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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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
Live from Music Row Friday 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 May Davis, former legal advisor to President Donald Trump and visiting fellow with the independent women’s form to the newsmakers line to discuss her background working with the Trump administration, Big Tech platforms, and the First Amendment.
Leahy: We are delighted to our newsmaker line, May Davis. She’s a former legal adviser to President Donald Trump. And she’s a visiting fellow with the Independent Women’s Law Center. Good morning, May.
Davis: Good morning. Thanks for having me.
Leahy: Well, we’re delighted to have you here. You have a great background. You are a graduate of the University of Kansas School of Journalism. That’s the Lawrence campus right?
Davis: That is.
Leahy: It’s a beautiful campus by the way.
Davis: Thank you. And you know, it’s a great basketball school, but it’s a good school, too.
Leahy: Are you a Jayhawk?
Scooter: Rock Chalk Jayhawk!
Leahy: Rock Chalk Jayhawk. Does that resonate with you May?
Davis: Yes, it does. And so sometimes when you say rock chalk to someone, they have to say rock chalk back. But sometimes if you say rock chalk, they have to say Jayhawk back. And you just kind of have to look at them and decide which they’re looking for.
Leahy: (Laughs) That’s very good. So are you a native of Kansas?
Davis: I am a native, actually, New Orleans, Louisiana. But I grew up mostly in Kansas. So I claim Kansas now.
Leahy: My brother was a teacher in Kansas for many, many, many years. Where in Kansas did you grow up?
Davis: So I lived in two cities. One is Goodland, Kansas. No one will have heard of it unless you are in desperate need of a rest stop on I70. So that’s on the border of Colorado. And then Kansas, which is kind of close to K State.
Leahy: So what did your folks do there?
Davis: So my dad is a doctor and my mom is also a teacher. And I was a teacher for a few years in Kansas City as well.
Leahy: You were a teacher. Did you teach in a public school or a private school?
Davis: So it’s a charter school in Kansas City and it’s very interesting. They’ve got a couple of charter schools, but their public school system is actually not accredited, meaning a college doesn’t actually have to recognize your Kansas City public school diploma.
I mean, they do, but they don’t have to. So I taught a charter school that actually underperformed, underperformed. t the Kansas City public school system. So it was an interesting two years.
Leahy: It sounds like it was quite a challenge for you. (Davis chuckles) You know, who was at a time, I think he was for a while and he’ll be on our program later today. You probably know him. He has something in common with you, I think. And that is Kris Kobach, who was a professor of law at the University of Missouri, Kansas, for a period of time.
Davis: Yes. A very familiar Kansan.
Leahy: And he’s got a high profile on some of his litigation. Now you went from teaching at a charter school in Kansas City to Harvard Law School. What was that transition like?
Davis: I think it’s intimidating for a lot of people in the Midwest to just go to Harvard and say like can I read and write the same way that all these other people? It is a scary thing. And it turns out you can.
It was a really wonderful experience. And less so as time goes on when you first get there was what I would consider true diversity. Everyone had a different background, a different life story. And you got to sort of learn like that.
And then by the time my third year had rolled around and there were a lot of riots because of the Ferguson, Missouri, the shooting happened then it became less so. I feel sorry, I think, for the Harvard law students now, especially after the pandemic where they really can’t experience their classmates in the way that I originally could. But I truly loved it.
Leahy: She may not have been on faculty at that time. Did you ever have Elizabeth Warren as an instructor?
Davis: So funny enough, we had her husband and she had just left. But she would have been my contract Professor in my section if I was there one year earlier.
Leahy: Missed her by this much! (Laughter) Tell us how you came to become a legal adviser to President Donald Trump.
Davis: After law school, I did what law students do. And I clerked for a federal judge, moved to Denver, Colorado. And I was just content to be in Denver. In case Hillary won, I wasn’t wanting to live in Hillary Clinton’s, D.C.
I did not think that that would be a very fun experience. And I stayed in Denver. But Trump won. The miracle happened. And I got a phone call from some friends who, for one reason or another, we’re not able to work in the administration.
