative, “Oh, we don’t want to be deciding what people see,” they’ve been doing that. They do that when they decide to take out any type of hateful content, or what they’ve decided to be terrorism, or what they think is obscene as they did with a number of breastfeeding mothers. So, if they’re going to be in the game of doing that, I think that gives them the space to get in the game of doing this.
Phil Balboni: If you had the power, would you bring back the fairness doctrine, and would you apply it more broadly than just broadcasting?
Nabiha Syed: Well, it’s so hard to ask that in the abstract. Would I give the fairness doctrine to this administration? And the answer is no. Would I elect to cultivate some sort of incentive, and I don’t know what that is, to encourage that? Absolutely. And I think that’s sort of the tricky thing about this moment, that things that would normally be interventions that we want the government to take in order to create a healthier public sphere, right now feels a lot like giving someone a knife to stab you. And that makes this a very tricky landscape to try and regulate. Jack Balkin just wrote a piece called, “Free Speech is a Triangle” where he talks about private regulation, government regulation, norms, and how they all fit together. And I think we have to be really creative in this space. I think there’s a knee jerk reaction to want the government to do something, but I have a lot of hesitation about handing over that type of power now.
Martha Minow: This is a fabulous talk and I’m persuaded and moved even though it’s a tall order, but I have two questions. One is, in the comparison between the gatekeeper and the guide, you describe a really vigorous and deeply intellectual task for the journalist, to create context and understanding. Deep. And it doesn’t exactly align with the strategy of building up the access to news gathering. It’s a different enterprise. Yes, you need the facts. But even more troubling, I guess, is how do you distinguish the guide that you imagine from the guide that Fox News offers? Which is a guide. So, that’s question one. And the second question is, is there really an audience for that?
Nabiha Syed: Both good questions. So, on the first, I do think that the right of access does feed into what the guide does. One concrete example is a tremendous reporter of ours, Melissa Segura, spent three years piecing together court records and other documents that we did file access requests for, to start to notice that the same officer was involved in the arrests of a remarkable number of people, and that if you were to put them all side by side, this would look like the arresting officer was doing many things all at the same time. It just didn’t add up. That story wouldn’t have been possible were it not for this access to public records. And access to similar types of records from other places could help give the basis for a lot of really great reporting. You need context. You need history. You need all of that deep work — it is deep work, you’re totally right to say that — that builds on that, but I do think getting access to the underlying facts is sort of like the building blocks of this bigger story. As for Fox News making their guides. Sure. They already have their guides. They’ve been very good at creating their media personalities that everyone pledges fealty to. They’ve been doing it for a while. Tucker Carlson is one of them, right? So, they’ve created this. They’ve already in some ways almost mastered the situation and of personality- oriented journalism. They have great followings. And I think that’s important to think about in a low trust society versus a high trust society. In a high trust society, people tend to trust institutions. You trust The New York Times. You trust CNN. You confer your trust upon anything that’s coming out of this, because probably they did their work, right? In a low trust society, people tend to trust individuals more than they trust institutions. So, if you see an individual, who’s reporting in a way you like, in a way you think is interesting, in a way that you think is credible over and over and over again, that person all of a sudden has a lot more persuasive power over you. And they’ve been doing it, and I think doing it to strengthen a base of people who are dedicated towards democratic norms, rather than… whatever is happening over there, I think would be a good thing. And so, I think it’s building out the capacity. As for whether there’s an audience for it, it’s that’s the billion dollar question. I have to believe yes, because I have to believe there are people who want sense, who don’t want this noisy public sphere, who actually want to understand how things work. I don’t know, but I’ve got to believe that there is, because I think we need it right now.
Nicco Mele: I’ll just point out that BuzzFeed story, by Melissa Segura, that was a finalist for our Goldsmith Prize last year. Really excellent work.
Sarah J. Jackson: I would love to hear your thoughts on media fragmentation, because I hear a lot of people talking about the current context of the public sphere and Fox News as a problem, as “this media fragmentation is a problem,” because the guides are telling people different things. But you started with Ida B. Wells and I’m a scholar of the black press and the feminist press so I loved that. And for me, media fragmentation isn’t necessarily a bad thing, because there have always been these alternative spaces and alternative journalisms, where if you wanted to find the version of the truth that was based in the black experience or the experiences of women or the experiences of poor people, for example, in labor publications, you could find those and you knew where to look. And I wonder if some of the debate and conversation about the fairness doctrine and about bias has to do with this, maybe, idealism that the media should be doing all the things at once and should be guiding us in all directions at once. And since BuzzFeed is kind of a new platform, I just wonder what you think about that idea that maybe the segmentation can serve us in some ways, because it can highlight those guides that otherwise don’t get into the mainstream public sphere.
