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Secrets, social media and fake news: The status of the First Amendment

Some of the country’s top journalists, legal experts and former government officials explored issues related to press freedom at the National Conference on the First Amendment at Duquesne University. Here are some voices and thoughts from the two-day event.

Dean P. Baquet, executive editor of the New York Times. (Steve Mellon/Post-Gazette)

“It’s worth slowing down and saying, ‘That’s still better than a period in society when you only had two or three voices, and when the world seemed so much smaller.’”

— Dean Baquet on the flood of information and news on social media.

Marty Baron, executive editor of the Washington Post. (Steve Mellon/Post-Gazette)

“We have to be our own watchman for truth. We have to get information from reliable sources.”

— Marty Baron

Amy Gajda, Professor of Law at Tulane University Law School. (Jessie Wardarski/Post-Gazette)

“I think that one of the most interesting things that the framers would be particularly interested in today is this clash between the freedom of the press and the right to privacy. And at what point should we punish the press or anyone who reveals private information about an individual?

“This is what led to the $140 million jury verdict in favor of Hulk Hogan against the Gawker website that had published a sex tape featuring him. But, it also led more recently to a settlement against ESPN brought by a New York Giants football player.

“ESPN had published … his medical chart. And so I think that that clash is one of the most interesting ones. We want to protect individual privacy in some way, at what point do we decide that the freedom of the press to report that truthful information should be punished?”

— Amy Gajda

David Shribman, executive editor of the Post-Gazette.(Steve Mellon/Post-Gazette)

“The threat to our democracy almost always is more homegrown than external.”

— David Shribman

Tom Ridge, former Pennsylvania governor and former secretary of the Dept. of Homeland Security. (Steve Mellon/Post-Gazette)

“There has historically been this tension between these first amendments and national security.”

— Tom Ridge

Diana Burley, executive director and chair of the Institute for Information Infrastructure Protection and Professor of Human and Organizational Learning at George Washington University. (Jessie Wardarski/Post-Gazette)

“We have to remember what cybersecurity is about at its core. It’s three things. Confidentiality, which is privacy. Integrity, which is whether we’re talking about accuracy. Availability, when people can get the information they want to get. So when we talk about the spread of information on social media, it’s not just extreme views that we need to think about. But It’s also the spread of misinformation or disinformation.”

— Diana Burley

Gen. Michael V. Hayden, former director of the Central Intelligence Agency and the National Security Agency. (Steve Mellon/Post-Gazette)

“We just haven’t figured out a way of letting 350 million Americans in on the secret without also informing those against whom we want to use the secret.”

— Gen. Michael V. Hayden

Juan Williams, Fox News contributor. (Jessie Wardarski/Post-Gazette)

Host Jeffrey Rosen of the National Constitution Center, not pictured, posed the question, “What would you propose to protect a journalist, like yourself, to be able to speak your mind without being fired by a private company?” Juan Williams responded, “I think there are standards in journalism … that protect both the journalist and the public because the standards are there in terms of accountability.”

Mr. Williams warned of “anonymous actors” and people who are trying to mislead media consumers. Worse, he said, are provocateurs “who are making money by saying outrageous things.” Attacking people and promoting conspiracy theories, he said, can give you a bigger audience, and make more money. “When you come into this environment, you as the consumer really have to rely on your own discernment and you have to make decisions about what it is you are reading, watching, or listening to,” he said.

Thomas Hardiman, left, judge on the U.S. Court of Appeals for the Third Circuit, and Ken Gormley, president of Duquesne University. (Steve Mellon/Post-Gazette)

“Is the incursion or the restriction on speech narrowly tailored so as not to capture more speech than is necessary to protect the public?”

— Thomas Hardiman

U.S. Solicitor General Noel Francisco. (Steve Mellon/Post-Gazette)

“The Christian baker in Colorado, in my judgment, had a constitutional right not to accept that dominant view.”

— Noel Francisco

James O’Keefe, investigative journalist; founder and CEO of Project Veritas. (Jessie Wardarski/Post-Gazette)

“It’s the purest form of journalism, to capture someone in their own words … My opinion is completely irrelevant. What matters is what is being exposed. And if it’s real that’s all that matters. More power to the people who have agendas. As long as they’re reporting the facts and it’s real. And that’s why we call it Veritas, cinema verite.”

— James O’Keefe

Michael Gerhardt, a Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina School of Law. (Jessie Wardarski/Post-Gazette)

“At the University of North Carolina, we had a statue called ‘Silent Sam,’ which was a Confederate soldier, big statue of a Confederate soldier, placed right in the most prominent place on campus. Raising the interesting question, to what extent does the University speak? What we find when we look at First Amendment doctrine or cases, is people might have different rights depending on where they are in the system … What rights do all of these different people have in a particular situation?

“In our case, ‘Silent Sam’ was eventually brought down, but then it raised the question: Because North Carolina protected the statue, where do we put it? For a lot of students that statue is very expressive, and not expressive in a very positive way. And this kind of raises a very confounding question that we ought to think about.”

— Michael Gerhardt

Floyd Abrams, attorney, author and an expert on the First Amendment. (Jessie Wardarski/Post-Gazette)

Mr. Abrams described his role in representing The New York Times in the Supreme Court case New York Times Co. v. United States, which ruled in favor of the Times publishing the classified Pentagon Papers. He explains his involvement in the case as “a series of lucky breaks.”

In greater detail, Mr. Abrams remembers, “The Times found themselves with their lawyers telling them that they would not represent them. The Times found themselves in the middle of the night, like a vicar found in a house of ill repute at midnight without a lawyer,” he said. By chance, Mr. Abrams said, he and a colleague were talking to lawyers involved in the Times’ case about a separate matter. “We were asked what would happen if the government went to court. We said this is America, come on, we don’t have prior restraints on news coverage. They won’t go to court. Wrong about that. And if they do go to court, no problem. We didn’t know that [the Times’] lawyers, external lawyers, who had been studying it for a long time, had told them that they would lose, that they would violate the espionage law. That they would lose their television licenses. That the publisher would go to jail. But in the free and easy way, as lawyers with nothing to lose, we gave them the perfect answer. And when they had no lawyer at midnight, they called.”

Stephen D. Solomon, author and Marjorie Deane Professor of Journalism at NYU. (Jessie Wardarski/Post-Gazette)

“We tend to look at rights in the first amendment sort of individually. Press, speech and so forth. When you look at it from the founders’ point of view, they saw, I think, the First Amendment as laying out rights that told a narrative of American self-governance … there’s an internal logic about this,” said Stephen D. Solomon, author and Marjorie Deane Professor of Journalism at NYU.

The amendment, Mr. Solomon said, starts with protecting religious liberty and logically moves to protecting free speech and then the press. “Once you’ve done that, you’ve exchanged ideas, created a marketplace — it’s out there, what’s next? What’s next is political action. And so you protect the right to assemble,” he said. “So in 45 words, you move through the conception of what American self-governance is. And it also suggests that today, looking at these rights individually we may be missing a larger point, which is that if you attack one of those rights, rights of a free press, you not only affect the press rights, but you affect the entire trajectory of thought and opinion and political action that the First Amendment was intended to produce by the founders.”