The First Amendment in Five Minutes
Floyd Abrams is one of the leading legal authorities on the First Amendment and U.S. Constitutional Law, having appeared before the U.S. Supreme Court. Abrams is the William J. Brennan Jr. Visiting Professor at the at Columbia University's journalism school. He is a partner with the firm Cahill, Gordon & Reindel.
In perhaps his most famous case, Abrams defended the New York Times in the Pentagon Papers case in 1971 in which the paper published secret reports on U.S. involvement in Vietnam from 1945 to 1967.
Question: What should everyone know about the First Amendment?
Floyd Abrams: Well, I guess the first thing one has to know about the First Amendment is that it wouldn’t be there at all if Thomas Jefferson had not insisted. The Constitution had been pretty well drafted and Jefferson, who was not at the Constitution Convention and who was in Paris at that time, basically took the position that without a Bill of Rights and in particular without a Bill of Rights that protected freedom of speech and freedom of the press, that he would not support the new Constitution.
So a Bill of Rights—this Bill of Rights and this 1st Amendment—was a essential ingredient of the Constitution from the start. And from the start it protected a number of different sorts of speech beliefs, conscience, and the like. It protects freedom of religion, it protects freedom of speech, protects freedom of press, protects freedom of assembly, all of them.
And through the many years since the drafting of the Constitution and the adoption of the Bill of Rights which of course starts with the First Amendment. Through that time period we’ve had many, many cases in the courts which have adopted through interpretation the First Amendment to new problems being sustained by the people and by the states as well. At the beginning, the First Amendment applied only to the Federal Government—after all it does say, “Congress shall make no law.” After the Civil War and the adoption of amendments post-Civil War, they were held to apply to the states but really not until late 1920s, early 1930s. So through most of American history the First Amendment really had nothing to do with what states did and what state law turned out to be.
There was state constitutions but the federal Constitution, the First Amendment, applied only to the Federal Government. Where have we gone? Well we have gone through the years in a direction generally of more protection. The First Amendment, remember, applies only as a protection against the government, not against private employers, not against friends, or enemies, or this, or that. It is a protection against the government. The government depriving people of their freedom of religion. The government is telling them in effect who to pray to or whether to pray at all, and in what way. And the government depriving people of freedom of speech or freedom of the press, or freedom of assembly. I mean, at its core it is a protection of human freedom by protecting against government overreaching.
That was debated a lot when the First Amendment was adopted. Alexander Hamilton said, “Why do we need a Bill of Rights at all? Whoever said Congress could pass a law stripping the people of freedom of speech? They don’t have the power to do it, so why do we need to have a Bill of Rights or why do we need a First Amendment in the first place?” And, as I said, Jefferson insisted. Jefferson said, “Any constitution for this country ought to say and say in so many words that there was a list of untouchable areas into which Congress could not transgress, into which the new Federal, National Government couldn’t go."
And with that background—while even from the start there were problems, First Amendment problems, the Alien and Sedition Act was adopted in 1798, that close to the adoption of the Constitution and then the Bill of Rights. And it quite literally made it a crime to speak to badly of the President, then John Adams. Not the Vice President, because it was Jefferson—even then we had politics. But it made a crime to say critical things about the President at least if they were "false," which of course lead to lots of issues about what’s an opinion and what’s a fact, what’s true and what’s false. But that law was our first law which on the face of it violated the First Amendment. Jefferson called it, “living under a rain of witches.” And ultimately the verdict of history as the Supreme Court came to say, the verdict of history was that the Alien and Sedition Acts were unconstitutional and through the years some acts of Congress have been held to be unconstitutional. Many acts, more recently of states have been held to be unconstitutional, and in all these ways the adoption of the First Amendment has been an incalculable protection of the public against overstepping by the government.
Recorded July 29, 2010
Interviewed by Max Miller
The legendary First Amendment lawyer gives a primer on what everyone needs to know about freedoms of religion, speech and press.
A recent study gives new meaning to the saying "fake it 'til you make it."
- The study involves four experiments that measured individuals' socioeconomic status, overconfidence and actual performance.
- Results consistently showed that high-class people tend to overestimate their abilities.
- However, this overconfidence was misinterpreted as genuine competence in one study, suggesting overestimating your abilities can have social advantages.
Is this proof of a dramatic shift?
- Map details dramatic shift from CNN to Fox News over 10-year period
- Does it show the triumph of "fake news" — or, rather, its defeat?
- A closer look at the map's legend allows for more complex analyses
Dramatic and misleading
Image: Reddit / SICResearch
The situation today: CNN pushed back to the edges of the country.
Over the course of no more than a decade, America has radically switched favorites when it comes to cable news networks. As this sequence of maps showing TMAs (Television Market Areas) suggests, CNN is out, Fox News is in.
The maps are certainly dramatic, but also a bit misleading. They nevertheless provide some insight into the state of journalism and the public's attitudes toward the press in the US.
