Live from Music Row Thursday 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 all-star panelist Gary Chapman in studio to comment upon the social media plague inflicted on kids and teenagers.
Leahy: We are delighted, as always, to have in studio for a fresh perspective on the world, our newest all-star panelist, singer-songwriter, Gary Chapman. Gary, we had sitting in the same seat that you are right now yesterday, the new attorney general.
Chapman: I could feel an aura of power. I felt it.
Leahy: Power and justice.
Chapman: Yes, indeed.
Leahy: Power and justice and a constitutional conservative.
Chapman: I know him yet. Good dude? You like him?
Leahy: Absolutely. The best attorney general in the country. A conservative rock star.
Chapman: Good grief.
Leahy: A very measured, humble person. Fascinating.
Chapman: I’m anxious to meet him.
Leahy: We talk about irony right here off on News Potpourri, which is coming up at 7:49 a.m., folks.
Chapman: Cannot wait.
Leahy: Cannot wait! But we talk about irony. And, you know, I’ve been such a critic of the method by which an attorney general is selected here because the only state in the union where the attorney general is selected by wait for it…the state Supreme Court in a violation of the separation of powers. Every other 44 states elect them.
Others have the legislature. And so I’ve been criticizing that. And it’s an eight-year term. I’ll tell you what, our the five members of the Supreme Court, they picked the best guy for that job, and he’s been in office since September 1st. Listen to what he’s doing. He was in talking about this, and I heard him say this, and I said, well, that’s just fabulous. He and the attorney general of Colorado are leading a 50-state coalition. That’s every state.
Chapman: That’s all of them so far.
Leahy: That’s all of them so far.
Chapman: But wait, Idaho is going to split.
Leahy: (Laughs) But it’s a 50-state coalition, and they are looking at the impact of social media on kids. And it’s a very serious problem we have in the country, social media. And wait, there’s more.
He’s going to hold town halls across the state to get impact and witness statements, if you will, from families who’ve been impacted, whose children have been impacted, and harmed by social media.
Chapman: That is a fabulous idea.
Leahy: Isn’t that a great idea?
Chapman: Yes.
Leahy: Because everybody says, oh, social media has ruined the country, ruined the kids. And I think it is.
Chapman: It’s ruined many adults. So I know it has the kids.
Leahy: But the kids, it’s a different world now. If they’re on social media, they’re prone to be bullied. They’re prone to get depressed. They look at everybody else, and social media creates the impression everybody else, all of your friends are having fun except for you.
Chapman: You’re not making it.
Leahy: You’re not making it. And therefore, kids get depressed. And of course, the people that are posting this are just posting it so that other people will think they’re having all that much fun.
Chapman: They’re lying.
Leahy: Maybe or maybe not.
Champman: We’re teaching them to lie. We are.
Leahy: I saw this one report about teenage girls.
Chapman: Oh, man.
Leahy: Mental health problems, particularly teenage girls. It’s like 30 percent of teenage girls have contemplated suicide. This is a society and a culture of just teenage girls imploding.
Chapman: Teenage girls.
Leahy: I’ll tell you what Attorney General Skrmetti said about the duty and responsibility of social media companies. He said they basically this is what he said. The social media products, the platform, you know who all of them are, have been refined and refined and refined to be as addictive as possible.
And the companies have done extensive research to figure out how to make it hard for people to stop using their products. And this addiction to social media has led to a disruption in brain development, this is me talking of young kids.
Chapman: There’s no question, though. There’s no question.
Leahy: And they get depressed now, these town halls, and we’re going to be there because I think this is going to be…
Chapman: I want to go. Absolutely.
Leahy: The town halls are going to be let me just check and see where they’re going to be. March 2nd in Clarksville, March 9th in west Tennessee. I don’t know exactly where, but we’ll tell you where. Probably Germantown or something like that. And then March 27 in Chattanooga.
And so basically, the town hall meetings are part of an investigation that this 50-state coalition led by Attorney General Skrmetti and the attorney general of Colorado is doing on the effects of social media on kids and the mental health aspect of social media on teenagers, specifically. I’m telling you, I think the testimony at these town halls will be heartbreaking.
