TechLife: New York Attorney Akiva Cohen Weighs in on Section 230 Laws and Freedom of Speech

TechLife: New York Attorney Akiva Cohen Weighs in on Section 230 Laws and Freedom of Speech

 

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 New York City attorney Akiva Cohen to the newsmakers line to discuss the dynamics of the Section 230 law citing how it is constitutional in relation to the recently proposed state law by North Dakota legislators that would allow citizens to sue Facebook, Google, and Twitter.

Leahy: We are delighted to welcome you to our newsmakers line to joining myself and all-star panelist Crom Carmichael Mr. Akiva Cohen. He is an attorney in New York City and a graduate of Columbia Law School where he was a Harlan Fisk Stone Scholar. Pretty smart guy. And also drew my interest because Mr. Cohen has commented on a proposed North Dakota law that would allow residents to sue Facebook, Google, Twitter, and all those folks. Mr. Cohen welcome to the Tennessee Star Report.

Cohen: Thank you, Michael. Thank you for having me on. I appreciate you guys making me jealous right at the start of this.

Leahy: Why are we making you jealous?

Cohen: You had me holding on listening to the radio through your weather report. It’s not going to hit 64 degrees here in New York for another several months.

Leahy: Akiva, let me do this. Now I know you practice law in New York City but you are a smart guy. We have no state income tax here in Tennessee (Cohen chuckles) and we have lots of great law firms. You all should think about coming down sometime. Crom wants to say something to you.

Carmichael: But yeah, the first test is, you know when we get into the back and forth on the question at hand is you’re going to have to defend living in New York. (Laughter)

Cohen: This is by far the most pleasant place in the world to be a Jets fan and there are not really many places where it’s pleasant to be a Jets fan. So, you know.

Leahy: All right. Well look, so caught our attention because you know, one of the themes of this program is that right now there needs to be pushback from state governments against the usurpations of the national federal government. that’s our key theme of this program. And we saw an article about six state legislators in North Dakota who had introduced a state law that’s not under consideration that would allow residents of North Dakota to sue Facebook and Google and Twitter if they censor them. And you actually don’t think that that’s got much of a chance. Tell us your argument.

Cohen: So there are a couple of problems. The first problem is just a purely straightforward technical legal problem, which is the Constitution has a supremacy clause. The supremacy clause says that if the federal government steps in and regulates something in an area where it has authority state governments can’t vary from that.

So for example, if the federal government says look, for purposes of interstate commerce we want to make sure that money and goods can flow through freely and therefore no state can impose a tariff on steel. You can’t have a state that comes in and says, well, you know what federal government that’s very nice, we’d like to impose a tariff on steel. That won’t be allowed.

The immunity section that these North Dakota legislators are trying to override is Section 230 of the Communications Decency Act which says that basically, internet companies can allow comments on their websites. And if they moderate user content on their website, they can’t be sued for what they do in moderating it. and in that section it expressly says and this preempts any contrary state law.

This is Congress making a policy decision that this is best for Interstate Commerce and no state law can vary from it. So right at the outset, you can’t have a state law that says well, we don’t care federal government, we’re going to create a state cause of action to sue for the very thing that you said nobody can be sued for and by the way, where pre-empting state law. So it’s dead in the water. the question then becomes aside from the fact that is dead in the water legally the straightforwardly, as a policy matter is this really something that we want? And to me, that’s the more interesting question.

Leahy: And Akiva, if you could hold with us. When we come back we’re going to push back…

Carmichael: On the part that he says is the most important policy matter. I like that. That would be a good discussion.

Leahy: Well just as a heads up. I don’t know if you’ve heard of Vivek Ramaswamy and Jed Rubenfeld, but they had a contrary view in The Wall Street Journal will talk to you about that after the break.

(Commercial break)

Leahy: I’m going to read an excerpt brief excerpt from an article in The Wall Street Journal. I don’t know if you read it by Vivek Ramaswamy and Jed Rubenfeld. Have you seen this article?

Cohen: I’ve seen bits and pieces of it. I’m looking forward to hearing.

Leahy: I’ll read the excerpt and get your reaction to it. Conventional wisdom holds that technology companies are free to regulate content because they are private and the first amendment protects only against government censorship. That view is wrong. Google, Facebook, and Twitter should be treated as state actors under existing legal doctrines using a combination of statutory inducements and regulatory threats Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.

It is axiomatic the Supreme Court held in Norwood versus Harrison in 1973 that the government ‘may not induce encourage or promote private persons to accomplish what is constitutionally forbidden to accomplish.’ That’s what Congress did by enacting section 230 of the 1996 Communications Decency Act. Well, there it is. What’s your reaction Akiva?

Cohen: So my reaction is it fundamentally misunderstands Section 230. So Section 230 was enacted not in an attempt to induce anybody to censor things but to protect decisions that tech companies had already made that there was certain content they didn’t want on their servers. And essentially what had happened was somebody sued CompuServe because on a CompuServe message board where one CompuServe user had posted something defamatory about another CompuServe user.

