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 to discuss Big Tech censorship as it relates to being a private company versus common carrier and what that means for federal regulations.
Leahy: Crom, you know, one of our guests here, you kind of liked his last name. Professor of law at Columbia Law School, Philip Hamburger.
Carmichael: Yes.
Leahy: He’s an expert on the rise of the deep state, the administrative state. And he’s a champion of pushing back against that and basing our actions on the Constitution. I note that he’s written an article with Claire Morel for The Wall Street Journal on Big Tech and censorship.
Carmichael: And that was July 31st. And when we interviewed him, which would have been a month – or a month ago, we also interviewed Naomi Wolf. Now Naomi Wolf has – since we interviewed her – has actually even been canceled even more.
And so this is going to be a very interesting lawsuit. The article that Philip Hamburger and Claire Morel have written in The Wall Street Journal argues that Facebook and Twitter and all these giant tech companies are really more like common carriers. Because the common carrier, by the way, can be a private company.
In fact, they all are private companies, but they still are regulated by the federal government. For example, Verizon cannot cancel your phone service if they disagree with what they think you’re going to say on the phone. They can’t do that. That’s not allowed.
Leahy: That’s good because they would have canceled me a long time ago. (Chuckles)
Carmichael: So my point is they can’t.
Leahy: They’re not my carrier.
Carmichael: They can’t. I’m not sure. So you have these big tech companies that are essentially canceling their service to people based on their political opinions. And it isn’t based on whether or not they’re right or wrong. It is truly based on their political opinions. And that’s why when you heard Jen Psaki say that the administration is working with Facebook.
Leahy: Working with Facebook.
Carmichael: Yeah. On misinformation. Naomi Wolf has said that she has tried to put out the word on the facts about COVID and immigration, and they cancel that. Now, those are facts. That it isn’t incorrect or misinformation. The disinformation is incorrect. It’s false information. Misinformation is whatever I don’t like.
Leahy: Right.
Carmichael: And I think that Trump’s lawsuit and the other thing that he’s writing about, the Hamburger and Claire Morel are writing about, is the state laws.
This article is focused on the state laws that say that if you operate in our states, you cannot discriminate based on what people’s opinions are. It’ll be very interesting to see how those lawsuits work because Florida has already passed that law.
Leahy: But the courts have struck it down.
Carmichael: They hadn’t gotten to the Supreme Court yet. A court has struck it down.
Leahy: Let me follow up on that. Here’s what they said about that particular.
Carmichael: Sure.
Leahy: A district court struck it down. Here’s what Philip Hamburger has said about that. ‘The recent court dependent questioning the Florida anti-censorship statute noted that in censoring some speech the tech companies are choosing what speech they will convey. From this, the court concluded that the company’s platforms and services were more akin to newspapers than common carriers.
Unlike a newspaper, these platforms and services are offered to the public for the conveyance of their speech. Unlike a newspaper, they serve the function of a common carrier. What is more, they enjoy market dominance.
Carmichael: This is what Hamburger told us when he was on our call. That was before …
Leahy: Trump’s lawsuit.
Carmichael: And before Florida’s decision. And so this will work its way up in the courts, and we’ll find out. And I think ultimately it will end up in the Supreme Court. The Supreme Court obviously takes very few cases.
Leahy: It’ll be the Supreme Court probably in the 2022 to 2023 session.
Carmichael: I think it’ll be sooner than that.
Leahy: Before the next 2021 or 2022.
Carmichael: Yes. I think it will be before the ’22 election.
Leahy: Okay. So here’s the problem. I’ll give you two words that are a problem. The first word is John. And the second word is Roberts.
Carmichael: No. This will be a very interesting court case. This will be an entire court case.
Leahy: Do you think Roberts will surprise us?
Carmichael: I think the whole Supreme Court might surprise us. But here’s the difference. A newspaper has its own opinions, and it controls everything in the newspaper, and everybody knows that. But in the case of Facebook, Facebook allows some people to express their opinions and disallows other people to express their opinions just because they don’t like the opinions.
Well, that’s not the same thing as a newspaper. I think the question will come down to, are these entities more like common carriers or more like newspapers? And if they are judged to be more like common carriers, then they will lose their ability to censor. And they are censoring.