Let's zoom in:
- It's 2008, on the eve of the Obama Era. CNN (blue) dominates the cable news landscape across America. Fox News (red) is an upstart (°1996) with a few regional bastions in the South.
- By 2010, Fox News has broken out of its southern heartland, colonizing markets in the Midwest and the Northwest — and even northern Maine and southern Alaska.
- Two years later, Fox News has lost those two outliers, but has filled up in the middle: it now boasts two large, contiguous blocks in the southeast and northwest, almost touching.
- In 2014, Fox News seems past its prime. The northwestern block has shrunk, the southeastern one has fragmented.
- Energised by Trump's 2016 presidential campaign, Fox News is back with a vengeance. Not only have Maine and Alaska gone from entirely blue to entirely red, so has most of the rest of the U.S. Fox News has plugged the Nebraska Gap: it's no longer possible to walk from coast to coast across CNN territory.
- By 2018, the fortunes from a decade earlier have almost reversed. Fox News rules the roost. CNN clings on to the Pacific Coast, New Mexico, Minnesota and parts of the Northeast — plus a smattering of metropolitan areas in the South and Midwest.
Image source: Reddit / SICResearch
This sequence of maps, showing America turning from blue to red, elicited strong reactions on the Reddit forum where it was published last week. For some, the takeover by Fox News illustrates the demise of all that's good and fair about news journalism. Among the comments?
- "The end is near."
- "The idiocracy grows."
- "(It's) like a spreading disease."
- "One of the more frightening maps I've seen."
- "LOL that's what happens when you're fake news!"
- "CNN went down the toilet on quality."
- "A Minecraft YouTuber could beat CNN's numbers."
- "CNN has become more like a high-school production of a news show."
Not a few find fault with both channels, even if not always to the same degree:
- "That anybody considers either of those networks good news sources is troubling."
- "Both leave you understanding less rather than more."
- "This is what happens when you spout bullsh-- for two years straight. People find an alternative — even if it's just different bullsh--."
- "CNN is sh-- but it's nowhere close to the outright bullsh-- and baseless propaganda Fox News spews."
"Old people learning to Google"
Image: Google Trends
CNN vs. Fox News search terms (200!-2018)
But what do the maps actually show? Created by SICResearch, they do show a huge evolution, but not of both cable news networks' audience size (i.e. Nielsen ratings). The dramatic shift is one in Google search trends. In other words, it shows how often people type in "CNN" or "Fox News" when surfing the web. And that does not necessarily reflect the relative popularity of both networks. As some commenters suggest:
- "I can't remember the last time that I've searched for a news channel on Google. Is it really that difficult for people to type 'cnn.com'?"
- "More than anything else, these maps show smart phone proliferation (among older people) more than anything else."
- "This is a map of how old people and rural areas have learned to use Google in the last decade."
- "This is basically a map of people who don't understand how the internet works, and it's no surprise that it leans conservative."
A visual image as strong as this map sequence looks designed to elicit a vehement response — and its lack of context offers viewers little new information to challenge their preconceptions. Like the news itself, cartography pretends to be objective, but always has an agenda of its own, even if just by the selection of its topics.
The trick is not to despair of maps (or news) but to get a good sense of the parameters that are in play. And, as is often the case (with both maps and news), what's left out is at least as significant as what's actually shown.
One important point: while Fox News is the sole major purveyor of news and opinion with a conservative/right-wing slant, CNN has more competition in the center/left part of the spectrum, notably from MSNBC.
Another: the average age of cable news viewers — whether they watch CNN or Fox News — is in the mid-60s. As a result of a shift in generational habits, TV viewing is down across the board. Younger people are more comfortable with a "cafeteria" approach to their news menu, selecting alternative and online sources for their information.
It should also be noted, however, that Fox News, according to Harvard's Nieman Lab, dominates Facebook when it comes to engagement among news outlets.
CNN, Fox and MSNBC
Image: Google Trends
CNN vs. Fox (without the 'News'; may include searches for actual foxes). See MSNBC (in yellow) for comparison
For the record, here are the Nielsen ratings for average daily viewer total for the three main cable news networks, for 2018 (compared to 2017):
- Fox News: 1,425,000 (-5%)
- MSNBC: 994,000 (+12%)
- CNN: 706,000 (-9%)
And according to this recent overview, the top 50 of the most popular websites in the U.S. includes cnn.com in 28th place, and foxnews.com in... 27th place.The top 5, in descending order, consists of google.com, youtube.com, facebook.com, amazon.com and yahoo.com — the latter being the highest-placed website in the News and Media category.
If you thought your mother was pushy in her pursuit of grandchildren, wait until you learn about bonobo mothers.
- Mother bonobos have been observed to help their sons find and copulate with mates.
- The mothers accomplish this by leading sons to mates, interfering with other males trying to copulate with females, and helping sons rise in the social hierarchy of the group.
- Why do mother bonobos do this? The "grandmother hypothesis" might hold part of the answer.
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