journalism in the digital age is taking a lunch until 1:10 p.m. eastern. when it comes back live from the national press club. we'll hear from first amendment lawyer, floyd abrams. until then some of the con from this morning. we're hear introductory remarks and some of the panel discussions from lawyers and law professors. >> i think that silence in the room indicates you're ready for this to start. so let's get started. good morning and welcome to this year arrest hurley sloan symposium, truth, trust and the first amendment in the digital age. we're so pleased to welcome this audience here at the national press club. our viewers watching on c-span and those following us on facebook live on the pages of the missouri school of journalism, missouri school of law and reynolds journalism institute.

i'm barbara cochran. director of missouri's washington program which brings students here for a semester to work and study in the nation's capitol. today's program is presented by the university of missouri school of journalism and school of law, ms. sy advantage, the -- mizzou advantage, price sloan fund for media ethics and law, the national press club journalism institute, the reynolds journalism institute and the level lynn y. davis foundation. so with that backing how can we fail? in a moment we'll hear from these fine folks on stage headed by lyrissa litsky. while i'm doing that, i want to encourage to you silence your cell phone in case you might have for forgotten that.

we have twitter hashtags you can use. they're displayed on the screen here, #hurley2008, #truth trustfirst amendment. if you feel the need to tweet use those hashtags. today's symposium on the first amend and the challenges it that'ses. america's founding fathers believed in an independent press was so vital to the functioning of a democracy that they specifically mentioned a free press as one of thefy essential liberties guaranteed in the first amendment. today more than 200 years later the forces of digital technology, political polarization, social media, and the 24/7 news cycle are placing intense stresses on the role of the press in our democracy. at a time when the president

calls the news media the enemies of the people, and when 77% of americans think journalists make up stories at least occasionally, we have reached a critical point. just in the past week a television station group ordered the news anchors of its 191 stations in markets large and small across the country to broadcast identally-worded commentary denouncing unnamed purveyors of fake news. a video mash-up of dozens of commentaries brought ridicule but raised fears for the loss of editorial control over local news. also in this past week the president suggested that one of our most respected newspapers should register as a lobbiest for its owner who has a totally separate role as a ceo of america's 12th largest company. that was just this last week. but these incidents are not happening in a vacuum and they

weren't created solely by the current resident of 1600 pennsylvania avenue. the credibility of american news media has been declining for more than two decades. political divisions are affecting what people perceive as truthful and factual and threats have been voiced for going back to the previous administration against the first amendment protections of the press. with challenges ranging from questions about social media influence to scrutiny of libel law, we gathered some of the finest legal scholars and best media attorneys who will kick of our first panel discussion in just a moment. then after that i will lead the second panel of top "washington journalists" to address these same concerns and finally at lunch, floyd abrams, one of the country's preeminent first amendment attorneys, will be our keynote speaker. before we begin with our first panel though i would like to welcome all of the colleagues

who have come here from the university of missouri journalism and law schools, traveled here from columbia for which we thank you very much to be with us today, and also the students who are here studying this semester. could you all please stand and be recognized. [applause] now i want to give you a quick explanation of the name of the hurl lie sloan symposium. the hurley honors curtis hurley, an arkansas newspaper editor who lent a promising junk journalist named ed mcglocklin, $400 to attend the missouri school of journalism. this was 1927. so $400 went a fill further in those days. mcglocklin became a successful publisher, he and his wife decided to endow a chair, the chair i hold at the journalism

school, not the to name for himself but curtis hurley. this is the seventh symposium i produced at national press club. i'm delighted this year to produce in association with the missouri school of law and price sloan media ethics and law. that fund was created in. the fund support as biennial symposium with a focus on issues in the areas of free speech, free press, media ethics and practice and the first amendment. mr. sloan is the executive vice president and head of acquisition integration at toronto-dominion bank, better known as td, and has had a extensive career in banking. he and his wife are with us today and i would like them to stand and be recognized. [applause]