Let’s be very clear about what they’re doing. They are censoring. If they were censoring all Black people from conveying their opinions, they would be guilty under the Civil Rights Act violation. There would be a violation of the Civil Rights Act.
So now the question is, can they discriminate against people based on their opinion? Can they discriminate against a Black person based on that person’s opinion? Like, could they cancel Ben Carson if he wrote an article about COVID?
He is an eminent physician and what he would – it would likely be entirely accurate, but it would be different from what the Biden administration would want. Would Facebook have the right to cancel him?
Leahy: Here’s what I think about this, Crom. I think you’re right. I think ultimately all of these Big Tech lawsuits, ultimately, in one version or another will go to the Supreme Court.
Carmichael: Yes.
Leahy: There’s no question about that. What makes me nervous about that is the tendency of the chief justice to make political rather than legal decisions. That’s what makes me nervous.
Carmichael: I think the opinion may be a bit watered down, but I would be astounded if the Supreme Court ruled in favor of censorship because that would be what they would be ruling in favor of. They would be ruling in favor of censorship.
Leahy: I was astounded in 2012 when the Supreme Court ruled in favor of Obamacare.
Carmichael: But you have three different justices on there now.
Leahy: And I am disappointed in all three of them.
Carmichael: I am more optimistic, perhaps realistic, maybe. We don’t know.
(Inaudible crosstalk)
Carmichael: I think it will work its way up through the courts. Philip Hamburger’s article is a very interesting one. And poor Naomi Wolf. She was a leftist, and she’s going to be in our camp now.
Leahy: She’s a realist now. (Chuckles)
Listen to the full third hour here:
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Live from Music Row Wednesday 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 explain why Trump’s Big Tech lawsuit may not have jurisdiction in Florida due to state action as outlined in Facebook’s contractual agreement.
Leahy: We are delighted to welcome to our newsmaker line our good friend Akiva Cohen. He is an attorney who specializes in First Amendment, media, and Big Tech issues. Welcome, Akiva Cohen.
Cohen: Good to be back, Michael. How have you been?
Leahy: I’ve been great. I’ve been great. So I want to get your opinion. We were at Donald Trump’s news conference with America First Institute in Bedford, New Jersey, when he announced this lawsuit against Facebook, Twitter, and Google and their CEOs.
Now, our friend Vivek Ramaswamy, the very successful billionaire who lives in Cincinnati, has written an article in The Wall Street Journal.
I’m guessing you may not agree with this headline, but I’ll read the headline and get your response. Headline: Trump Can Win His Case Against Tech Giants. There’s ample precedent for calling it state action. But what is your reaction to that?
Cohen: Yes, I do disagree with it. There are a couple of things. Number one, procedurally that’s going to happen first, right out of the gate.
Each of these companies has terms of service that say, if you’re going to sue us over something that happens with your account, you’ve got to do it in the Northern District of California and not in Florida, which is where the former President Trump filed these things.
And that’s important because the Northern District of California, just a week and a half ago or so, actually addressed this exact issue.
There was a vaccination information group called Child Health Defense that had filed a lawsuit against Facebook for taking their page down on the exact same theory that Section 230 and the sort of comments of public officials made Facebook’s decision to take them down a state action.
And what the courts said just a week and a half ago was, no, that’s not a state action. The fact that the government may have a regulatory interest in a particular area doesn’t transform private action into state action.
So President Trump’s lawsuit has a real big problem, just from a recent precedent that it’s going to have to deal with because it’s going to get moved to California on the basis of those terms of service and the contracts that everybody who signed up for it agreed to.
And there was a judge in that district who just decided this issue in a way that’s not good for him. I think it’s unlikely that it’s going to have a different outcome in this case.
Leahy: Akiva, Crom Carmichael is our all-star panelist, has a question for you.
Cohen: Sure.
Carmichael: Akiva, I think what you said is Trump filed his lawsuit in the state of Florida. So it will go before a court in Florida, will it not? I mean, to begin with? In other words, will the first hearing be in Florida, or will the first hearing be in California?
Cohen: It depends on what you mean by first hearing. So he filed in federal court in Florida. The very first thing that Facebook and Twitter and Google will do is they’re going to file what’s known as a motion to transfer.