Nabiha Syed: Yeah, absolutely. I’m not at all an advocate for, “Oh, there should be one gatekeeper telling us everything that’s universally true.” I think that left out quite a lot of really important news. The Kerner Commission is one example — that there’s actually a commission that said, “You guys didn’t understand why there were race riots in the ’60s. You just didn’t get it and the reason you didn’t get it is because you had a very particular vantage point on what was going on and you didn’t understand that communities had been systematically denied housing, denied economic opportunity, and then people got mad. And when you can only report that people got mad, you’ve missed everything along the way.” And I think it’s not that that information didn’t exist, it’s that it existed in certain press and not others. So, I think the fragmentation isn’t necessarily bad assuming a couple of things. One, that people are getting information from a couple of different places in order to round out their media diet. That’s important. And two, that there is some good faith fidelity to facts that’s happening in this environment. And I think the heart of the problem that we’re in now is that it’s not only — and it could be a mistake to characterize it as only — “Oh, well these are just different perspectives of the same thing.” There are actively things that masquerade as the press that are really operating in a way that does not appear to be good faith, and we don’t really have language for how to talk about that. And it’s dangerous to start getting into those categories as a matter of the law, right? We don’t want to be like, “You’re not the press. You don’t get protections, but I do.” Because that is a strategy that will not serve us well. But we don’t have any other language, really, to try to differentiate like, “You are just a state-owned propaganda machine. What’s going on here?” …We don’t know how to talk about that yet. And I think bolstering one side and saying, “Let’s give the people that we know are good faith all the strength we can possibly give to try to win over more,” is the avenue I want to take, because to be honest, I haven’t figured out how to crack the nut of the other piece.
Andrew Gruen: In a slightly intentionally provocative way, I just wonder if you might try to square the circle for us on your desire for there to be a strong economic power to support journalists and your enjoyment of the fragmentation and whether or not there is a mechanism to have your cake and eat it too in that way. Because that’s something that I actually agree with you on both those points, but I see no linkage.
Nabiha Syed: Yeah, I mean if I could square that circle, I would own the world. (laughter) That’s the billion-dollar question, right? I mean now there’s two billion-dollar questions, but –
Andrew Gruen: I think maybe it’s also the same question as well, right? One of the things that I thought was interesting is you said we were asking, “is there an audience.” Oh, I don’t know about that. Is it really a bunch of small audiences, and then what do you do?
Nabiha Syed: Right. And if it’s a bunch of small audiences, then the question is how do you monetize that? I think one thing we have to break out of is thinking of advertising as the only way of squeezing money out of this rock. For so long, the idea of reach and economic strength have been intertwined. Why? Because advertising is how you link those two things together, right? “Oh, you have a big audience. Ok, sell them stuff!” Great. And maybe there are other ways. Is it things like events? There’s only so much merchandise you can sell. Is it shows? Is it something else? Figuring out what are the things that actually might be able to get monetary support from a smaller group of people in a dedicated way over time — and maybe that’s subscriptions — is, I think, the sandbox to play in for the guides. It’s not going to be “Well, everyone is going to follow me. I will be the guide of everybody.” It’s “Can I have a group of people that are so committed to what I’m doing that I’m making this viable?” And that that, then, creates this sort of relationship between the guide and the audience that’s also reinforcing. What that looks like, and what the business model is out of that, is a thing we have to figure out now. And there are little inroads. There’s people at the Membership Puzzle Project, which is Jay Rosen and Emily Goligoski, that are thinking about exactly this. And that is something I think we just have to support as much as we can.
Bill Poorvu: I’m curious. Forget for a moment who’s President. It’s tough to do.
Nabiha Syed: Yeah, I was like, “How?” (laughter)
Bill Poorvu: Let your imagination go. Isn’t the President entitled to say whatever he wants, whenever he wants? Is the press obligated to, in essence, report what the President of the United States says, forgetting how he was elected, so he can communicate?
Nabiha Syed: Can he, or she? Sure. Must the press report on every single heartbeat of what happens? No.
Bill Poorvu: But isn’t the President entitled, if they want to, to make a statement every day? Right now the current President has figured out how to sidestep the press through his own Twitter. When you have a television station, you could not put somebody on the air and that sort of solved the problem. But today I’m not quite sure you can do that.
Nabiha Syed: I think you raise a great point. And the point there is the President is, of course, going to have a direct to the public channel. That’s what the Twitter feed is. That’s also what the radio and fireside chats were in an earlier era. The question is how much you want to amplify that. Because not everyone is getting push alerts on the Twitter feed all the time. So, the question is every time there is something said, must everyone repeat it? Must everyone repeat it over and over and over again? Must it dominate the news cycle? Must it be so easy to puppeteer for someone to command everyone’s attention? And I think that is where the press should be very tactical. Is this worth repeating? Is it worth amplifying? And I don’t think just because a government official says it, it’s inherently newsworthy.
Bill Poorvu: Well, no, but when the President says it.
