About the Guest:
Amy Kristin Sanders is the John and Ann Curley Professor of First Amendment Studies at Penn State. A licensed attorney and award-winning former journalist, Sanders is an internationally recognized expert on the legal regulation and ethical use of emerging technologies, with an emphasis on freedom of expression and democratic values. She has published more than 30 scholarly articles and co-authors the widely recognized law school casebook First Amendment and the Fourth Estate: The Law of Mass Media. Sanders regularly serves as an expert witness and consultant to Fortune 500 companies on media law and ethics issues and her words have been published by major news organizations, including USA Today, The Conversation, the Houston Chronicle, and the Austin American-Statesman. As a native of rural Missouri, Sanders is proud to serve on the Truman State University Foundation Board of the Directors and is a lifelong fan of the St. Louis Cardinals.
Episode Transcript:
CORY: In July, the Pentagon quietly introduced a new policy allowing officials to revoke press credentials from journalists who “don’t maintain positive relationships” with the Department of Defense. That line “positive relationships” sent a chill through newsrooms. Because it implied that reporters who publish stories the Pentagon doesn’t like could lose access entirely. Many see this unprecedented policy as an attempt to control the flow of information by punishing journalists for doing their jobs. At the same time, another kind of tension is playing out in the cultural arena, like the cancellation of Stephen Colbert’s late-night show, which signals a larger reckoning with speech, satire, and public discourse. In an era of fragmented audiences and online outrage, even comedy, one of our most protected forms of expression, is caught in the crossfire. Together, these stories point to a bigger question: What does the First Amendment really protect in an age where power, technology, and public opinion collide in real time?
MATT JORDAN: To help us unpack this question, we’re joined by Dr. Amy Sanders, Penn State’s John and Ann Curley Chair in First Amendment Studies. She’s a lawyer, former journalist, and internationally recognized scholar on free expression, media law, and the regulation of emerging technologies. Amy’s work examines how democratic values, media freedom, and access to information are being reshaped by social media and government regulation. She’s also the co-author of the casebook First Amendment and the Fourth Estate: The Law of Mass Media. We’re going to talk about what it means to protect democratic values in an age where speech is global, platforms are private, and disinformation flows freely. Amy Sanders, welcome to News Over Noise.
AMY SANDERS: Thanks. It's great to be here.
MATT JORDAN: So, we're going to start, just with a kind of ground rules thing. What is the First Amendment and what does it do?
AMY SANDERS: Oh, well, thanks for the softball, I appreciate it. The First Amendment is the First Amendment to the US Constitution. And it gives us five fundamental freedoms speech, press, religion, petition and assembly. And those rights, those expressive rights are really foundational to what it means to live in a democratic society.
MATT JORDAN: So, why have people have been arguing for one of those, the free press, since the 17th century. What is it about the free press that’s so important for society?
AMY SANDERS: Well, fundamentally, if you think about freedom of the press as being a structural right separate from freedom of speech, what it does is essentially creates the press as what we call the fourth estate. And the function of that press is then to serve as a watchdog over the other three branches of our government.
MATT JORDAN: Are there kinds of speech that are not protected?
AMY SANDERS: There are absolutely categories of speech that the First Amendment doesn't protect. In fact, a lot of people misunderstand, they think I think I can say anything I want, anywhere I want, anytime I want. That's absolutely not true. Typically, when we're thinking about unprotected speech, there are five categories of speech that the Supreme Court has historically rejected protection for. They kind of fall into some similar categories, so I’ll group them together. The first is fighting words. So, sort of face-to-face epithets that are designed to provoke violence. True threats which is pretty self-explanatory. We've seen a lot of arrests for true threats recently. Incitement or this type of speech that encourages imminent lawless action. Those all kind of grouped together because the court has historically seen that kind of speech as not having a lot of value. Right? The goal is to bring about violence, unrest, not to add to our discourse. Other two types of speech that are historically unprotected are a little bit different. The first of those is obscenity, and that's not what we think of as pornography. We're talking really hardcore, explicit, an unhealthy interest in sex when we're thinking about obscenity. And there's a lot of confusion right now about what's obscene versus what's just pornographic. And then the last type is false advertising. Of course, we want to limit, protection for commercial speech to truthful and non-misleading commercial speech.
CORY BARKER: You mentioned there there's a lot of confusion right now about what is what falls under that obscenity category and how pornography may or may not play a role. Can you talk a little bit more about that?