And they’re going to say, look, before we get into the merits of all of this, there’s a contract governing it. The contract that everybody signed when they joined our website says, if you’re going to sue us, you have to sue us in the Northern District of California.
Those clauses are enforceable and they’re routinely enforced, and you should move it to California. Now, I don’t frankly know if President Trump’s lawyers are going to put up any sort of fight in response to that for the simple reason that there really isn’t anything to fight about.
Courts enforce clauses like this all the time. Fighting against it will be a losing move.
But if he does fight it, then the very first hearing will be if the Florida judge feels like he needs a real argument, which I think would be unlikely, would be in Florida about whether or not the case has to go to California. A Florida judge would not be looking at the substance.
Carmichael: When you say judges do this ‘all the time’, do you mean regularly and most of the time? Or do you really mean truly all the time?
Cohen: No. Truly, truly all the time. If you have a contract that says we are going to litigate this and any disputes between us in a particular location, judges will not get into the substance unless you’re going to argue that you were somehow defrauded into agreeing to that particular choice of venue.
If you’re alleging that somehow somebody lied to you, you didn’t actually sign the contract, and your signature is forged, that they’ll decide.
But if you agree, yes, this is a contract that I signed that had this provision, there is a chance that any judge will say that’s not enforceable.
It happens every time. Literally, every time this issue comes up. If there’s a venue clause and one of the parties files in a different place and the other party tries to enforce it, that’s not to say there isn’t some crazy judge out there who might do something different on some random occasion.
I don’t know every case in the country, but it would be a massive shock to everybody if it did not.
Carmichael: Let’s assume that it gets moved to California and then it gets tried in California and the courts out there rule in favor of Big Tech. It will get appealed. At that point, it gets appealed to a higher court…
Leahy: The Ninth Circuit.
Carmichael: The Ninth Circuit. And let’s just say the ninth Circuit sides with Big Tech. If the U.S. Supreme Court takes it, then the decision is not being made by what I would describe as a liberal-leaning court – meaning the district court in San Francisco and the Ninth Circuit. It would be then decided at the Supreme Court level.
And there is a precedent at the Supreme Court level for claiming that companies that are benefited. And that’s what the other gentleman from Cincinnati said. He listed two cases.
Leahy: Norwood v. Harrison 1973 was one of those cases. And then Railway Employees’ Department v. Hanson in 1956 were the cases that he referenced. And I guess Crom’s question to you is, Akiva, are you buying that?
Cohen: And the answer is no. And the court in California actually just recently analyzed all of that. And frankly, it was persuasive.
It’s worth reading the Children’s Health Defense versus Facebook. And there are a couple of issues here, right? So, number one:
If anything that gets a government benefit and anything that they do is state action, then frankly, every corporation that exists is bound by the First Amendment because the corporate form is itself a government benefit.
We have laws that say you can incorporate and you get limited liability as a result of it. And so this is a benefit that’s created by the government. It doesn’t exist other than, as a matter of law. Every corporation would be bound.
Carmichael: Now wait. Not every corporation is covered by Section 230 and has the protections of Section 230.
Cohen: Correct. If the theory, Crom, is that just getting a benefit from the government – meaning you got some special benefit from the government, therefore, anything you do is government action – If that’s the case, there’s no reason why the benefit of Section 230 would be any more special or triggering of that rule to the benefit of the corporate form in the first place.
Carmichael: Well, then did the two core cases that were cited in the other article, why did they go the way they did?
Cohen: Those cases were not Section 230 cases.
Carmichael: I know that. But they were still on the greater question that you’re trying to raise. You’re trying to say Section 230 isn’t the dispositive question here. You’re trying to say that if the government helps anybody, then it helps everybody, and therefore Section 230 doesn’t matter. But these other two cases were not about Section 230, but they did argue that because the government helped those particular companies that the judges ruled differently than the way that you’re arguing.
Cohen: I don’t believe that’s accurate. And it’s been a little bit since I looked at those cases. But if I remember correctly, those cases weren’t about the government giving somebody a benefit.
It was about the level of government control of the specific action. So, for example, in the railway case. If I’m remembering correctly, what it was was the government said that rail companies were required to conduct alcohol testing if I’m remembering correctly, on employees and crashes.
