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 Mayor Andy Ogles and Grassroots Engagement Director for AFP Grant Henry in studio to weigh in on Big Tech’s censorship and whether or not they should be considered a public utility.
Leahy: We’re just having too much fun here in studio. Grant Henry, the grassroots director of Americans for Prosperity of Tennessee, and Andy Ogles, mayor of Maury County, that bastion of economic freedom and the turbocharged engine of economic growth. I had to get that in again, Andy. (Chuckles)
Ogles: Absolutely.
Leahy: You like it?
Ogles: Truth is truth.
Leahy: Can’t say it enough, can we? We’re just having a lot of fun here. Grant, I’ve got a story here about Big Tech bullies. It’s got a local angle.
Our very good friend and all-star panelist Carol Swain. We have a story about her written by Chris Butler. I’ll read the story and then, Grant, I’d like to get your reaction to this.
Carol Swain says Facebook has shadow banned her politically conservative post. Carol Swain said Facebook staff members shadow banned her last week and restricted her from communicating her ideas with more than 77,000 social media followers.
Shadow banning occurs when someone posts something that the same person can see what he or she published on a social media network.
No other person ever can see or respond to the post. Swain said she saw her published post and asked her friends if they also saw the post.
They did not. Swain, a public figure who ran for mayor, frequently appears on Fox News, and she’s been an all-star panelist here for some time – good friend.
The shadow banning persisted for about seven days. Swain said, “Clearly, they are doing something to suppress the reach of Conservatives and I am on their radar screen right now, I would say. And for me, I think it has to do with my visibility around Critical Race Theory.”
That’s what Carol Swain told The Tennessee Star. Grant, Big Tech bullies? It can’t be!
Henry: You know that there’s a change in the political wins when Justice Clarence Thomas is coming out with new coined opinions that are starting to lean in a different direction. Here’s the headline actually I’m reading, “Spurred by Clarence Thomas, Ohio AG Wants Google Declared a Public Utility.”
I’m not kidding. Just last month, the state of Ohio sued Google in an unusual complaint that seeks a legal declaration that Google is a common carrier and a public utility into Ohio law.
You understand what they’re going for here? Obviously. Right now, here’s my thing that, Michael, it’s going to be a little bit out of left field, maybe something that’s controversial in the room that we’re sitting in now.
The super uber limited government side of me wants to say, look, man, if Facebook wants to create a terrible product and run that product on the ground, by all means, do so.
Now, Clarence Thomas is disagreeing with me. Clarence Thomas is saying, however, we have a problem here where it should be deemed as a public utility.
And if you’re keeping elected officials off the platform, then clearly it’s something in the realm of let’s say, not just a public utility, but an arena by which we have this conversation.
Again, let me make a call to my conservative brethren, though. If we truly believe in this limited government philosophy and letting businesses do is they want to, stop using the product!
And I know that’s the thing that we can’t exactly get our heads around right now, but I would make the effort. There’s a clear, overt, unadulterated bias on behalf of all these social media companies.
Stop using their product! Stop giving them your money. Stop promoting them. They’re just going to keep doing what they’re doing unless we answer with our dollars, unless we answer by moving to something else.
Unless some benevolent billionaire gives us a different option, we can’t keep playing their games.
And not just Facebook, it’s Twitter and it’s all of them. They’re working in a cohesive unit together.
Leahy: Andy, our free-market guy here, Grant Henry, says he agrees with Justice Thomas that Google should be regulated as a utility. Do I have you right on that, Grant?
Henry: I’m going back and forth here. (Leahy laughs) I’m honestly conflicted. I’m honest.
Leahy: Our conflicted friends.
Henry: I respect the man so much, but I’m also a free-market guy.
Leahy: So you’re uncertain. You’re conflicted. Are you conflicted on this, Andy?
Ogles: If you go back to January of this year, I wrote a letter to the governor and to the Speaker of the House, and the Lieutenant Governor, asking them to follow Florida’s lead.
I’m a fellow with Club for Growth. Club for Growth is a conservative organization. And one of my colleagues, who is also a fellow down in Florida, who is a state legislator, wrote a bill that would penalize Facebook and Twitter and such for censoring anyone.
But Conservatives in particular. And so I called on our General Assembly to do the same and I got no response. But now you’re seeing that taking place, of course, in Florida and across the country.
They censored our president. It’s taking place in Tennessee because our governor and General Assembly did not take action.