AMY SANDERS: Absolutely. So, one of the trends that we've seen, particularly in, these government attempts to ban books, has been an attempt to ban books about sexuality, either books about LGBTQ topics or books that talk about healthy sexual activity. And there's even been cases where people have referred to the drawings, like cartoonish drawings, as being obscene. None of that even enters the realm of obscenity. One of the more recent cases where the Supreme Court talked about obscenity was a case that involved animal crush videos, which, trust me, don't look these things up. You can never unsee them. But they are a sexually explicit video, that some people find arousal from. Where, typically women wearing stiletto heels crush small creatures to death. That, of course, is very far removed from thinking about some cartoon pictures of people with genitalia.
MATT JORDAN: So, what you're talking about there is something that we often describe as standards, right? Standards for broadcasting, standards for editorializing; is abiding by standards for broadcasting or editorial standards, as is the current rage on the right to say, is this the end of days, bad censorship type of type of thing?
AMY SANDERS: You know, any time we get into the government regulating the viewpoint of content, I think we're in dangerous territory because, of course, if we're allowing the government to regulate this, viewpoint, the particular viewpoint that's in power, of course, is going to embolden speakers that support that particular ideology. And then sort of crush out dissent or minority viewpoints. And so, when the courts look at restrictions on speech, what they're looking for is, are we discriminating based on viewpoint? Is the government favoring, say, a pro-Palestinian message and pushing back a pro-Israel message? That wouldn't be permissible.
MATT JORDAN: And it's not the same if a company that is, say, the publisher is doing that right.
AMY SANDERS: Absolutely. Another really common misperception about the First Amendment is that it protects all of us and all of our speech rights. The First Amendment was ratified at a time when the founding fathers in the framers of the Constitution were concerned with government power. So, the First Amendment specifically protects us from the government regulating our speech. But if Twitter wants to take you off of the platform, if Starbucks wants to tell you can't say something in its stores, those are private actors, and the First Amendment doesn't constrain them.
CORY BARKER: You mentioned a couple of misconceptions that the public often has about the First Amendment. Are there others that come to mind that you're often dealing with or talking to students about?
AMY SANDERS: Oh, all kinds of them. And the first one that I'm here to share is people say all the time; you can't yell fire in a crowded theater. You absolutely can yell fire in a crowded theater if there's a fire. Right? The second thing that's perhaps more relevant to many people who are listening, is something that's been in the news lately, and that's whether or not you can burn an American flag as a form of political protest. Of course, this seems to be one of President Trump's pet peeves, right? He keeps saying, “We're not going to allow people to burn flags. We're going to prosecute them for this.” There's actually a case from the late 1980s, 1989, I believe, called Texas vs. Johnson, where the Supreme Court said that the First Amendment absolutely protects burning an American flag in protest. So that's something that a lot of Americans get upset about. They feel like it's unpatriotic. And that's fine. It's perfectly fine to be upset about that. The First Amendment protects lots of speech that's going to make us upset.
CORY BARKER: Why do you feel like there are so many misperceptions or just, you know, full on inaccuracies that people believe about the First Amendment?
AMY SANDERS: Well, all of the research shows that many people can't even name the Five freedoms in the First Amendment. So that's the first challenge that we have to overcome in terms of educating people about these fundamental rights. But I think the other thing is the First Amendment does protect a whole range of offensive speech. Hate speech, for example, is protected. That's another common misnomer. I don't like hate speech. I don't want that kind of speech in my life. I don't want to hear people saying, and I'm not friends with people who engage in that kind of speech, but I would argue every single day to protect it because of the danger of the government drawing lines and where to regulate speech. And so, it's really easy to say, I'm pro-free speech or I love the First Amendment, if what I mean is, I love the First Amendment when it protects the speech that I like and I value and that I agree with, we don't give First Amendment rights that way. You have to take both sides of that equation.
MATT JODRAN: I've seen a lot of journalists using the phrase weaponization to describe the discussions about freedom of speech, and is that what you're getting at is that some people have intentionally misconstrued this as they communicate to the public?
AMY SANDERS: Absolutely. There's this, misconstruing of what the First Amendment protects and doesn't protect. But the other thing that I think we're seeing when we talk about weaponization, and I use this, this word in my class a lot… we are seeing a really interesting period in time right now that's actually reminiscent of what was happening in the civil rights era. So, there's a very famous First Amendment case called New York Times vs. Sullivan has to do with, an advertisement that was placed in The New York Times soliciting support for, Doctor Martin Luther King and the civil rights movement. And that ad really upset a lot of southern officials. And so, they started suing news organizations for defamation. And pre-1964, it was very easy for a public official to win a defamation suit. And what was happening at the time is all across the South. Southern officials were suing the Northern Press for what would be the equivalent of billions of dollars today. And the whole goal was designed to keep them from reporting on the civil rights movement, right? They didn't want this northern press coming in and influencing public sentiment about the civil rights movement. We're seeing that happen again today, right? We're seeing President Trump, in particular, but other political officials and appointees who are trying to use the law to silence the press, all right? We've seen President Trump sue CBS over the Kamala Harris interview on 60 minutes. That's a lawsuit that CBS should have easily been able to win. There's a similar lawsuit pending in Iowa against The Des Moines Register and political pollster Ann Selzer. Trump just recently threatened the BBC with a billion lawsuit. All of these lawsuits are an attempt to weaponize the law, to create what we call a chilling effect, to make people afraid to criticize government officials.