and now i would like to invite andrea edney, the 111th president of the national press club, to welcome to you this historic place. >> thank you, barbara. welcome, everyone. good morning. i'm so happy to have you here at the national press club, the world's leading professional organization for journalists. in addition to being the president of the national press club i'm also an editor at "bloomberg news," and we are so very happy to see you here for this event at the club today. the conversation about fake news and fact-checking, about fairness and objectivity is incredibly important especially in this environment. one where the press finds itself constantly under attack. i'd like to extend a huge thanks to barbara cochran who in

addition to being the hourly hurley chair, is nag press club institute board president. i would like to thank the institute's executive director julie shoup. both of them worked tirelessly to pull this event together today for you. we're very excited that the journalism institute is working together with the missouri school of journalism and the missouri school of law and the reynolds journalism institute to discuss this very important topic which goes to the very heart of what we as journalists do and it goes to our credibility. so thank you, everyone, for being here today. thank you. [applause] >> thank you, andrea. we're so delighted to be here. it is a very special place and

it's just a great pleasure. and i would like to call on randy pick, the executive director of the donald reynolds journalism institute to tell you about some of rji's exciting work in the area of press credibility and freedom. >> thank you, barbara. thank you. so rji is going to be celebrating its 10th anniversary in the fall and it was started in 2008 with a very simple mission which is to make sure that journalism has a long and bright future. we do that with various projects. we have a fellowship program where we invite folks from the industry to come in with their innovative ideas and we help get them accomplished, creating tools, strategies for the

industry. we leverage the great students at the university of missouri and professors to come up with collaborative efforts with the industry. we do research. we have been known to invest in journalism start-ups. so we try to do whatever we can to help journalism get better. truth and trust of course are topics that were often thinking about at the institute. especially now. one thing about the institute, in this town institute kind of means think tank. what we like to think of ourselves at rji, we're a think and do tank. so we emphasized the doing as much as possible. he is we're talking about truth and trust. hard for me to comprehend that

we, everybody in journalism is thinking about it so much. i understand that so many things in journalism that we took for granted have been, are being disrupted. but facts and trust worth thinkness, you can't get more fundamental than that and you can't get more important than that. that's is where we find ourselves and i would like to think in the end the efforts to be more transparent, to defend the value facts literally, to find new ways of engaging our audiences is going to be a net positive for journalism and make us better. at rji it has led to a terrific initiative called, trusting news.org which is some ways our skunk works for helping

journalism build or rebuild trust. we work with 30 newsrooms around the country, newspapers, tv stations and some non-profits as well. we've -- with them we conducted over 400 experiments using facebook, which is where the audience is right now, to address trust and engagement. we have great anecdotal results from that and we'll be doing some rigorous academic research to go with those results and kind of a sign of the times in terms of the topic of trust in journalism. yesterday neiman lab, which is the website that tracks the news industry and is sort of our industry publication, came out with a story that said, here's,

here's your guide to all of the difficult trust initiatives going on in the country right now. they felt compelled to have kind of a scorecard of who is doing what and, this indication of how much we're thinking about it and also shameless plug, i was happy that we were listed first. also on the facts side in our futures lab we're creating a fact-checking tool for any newsroom. so fact-checking sort of came on the scene and some websites started doing it. big publications started doing it seems like this will be a part of journalism going forward, having some type of rule for readers to use.

we want to make that tool that any news organization can plug into their work flow to offer that into their readers. next week rji will announce its newest class of fellows, fellowship program. we have some folks that come to spend two messers with us. we flavors where folks can stay where they are and keep their jobs and work with us on a project basis. so i like to tell everybody that is interested in applying that we are the most flexible fellowship program in the country. so we will have nine fellows and some of those projects will touch on truth and trust. you might want to keep an eye out for some of those. you might find some of those interesting. we're delighted to help bring

this event to you from rji, and we're eager to hear insights about the first amendment from our panel of attorneys and the latest on how "washington journalists" are adjustinging to the new landscae which i think is fair to say is like no other landscape right now. so, thank you very much and, enjoy the, enjoy the festivities [applause] >> thank you, randy. that is, i think there are a lot of people who will be very interested in that fact-checking tool when it is built and some people maybe in this room will be interested in the fellowships. so i hope you will hear from some of our viewers and listeners. speaking of that, we will have a question period at the end of each of the panels. so don't worry, you will get a chance to ask your burning question.