And I would agree. So there’s a point at which I’m a free-market guy, for sure, but when you have a business get so large that they then control all the entry points into a marketplace, that changes that conversation somewhat.
And so how do you manage that? Part of it is you could have governors stepping in and pushing back against this censorship.
And then also, all of your states are institutional investors. So what does that mean? Tennessee has billions of dollars under management.
And if they pulled all of those investment dollars out of Twitter, out of Facebook, and out of the tech companies, look, you and I stop using Facebook or Twitter.
It has minimal impact. They really don’t care. Tennessee pulls a billion dollars out of their stocks, they care, and they will change how they do business.
But it’s going to take leadership from not just one state like Florida and Ron DeSantis, oh, by the way, who’s a fantastic governor.
It’s going to take, like, a chorus of governors working together to push back against social media. Otherwise they’re going to steal another election from us. Period.
Leahy: Governor Bill Lee is not singing in harmony with that Conservative chorus it seems to me. A little bit off-key. (Laughs) That’s my view.
Ogles: I was going to say something, and then I just stopped. Because it’s probably better.
Leahy: Grant, you’re dying to say something here, aren’t you?
Henry: No, just hanging out. I’m just reveling.
Leahy: Reveling in the fun we’re having.
Henry: That’s right.
Leahy: Let me go personally on the record, and I disagree with Justice Thomas. Probably the first time in a long time. I don’t think it should be regulated as a utility, because then you’ve got the government sanctioning their activities.
I think they should be broken up. I also want to bring to your attention a great article at The Wall Street Journal by a fellow by the name of Vivek Ramaswamy.
He lives in Cincinnati. We’ve tried to get him on the show. He’s like a biotech billionaire and about 35 years old. Very conservative.
Here’s the article: Trump Can Win His Case Against Tech Giants. You know, last Wednesday, President Trump and the America First Institute announced that he’s suing Google, Facebook, Twitter, and their CEOs in a class-action lawsuit.
By the way, I don’t know if I mentioned this to you. Our own Laura Baigert of The Tennessee Star and the Star News Network was there at Bedminster Club of the Trump National Golf Club there and asked one very good question that the former president responded to.
And, oh, by the way, Laura Baigert of The Tennessee Star will be at the rally in Arizona that the former president is holding in Phoenix next week.
And we’ll be reporting live from that. It’s going to be an offering of the Star News Network wire service. So lots of local folks are participating in that.
Here’s what Vivek says: It’s true, the First Amendment ordinarily applies to the government rather than private companies. But the central claims in Mr. Trump’s class-action lawsuit that the defendants, Google, Twitter, Facebook, should be treated as state actors and are bound by the First Amendment when they engage in selective political censorship has precedent to back it up.
Their censorship constitutes state action because the government granted them immunity from legal liability, threatened to punish them if they allowed his favorite speech, and colluded with them in choosing targets for censorship.
I buy that argument. Grant Henry, will the courts buy that argument?
Henry: I don’t know, honestly. I’m not sure. And if I’m going to be pushed gun-to-head type thing, I’m probably going to say they may not buy that argument.
They’re probably going to wait and let the legislature move on Section 230 before they jump and preempt or circumvent the legislator.
Leahy: Andy Ogles, mayor of Maury County. Will the federal judiciary take a knee, shall we say, on that issue?
Ogles: I hope not. I think one of the legacies of Donald Trump is the Supreme Court, but also the federal judiciary and the changes in the employment of judges there. And, hopefully, we can bring some common sense into this conversation.
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.
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 Tennessee state Senator (R) Mike Bell to the newsmakers line to discuss much-needed Section 230 reform and the momentum created by Trump’s lawsuit against Big Tech.
Leahy: We are joined now on our newsmaker line by State Senator Mike Bell. Good morning, Senator Bell.
Bell: Good morning, Michael. How are you today?
Leahy: I’m great and it’s great to have you on here and talk a little bit about this big tech lawsuit that former President Donald Trump filed on Wednesday.
By the way, our own Laura Baigert was there at Bedminster Golf Club. The Trump National Golf Club there and was present. We had a photographer there.
We did a big story on it and put it out through our Star News Wire Service. It was picked up by a number of outlets around the country.
And Laura got to ask the former president a question, which was there in the press conference. So we are looking upfront and personal at this particular lawsuit. What is your reaction to the lawsuit, Mike?