And they thought that I’d be good. And so they gave me a call and I worked all four years. I was there from day one to the last day. It was an incredible experience.
Leahy: Where did you work in the White House? For the chief of staff and some other parts of the White House?
Davis: So I worked in several offices. One is an office that very few people have heard of. It’s called the Staff Secretary’s office. Fascinating office. And you travel around with the president and basically help organize both the president and the White House.
So you create memos, briefings, and help run meetings. It’s a lawyer job. So the Supreme Court Justice Bret Kavanaugh had that job for President Bush. Then after that, I worked for the deputy chief of staff. But basically the chief of staff, John Kelly, for a few years.
And then at the end, I worked in the White House counsel’s office, Pat Sipalone. And actually, while everyone was doing impeachment, I helped more with the policy side. Is this legal? Can we do this?
How can we do this? I want to get that done. It’s a fascinating place to be a lawyer because your problem-solving. Like, can we do something? And you can’t just Google it. There’s no answer. You have to, you know, figure it out uniquely.
Leahy: How exhausting were those four years?
Davis: Well, my skin is definitely better now than it was then. It was very exhausting, especially at first. The first 100 days, only teaching can compare to the amount of work that that is. And then as it gets further on, it becomes manageable.
I don’t know whether that’s because you’re just so used to the lifestyle or whether at some point you’ve tried those things. And so if somebody asks you a question, can I do this? Oh, you asked me that two years ago. I know the answer to that. (Leahy laughs)
Leahy: Did you come across a friend of mine? And now once and once again, colleague at Breitbart, where I also write, an attorney and good friend by the name of Ken Klukowski?
Davis: That name is definitely familiar, but we did not work closely with each other, unfortunately. There’s a couple of other Breitbart people that I don’t think went back, but I didn’t work with Ken that closely.
Leahy: Tell us about the style of working closely with President Donald Trump.
Davis: I think the one big thing that was surprising to people when I tell them this is how much he listened to women. This is somebody that when he took office, oh you know, he doesn’t respect women. That was one of at the time.
Now everything he’s Russian agents like people lost their mind. But at the time, everyone’s big complaint was sort of a women’s thing. But whenever I was in the room, he would scan the room for whose eyes seemed like they wanted to say something, and he would call on them.
And so there’s a lot of research that men speak up when they’re 20 percent confident in their answer. And women speak up when they’re 80 percent confident here.
Leahy: If you’re a talk radio host, you speak up when they are five percent confident. But keep going. (Laughter)
Davis: There probably are a lot of times in meetings where a woman is unlikely to just offer random advice to the President of the United States. But the president can look around and he can tell, he can sense that there’s something that’s left unsaid, and he will ask it.
And there’s just something about being a woman who has a voice that hasn’t been expressed yet in that room. He will quiet the room and he will listen to you. And so that’s why some of the closest advisors, Kellanne Conway and Hope Hicks were women.
And so I thought that that and every time I was in the room with him, if I wanted to say something and if I had to say something, I felt like I was able to say it. And that was incredible.
And it’s tough because he does take advice from so many people from so many sources. It was my job to kind of trying to organize him and manage him, like how the information was received. It’s an impossible job. You can’t do it. (Leahy chuckles)
There were so many things that we tried to do to make that better. And so it is both a blessing and it made my job very difficult. But I think in general, you do want the president to be able to and for people to be able to speak up.
So that was something that I found very, very helpful. But also, if you have a president like George Bush, you just had to be very regimented. And he only received this information from approved sources. It makes that organization piece a bazillion times easier. It prevents good ideas from reaching.
(Commercial break)
Leahy: May, You have a terrific article at Townhall. Headline, Crack Down on Social Media Censorship Exposes Conservative Fault Lines. And your conclusion is we’ve now seen a state generally in favor of light regulation on personal freedoms. Choose heavy regulation for the Internet.
That may well be a policy our friends in Florida, the Sunshine State, live to regret, or live to love. But the question is whether it’s a policy they can lawfully choose. Can you elaborate on that for us May?