and secondly, for those watching and following us on facebook you can submit questions too. we have some of our students assigned to watch the facebook live feed. if you have a question, they will pass it along and well see if we can get your question answered also. and now it is my pleasure to turn things over to lyrisa litsyy first year in dean coming to us from the you ever the florida. she is reknowned first amendment scholar who published essential case books and many articles about press freedom and defamation and legal issues in social media. you can read more about your accomplishments in your printed program which i hope you picked up on your way into the room. so now please welcome dean lits litsky and her panel. [applause]

>> thank you all so much for coming in morning. there has never been a better time to be discussing media ethics, media law and the role of the press in our democracy and i would submit to you that there are no better people to discuss that with than the people we assembled here on the dais. so i am going to briefly. their extended bios are in the program. i encourage you to look at those. i don't want to take away from our time to have a truly interactive discussion about these important issues. to my far right at least geographically is -- [laughter] ronnell andersen jones. she is from the sj quinney school of law at university of utah. she formerly clerked for u.s. supreme court justice sandra day o'connor. next to her is famed media

lawyer extraordinary chuck tobin with ballard. next to him is mary-rose papandrea at the university north carolina school of law and she clerked for supreme court justice david souter. at my left, amy gajda from tulane university and career as award broadcasting and print journalist. next is kurt wimmer. a famed media and first amendment and cybersecurity attorney. and next to him is sonja west from the university of georgia school of law. and she clerked for u.s. supreme court justice john paul stevens who has been in the news a bit this past week. so let's kick it off. we don't have much time and this is going to be a great

conversation. let's kick it off with ronnell. ronnell, 2017 "pew research poll" revealed that the public is increasingly skeptical of the notion that the news media play an important role in our democracy and even more surprising in that poll was that 89% of democrats believed that the press are an important watchdog on government affairs but only 42% of republican does. i will kick it off with you and ask what explains this discrepancy and what if anything can the news media do to rebuild public trust and can the law play a role in that? >> so i think this is one of, if not the most important political question of our time. i think it is no exaggeration to suggest press freedom should be on par with other civil

liberties we're thinking about as a community. that we're defending as a people. i think a huge piece of what is happening here is that our political world and therefore our media world have become largely defined on the basis of enemy status, insider, outsider status in ways that are really dangerous. there is a really interesting piece in the "new york times" a couple of weeks ago summarizing political science scholarship on this question, about how quite clear it has become in the last decade or so american politics have come to be defined, not on the basis of who i am with but on the basis who i am against. if that, if that, enemy nature of our political scheme is really driving everything, it has incredible consequences for us as a people, for our democracy, particularly for the role of the press. what it means if that, if you vote on the basis of, voting against the person you hate,

voting against the party you loathe, there is very little political accountability on the other end, once your chosen candidate is elected because you didn't really vote on the basis of hoping from something from that person but rather than on basis of sharing a loathing with that person and we've seen i think the trump campaign was incredibly successful at characterizing one of the enemies as the press. and i think that has large-scale ramifications. one thing to suggest that the political opponent is the enemy, but to suggest that a democratic institution is the enemy, not just that democratic institution. i think this democratic institution is housed with others, the intelligence community and immigrants and people across the southern border and people of certain religions and those, those consequences of enemy construction of the press can be pretty significant.