And CompuServe in that litigation basically said look, we don’t have anything to do with that. This is between two users. We didn’t post it. We didn’t write it. We didn’t review it. And what the court there said was, yeah, but when people post things that for example offered to sell cocaine or offer to sell drugs you delete that stuff. So you have the capacity to moderate and you didn’t moderate it here.

So we are going to hold you liable for the private defamation that one of your users committed against another user. And this was a pretty big problem. And it’s a big problem because people keep misunderstanding what the internet is because we write stuff on the internet. So people think about the internet the same way they think about books or newspapers.

But really the internet Michael is more like your talk radio show. Users post things on websites without the website being able to review them in advance and decide if this something I want to be published or not. And I assume you guys have a seven-second delay or something on here in case I lose my mind and start cursing. But I got to ask you. If you were in a situation where you didn’t have a seven-second delay and any time a caller called your radio show they could say something that would expose you to millions of dollars in liability and legal costs. How many callers do you think you would have on your radio show?

Carmichael: Let me jump in. This is Crom Carmichael. I think you’re approaching it from one direction but that’s not what the issue is today. The issue today is not somebody posting something and then somebody else wanting to sue. The issue today is that these large companies are picking and choosing who they would like to be able to express themselves on their platforms.

And that’s an entirely different thing that is proactively telling Candace Owens a black female that she will not have a Twitter account. It’s telling Candace Owen, a Black female she cannot have a Facebook page. It is telling Brandon Straka a gay person that he cannot have a Twitter account because they don’t like what he is saying. So that’s the issue. The issue today is they are discriminating against particular points of view rather than doing what Section 230 is supposed to do. And that is to make them so that they can allow all parties to debate with each other and not be sued.

Cohen: Sure. But now you’re making a different argument than the argument in The Wall Street Journal. The Wall Street Journal piece said well, this is really state action because really what happened was Congress enacted Section 230 because it wanted private companies to have the ability, and to specifically they wanted them to engage in viewpoint discrimination.

So really when these private companies are engaging in viewpoint discrimination and saying we don’t want this type of topic or this type of commentary on our website it’s not really private. It’s really Congress doing it through other means and my point is it wasn’t Congress doing it through other means. That’s not what Section 230 was enacted to do.

As you said, what Section 230 was enacted to do was to provide a liability shield that enabled private companies to decide for themselves what type of content they want to have on their website. That to me is a core First Amendment right that anybody who cares about free speech should defend. One of my heroes from way before I ever became a lawyer was David Goldberger.

I don’t know if you guys know the story of David Goldberger, but he’s the Jewish ACLU lawyer who defended the Nazis marching through Skokie, Illinois in the 70s when Skokie, Illinois said look, we really don’t like Nazis. We don’t want them coming through. So we’re just going to ban them not because of any sort of neutral principle, but because they’re Nazis and we don’t like Nazi speech.

And it fell to a Jewish ACLU lawyer to say look, I don’t like their speech. But you the government have no right to say that they can’t engage in it just like any other group. And what that really comes down to is I may not like the moderation decisions that any particular private platform or website is making. They may not be the decisions that I personally would make. But it is critical from any First Amendment standpoint and from a free-speech standpoint that private parties get to make those decisions.

Carmichael: My argument is that members of Congress have threatened Big Tech with taking away their 230 protections if they don’t stifle speech that the members of Congress disagree with. And Big Tech has done exactly what those governments threateners demanded that they do. And so therefore that makes them a state actor.

Cohen: There the response to that isn’t to then say oh, well, then we should take away the 230 protection. It’s to reinforce that and to push back on the people who are saying you make your moderation decisions the way we want you to make moderation decisions, or if you don’t we’re going to open you up to all sorts of lawsuits. That would be the problem.

Carmichael: Does Candace Owens a Black person does she have a right to sue Big Tech for de-monetizing her?

Cohen: No, absolutely not. Not if she’s Black or if she’s White.

Carmichael: I thought we had federal anti-discrimination laws. And if we do and if she was being barred because of a protected characteristic, so if a tech company was barring somebody from their services because they were Black. Because they were gay. Because they were male. Because they were female. It doesn’t matter which one. If that was the basis for kicking them off the platform then that would be something that you could bring an anti-discrimination suit on.

Leahy: The basis is they don’t like what she’s saying.

Carmichael: So what you’re saying is these platforms are free to tell people who have a different point of view from the owners that the owners of these sites have a right to take away their first amendment rights?

Cohen: 100 percent.

Leahy: On that note Akiva. We have more to discuss. I think you’re also saying 230 is not unconstitutional?

Cohen: 100 percent.

Leahy: All right, we will continue the dialogue. Please come back because we’re going to load with more arguments of logic and perhaps law then and see what you have to say with them. Thanks, Akiva for joining us.

Cohen: My pleasure. Thank you, guys.

Listen to the full third hour here:

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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Akiva Cohen” by Kamerman, Uncyk, Soniker & Klein

 

 

 

 

 

 

 

Host Leahy and Crom Carmichael Take Listener Calls Regarding Big Tech and Censorship

Host Leahy and Crom Carmichael Take Listener Calls Regarding Big Tech and Censorship

 

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.

Listen to the full third hour here:

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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Online Censorship” by Mike Mackenzie CC BY 2.0.