And what the Supreme Court said was, look, people have a Fifth Amendment right against self-incrimination. They have rights, First Amendment rights.
And if the state couldn’t have its police force do this because of people’s constitutional rights, it can’t pass a law that says you private company need to do this because that’s the same thing.
And the problem here with applying that theory to Section 230 – there are two major problems. Number one is just in general. If you look at Section 230, it doesn’t mandate any specific content or any specific content rules. You could have a site that says I want to ban all discussion.
Leahy: Hey, Akiva. We’re running a little bit of time here. But what a great discussion. By the way, Akiva, let me just say this one thing. If I’m ever in trouble in New York State, I am hiring you as my attorney. (Carmichael laughs)
Cohen: I appreciate that. Thanks for having me, guys. (Carmichael laughs)
Leahy: All right. Thanks, Akiva.
Listen to the third hour here:
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Photo “Akiva Cohen” by Kamerman, Uncyk, Soniker & Klein
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 liberal, feminist, author, and freedom lover Naomi Wolf to the newsmakers line to talk about the rising tides of fascism in the United States.
Leahy: In studio, the all-star panelist Crom Carmichael. And on our newsmaker line, we are delighted to have an interview with someone I never thought I would ever have a chance to interview, Naomi Wolf who is a graduate of Yale and a Road Scholar, was an advisor to the 1996 Bill Clinton campaign and the 2000 Al Gore campaign. Turns out, I think we have something in common now. Welcome Naomi, thanks for joining us.
Wolf: Thank you so much for having me. Good morning.
Leahy: Well, your appearances on Tucker Carlson were just fantastic. You are a liberal, you’re a feminist author, a journalist, but you are decrying censorship and lack of freedom in America. Tell us a little bit about what you stand for and what the reaction has been to you.
Wolf: Sure. Well, I did go on Tucker Carlson twice, and I spoke about my concerns that we’re in a time of what I call Step 10 of the 10 Steps to Fascism. I wrote a book describing 10 steps to fascism 12 years ago, and we’re literally here at the precipice of tyranny. And it’s been coming for a while. But my argument, I’m trying to kind of warn people, and a lot of people are aware, they just want kind of more detail, that under the guise of what has been a real medical crisis our rights and freedoms are being suspended and withdrawn, and specifically about censorship.
All tyrants, censor. that is common in a police state, whether it’s on the left or on the right totalitarian or fascist. And I’m very concerned seeing the erasure or purging of conservative voices from social media. It’s not good for our country. Yes, I’m liberal, but we need a free America and we have First Amendment rights for a reason. And these private platforms are free to purge voices, but they’re purging conservatives. And then when I spoke up to unite across left and right and to reclaim America and to reclaim our Constitution, I was purged. (Chuckles) So that was one of the things I was discussing.
Leahy: How surprised were you, Naomi, that you were purged when you started to speak up because you’re a very well-known American liberal thinker?
Wolf: Well, certainly it was more like shocked. And the thing about those kinds of suspensions. I was suspended from Twitter three times, from Facebook video, and on several platforms. They never really give you the exact reason. A nominal reason was medical misinformation. But I’ve been saying the same things and critiquing aspects of this pandemic advice, which I think is being kind of exploited by some bad actors like Big Pharma and Big Tech just for profit. I’ve been saying the same thing for a year.
So it was notable that only after I was on a national television show with well known conservative that I got booted. I’m very concerned. I mean, look, having studied closing societies for 12 years and warning about encroaching fascism for 12 years it’s not the first time I’ve been warning people about this. It’s just we’ve gone further than ever. And it’s more kind of Draconian-like. Massachusetts is under emergency law.
New York is under emergency law. California is under emergency law. I can’t say how serious that is, right? In America, it’s more like, yes, it’s bad that it happened to me, but it’s bad that it’s happening. And once people start to be censored, you don’t know what you don’t know, right? You don’t know what you’re not hearing. You don’t know what news you’re not getting.
And also, once people start to be censored because of their political views, we can’t unite as a people against oligarchs. And basically, that’s what I see happening which is that the left and right are becoming really less important. And what’s really important is that we need to unite a kind of freedom against tyranny. We need to have these partisan discussions across party lines so we can mobilize quickly to regain our rights because there’s a certain point at which it’s really too late. And so when you start to have censorship, that becomes much less possible.