MATT JORDAN: Kind of seems like there's a fine line between chill and censorship. So how does that get delineated in court?
AMY SANDERS: You know, that's a really difficult line. And one that we're seeing this gray area sort of expand today. There’s obvious attempts by the government to try to stop people, but to get engage in prior restraint. We just are seeing right now whether the Texas A&M Board of Regents are going to require professors who teach courses that involve race and gender ideology to get those courses pre-approved. That's clear prior restraint or censorship by the government. But there's also what I would call this soft pressure. And there's a lot of that happening right now, and that's designed to chill speech. And it's more subversive. For example, with the CBS case, CBS, their parent Paramount had a merger pending before it, the Federal Communications Commission. And they really wanted this merger with Skydance to go through. The FCC had sat on it for a while and not approved it. And one of the reasons that CBS likely settled was because they knew that if they were fighting this, the government would hold off on this merger. So, because media companies today own entertainment interests, they own news interests, it's really easy to have this sort of soft government regulation serve as this kind of chilling effect to get news organizations to step into line.
MATT JORDAN: That makes me think of the difference between the spirit of the law and the letter of the law; what is it about the spirit of the law that wants to prevent chilling or censorship? Why is that important?
AMY SANDERS: I think when you think about the spirit of the law and you go back to the founding of this country, the founders came to what is now the United States, in part because of their complaints about tyranny in England. And their quest for religious freedom. And if you look at this idea of allowing the government to control speech, allowing the government to control the democratic discourse, that really goes against sort of those foundational freedoms that we brought over from this country. It's interesting, if you go back and you look at the Declaration of Independence because you're kind of a nerd like I am, many people would say that a lot of the grievances that we hear today about President Trump echo some of those grievances that the early colonists lodged against the King of England.
CORY BARKER: If you’re just joining us, this is News Over Noise. I’m Cory Barker.
MATT JORDAN: And I’m Matt Jordan.
CORY BARKER: We’re talking with Dr. Amy Sanders, Penn State’s John and Ann Curley Chair in First Amendment Studies, about how legal pressures are reshaping free speech and press freedom in America. What, if anything, has surprised you about the second Trump administration's handling of First Amendment-related issues is? Is this a similar approach to what we saw in the first Trump administration? Is it, you know, a huge shift? Can you tell our audience a little bit more about that?
AMY SANDERS: The first Trump administration, I think was designed to lay the foundation to pit the American people against the press. We heard very divisive rhetoric. Enemy of the people. He would encourage, people who attended rallies, right, to yell at the press, to spit on the press. That laid the foundation for what we are seeing in this term. And that is a rapid escalation, not just of rhetoric, but of actual physical violence against journalists. Whether we're talking about confrontations against journalists and citizens who are trying to report ICE, whether we're talking about the access restrictions, kicking the Associated Press out of the Oval Office, the access restrictions that are coming up at the Pentagon that caused a majority of the Pentagon press corps to give up their press credentials. All of those things, I think succeeded so rapidly because unfortunately, the press doesn't have a lot of public support right now. The press doesn't have a lot of public trust. And the entire first Trump presidency was about undermining the public's trust in our core institutions, whether that is higher education, science, the press, all of those things. And that has allowed, I think, in the second term, this just very rapid depreciation in rule of law and fundamental freedoms.
CORY BARKER: One of the things that you said there has me thinking about the way that that corrosive distrust of news institutions then plays out in circumstances like this where, you know, people are skeptical or, you know, distrustful of news organizations, and then they sort of cover some of these issues with a real gusto. Right? The like when it's about them, it's sometimes the public is sort of like, wow, you're really invested in telling this story about how your individual employees or people in your field are being impacted by this. But, you know, maybe you're not covering my community in a way that I feel is valuable and that only further, like contributes to that destruction, that skepticism. Right?