Davis: Yes. Social media regulation is, I think, a topic you almost can’t learn about, because what are you going to do? Google it?
Leahy: Hold it. That is a great line. That is a great line. Scooter, we’re going to have to record that and keep it. That’s one of the best lines I’ve heard in some time, May.
Davis: (Chuckles) Thank you. Starting from the White House when we were thinking about these issues and even now, if you Google Florida’s social media law, it’s just negative, negative, negative, negative.
But when you think about it, when you Google abortion, what are you going to see? When you Google anything, you see what Google wants you to see. And that’s the same way it is on Twitter. And it’s the same way it is on Facebook.
You see what these companies want you to see. Now Florida says no, you should be able to opt-out of that. So the Florida law does a lot of things. I think they’ve gotten a lot of press on you can’t de-platform political candidates.
And people are, I guess, referencing Donald Trump. It’s not just about that. They say that they have to publish their standards on how they censor you and how they do platform you. And then they have to apply those standards fairly.
So they can’t just say because you’ve said the word, transgender. Now I’m going to watch you a little bit closer. There has to be something that they apply fairly. Alright. Well, then people who are transgender and say that then you get banned and blocked too.
It’s burdensome. It’s a lot. But it’s interesting. And so it’s not one of those issues where everyone said, oh, well, DeSantis is doing this just for political gains. It’s not a clear political winner.
There are a lot of conservatives who do not like the government telling people how to run their business. And at the end of the day, these are social media companies running their business.
And this is Florida telling them how to do that. And people like the Internet. It’s one of the few things in this country that works. It’s not an airline. It’s pretty great. And every day there’s a new cool thing on the Internet.
So you’ve got that side of conservatives who really are kind of free marketing. And they like the freedom of the Internet, even if it means you can’t see the Hunter Biden laptop story. That’s a negative. But there are so many positives.
Then you’ve got another group of people that are like this is the hill worth dying on because the social media companies run the way that we think. They control access to information. And unless they’re regulated or at least threatened with regulation, they’ll take over the culture.
There will be things you can’t say. It will be the 1984 lifestyle. People bring up three big legal problems with Florida law. And that’s what my article really gets into. And actually, yesterday a judge ruled preliminarily on these.
Leahy: What was your ruling? Was it in federal district court?
Davis: It was in federal district court. And it was a Clinton-appointed judge in Florida who ruled that Florida’s law is both unconstitutional and many provisions conflict with federal law. Florida has already said that they’re going to appeal that.
They’ll get three judges on the appellate court to look at it. But the legal challenges are basically this. One, there’s a First Amendment right that Facebook and Google saying that they have is you can’t tell me what to say.
And they resulted to that. And of course, the judge didn’t buy it. So we’re not telling you what to say. And no one would ever think that Twitter, that Jack believes what Donald Trump says on his own Twitter.
So no one by hosting a candidate you’re not saying now Twitter, you speak. They are two different things. Twitter is a platform. And California has a law that says shopping malls have to allow some amount of speech on their private property.
And the shopping malls in the 80s said, no, no, no. I don’t want to do that. I have the right to speak for myself. And the Supreme Court said, no, you’re not speaking. You’re just hosting people. And it’s the same here.
Twitter, when Donald Trump speaks, and whoever that they disagree with speaks, it’s not Twitter speaking. They’re hosting people. So I think the First Amendment is a little more wiggly than at least the judge in Florida would say. But it’s a tough challenge.
Leahy: May Davis, thanks so much. We are out of time. Can you come back again? And by the way, nothing is intellectually more interesting than the concept of a wiggly First Amendment. I like that phrase, too.
Davis: (Laughs) Well, thanks for having me. And yes, I’d be happy to talk about the Internet anytime, because you can’t find this information. We will have you back on May, and we’re delighted to have you on. Thanks so much.
Davis: Thanks.
Listen to the first 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 “May Davis” by Independent Women’s Forum.
