“Did the First Amendment go and get old?” — David McCraw

When everyone with a Facebook page or Twitter account can be a journalist, does the First Amendment, as it has been shaped and enlarged by court cases over the last fifty years, still work?

We’re at a dangerous moment, according to David McCraw, when everyone can be a journalist and Americans are too polarized to have a conversation about free speech.

David McCraw is the vice president and deputy general counsel for New York Times. He’s been the principal legal advisor to the Times for over 16 years and has overseen the Wikileaks, Snowden and Cambridge Analytica stories.

McCraw spoke recently in the sleek new auditorium on Cornell Tech’s Roosevelt Island campus. Addressing a large group of students and faculty from six universities as part of the NYC Media Lab’s giant class, Tech, Media & Democracy, he broke down the court cases that have mostly clearly defined the media’s role in American democracy.

“Do the interpretations of the First Amendment that came out now 30, 40, 50 years ago — do they still apply in a digital world?” McCraw asks. “Do they still get us where we want to go as a democracy?”

McCraw’s rounds his concerns into what he calls Media Landscape 1.0, which relied, in large measure, on the Supreme Court’s understanding that media institutions acted as institutional gatekeepers that were making judgments about what the American public needed to know. They ruled in a landscape where mainstream media had editors, and accepted professional normals, and the court felt media needed to be empowered to take on big government.

The most important Supreme Court cases around freedom of the press and the First Amendment, grew out of the Civil Rights Movement and the Vietnam War. In 1964, New York Times v. Sullivan, the Supreme Court said that in order for public officials to sue for libel, they need to prove the journalist acted with actual malice, or reckless disregard for the truth. This case began to set the press free in America, McCraw says.

In today’s media landscape, the gatekeepers don’t exist.

“Now, sometimes, obviously, that’s an incredible thing,” McCraw says. Airlines’ behavior changed when a passenger on United Airlines, filmed a guy being dragged off the plane because he refused to give up his seat.

“Nobody had to wait for an editor to decide, ‘Well, do we want to cover that story?’ Nobody had to wait for the next morning for it to show up in the paper, or on the next day’s news,” McCraw says. “It was instantly available. And that was a good thing.”

But then you seen an election inundated by stories made up intending to confuse and distract and provide wrong information, and there are no gatekeepers in media landscape 2.0, according to McCraw. And there is a desperate need for a national conversation about free expression in a national landscape that is deeply polarized.

This, McCraw says, is a hearts and minds problem, and how we make democracy work.

“I think there needs to be a national conversation about all of those things that concern free expression whether your issue is, like the President, that the libel law should be tougher, or whether like some people on the left, your issue is the problem with hate speech,” he says.

As recently as 2010, Congress unanimously voted in favor of the US SPEECH Act, which prevented someone who won a libel case in another country against a American publisher, from coming to the US and enforcing the verdict.

“Every member of the House of Representatives voted in favor of it. Every Republican and every Democrat. When it went to the Senate, every Republican and every Democrat voted for it,” says McCraw. “They all stood up for press freedom. They all stood up for the idea that it was important to protect the US media. That’s a consensus that I feel we need to get back to. It’s a hard place to get to in the polarized country that we are in today. But that is to me really speaks to the point where we want to be, where even if we disagree we can agree on the rights of people to express their opinion and the right of all of us to hear that and to disagree or agree if we need to.”

A strong local media is essential to this discussion, McCraw says. And one where tech can play a huge role by making information available on all the markers of successful local communities like crime, fire rates, ambulance response times, and local budgets.

“Making that available so people can practice democracy,” he says. Local communities, he believes, are where people are most likely able to act and have a direct effect on their communities. “The strength of the local community, I think, is really the strength of the democracy as well.”