Chapman: Heartbreaking. Absolutely it will. Eye-opening and heartbreaking. It’s okay to get your heart broken if something good happens out of it. Not for the person that got broke, but to hear a heartbreaking story is what I mean.
Leahy: So here’s the thing. In Missouri, Senator Josh Hawley who is a very strong, conservative Republican.
Chapman: I like him for the moment. Yes.
Leahy: He’s introduced legislation that would prohibit anybody under the age of 16 from using social media.
Chapman: Now, I think it’s a fabulous idea. It would be difficult to police, but I think it’s a fabulous idea. I think they’d be better off taking a walk in the woods then they would staring at their phone inside.
Leahy: And then looking at everybody else that they know having more fun than them.
Chapman: What do you think the head of diversity training at Facebook makes? What’s his salary? Her salary?
Leahy: Half a million, I’m sure, for ruining your kids, basically.
Chapman: To not think it’s about control. And I liked that fellow previously. I’d like to talk with him more.
Leahy: But I think he’s a little bit left of center.
Chapman: I kind of got that. It felt that way. To think that that’s not nefarious and really about control. And I love the name that he came up.
Leahy: Diversity industrial complex.
Chapman: I think I think that’s a close second, though, in my opinion, to Satan and his minions.
Leahy: I think it’s right. I shouldn’t be laughing at that. No, it’s a good phrase. I have an idea for you, Gary.
Chapman: Go.
Leahy: You’re very good at crafting a phrase. I’ve heard you might be able to make a living doing that somehow.
Chapman: I thought about songs, but you can’t make a living doing that anymore. T-shirts. I can sell T-shirts. I can sell T-shirts at Turbulenttruth.com. Come on over. They’re all funny.
Leahy: I think you’re exactly right, Gary. First, let’s go back to the idea that for kids under 16, being on social media, Facebook, Twitter, whatever, the other TikTok, the Chinese Communist Party-owned TikTok, Instagram, what else that it is, is harmful pretty much to every kid that’s on to their mental health.
Chapman: Zero question about it. When you and I were kids, the only way you knew you were ugly is when you looked in the mirror. Now you’ve got thousands of people telling you that you are.
Leahy: And even if you’re not.
Listen to today’s show highlights, including this interview:
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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.
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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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.
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 the original all-star panelist Crom Carmichael to the studio to discuss the White House’s admission to partnering with Facebook and the un-punished COVID insurrection of Texas Democrats.
Leahy: Crom, that interview with Os Guinness, that was something.
Carmichael: It was fascinating. And the interview that you had before I got here was fascinating. And the part that I’m really generally concerned about is there were places for people to learn to think.
I’m a great believer that we have God-given rights. But one of those God-given rights is we have the right to learn, but we don’t have the right to know.
You have to learn and you have to think in order to know. Part of his life experiences and the difficulties that he had created the environment and the people around him and his parents and what they said to him and the values that they shared with him that he then came to embrace.
Carmichael: That is – that’s why I asked him: where would somebody go to learn today? And he says a great question. And then he didn’t have a particularly enthusiastic answer.
Leahy: For young kids, I have the answer.
Carmichael: There you go. The National Constitution Bee.
Leahy: And Thales Academy.
Carmichael: There you go.
Leahy: Two places.
Carmichael: That’s interesting. Well, I have a few little tidbits here, Michael, all around COVID. And what force COVID has become with the Biden administration and this to me, it ties so many interesting things together and a lot of what Os was talking about.
But what you have is you now have the White House, Jen Psaki, who has actually now admitted that the White House is colluding with Facebook on what information is posted on Facebook.
Let’s be sure that we’re clear about something. When the White House people and the Democrats refer to misinformation, they’re not talking about disinformation.
They’re just merely talking about information that they don’t agree with exactly. They want to stifle dissent. And here’s what was written.
We are in regular touch with social media platforms by COVID-19 and related information, says the press secretary. We’re flagging problematic posts.
So, for example, my guess is that if somebody posted that the Democrats from Texas are actually the ones who are creating the insurrection, that that post would be taken down.