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 Co-Founder and CEO Daniel Grant of 2nd Vote Advisers to the studio to discuss his recent talks with red-state treasurers and the potential to divest in corporations that do not promote American values.
Leahy: In studio with our good friend Mayor of Maury County Andy Ogles and Dan Grant, another good friend with 2ndvoteadvisers.com. I’m so excited about this. I’m so excited. Now you’re talking to some red-state treasurers, right?
Grant: Yes.
Leahy: Tell us why. What is it that the red state treasurers have?
Grant: Well, it’s pretty interesting, actually. So actually, we were just in the Australian Financial Review, which is The Wall Street Journal in Australia. And the reason we resonate with red-state treasurers and Australia is they’re heavily reliant on fossil fuels.
Leahy: Yeah. Fossil fuels have created the energy of America that’s cost-effective energy.
Grant: Right.
Leahy: And they’ve made a lot of improvements on environmental issues. But the Larry Fink’s of the world who want to tell everybody else what to do and what’s virtuous or not have declared fossil fuels are not virtuous.
Grant: Which is a problem if you are a red state treasurer and your state’s economy is dependent on fossil fuels. The main companies in the state are dependent on it. The main industries in your state are dependent on it.
I had lunch with a red state treasure a week and a half ago, and this gentleman controls over $70 billion in assets. And he was telling me exactly what I just said. They are under attack.
That week alone, Exxon lost three board seats to a small hedge fund called Engine No. 1. Engine No. 1 really didn’t know much stock, but they put a slate of directors out there. And then Engine No. 1 went to Vanguard, BlackRock, and some of the other large ones.
Leahy: Vanguard is like the number two.
Grant: Number two. And got enough votes to actually put three activists on the board.
Leahy: Now they like solar, solar, solar. Fossil fuel bad.
Grant: They are not saying, let’s go pump more oil out of the Gulf. (Leahy laughs) I can promise you that.
Leahy: I say bring that all on. Bring it on. Bring it on. (Chuckles)
Grant: Exxon is under attack. That same week, Shell lost a very important case in a Dutch court, which basically is making Shell diversify out of 45 percent of its fossil fuel business.
Leahy: Shell is a Dutch company?
Grant: Shell is a Dutch company.
Leahy: Nothing says free markets like I don’t know, a European quasi-socialist government like the Netherlands.
Grant: Let’s follow that example.
Leahy: Because it’s working so well.
Grant: What could go wrong?
Leahy: (Laughs) You are very good. That was good.
Grant: And then lastly, the same week, Moody’s came out with a report saying 40 percent of companies represent an environmental threat. 40 percent of companies in the United States represent a threat.
Leahy: What are they talking about?
Grant: Well, what they’re talking about is regulations. They’re talking about what Maxine Waters is talking about.
Ogles: A point that we kind of danced around earlier is this idea that these large corporations are putting in these layers and layers of regulations to stifle competition.
Leahy: Exactly.
Ogles: Because they don’t want you and me to start a business. They don’t want the small guy to become a big guy or gal for that matter or a mid-size company that becomes larger.
And so this has nothing to do with the environment. This has nothing to do with carbon footprints or whatever. They are literally trying to put other people out of business.
Grant: You’re right Andy. The government can’t control small businesses so what they want to do is regulate it. They can control large businesses. If large businesses can then make small businesses less competitive by piling on taxes through regulations, that’s what they’re going to do.
And that is exactly what they are doing. You don’t think Maxine Waters really cares about the Investor Protection Act, do you?
Leahy: So in terms of the red states, I think we’re talking. You don’t have to name any, but I will. So red States that have heavily in their portfolio, the fossil fuel companies. Obviously, Texas would be the big dog that would be there.
But Oklahoma would have them. And the Dakotas. North Dakota and South Dakota, New Mexico, and Arizona. All of those. New Mexico is not exactly a red state. Andy?
Ogles: One of the things that when Facebook was censoring the president, I sent a letter to the governor of the Speaker of the House and Lieutenant governor saying that the state of Tennessee should divest itself of any shares of Facebook and Twitter.