i think we have seen in the past? the political arc of history that when we characterize institutions as the enemy and are successful in convincing enough of the people that they are outsiders rather than helpful insiders, the very swift next step is the removal of individual liberties. so i think lots of people on the panel will have ideas about the role of the law in pushing back against this i think one major role that the law can have is that the role, the law works in tandem with larger social norms right? we send signals about what is valuable. we send signals about what is what rights we defend, what institutions continue to be essential to our democracy. i think, i think the judiciary may end up playing a really significant role in the years to come in terms of describing, this sort of tough talk as the

press as enemies makes its way into actual challenges about press freedom, i think we're going to have to really rely on the courts to push back against that notion and describe them as they have described them in the past, really important democratic institutions. >> so, chuck, you spent your career defending the press. so i have a question. what made the press vulnerable to these kinds of attacks as an enemy? what was the weakness that made them vulnerable to those attacks? what can be done about it? are you as worried as ronnell about that ultimately permeating into actual legal principles? >> well, thank you for the question. you know, i think that, what we've seen is a bit of a lawyering up of the process of disseminating the news from capital hill and from the white house and on the other side a bit of a lawyering up on the part of the various press

outlets in dealing with the issue. there is an interesting parallel between the process of news reporting in the dissemination of information and what we do in the court system. the court system is based on adversarial process. so you have two sets of lawyers on opposite sides. they are duty at this bound to zealously represent their clients. they present what we might call alternative facts to courts and in that clash of ideas the very nature of the adversarial system is to present a clash of different opinions, different perspectives, different sets of facts in the most favorable way to your client and let a decisionmaker, fact-finder, judge or jury sort these things out. not in theory much unlike the marketplace of ideas which underpins modern journalism which has been written throughout the law from oliver wendell holmes to chief justice roberts.

marketplace of ideas, people come out with different ideas, you have the clash of ideas and out of that people can make their own decisions and find your own facts as news consumers in an audience, you can make a decision where to vote, where to send your children to school, on and on. the major difference for years has come out, has been, remains to a certain extent we lawyers are bound by a couple of rules. we're a regulated profession. so we're bound by the rules of ethics. we can not lie, we can not present knowing lies to courts and fact finders. we're bound by rules of civility. if you get out of your line in a court you will be punished. we're under oath and regulation required to be civilized in our presentation. i think what we've seen, and i think ronnell hit it right on the head, we've seen kind of a more lawyer-like approach from the news disseminators, from the

white house. would argue it did not start with president trump. it has been increasing for years. president nixon and vice president agnew were fiercely advocateing a certain opinion about the war and nattering nabobs of the press and became adversarial. we saw that through the second bush administration, through a certain extent through the obama administration and obama administration taken a they are not bound by the same rules of civility. they're not bound by the truth, the ethical rules that we lawyers are bound by. so you have the same skillset, the same style being brought to the public debate but you don't have the same rules applying. what can the press do? double down on their efforts which we've seen, and i'm sure we'll talk about quite a bit. reinvest in the news product and get people focused on

investigative journalism, on niche journalism and new ideas and new ways to bring news to people and continue to just stand firm and push back against this whole wave of untruth that we're seeing and don't relinquish. continue to come to that marketplace of ideas with a very tough commitment. i would argue maintain your civility, maintain a civilized commitment to the marketplace of ideas. >> so, mary-rose, your scholarship you focus quite a bit on the role of social media. so my question for you is, do social media undermine the notion of the marketplace of ideas? one of the ideals the more information the better and the truth will ultimately emerge from a multitude of voices in that marketplace but have social media increased polarization? and are they undermining the ideal of the marketplace of

ideas. >> sure. there are a lot of wonderful, beautiful things about social media. i want to start with the positive. it brings people together. i can stay in touch with all my fellow panelists and hear about babies and watch pictures of kittens and so on but, so that is the good part. but the bad part people are polarizing. this is not a news flash for anyone in this room but people are more likely to be friends and read and follow people they already agree with. so people are siloing themselves. they're not listening to the other side. they're not engaging in that same kind of marketplace of ideas where they're confronting people with views that are different from theirs. if they don't like what someone says on social media, on their facebook page, they might unfriend them. we're talking about an incident.