But let’s consider this. Let’s consider what the Democrats from the House of Representatives did. They wanted to bypass commercial airlines, and they did.
They chartered a flight. They had people on that flight who had COVID. They did not wear masks. They wanted to spread COVID as much as they could among themselves on the flight.
Then they landed. And what did they do? They went to the Capitol. They surged into the capitol. They were carrying the weapon of COVID with them, but nobody knew.
The guards let them through. They got all the way to the vice president of the United States, who then later learned that she had been exposed to COVID. How did she react?
She says: I will not be quarantined. Nancy Pelosi’s own staff came down with COVID. We know that President Biden has called publicly COVID a killer. What is he doing with the Democrats from Texas?
Leahy: He’s elevating them and celebrating them.
Carmichael: He’s elevating them. He’s not putting them in solitary confinement for their efforts. Their clear efforts to avoid the authorities and to spread COVID throughout the capitol. He’s not doing anything about that.
Leahy: I have a theory about that. Would you like to hear my theory?
Carmichael: Yes.
Leahy: These are Texas Democrats? Many of them are on or near districts in the big cities where the illegal aliens that haven’t been tested for COVID have been brought.
Carmichael: And that is another point. It has been brought to Biden’s attention many, many times that this surge of illegal immigrants coming across the border are carrying COVID and are untested. And what does he do?
Leahy: Nothing. He spreads it throughout America.
Carmichael: He spreads it throughout America. He takes these people untested, carrying COVID to military bases, and then has them put on private, government-owned planes and flown throughout the country to spread his COVID insurrection. And then he complains that there’s COVID.
Leahy: My theory is that untested illegal aliens who have COVID came into contact with these Texas Democrats and transmitted it to them.
This is a theory. And although they’d all been vaccinated they came down with it, which would suggest perhaps this is a Delta variant. But six of them and rising have it now.
Carmichael: And let’s be clear about this. What has Biden been saying about the vaccine? What has Fauci been saying about the vaccine? If you’ve had the vaccine, you will not get COVID.
Leahy: Except if you’re a member of the Texas legislation.
Carmichael: We now know that that’s a lie. Fauci is now a verb. To tell a Fauci means to make something up on the spot.
Leahy: But to do it adamantly and brazenly.
Carmichael: Yes. Because it’s politically convenient. Here’s something that’s very interesting. This is a doctor – from Dr. Joel Khan.
He’s a holistic cardiologist, but he’s gone in, and he’s done the studying. By the way, these federal health agencies have over 20,000 employees.
And they don’t check any of the data on things that they don’t want to know about. But he’s checked the data. Of 9,048 deaths reported as of July 2, 22 percent occurred within 48 hours of taking the vaccine.
15 percent occurred within 24 hours, and 37 percent occurred in people who became ill within 48 hours of being vaccinated.
Leahy: These are how many deaths are associated with the vaccine?
Carmichael: Of 9,048 deaths.
Leahy: That’s not been reported.
Carmichael: That’s reported as of July 2.
Leahy: But not broadly.
Carmichael: What I’m saying has not been reported broadly because they spike it.
Leahy: What is the source on that, Crom?
Carmichael: Dr. Joel Khan.
Leahy: What outlet?
Carmichael: Sciencebasedmedicine.org.
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.
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 Maury County Mayor Andy Ogles in the studio to discuss the current economic growth his county is experiencing due to an influx of manufacturing and supply chain demand.
Leahy: We are joined in studio by the mayor of Maury County, that bastion of economic freedom, the turbocharged engine of economic growth. The mayor, Andy Ogles. Good morning, Andy.
Ogles: Good morning. How are you today?
Leahy: Well, I am delighted to have you in studio here. And, you know, we kind of joke about that little tagline we have for Maury County, except it’s no joke.
It’s actually true. It is the bastion of freedom and the turbocharged engine of economic growth. And I think you have some proof of that to share with us today.
Ogles: Obviously, all you have to do is drive around Spring Hill, Columbia, or even on the Southside down in Mount Pleasant and see the growth.