AMY SANDERS: Absolutely. I mean, listen, I grew up in rural Missouri. I am a little embarrassed to admit that it took until I went to grad school in Florida to hear the term flyover country and to really understand what that meant. There is no doubt in my mind that, as an institutional press, we have an elitism problem. You know, you can't have, major news organizations like CNN, The New York Times, The Wall Street Journal flying into parts of this country to cover a story for one day and assuming that they understand what's going on. I was talking to a group of, news executives recently, and I said, you know, one of the real problems that we have is that news organizations are covering the stories of people being laid off in rural America who had federal jobs and voted for Trump, or people who are suffering because of food stamps, because of their Snap benefits being cut off. The news is covering that in a very gotcha kind of way. Like, look at this rural bumpkin who voted for Trump and now is suffering the consequences of their actions. That's offensive to me. As somebody who grew up in rural America. That is not helpful in terms of earning the public's trust in the press back, this, this kind of attitude like, oh, look, there are actually smart people in the center part of the country, and people seem to be shocked by that.
MATT JORDAN: So, to get back to the to thinking about the founders and why they might have wanted press, part of it could be argued that in democratic theory, we want a kind of a certain type of deliberation to happen where there's a free exchange of ideas, where we get, you know, people from a different range of experiences, all pooling their collective wisdom together, and that anything that would get in the way of that is a problem. And certainly, we've seen, communications law tilt in that way for various times after a kind of an overreach. My metaphor for thinking about this is always, Mr. Smith Goes to Washington. Right? So, Mr. Smith Goes to Washington, and he bumps up against this big corporation and he's about to expose their graft and corruption. And Jim Taylor, the evil villain in the thing, muzzles the press. And for any, news outlet out there who won't play ball, he says, “Buy it or wreck it.” And, you know, Capra was a New Deal guy, and he was trying to get over the hangover of those courts at the end of the Gilded Age that were basically a judicial oligarchy, you might say. And so, the FCC and whatnot emerged from that area where they were trying to kind of make the all voices equal. So, I'm wondering if we really should be thinking more about media ownership as a freedom of the press issue.
AMY SANDERS: There's no doubt in my mind that the deregulation that has occurred over the past really well, since the Telecom Act of 1996 has played hand-in-hand with the decline in local news, has played hand-in-hand with the decrease in public trust, has played hand-in-hand with decisions by media companies that run counter to journalistic values. The idea that Jeff Bezos owns The Washington Post. You know what? Jeff Bezos is going to make decisions that are in the business interests of Jeff Bezos, and those often run squarely against the interests of the average American. And so, when we get to that point to where that starts to influence how The Washington Post is covering news stories, democratically speaking, that's a problem.
CORY BARKER: Yeah. And to that point, a lot of the coverage of corporate maneuvers in this realm, like the cancellation of Colbert's Late Show or the temporary sidelining of Kimmel at ABC, have generally been referred to as acquiescing, sort of directly or indirectly, to demands from the Trump administration or folks in Trump world. So, beyond money, what's actually in it for the leadership of these media corporations or their investors to acquiesce? Are there other things going on here, or is it just pure corporate greed?
AMY SANDERS: Well, let's talk about the legal liability, right? If you're talking about a publicly traded company, your legal obligation is to your shareholders. So, at that point the loyalty is that about democratic society. The loyalty is not about what's in the public best interests. These media owners have a fiduciary duty to their shareholders to make money. That's the whole point of publicly traded companies. And so, when you inject that into this sphere of ideas and information, it is corrosive.
MATT JORDAN: Just to play devil's advocate here and take the side of, I can't believe I'm going to do this, the CEOs who have fiduciary duty, could they claim the Paramount people? Oh, we're just showing editorial discretion. And wouldn't that be protected?
AMY SANDERS: Editorial discretion itself is absolutely protected. But editorial discretion has to do with the stories that you're covering, photos that you're choosing, the headlines that you're writing. Historically in journalism, since the rise of what we might call objective journalism in the United States, we have seen this sort of firewall between the business side and the editorial side. That firewall is gone, right? The business side of the bus is driving it. And that's problematic if you believe that the core values of journalism should be independence, transparency, accountability. It's pretty difficult to uphold those values when you're answering to someone who's saying, make money or we're going to get rid of your newsroom staff.
MATT JORDAN: Do you think there also might be some ideological alignment? I'm just thinking about the Paramount deal, right, what happened after that merger went through, right? The Larry Ellison's boy Nepo baby David Ellison bought got the whole company. And, then they installed a very friendly, you know, CBS news, the crown jewel of the American news system, you know, the Edward R. Murrow's place.
AMY SANDERS: Walter Cronkite is rolling over in his grave.