there is social science research to show in addition people have biases, when they do confront things that are contrary to their views, they discount them and don't give them any credence whatsoever. then when they see things that support their preexisting views they give them a lot of credit. they tend to keep moving farther and farther apart. social media played an important role, not the most important thing but played increasing role in polarization of our society. reflecting what is happening in our political world but really exasperating the problem. one of the things i want to say about social media, so many things to say about it, a lot of people are getting news from social media instead of going straight, getting their subscription on their doorstep in the morning or watching the 6:00 p.m. broadcast and so it is a lot of noise. studies have shown people are

more likely to credit the source, the friend who posts the news rather than the underlying creator of the content. so people aren't really focusing on who is saying, the actual creator to determine the credibility. so this really undermines the press institutions as well. so a lot of other things but those are my two main points. >> should the law get involved in doing about -- >> well, in something piggybacking something ronnell was doing in her comments, there are things the law can do but i think in this area the law has more limited role. it is really up to the providers, the platforms to come up with tools that may force people to see things they don't like or fact-check. i know there are a lot of initiatives underway. i'm not sure any of them are particularly successful yet. but we can work on that. the other role would be education. you know the future lies in our

children. so, you know, educate them on how to be literate and how to dell what is true and what is not true. that is a long term process. we need to double down to make sure we're doing everything we can to make sure we educate how to consume information. >> one of the things of this panel i hope you're picking up there is an intense interaction between legal principles and social norms and we tend to think of the first amendment as having a scope that is inviolate and set in stone. how you interpret them in individual cases is influenced with things of credibility of the press and social norms of the press. the judges are human beings and they bleed into their reasoning and determination of the scope of the rules. amy is an expert on media

ethics. as i said she had extensive experience as a reporter before starting her career as a legal academic. of the so, amy are media ethics part of the solution to keep our first amendment principles wrong? >> one of those, the problems here, you all have touched on it so far how we define the press and how we define who is journalist. when i taught in journalism schoolings one of my colleagues said we're all journalists. the problem with that, today we have the platform for publishing. so in effect we are all journalists. the issue however is that if we want to protect, for example, individual privacy in some way, there have to be some sort of limit put on what is appropriate information to be published. and so, so one of the difficulties now is in defining what is newsworthy.

that is a way that we, that is a word we use in tort law in the united states. newsworthy information in is protected and non-newsworthy information is not, as long as it is privacy-invading. so that is a clash courts are dealing with right now. when someone publishes, for example, a sonogram taken of two fetuses, is that information beyond the bounds of what is newsworthy? when someone then publishes a medical chart from a hospital, is that information beyond the bounds of what is newsworthy? in both of those examples the courts decided the answer was yes and drew a boundary. newsworthiness boundary protecting individual privacy over a publication's decision to publish something. so it's a really interesting time when media ethics has

started to play a certain role in those questions. one other quick example, there is a court that decide ad case a number of years ago now against nbc's "to catch a predator." in that decision, the court literally looked at the society of professional journalists code of ethics, and used that ethics code against the journalists. that is a very dangerous situation because ethically journalists are bound in a sense to cover or to abide by those code provisions and yet they are very flexible and meant to be very flexible because journalism has to be flexible in coverage at times. so i think it's a very interesting time when ethics, social media, the definition for journalism and the press is all coming together in very important ways. >> so, kurt, you represent ad

numb per of both traditional media clients and new media clients. are mead ethics a sword or a shield in litigation in your experience? >> that's a great question. i think the issues that you just mentioned about who is a journalist really do predominate in those questions. who is the media? who should be the bound by media ethics. who say they are not the media but somehow superior than the media. we have platforms that make it look like everyone is equal which is problematic in different ways. you can create something called the denver journal which actually isn't a newspaper of record in denver but some people may think it is, and look online like the denver post and have credibility enhancing functions of the press but that doesn't