Leahy: Naomi, our all-star panelist here Crom Carmichael has a question for you.
Carmichael: Naomi, I can name some Republicans who would agree with you. I’m talking about now Republicans that are holding office. Can you name any Democrats who are holding office with the exception of maybe Tulsi Gabbard, and I’m not even sure she is still in office. Can you name any Democrats who agree with you office holders?
Wolf: Oh, gosh, that’s a tough question. I’m glad you said ‘who hold office’ because there are many, many decent, patriotic liberals like me at a grassroots level who are just ordinary Americans and are horrified about what’s happening around them. No, I can’t. I confess I cannot name people on a national leadership level who are speaking out against the silencing of conservative voices. They should.
There’s a reason for that, which is these tech platforms are some of the biggest donors on the Democratic side. And I am a Democrat, right? Both parties have their big special interests like the Republicans have guns and fossil fuels. So they’re not speaking up against guns and fossil fuels. Maybe they should. But no, at a national level, I have not, sadly, heard other Democrats say this is not good for America.
It may be convenient that President Trump was banned from Twitter. It may be convenient that Ben Shapiro was told that he might be kicked off of Amazon servers. But that’s bad for America. And the other problem is, these giant tech platforms are private companies, so they can do that. So we really need to have a reckoning as Americans. And one of the dangers of lockdown is that we can’t gather in the town hall.
We can’t gather in churches, in synagogues, or even comfortably on the street in Massachusetts, where I live. Where there’s a nonsensical mask mandate and speak to our neighbors in clean public spaces. And I think that’s one reason, like the tech companies prolong lockdowns and are kind of behind some of these ridiculous policies to force us to wear masks to keep us out of gathering and assembling, which is our First Amendment because it’s a war against human spaces. Because in human spaces, we can say, look, let’s unite and talk about this and create other spaces to have these big civil conversations.
Leahy: Naomi, are you optimistic or pessimistic about our ability to stop this movement as you describe, toward fascism in the country?
Wolf: Well, I’m very, very worried. I mean, it depends on us, right? We don’t have much time. I do see more and more awakening. I do see more and more people across the divide that are not sleepwalking into whatever Dr. Fauci says we ‘have to do.’ I do see parents across the political divide very upset that their kids have been out of school for a year or are forced to wear masks in school for no good reason.
Draconian measures controlling every aspect of their lives. I do see people saying I should be be able to reopen my business. But we are under emergency powers like I am a very privileged American, and in the state of Massachusetts, there is nothing I can do to reopen my society. There’s nothing I can do to help small business owners I know, reopen to full capacity.
There’s nothing I can do to take the masks off kids’ faces or off my own face. I risk a fine walking outside by myself if I’m not wearing a mask. That’s what tyranny looks like. We have no time at all. And I’m really glad we’re having conversations like this because we all have to literally rise up peacefully and start doing a bunch of things, including running candidates at the state level to reclaim statehood and ban emergency measures.
Leahy: Naomi Wolf, American Liberal, author, supporter of freedom. Thanks so much for joining us here today on the Tennessee Star Report. Will you come back?
Wolf: Anytime. Thank you so much.
Leahy: We appreciate your coming on.
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Photo “Dr. Naomi Wolf” by Naomi Wolf.
Live from Music Row Tuesday 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 Samantha Fillmore who is the state government relations manager at the Heartland Institute to the newsmakers line to discuss the institute’s mission ensuring First Amendment rights are protected from Big Tech censorship through state legislation.
Leahy: We are joined now by Samantha Fillmore. She is the state government relations manager for the Heartland Institute in cold Chicago, Illinois. Welcome to The Tennessee Star Report, Samantha.
Fillmore: Thank you for having me. Good morning.
Leahy: You are a Texan!
Fillmore: I am.
Leahy: You attended the University of Texas at Austin. You worked in the Texas legislature. You’re a big UT Longhorn fan and a fan of the Dallas Cowboys.
Fillmore: Yes, sir. That’s pretty much just about everything I’m passionate about. Football and politics, what more is there?
Leahy: What more is there? What kind of adjustment does a woman from Texas make when she moves into cold Chicago to work at the Heartland Institute?