Martha Minow: Well, Obama’s speeches weren’t covered.
Nabiha Syed: In the same way.
Bill Poorvu: No, but that’s, to me, the issue. That in the one hand, Trump gets covered. The press can then say we’re not going to cover something that Obama said. In a way that’s kind of making decisions.
Nabiha Syed: Yeah, and I think that’s precisely the type of editorial discretion that the court in Tornillo encouraged people to take — encouraged the press to take. Exercise your discretion. There’s only so much time in the day. Must you know everything the President eats, does, wears, the umbrella he leaves on the floor, because he can’t figure out how to get it into an airplane? You know what? We don’t need to know about all of it. I get why people do it. It’s an easy thing. It gets hits. It gets eyeballs. But I think that is a place where a guide might exercise more discretion than a gatekeeper mindset would.
Bill Poorvu: Just as Martha has said, let’s assume you have a bunch of newspapers and television and radio stations in the Midwest, and decided you weren’t going to cover the President.
Nabiha Syed: [Pause] Seems fine. That’s a choice that seems fine.
[Audience member]: I just wanted to follow up on that, because that was a point than that I wanted to make. It seems that for the last two-and-a-half years, the President has rather brilliantly dominated every single news cycle every day. And I think the media at first fell into a trap because the money was very good. It was very entertaining and it was certainly not going to go anywhere, and it suddenly it went somewhere. But it’s still in that trap, and the media hasn’t found a way to climb out of that trap. Do you have any suggestions? I agree – Is there a way not to cover every speech, every statement, every bizarre statement, because the minute you cover something, he’s on to the next. So, it doesn’t permit any in-depth concentration on an issue that may be very unpopular, so he moves on to the next matter. And that may be just as unpopular, but you forgot the first one. And that’s where we are.
Nabiha Syed: Yeah. And I think that’s the brilliance of how the marketplace can be manipulated. If you’re a bad actor, and you figure that out, you figure out the newsworthiness lever and you just press it every single day, and that’s how we are where we are. I will say that in our newsroom we talk and think about this a lot. So, there’s an active decision that we’re not just going to retweet with a funny comment, or a critical comment, everything that the President says. That was a thing that was happening earlier in this administration. And now, it’s like, let it lie. There’s no point. It’s obviously a ploy for attention. Why would we fall prey to every ploy for the attention? And I think that is really exercising what newsworthiness means, taking that very seriously and saying, “Is this actually newsworthy?” And maybe it’s newsworthy for not the obvious reason. It’s not newsworthy, so we repeat it, right? Maybe what he’s saying, or she’s saying, is newsworthy, but it’s bankrupt. Let’s figure out a way to explain it, contextualize it, think very carefully about the headline, about the photos, and then respond to it in the way that we need to. That takes a little bit of time, and our reflexes right now are not oriented for taking our time. But that is a thing that we have to think about, because the current trajectory we’re on, more speed, more responses, quicker, quicker, quicker, will drive everyone mad — and also is easily manipulated. So, restraint, I think, is a little bit the name of the game.
Nicco Mele: I’m going to ask you a closing question. Early in your talk, you contrasted the Gilded Age with the present and found many conclusions. But I also think part of the reaction to the Gilded Age was the Progressive Era and a raft of legislation to kind of curtail the power of ‘bigness’ in corporate America. And I wondered, when you’re thinking about these questions of media freedom and media distribution, and the role of a handful of very large companies in shaping the public sphere, do you — I know someone had asked earlier about ‘if you had the power, would you get rid of the fairness doctrine.’ How do you think about the size and power of the digital platforms, and what kind of legislative or regulatory action might be considered?
Nabiha Syed: I love thinking about this question, because thinking about this question — well, let me rewind for a sec. Maybe three years ago, the editor-in-chief of BuzzFeed, Ben Smith, and I wrote this piece called “A First Amendment for Platforms.” We said we should see far more transparency in how they engage in their content moderation. We should understand what their systems of amplification or censorship are. We should figure all of this out. And then, if they don’t figure this out, maybe someone will break them up, because they’re too big and they have too much control. And at the time, people said, “you could never break up Facebook or Google or Twitter. That’s not going to be possible.” The idea that Mark Zuckerberg would testify in front of Congress felt not possible. We’re seeing cracks in the edifice of all of these platforms. I think we’re talking more and more about what their vulnerabilities are. So, I do think there’s an understanding that they are too large. They’re too big. So, either there will be some way to explicitly recognize that, yes, they are private companies but they’re filling out a core public function and that requires certain obligations, or I think they’ll be broken up so they’re not so big. And I think there’s a lot of very smart people thinking about sort of what that kind of anti-trust argument looks like. Lina Khan is a great example. But I think that maybe is the road that we’re headed down.
Nicco Mele: Thank you so much. That was fantastic. (Applause)