mean it is actually journalism. as chuck will remember, we spent many years working together trying to pass for privilege of journalists to maintain confidential sources in congress and the diceyest part of that was defining in this age who is journalist, who should be bound by these rules? who can take advantage of privileges for the press. that is part of the issue for the day. >> if i can throw in a historical nugget. who was the primary sponsor in the house of representatives in the early 2000s? >> the vice president. we passed that bill through the house of representatives, thanks to the vice president. he was quite a supporter. >> times they are a changing. >> you have written quite a bit whether we're all journalists now and how the law might treat that issue and why it matters. so are we all journalists now? >> well, trying to look at the

bright side which i have to do he have morning every time i wake up to find a bright side. as a teacher, one of the bright sides the last year or so, this has been a great teaching opportunity about the constitution and how it works. and one of those lessons is, at least as as far as the constitution is concerned, journalists have far fewer protections than i think most people think. all throughout the 60's, '70s, the '80s, court loved to talk about how great the press was in dick tax the part of the opinion that doesn't matter. the came to actual holding of case, the court would say, the press is like everybody else. we can't give them special rights and we would have to give them to everybody and terrible things would happen. what we're seeing across the board in the trump administration is, the stress testing of our constitution, the pushing of our norms, whether

excluding people from you know, press conferences, or telling the pr departments of agencies that they can't answer reporters questions. even just things like not respecting, not publicly respecting the work of the press. saying publiclies that the press does an important job even though privately they're doing things that might make us angry. this week we got a lot of attention even going a step beyond that, which is trying to employ powers of the federal government to silence the press for saying or doing things that the president doesn't like, whether it is trying to impose negative tax policies, higher postal rates, whether it is telling the ftc that they should investigate their broadcast licenses, or having the department of justice interfere with a merger, you know that is explicitly tied to the sale of cnn and so the answer as far as the constitution is concerned, we don't have the law there right now. i have written that i think we

should and there is unique interests of the press and for a long time we could get by lumping everyone together. we see that is changing for a lot of reasons that were just discussed. but the first amendment really does have a limit here how much it is going to help. legislatively, there is more help. we do have statutes and other types of protections in-laws that give the press access and give the press protection, who aren't afraid, albeit in the a flawed way, no perfect way to do it, telling us doing important work of the press and giving them the protections and the rights that they really need to do their job, that and those needs are different than what we see with all these other people who are putting things up on blogs but, so for now, i think that is where we have to focus our attention is on legislative protections where we find them and get them.

>> so speaking of legislation, let's turn now to discuss fake news and fake news has a problem it has a little bit of instability in what counts as fake news. it has been variously used to apply to true disinformation, false news presented as truth, biased news, news with which one disagrees or news that is not really newsworthy. what ronnell has referred to as fake newsworthiness. so what if anything, going back to the question of what's newsworthy, should the law do about fake news, if it should do anything? >> well, since you're starting with me, uni think one of the things i've been particularly interested in, the communications decency act

section 230 and this is a law that suggests that websites are not liable for information published on them by others. so by outsiders. and this is one of the reasons why we have this proliferation of websites that exist with no other purpose but to perhaps spread false information or to inflict emotional harm. this is a federal statute that protects those websites from liability for information published by others. for the longest time we have embraced this. certainly i think we've embraced it if we, if we represent media and we're pro-press because we don't want "the new york times," for example, being liable for information published on its website by a commenter but it has enabled fake news sites to exist. it has enabled websites that

cause emotional distress to others to exist. when we think about protections of media i wonder how many times people who suggest that media have too much protection actually brings in under the umbrella of media those south -- sorts of websites along with reality television, along with mainstream media? my sense the cda might be tweaked to be more protective of mainstream media and individuals. >> one thing i thought was interesting, the perception what is media which circles back to the first question about the pew study. a lot of people have opinion of media that is informed by whatever media they think about at the moment. if they say, what do you think of the media? someone is thinking cnn, my local television station, my local newspaper, info wars,