The Chamber gave an update yesterday at our commission meeting. And when you look at population growth in the state of Tennessee, our growth rate, of course, that’s a per capita number, we’re number one in the state of Tennessee.
We’re also the number one creator of manufacturing jobs in the state of Tennessee. So it’s a crazy time to be mayor of such a growth in the county because that comes with a lot of challenges.
And that’s one of the things that we’re working through now as we pass our budget and get ready for the next school year deciding, do we build a school this year or next year.
Because there’s a borrowing that’s associated with it. But it’s crazy. So it truly is not only a bastion of freedom, but we’re turbocharged. And again, it’s a cool community.
Leahy: One thing I really like about what you just said is you’re a source of new manufacturing jobs. Now, that’s interesting.
In the city of Nashville itself, there has been job growth because companies, tech companies from California come in, and they bring all the people that are associated with tech companies in California. And then financial services companies from New York come in and they bring all the people that work for financial services companies. They don’t always necessarily have the same kind of Tennessee values, right?
Ogles: That’s right.
Leahy: Sometimes. I don’t know when one of the financial services companies came in before they got a bunch of money from the state of Tennessee before they even opened up, they were trying to tell Tennesseeans and what they should do about various social issues. It kind of rubbed me the wrong way that they did that.
Ogles: Well, at the same time, obviously, the state of Tennessee landed a big operation of Facebook here in Middle Tennessee. And so at the same time that Facebook is censoring former President Trump, the state is giving Facebook tens of millions of dollars and incentives. So not necessarily the right fit for our state.
Leahy: Facebook. The guys that are like the big tech oligarchs, the guys that are suppressing the First Amendment. The state of Tennessee is giving them money? Really?
Ogles: Tens of millions of dollars. I saw Marjorie Taylor-Green, the representative out of Georgia. She was just suspended on Twitter for 12 hours or something, but she quoted factual data about COVID and who is at risk.
Leahy: You can’t do that. (Laughs)
Ogles: And she was censored because of it. And I granted it was for 12 hours. But again, it just shows the authority and the power that these tech companies have or have assumed.
And we the people and the government have allowed them to do that. And it’s really this situation now where you have social media companies dictating health care policy, and that’s a scary place.
Leahy: Because nothing says healthcare knowledge like a 24-year tech geek in a basement in Palo Alto, California.
Ogles: Right. You go back to Brave New World or 1984, those books that were science fiction back way back when I read them in school.
And it’s all coming to fruition. So we’re in an interesting place. But going back, Maury County is known for its automotive base.
Leahy: General Motors and Saturn way back when in 1990, I guess Saturn moved to Maury County.
Ogles: In the mid-late 80s that plan came to fruition, was announced. And of course, they had to implement it, but also automotive related.
And a lot of people don’t realize this. And so LG Chem, which is a South Korean company, partnered with General Motors. They’ve created a battery brand that will be a supplier to most of the other car manufacturers.
So again, you have General Motors, who will be one of the drivers of battery technology as you go into the future because they have such a large market share.
And this battery plant that we built in Maury County, it’s sized to be built, currently has more capacity than all the other battery manufacturers in North America.
And that puts the EV or electric vehicle technology – the center of that universe is in Middle Tennessee, specifically Maury County. So now we have this – General Motors expanding.
We have this new $2.3 billion plant with the LG Chem. And with that will come technology and RND and all that sort of stuff to Middle Tennessee.
So it’s exciting. And you’re seeing a shift in that space not only for Tennessee but for Maury County.
Leahy: And the other thing about – that is I found out that apparently, if you have sort of a supply chain, shall we say, for automotive parts and automotive assembly, which is what we have here in Middle Tennessee, there are other industries that use those same skills like firearm manufacturers, from what I hear.
Ogles: Because as you’re building out your infrastructure and supply chain, which that’s an important part of that and distribution capabilities, any industry that needs those types of services like trucking, et cetera, they can piggyback off of one another.
And so with that again, Maury County, known for its automotive and manufacturing jobs, are now creating a new layer of distribution for Middle Tennessee.
Leahy: This means more economic growth in Maury County and Middle Tennessee.
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.
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