Why? Because these are big companies that have become social activists. They don’t represent Tennessee values. By the way, I never got a response to that letter. But that’s something that Florida has done.
Again, what would Ron DeSantis do? Florida has taken the steps to divest itself. And these huge investment funds States control red states and all states. They control a lot of money. If I dump my few shares of Facebook, it has zero impact.
If I cancel my Facebook account, it has zero impact. But if you have a state that has $50 or $60 billion under management and they say, you know what, Twitter? We don’t like what you’re doing to Conservatives on your platform that moves the needle. So I applaud 2nd Vote for what you’re doing.
Leahy: And Dan Grant, last minute of the program, you got 30 seconds. Sum up, 2nd Vote Advisers. Why should you go there?
Grant: Because we believe companies should be inspired by the First Amendment. Companies should not be trying to over-regulate and trying to stifle the First Amendment. Jack Dorsey of Twitter should not be dumping Trump because he can do it.
The First Amendment protects individuals from the government only, not from corporations. But corporations should be inspired because that is what makes our society great.
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 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, Dr. Carol Swain, to the studio to discuss the Parler shutdown, reality czars and the current climate of Orwellian nature.
Leahy: I am very excited because in studio with us right now sitting and right across from me, socially distanced by six feet is the one and only all-star panelist, good friend, former Vanderbilt professor, former Nashville mayoral candidate Carol Swain. Good morning, Carol.
Swain: Good morning, Michael.
Leahy: You know you do a very good job of promoting your appearances here. and you put the content out that you coming on the next day. And then I just get bombarded with people on Twitter. Yes on Twitter and Facebook saying Carol is coming. Let’s see what she has to say.
Swain: Well, I mean people are just so wonderful to me. I really appreciate everyone who listens and I think have something important to say at times.
Leahy: Yeah. I’ve had a lot of folks that we talked to because I do work on other projects around the country. And every time I say, well Carol, Swain is one of my friends and she comes in as an all-star panelist. They say, Carol Swain! Well, I’ve got to talk to Carol. (Laughter) It actually happened a couple of times this week from people. So, you know, I benefit from our friendship Carol.
Swain: Well I run into listeners all the time and they come over and we chat and we take pictures.
Leahy: Well, it makes it a lot of fun. One guy who lets you we were talking about this off are I just want to sort of bringing it up. One guy who’s not having his picture taken these days is the former CEO of Parler Jonathan Matze. He announced his termination the other day and Dan Bonginio was a minority investor in that company who disputed his account of it. You would think on our side if we have trouble as Parler did, I mean Parler was shutdown unceremoniously in an unfair way about a month ago. But the CEO hasn’t been able to get them back up and running. And I think that may be why he’s no longer the CEO.
Swain: Well, there just seemed to be a disagreement about why he was terminated. And if you think about the CEO, of course, he’s going to present himself in the most positive light because he needs another job. And he seems to be a very intelligent hard-working guy. And there was a series of unfortunate and unfair circumstances that led to Parler being taken down. And by the way, I had 37,000 followers on Parler that I accumulated in maybe three or four months.
Leahy: That’s a lot.
Swain: Yeah. I’d like to see them again.
Leahy: I think they’ll get back up. I think they will I am I was personally surprised by how long it’s taken them to get back up. I mean how hard is it to find another server other than Amazon’s AWS and some others.
Swain: They were saying they had one from Russia and you can’t use Russia. And China is a bigger threat to our nation than Russia is far as I’m concerned.
Leahy: I think there are a lot of servers out there though here that are independent that you could get. I mean we use them and others use them. So I don’t know. it’s a bit of a mystery. I do know that they have a new management team. And actually, I know one of the members of the management team good guy former Tea Party leader organizer way back when. So I have confidence that they will get back up and running.
Swain: I hope so.
Leahy: We’ve had some conversations about all this Big Tech, you know, Orwellian shut down America and shut down free speech. Did you see this crazy story out of The New York Times? They want to put a realities czar up there. (Laughs)
Swain: And we know that New York Times gauges in fake news and I guess they would recommend the Arbiter of what is true and what is false and what is allowable and what isn’t.