"breitbart," they may have an opinion based on what they think media is. i think it is important to be more granular how people perceive different types of media. i do agree with you, i think section 230 has had an enormous impact on the development of the internet. sites like facebook and others wouldn't be able to exist without section 230 which is the first amendment of the digital world. i think it is very important. i think it's important to remember though that is only meant to the platform or website that actually publishes information from a third party. it doesn't protect the third party. we're seeing people say well, yes, i'm not going to sue the platform but i can find out who published this and if it is someone creating this ridiculous conspiracy about my neighborhood pizza joint, that you know, somehow housed this pedophile ring in the basement and doesn't even have a basement, maybe there is a lawsuit there before the armed gunman charges into my

neighborhood and tries to shoot up a base on -- basis of some fake news that was created solely out of speculation. i've never been a big fan of suing. i've always been on the defense side but in cases where people are making up the news and masquerading as news outlets, i think it is time to be more aggressive. >> perhaps even websites that exist then to in fact disseminate that sort of information with knowledge that the people who leave posts will be in fact defaming or otherwise. >> the problem, repealing or limiting section 230 is in not in any way will solve the fake news problem. even if you being took it away, you said the platforms could be sued, what could they be sued for? they have to have a cause of action. it could be defamation,. intentional infliction of emotional distress or invasion of privacy. in some cases there would be exposure. the phenomenon we're talking

about, is a situation where a lot of fake news doesn't fall in that. there is no defamation plaintiff. there is no invasion of privacy. there is no intentional infliction of emotional distress. there is false information. right now the first amendment protects false speech, unless there is some other element to it, fraud or, there are certain types of false speech not protected under first amendment. you talked about the law, you say we should not protect false speech. i personally would have a hard time with the government deciding truth and falsity not tied to defamation. i appreciate what amy is saying. it could help in certain instances but much more narrow than the problem i think our nation is facing. >> going to what kurt is saying we're living upside down. white is black and is that going to the other interpretation of what fake news means which is

just, you know, fake news, you know, lobbing it about you don't like it but has the interpretation that it is actually inaccurate. there was a instance where a newspaper in colorado a politician called that newspaper a fake news and they at least talked publicly considering suing them for defamation, you defamed the reputation of our newspaper to our financial harm by saying that we publish inaccurate things, whatever definition of fake news that he meant. i have practiced media law a little bit, not as much as our other panelists, newspapers are not defamation plaintiffs. that is is not what you do. that is kind of just a rule. the idea that it was even buoyed about publicly a little bit says something. >> that case illustrates talks about it is relatively easy to sue for defamation, you've seen a great number of defamation

suits recently like the stormy daniels case but really hard to win a defamation case. sometimes people sue to make a public pronouncement they're aggrieved. >> if you repeal section 230 inviting a lot of lawsuits that may be frivolous. i'm concerned about chilling speech. that people will be concerned ultimately they win, which they might in some of these lawsuits, but there are real costs coming from defending and doing a motion to dismiss or very unlikely can even get out on a motion to dismiss or have to go through discovery. even in the end you would win. >> which makes a case for anti-slapp laws which can shift the fees if the matter was brought on public concern but to chill the person's speech. takes away the bit of the sting of expensive legal fees and they are expensive. but to go back to something that mary-rose was talking about,

which is having, not wanting a court to make a decision between what's fake news, what's real news and what's not real news, i would be leery having a court decide who is journalisted. these are nuanced and difficult issues. curt and i spent hours and hours with senators and congresspeople and their staff trying to thread that needle. >> active journalism. >> nine-page definition. [laughter] >> clear as mud. this was back in 2005 and 2009 now established internet players in journalism which most of us would agree, all of us would agree are legitimate journalists were still emerging and bonified had not been established. there was a case in florida recently arose out of the trump administration, the dossier case, where buzzfeed published a dossier about president trump and russian involvement in all

