Live from Music Row Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed the original all-star panelist Crom Carmichael to the studio who took calls from listeners weighing in on the constitutionality of Section 230 and Big Tech’s ability to censor free speech.
Leahy: Crom, I thought that was a very interesting dialogue with Akiva Cohen the attorney who was defending the constitutionality of this Section 230 and defending Big Tech.
Carmichael: Well, he’s not just defending Section 230. He’s defending the actions and that’s what’s key. He’s defending the actions of the Big Tech companies because there is an in spite of what he said about Skokie, Illinois, that’s not really the issue.
Leahy: It had nothing to do with the argument. What he said was accurate, but it wasn’t relevant.
Leahy: Exactly. We’ve got a lot of that these days Crom.
Carmichael: And we’ll have to have him back on because at some point there will be a case that that will determine whether or not his position or the position of these writers in The Wall Street Journal is accurate. Because the Supreme Court has ruled on numerous occasions that if the federal government gives an exemption to a private organization that the government itself cannot do then that is unconstitutional.
They’ve ruled that in a number of cases. Here is what they’re saying. I’m going to quote. ‘Section 230 is the carrot and there’s also a stick. Congressional Democrats have repeatedly made explicit threats to social media giants if they failed to censor speech those lawmakers disfavored in April 2019.’ In Louisiana representative, Cedric Richmond warned Facebook and Google that they ‘better’ restrict what he and his colleagues saw as harmful content or face regulation. Nadler did the same thing. So there are a number of other examples.
Leahy: It makes Google and Facebook state actors.
Carmichael: Yes. Well, there are a number of other examples that show that the government threatened Facebook and Google and I’d like to know whether or not Akiva believes that the federal government has the right to stifle what Trump says or what Candace Owen says. And my guess is he would say no, that the First Amendment protects their rights.
Leahy: Yeah. I think you’re probably right there.
Carmichael: So there will be a court case at some point. And North Dakota is passing a law saying that people from North Dakota can sue and this issue will come up in that lawsuit.
Leahy: If that law passes there will be a lawsuit in a federal court that will determine it. I think that they would rule in favor of North Dakota. But we’ll see.
Carmichael: There will have to be somebody in North Dakota. Some individual in North Dakota who is D platformed.
Leahy: And then sues.
Carmichael: And then sues for being de-platformed and then the issue will come up.
Leahy: Well the phones have lit up Crom! Carl in Murfreesboro wants to talk about this issue. Carl good morning.
Caller Carl: Well good morning. I’ll tell you what. Y’all just have some of the most interesting guests. And I was calling and I’m not going to comment on the other Carl said a couple of weeks ago, but I was thinking about that guy. I didn’t know where he was coming from and then at the end I realized what he was saying.
And the reason I was calling you is that I couldn’t tell you this case, but I was listening to I think Mark Levin and he had Glenn Beck on. And Glenn Beck brought up a very interesting case from 1946. And this would be for Crom or you Michael to investigate. But back in 1946, the Supreme Court ruled that a corporation cannot infringe basically on the civil rights of an individual.
He said that a farmer is freer on his own land with his own tractor. So I could cut through the chase on all this mess of opinions and for and what you’re wanting to say and what you can’t say. I have to look at it if we can go back to the Jim Crow laws and discrimination. What we need to do is look at this. This is no different than saying I’m a White guy and a Black guy is not allowed in my restaurant.
Leahy: Hold on. Let’s get Crom responding to that Carl.
Carmichael: Well what you have here, and I’m not really disagreeing with you because I think the protections that are provided by section 230 are now unconstitutional because of the actions of the protected parties. So if Section 230 were to be ruled unconstitutional then what you’re saying would it would happen. What they’re trying to do is they’re trying to claim that Section 230 allows them to discriminate.
I think you’re exactly right. That’s what they’re arguing. They are allowed to discriminate against a Black person, against a gay person, and against anybody they want to because Section 230 allows it. now what these people arguing is that no they don’t have that right because by doing what they are doing they are acquiescing to the threats made to them by government officials. And that therefore Section 230 does not protect them. They are now by legal term state actors.
Leahy: The phones are lighting up. We thank Carl in Murfreesboro for that call and we go on now to Colin in Nashville who wants to talk about Akiva Cohen’s argument that Section 230 is is perfectly okay. Colin, you’re on the Tennessee Star Report.
Caller Colin: Hey, good morning gentlemen. The way he was going about his argument and how he explained how Section 230 came into being was because of a defamation issue with CompuServe. But what he didn’t really point out was that free speech doesn’t mean that everything can be said. There is protected speech and there’s unprotected speech.
Defamation is unprotected speech just like things like National Security. You can’t give away government secrets because that’s unprotected speech. But what Section 230 is done has allowed those corporations to discriminate against protected speech. And I think that should be one of the bigger issues brought up because political opinion is 100 percent protected speech. So for them to say that they can discriminate against protected speech I think maybe a little bit of a different avenue that could be taken in regards to Section 230.
Carmichael: And that’s really what the argument being made by the writers in The Wall Street Journal. What they’re claiming is that if it were not for the fact that Democrats in Congress had threatened Big Tech telling them if you don’t eliminate speech that we disagree with we’re going to take away your protection under Section 230. And then each one of these companies then did exactly what the Democrats demanded that they do.
And so that is what these authors are saying makes these companies now state actors. Because they have done what government itself would not be able to do constitutionally. The government could not say Trump does not have a right to speak. But the Democrats threaten Twitter and Facebook and Google saying if you don’t deny them their right to free speech because we disagree with what they’re saying. Not because they’re dropping the F-bomb or this type of thing or that they’re even lying, they just don’t agree with the opinions. And so that’s really where this hinges Colin. So I agree with Colin.
Leahy: Are you an attorney by any chance Colin?
Colin: No, I met one of your Millennial listeners. I’m only 30.
Leahy: There are attorneys who are aged 30. But you’ve made a very good grounded legal argument.
Carmichael: Obviously you’ve stayed at a Holiday Inn Express. (Laughter)
Leahy: Just out of curiosity, what do you do for a living Colin?
Colin: I’ve been in the United States Marine Corps for the last 12 years.
Leahy: There you go. Are you still in the Marine Corps?
Carmichael: Thank you for your service.
Colin: I am currently on a program to the commission to become an officer. So I’m actually I’m studying political science at Tennessee State University.
Leahy: There you go.
Colin: I’m outnumbered.
Leahy: What are those classes like Colin? The Marine studying politics at Tennessee State University. How how does that go?
Colin: Oh, they’re interesting. But I fully understand my First Amendment rights and that being a student there I can’t express my opinion. And I have no issue at all arguing with whatever other opinions are brought up. So I have a whole lot of fun in every one of those classes.
Carmichael: And the state of Tennessee cannot tell Colin what he can and can’t say.
Colin: Exactly.
Carmichael: But nor can a company that has protections from the state or protections given to it by the state. Nor can it do the bidding of one particular party. That’s really what the issue is here. And whether or not they are what is defined by the courts as a state actor.
Leahy: Colin, call in again. And by the way, thank you for your service. And we wish you the best of luck in getting that officer’s commission in the Marine Corps.
Colin: Thank you. And I appreciate the support.
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Photo “Online Censorship” by Mike Mackenzie CC BY 2.0.