Bell: Michael, I think it’s probably overdue. This is something that we’ve been talking about in the legislature. Of course, I had an amendment to a bill this last session that was attempting to address this problem, representing Johnny Garrett had it in the House.
And, Michael, we’ve been talking even to the attorney’s general’s office. You may have read yesterday they joined a lawsuit with 37 other states against Google because of the monopoly that they have.
And it’s not just Facebook. It’s not just Twitter, it’s Google. There’s probably a couple of other platforms that would be included that has become a monopoly. And they’ve become an entity that’s controlling speech.
And I don’t think it’s good. We look back in our history when the federal government eventually broke up the old Bell telephone company for somewhat the same reasons because they become a monopoly and control communications. Well, Facebook and Twitter are becoming that now.
As much as it is a free market, small-government conservative, I try to stay away from government regulating business. But when a business does become a monopoly at that point, the government sometimes has to step in.
Leahy: Well yes. Also, the other argument to make here is that the critics of this lawsuit say, well, it’s a privately held company.
It’s not a government entity. Well, my view is exactly the opposite that the protections granted to Google, Facebook, and Twitter under Section 230 of the 1996 Communication Act from liability for false claims, that that protection makes them a government agent.
And that protection has also provided them with the ability to be, in essence, monopolies or oligopolies. So that’s my view. Do you share that?
Bell: I do, Michael. In fact, if the federal government would remove that protection then maybe we would see the market correct itself.
But with that protection still there, as you’ve stated, that’s created a monopoly that’s protected by the government and enforced by the government. And Michael I told, I guess it’s Julie. I can’t remember, too.
Leahy: Our booking producer.
Bell: Yeah. I talked to her yesterday and told her I’ve been dealing with a constituent now for about a week and a half who was permanently blocked from Facebook.
And she is a huge Trump supporter. In fact, she is one of the few people I guess nationwide you look at has actually been brought up on a stage with President Trump at a rally.
He just picked her out of a crowd, and she was brought up on stage with him at a rally early on back in the 2016 campaign. And she just loves President Trump and puts things on social media all the time promoting President Trump.
And she’s been suspended for a period of time, like three days or four days, two or three times, and always being given an explanation by Facebook about why she was suspended.
In other words, she was suspended for putting a certain post up there. But she was permanently banned from Facebook for about a week and a half to go and can’t even get an explanation from Facebook about why she was permanently banned.
A media outlet and that’s what they become, a social media like Facebook can just ban people for any reason and not even give them an explanation.
And it’s become, I guess I’m trying to say, Mike, it’s become an avenue for people to communicate with that’s used by, goodness, I think I read somewhere around 75 percent of Americans have a Facebook account.
Then you’re essentially blocking somebody from being able to communicate. And again, as you said, the protections afforded Facebook and other social media giants through Section 230 just give them way too much power without any consequence.
And so I’m hoping this lawsuit that President Trump is leading will help change that for citizens so they can have some recourse when dealing with these social media giants.
Leahy: Yeah, a very good point. Now, you mentioned that there was a couple of things to talk about at the state level. First, the attorneys general, Herb Slattery, has joined the lawsuit of, I think, 35 other states against Google.
Are you familiar with the lawsuit and what the argument is? Let me just read from our story at The Tennessee Star. Attorney General Herbert Slavery announced on Wednesday that Tennessee will band together with 36 other states in the lawsuit in an attempt to combat what they see as anti-competitive trade practices.
Let me read this quote from Attorney General Slattery and get your reaction. Google’s “play was the long game enticing manufacturers and operators to adopt Android by promising to remain open. Now that the digital doorway is closed, if you want in, you’ve got to do it Google’s way. You essentially have to use its App Store, use its payment processing system, and pay its unreasonable commissions for digital purchases. All of this harms consumers, limits competition, and reduces innovation. Tennessee and 36 other states are no longer on the sidelines.”
What’s your reaction to that lawsuit?
Bell: First, I’m glad General Slattery has chosen to join these other states in the lawsuit. I think he’s exactly right. It has become a monopoly.
You do have to use their platform and their apps in order to access these different means of being able to communicate. I guess, anything from play games to use a map on where to drive to your next appointment.
And Google has grown so much that they control that whole area of the market. Again, from a top-list free-market person, you don’t want the government to step in in these situations.
You hope the market will correct itself. But this has grown to such a point, to use that analogy that I mentioned a few minutes ago, it’s gotten where the Bell company was.
The old phone company got to several decades ago when the federal government had to come in and break them up when they controlled the marketplace of communication.