of that and a shroff vick oligarch sued buzzfeed and it is progressing through the florida courts. the judge had to decide whether buzzfeed really a journalist, or journalism? i think it is beyond question that buzzfeed established its journalism bonefides it's a journalist. i'm uncomfortable with the court being the decider of that. we fought a revolution to get away from the government licensing and making those journalist. >> there is case you all may know more about than i do, where a court had to decide, in fact did decide that a teenager who was posting things on the internet from his parents basement was in fact a journalist. and so if we, my concern is how do we defined newsworthiness in a way that protects privacy if

we're going to embrace everyone as a journalist? doesn't that end any sort of protection at all including shield laws for buzzfeed and others who are more mainstream, accepted journalists? >> let me chime in on this question of the use of the term fake news. i really feel quite strongly that we would be better off as a society and perhaps in terms of our educational role of the way that mary-rose was describing, one really powerful thing we could do bifurcate that term. it has plainly been sub scripted to mean something different than either of the words mean independently. if you look up the word news and you look up the word fake, we're talking about fabricated information that appears to be on a matter of public concern and it has now been used at least as often and perhaps more often as a sort of clap back

against coverage that a particular political party or a particular covered individual dislikes, right? the constant retort in trump's tweets about press coverage of him and i think that we would do well to bifurcate the principles to actually describe what our beef is with what's happening here because we do in fact have a major constitutional crisis that centers around one kind of fake news, which is, there are bots in russia that are creating information that is not accurate and flooding our, our media airwaves with, facebook and twitter and elsewhere with information that is patently false and that is designed to manipulate its readers in ways harmful, right? fabricated information is side one, which itself is a constitutional crisis. but i think there is an equal, very, different constitutional

crisis about the other fake news, leading up until very recently all the historical investigations i have done about press-president tensions in the past, suggested whatever else existed there was this constitutional expectation of executive counterspeech. that is, if the press of any variety engaged in newsgathering and publication on a matter, and the press, the president took issue with it, the executive branch thought there was something problematic about it, it was not true, it was not newsworthy or biased, problematic in wide variety of ways there is expectation that the president would use his platform, if there is anyone in the world who is better situated to sort of have a podium at which he clarified information that we've been delivered that is in some way wrong or is in some way biased it is presidency of the united states. . .

what i would like to know, as a citizen, you've labeled that piece of information fake news. is it because you yourself possess information about some factual error within it? by all means, tell me, what is that factual error? is because you as president think that particular media outlet is not being done in a fair or nonpartisan way? expense way that is true. an invocation of the term is emblematic of the term because it leaves us less informed rather than more informed.

those are things that are really problematic to the beholding together. >> and then asked my two practicing lawyers, kind of the last question, since the trump administration began how has your journalism change, using different kind of cases then you saw before, and in what way, what do those look like. >> there's been a reinvestment in the foia litigation. >> just to clarify that's where you're asking the government to produce document

-- >> because it's optional money to be spent, they don't have to do that. you have to hire a lawyer. it really was a luxury and now i think the newsrooms have realized it's an absolute necessity. we have seen a lot of that growth. >> i completely agree. i think it's a way to battle back against the fake news claim by going in obtaining documents and meetings that were otherwise close to you. there's been a lot more effort in getting access to information and ultimately that information is disappearing and there's an effort being made to preserve it. i think investigative journalism is clearly moving to that swing because of the need to show what's going on. i do think it's been a reinvigoration in many ways. >> are you all representing new types of cases or switch in the balance of cases, are you representing new types of

clients. >> i think it reflects how journalism is changing. there are all sorts of digital outlets that now are either publishing journalism or acting as. [inaudible] they are truly important. i would say our practice has changed a lot. >> i think we've hit the point where we go to the audience for questions if the audience doesn't have a mic, should i repeat the question. >> okay so the microphone is here. i think we have a question here. [inaudible]

people see someone who is not trustworthy and it's hard for people to decide if it's true or not. maybe there's some sort of bias, and to some but not all but that affects all the public and if there is some sort of support or funding, this may be very critical. i was just wondering. [inaudible] people say here are the lawyers.