Fillmore: Let me put it this way, my dog and I are not thrilled. And I just discovered that you have to own a shovel to shovel your car out of snow. This is news to me. Otherwise, though, I’m very happy to be here. Chicago is a great city and I love what I do at the Heartland Institute. So, I have no complaints.
Leahy: It is a great city. But it is also much colder than Austin, Texas.
Fillmore: Yes, sir. That is true. But I’m very happy to do what I do. And again, I think anyone who is able to maintain and keep a job in the last year that we had is I should only be grateful. So I’ll handle the snow. I’ll put on my big coat and look like a marshmallow and I’ll keep quiet about it.
Leahy: Where in Texas are you from? What county?
Fillmore: My family’s from Dallas historically. A very deep, Texas family that goes back about six generations. I definitely broke the norm by coming to Chicago. I’ll definitely be going back eventually, but this is just a fun place to be building up my career. But no I did definitely think often that Texas is calling me. (Chuckles)
Leahy: Are you from Highland Park in Dallas or you from Frisco or Plano? What part of Dallas are you from?
Fillmore: Okay, so you’re familiar with the area. My family has a historic home in Arlington. I grew up very close to the stadium and Six Flags. Which I somehow never got tired of growing up.
Leahy: My wife is from Texas near Nacogdoches in Saint Augustine, and we actually met when I was working in Dallas. I managed a retail store not too far from Highland Park at the intersection of Preston Road and Lovers Lane. I’m sure you know where that is.
Fillmore: I know exactly where that is. I can imagine that in my mind. A very smart man ends up with a Texan woman.
Leahy: Well you have a very important job. and tell us a little bit before we get into the government state relations work that you do. tell us about the Heartland Institute in the important work it’s been doing in the area of State sovereignty and states rights.
Fillmore: Absolutely. So the Heartland Institute is about 37 years old. And we are an independent and national nonprofit organization. So we have that 501-C3 status. And our mission is to discover and develop free-market solutions to social and economic problems. Generally, the way that translates is we just don’t like a lot of heavy government oversight regulation.
We think that states should always maintain, have, and push for as much sovereignty as they should. And so we are headquartered in Illinois as you mentioned around the Chicago area. And we just focus on providing local and elected state officials with research to push policy that goes along with our mission.
Leahy: So you wrote a great piece last week. Why Big Tech Censorship is Super Scary. The subtitle says, the rapid innovation of technology and the ways in which it affects our daily lives has baffled those of us who remember the pre-digital and dial-up days.
Fillmore: Absolutely.
Leahy: Talk to us a little bit about this alarming and frightening trend of Big Tech domination of individual liberty and what states and individuals should do about it.
Fillmore: Of course. So as we all know overnight basically in the blip of human time we saw this huge emergence of these massive innovations of Internet social media platforms. And there was something really good about that. It elevated this national conversation and political discourse to kind of become the modern-day public square for people to discuss their opinions and listen to thought. And that is still a miraculous thing.
But with that, we have allowed it to become factored into the hand than to a handful of powerful tech titans. And unfortunately, the way that laws are right now, they’re protected from liability and they operate as monopolies which has led to Americans becoming fearful. They see a lot of prominent and especially conservative politicians or people that might not have any viewpoint that falls out of the normal lose their ability to speak. And at what point does that stop? At what point does that just become the trend? And you get into the Orwellian almost dystopian novel of being silenced and unwritten.
Leahy: Some states have been pushing back in North Dakota some legislators proposed legislation that could or would allow the citizens of that state to sue Facebook or Google if they censored them unnecessarily. And that’s been quite controversial. I know your associate there who is the director of government relations Cameron Sholty had submitted testimony before the North Dakota House Judiciary Committee on that legislation. Tell us a little bit about that issue and where you see that going?
Fillmore: Absolutely. So we actually currently now know that there’s somewhere between a dozen and 15 states that have already begun to propose legislation that looks like that. And if not, we are speaking to them and try and help them craft that. So this will definitely be a sweeping legislative trend for the 2021 session.
And that’s important because every state legislature is meeting this year, which is not always the case. so pretty much as I’m sure you know, President Trump signed his executive order on social media censorship in May 2020. And that cracked down the ability of the Communication Decency Act and Section 230 for social media outlets to begin to censor.