Leahy: They’re basically trying to rewrite history.
Swain: Everything is so Orwellian. And if there’s anyone out there listening and you’ve not read George Orwell’s 1984, which was written in 1949, you need to read it. And if you read it in high school, you know 50 years ago you need to reread it because we’re going through repeating our history that is totally Orwellian when it comes to redefining terms and erasing history.
And what’s going on right now where we are not allowed to talk about what really took place during the election. We’re not allowed to talk about voter fraud or the possibility of a stolen election. And that is so unAmerican. and it is as if we’re going through a moment when our Constitution means nothing.
And if you look at our Republican members of Congress, I’m ashamed of almost all of them because for whatever reason they don’t seem to have much integrity. They’re not willing to stand up. They’re not serving our needs. And we’re locked in this two-party system where for all practical purposes we have one party. It’s the Democrats. And the Republicans are not even the loyal opposition. They shoot themselves in the foot and they undermine each other all the time.
Leahy: Those comments I think are primarily directed at the national level.
Swain: Well, yeah, I’m talking about the Congress right now. But we have to watch the state legislature as well. We have to hold everyone accountable. And when it comes to the election irregularities, we have to make sure that in Tennessee we don’t end up like those other states with the ballot harvesting and the absentee ballots standards relaxed to the point that we have stolen elections. And so that has to be a priority of every state.
Leahy: Every state. That’s a good point. I was talking with my friend the pollster John McLaughlin the other day who said exactly the same thing you are saying right now. Because where the Democrats have the advantage in this past election it wasn’t in-person voting. It was in all this vote by mail which has a higher probability of fraud.
Swain: But I saw the ballot harvesting. Virginia was not in play right? Well, I have relatives that live in the inner city living in the projects and places. They said that people came to your door like two or three people and they asked whether or not you had voted. They had ballots and they stood there pretty much while people filled out ballots that you handed back to them. Can you imagine? There’s no secret ballot there. There was a lot of intimidation and a lot of pressure on individuals. That should be illegal people showing up at your door.
Leahy: Yeah people showing up at your door. Hey here fill this out the way I want you to. There is intimidation. No question about it. I completely agree that should be illegal. Now the very interesting thing you brought up there is people might say well Tennessee voted for Donald Trump 60 percent. Not going to be a problem here. Well, that’s what they said about Georgia eight years ago right?
Swain: Yeah but the thing that bothers me as a Black American that lived through the parts of the Civil Rights Movement. I was a child when it started. but the Voting Rights Act that people fought so hard for was never meant to abuse be abused in the way that it is right now. And Black people are being used by the Democratic party to create lack standards to insulate Democrats. And it has nothing to do with right to vote. No one’s vote is being suppressed in 2021. And so this is a whole new ballgame with Black people being used to advance an agenda that doesn’t really benefit them.
Leahy: We got a knock on the door Carol. It’s the reality czar. (Laughter) The reality czar is coming. No, you can’t say that Carol! The reality czar is going to get his big hook out like the grim reaper. (Laughter)
Swain: Well since I’m Black and I hold these unorthodox views and I need to be sent away to camp and de-programed. but I can assure you that it will not work.
Leahy: Well Katie Couric thinks you should be deprogrammed.
Swain: Well the Democrats think that anyone who doesn’t believe the way they do should be deprogrammed.
Leahy: Let me read this from the Constitution of the United States the First Amendment in the Bill of Rights ratified in 1791. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for redress of grievances. Reality czar. Is that is that consistent with the First Amendment?
Swain: But you just read the First Amendment.
Leahy: Yeah. I know.
Swain: And the Capitol Hill protests that took place where they have demonized everyone that was known to have gone to Washington was totally contrary to the First Amendment right of assembly. And it’s like people have just lost sense of the Constitution. And this move, you know to make a state out of D.C., D.C. was created by the Constitution. It would take a constitutional amendment.
Leahy: It would.
Swain: Congress just can’t do that.
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 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.