MATT JORDAN: Right. Because now it's Barry Weiss, right? Who, when there was the heist at the Louvre, suggested as an editorial decision that they call the guy who wrote The Da Vinci Code—
CORY BARKER: Dan Brown. Let's remember his name. Put some respect on it.
ALL: [Laughter]
MATT JORDAN: Yeah, but, you know, so there's they're clearly not concerned with journalistic values. But this is a this seems an ideological thing even more than a fiduciary thing.
AMY SANDERS: Well, now I'm going to say something that's going to get me kicked off the journalism faculty: that starts from the premise that partisan news is bad. And there's an assumption there because at the founding of our country, the press was indeed highly partisan. And so, my response to that is always: partisan press is not bad. But we need to know what we're getting. And that brings us back to Matt, what I know is your favorite topic, which is media literacy. Having a partisan press isn't bad as long as people know what they're consuming. And as long as we grow our citizenry with an appetite for all kinds of news. Rather than getting them stuck in, I'm only going to read The New York Times, or I'm only going to read The Wall Street Journal. Well, let's pit them against one another. Let's let them duke it out and see what happens. The problem is, right now we're having completely separate conversations in completely separate spaces. And those ideas to go back, you made sort of a reference, a loose reference to the marketplace of ideas. Those ideas actually aren't fighting one another. We're not having that debate because we're not talking to one another.
MATT JORDAN: Right.
CORY BARKER: Let's go back a little bit. I think what we hear now in some of these cases, with the Trump administration pressuring these media companies, one of the things that's coming out quite a bit is when Biden was in the white House, that his White House, maybe pressured the social media companies to alter how they were handling misinformation related to the pandemic, vaccines, masks, those sorts of things. So, from your POV, what is different about how Trump two administration is handling this versus some of the things that the Biden administration was doing 3 or 4 years ago?
AMY SANDERS: All right, so two things. First of all, every presidential administration since George Bush and 9/11 has been horrible in terms of access to information, government accountability, transparency, right? One thing that there's bipartisan agreement about in Washington, DC is we don't like a watchdog press. And that what you're talking about, the Biden administration, there's a fun term for it called jawboning. And Jawboning is essentially that sort of soft regulatory pressure that I was talking about. How can we get companies to do what we want as a government without really like laying down the law on them? Well, there are all kinds of ways that you can threaten companies. Like, oh, we'll start to look at your tax records. We'll start to look at your FCC filings. But if you would do us this favor, then maybe we won't.
MATT JORDAN: The US has been once again downgraded in the World Press Freedoms Index. Alas, falling deeper into the flawed democracy territory. What do you think we the people could do to kind of turn things around?
AMY SANDERS: I think there are a couple of important steps that we can take. The first and foremost is vote early, vote often, vote in every election. I think people mistakenly believe that, like the presidential election makes the most monumental difference, but your school board elections matter. The local judges that you elect to office matter. And most people don't educate themselves very well about local elections. So that's the first step. I think the second step is we have to engage in this collective action. I'm proud to say for the very first time, maybe I'm embarrassed to say for the very first time, I emailed my Senator. You have to take that action. It's every single one of us taking these actions to stand up for what we believe in. And I think the other thing is to reengage in civics and to re-understand how our government works, what role we play, where are the levers that we can push to hold these people accountable? We haven't been doing that. As Americans and I include myself in this, we have sort of fallen asleep at the wheel. We've taken our democracy for granted, and now it's kind of in a nasty relationship with us and kind of wants to break up with us. And so, we need to, like, woo it back and remember what made the relationship great, to start and think about those kind of fundamentals.
MATT JORDAN: That's a great way to finish up. Amy, thank you so much for being with us today.
AMY SANDERS: It was my pleasure.
MATT JORDAN: That’s it for this episode of News Over Noise. Our guest was Dr. Amy Sanders, Penn State’s John and Ann Curley Chair in First Amendment Studies. To learn more, visit at news-over-noise.org. I’m Matt Jordan.
CORY BARKER: And I’m Cory Barker.
MATT JORDAN: Until next time, stay well and well informed. News Over Noise is produced by the Penn State Donald P. Bellisario College of Communications and PSU. This program has been funded by the office of the Executive Vice President and Provost of Penn State and is part of the Penn State News Literacy Initiative.
[END OF TRANSCRIPT]
Episode Credits:
Producer: Lindsey Whissel Fenton
Audio Engineers: Mickey Klein, Scott Gros, Clint Yoder
News Over Noise is a co-production of WPSU and Penn State’s Bellisario College of Communications. This program has been funded by the office of the Executive Vice President and Provost at Penn State and is part of the Penn State News Literacy Initiative.