Leahy: And if we can stop here just for a moment. You’re talking about Section 230 of the 1996 national law called the Communications Decency which prohibited citizens from suing Facebook and Google and other social media outlets for censoring them. Critics have said what they’re doing is they’re privatizing the government’s ability to violate First Amendment rights. That’s the criticism of it.
Fillmore: Yes sir it is. That is correct. So the way that it’s written and what in the law of Section 230 it absorbs these large platforms from ever having to be liable for material that their users post because they are just simply hosting platforms. However, the more that they censor certain tweets or certain people they turn into an editorial context.
So then the logic is that if you’re that in turn to this editorial contact, you should then be able to be liable for these actions. And the way that states are fighting against that such as North Dakota are is with legislation that would allow that you said private citizens to take private action in court if they feel that they have been silenced unnecessarily.
What is important to note about this is that it does have to be proven through all this legislation that they did not break any of the Good Samaritan laws or rules-based in the industry that goes along with posting. Which I think should be fair. Obviously, anyone outwardly pushing for violence was saying atrocious things which we have seen on social media that that does violate the terms and conditions that you sign up for and some of these platforms.
But if you were saying something simply political or something that has nothing to do with politics until it got taken down and you were still within those agreements then that is actionable to be taken into a court of law.
Leahy: So give us an update on the possibility and likelihood that this legislation in North Dakota will move towards passage in both the House and the Senate and then signature by Governor Doug Burgum.
Fillmore: Well, it is still pretty early in the legislative process however, the committee meetings are going very well. And I am very confident in the ability of the good legislators in North Dakota to see the value in this. And it is a concern for both the Senators and the Representatives that I know in North Dakota but also around the nation. I think this could be sweeping legislation that has lasting effects and can stick in many states and hopefully go across a multitude of Governors’ desks.
Listen to the full second 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 “Samantha Fillmore” by The Heartland Institute.
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.
During the second hour, Carmichael analyzed the Sedition Act of 1798 from a historical perspective and compared it to today’s mainstream media attempts to compare situations between Trump supporters and those on the left that are not of equal value.
Leahy: We are joined as we almost always are Monday, Wednesday, and Friday at 6:30 a.m by the original all-star panelist Crom Carmichael. Crom, good morning.
Carmichael: Michael. Good morning, sir.
Leahy: Did you have any trouble driving in?
Carmichael: Not today.
Leahy: Not today. Yeah, so not coming in from Nashville to the studio? Not a lot of snow on the ground?
Carmichael: Not from Green Hills.
Leahy: Green Hills. Well, when I came in earlier today there was some coming up from Spring Hill. Crom, you are a student of history. And one of the reasons we study history is so we try not to repeat the mistakes of the past over the weekend. I was doing a little research on a mistake of the past that it’s rearing its ugly head again. I speak of the Sedition Act of 1798 and I’ll read here from the history of the House of Representatives.
In one of the first tests of freedom of speech, the House passed the Sedition Act in 1798 permitting the deportation, fine, or imprisonment of anyone deemed a threat or publishing ‘false scandalous or malicious writings against the government of the United States.’ This was an era when the newspapers of the day were highly partisan and John Adams was President. He was part of the now-defunct Federalist Party.
Thomas Jefferson and James Madison were developing what was then called the Democrat-Republican Party. Which is the Democrat Party of today. So they passed this law that says you can’t criticize the president. And it was very unpopular. And ultimately that particular law had a life span that ended and when Thomas Jefferson was elected president in the 1800s when the Democratic-Republican Congress let that law expire. But here we are, gosh 220 years later and that issue seems to be coming up again.
Carmichael: Well, here’s the part that is kind of interesting about that. What I’d like to find out, Michael, is when the “Republican” of the “Democrat-Republican Party,” when that was dropped. I want to know when it became exclusively the Democrat Party and not the Democrat-Republican party. Because Abraham Lincoln was the founder of the Republican Party.
Leahy: We call that today the Republican Party.
Carmichael: Because at some point between 1800 and Lincoln’s ascendancy to the presidency, the party of Jefferson dropped the word Republican. They had to have otherwise Lincoln couldn’t have been the founder of the Republican Party. But what is going on now I guess because I wasn’t alive then is very similar. But the Federalist Party at that time is from the Republican Party.
It says from the noted historian Gordon Wood who says the Federalist Party never thought that they were a party. They thought they were the government. And so any opposition to the government was then naturally considered to be seditious. And so that to me is the tie-in today. But here’s what’s going on now in the country.
You have you had that law of 1798 which didn’t last long and the public hated it. But now you’re seeing for example you’re seeing the left, and this isn’t just the politicians but it does include the politicians. Margaret Sullivan a Washington Post media columnist wrote this week, ‘corporations that advertise on Fox News should walk away declaring that the outlet’s role in the 400,000 U.S. lives lost to the pandemic and its disastrous attack on January sixth has been deadly.’
And so therefore the competition of Fox News is literally trying to cancel Fox News calling on the advertisers to stop advertising. But they go further. Nicholas Kristof of The New York Times calls on cable providers to drop Fox News from their cable channels. First of all, I would imagine that there are contractual relationships between Fox News and the cable companies.
Leahy: Right. Which they come up periodically for renewal.
Carmichael: Yes, but I would imagine that dropping them might create some problems. But I don’t want to go there. I mean that would be like a professional sports team saying that the first-team all-pro quarterback for the other team can’t play in a particular game.
Leahy: Because he’s a bad person.
Carmichael: For whatever reason, they just disagree with him and think his play-calling is just inappropriate for the game. And then a former Facebook executive. So these aren’t small people. These aren’t no-name people. A former Facebook executive was more straightforward on CNN. We have to turn down the capability of these conservative influencers to reach these huge audiences. And so what they want to do is make it impossible for the opposition to essentially turn the United States government into a version of the Communist Party of China.
Leahy: Exactly. And by the way, the keyword there and these guys on the left Crom they use language very specifically. And there are themes that come back. The operative word in that quote was ‘reach.’ We had a guest on here Dan Gainor from the Media Research Center at 5:30 am and he said the word of the day coming down from all the folks on the left is this. Freedom of speech does not mean freedom of reach.
Carmichael: Okay, interesting.
Leahy: That’s why that guy said you’re going to hear this word, reach. Reach. You are going to hear it repeatedly.
Carmichael: And here’s the thing about The Wall Street Journal that and some of these other outlets just absolutely frosts me.
Leahy: Hold it. Hold it. The Wall Street Journal frosts you?
Carmichael: Their editorial page is mostly good. Their news section is mostly bad when it comes to their political section.
Leahy: I agree with that. I stand corrected. That’s exactly right.
Carmichael: Yeah, their business section is straight business. Economics is unless they get into a political area then they’re not very good on their political area. But this is in the opinion section. Here’s the last paragraph. The problems of polarization lies and political violence are real on both sides. Now, that’s where The Wall Street Journal loses me.
Because I’d like to have examples where it is where the so-called right did something that was exclusive to the right and they have the evidence that that’s all it was because I don’t believe it. Do I believe that there were some Trump supporters that there were in the Capitol? Yes. Do I believe that there were some Antifa and Black Lives Matter instigators who helped fan the fires? Absolutely yes. But to compare that one instance and even to make that a huge incident compared to all of the other things that happened this summer and say that they are equally bad, that’s where we get into trouble.
Leahy: Let me just add, I don’t disagree with you at all however, Crom what you’ve just described as being not an honest description of the comparing the two sides is not what we’re seeing at all.
Carmichael: I know that. I’m saying that here. The Wall Street Journal has a whole article that is attacking the left for trying to literally shut down the ability of frankly, of your show to reach its audience. The whole article is about that. And it’s not just one person. It’s across their whole spectrum. And then in the very last paragraph, it provides equal responsibility, which essentially gives credence to the entire argument.
Leahy: A very fine point. And I agree with it completely.
Carmichael: Now this is in The Wall Street Journal‘s political section. They ran a very long article almost seven printed pages. When you do the printing that’s a long article, most are two, but a short article where they are identifying the people who funded Trump’s rally. Trump’s rally. And they’re trying to tie the rally itself into breaking into the Capitol. And I want to talk a little bit more about that.
Leahy: That is a very good point.
Listen to the full second 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.