Google is becoming that and has become that as well as these other social media giants. And I think again, it’s something that we have to be careful about as small government Conservatives to step in.
But it has grown to such a point that I think we got to step in and correct this. Government has to correct it at this point.
Leahy: You talked a little bit about a long bill that you proposed that would limit Big Tech here in Tennessee. Tell us what the status of that bill was and what’s going to happen in the next session of the Tennessee General Assembly when it convenes in January of 2022.
Bell: I think the lawsuit that President Trump is leading and this lawsuit that General Slattery has joined is just going to create more momentum for that.
When we filed the amendment, of course, not to get too much in the weeds, we had Representative Garrett and I had a caption bill that we filed this big amendment that was almost identical to the Florida bill.
You’ve read about the bill that Governor DeSantis had in Florida, and our bill was almost identical to the Florida bill. We filed it, but we filed it kind of late in the session.
And a big bill like that is sometimes hard to get people to be able to wrap their minds around it and to understand it and its impact on it without having a lot of time to look at it.
We had to lay it aside. It’s essentially sitting procedurally on the desk, ready for us to pick it back up and run with it next year.
But I think everything that President Trump is doing with our attorneys general joining the lawsuit will add more momentum for us getting that bill passed.
And what the bill was going to do is it was just going to allow give citizens’ recourse if they felt like they were blocked or wronged by one of these social media giants.
But as you started out talking about this morning, what needs to happen is Section 230 reformed at the federal level and that will open the door because we are at the state level kind of hamstrung in that these giants are, of course, not just multi-state or nationwide, but they’re multinational.
And even if we pass the bill to give set up some type of civil recourse here in the state of Tennessee, it’s going to be kind of tough to enforce on an international, multinational company like Google or Facebook.
But we’re going to try and hopefully, everything that’s happening now will just give us more momentum.
Leahy: Can you hang with us through the break? Because I have some more questions for you, State Senator.
Bell: Sure.
Listen to the full 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.
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 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 New York City attorney Akiva Cohen to the newsmakers line to discuss the dynamics of the Section 230 law citing how it is constitutional in relation to the recently proposed state law by North Dakota legislators that would allow citizens to sue Facebook, Google, and Twitter.
Leahy: We are delighted to welcome you to our newsmakers line to joining myself and all-star panelist Crom Carmichael Mr. Akiva Cohen. He is an attorney in New York City and a graduate of Columbia Law School where he was a Harlan Fisk Stone Scholar. Pretty smart guy. And also drew my interest because Mr. Cohen has commented on a proposed North Dakota law that would allow residents to sue Facebook, Google, Twitter, and all those folks. Mr. Cohen welcome to the Tennessee Star Report.
Cohen: Thank you, Michael. Thank you for having me on. I appreciate you guys making me jealous right at the start of this.
Leahy: Why are we making you jealous?
Cohen: You had me holding on listening to the radio through your weather report. It’s not going to hit 64 degrees here in New York for another several months.
Leahy: Akiva, let me do this. Now I know you practice law in New York City but you are a smart guy. We have no state income tax here in Tennessee (Cohen chuckles) and we have lots of great law firms. You all should think about coming down sometime. Crom wants to say something to you.
Carmichael: But yeah, the first test is, you know when we get into the back and forth on the question at hand is you’re going to have to defend living in New York. (Laughter)
Cohen: This is by far the most pleasant place in the world to be a Jets fan and there are not really many places where it’s pleasant to be a Jets fan. So, you know.
Leahy: All right. Well look, so caught our attention because you know, one of the themes of this program is that right now there needs to be pushback from state governments against the usurpations of the national federal government. that’s our key theme of this program. And we saw an article about six state legislators in North Dakota who had introduced a state law that’s not under consideration that would allow residents of North Dakota to sue Facebook and Google and Twitter if they censor them. And you actually don’t think that that’s got much of a chance. Tell us your argument.
Cohen: So there are a couple of problems. The first problem is just a purely straightforward technical legal problem, which is the Constitution has a supremacy clause. The supremacy clause says that if the federal government steps in and regulates something in an area where it has authority state governments can’t vary from that.
So for example, if the federal government says look, for purposes of interstate commerce we want to make sure that money and goods can flow through freely and therefore no state can impose a tariff on steel. You can’t have a state that comes in and says, well, you know what federal government that’s very nice, we’d like to impose a tariff on steel. That won’t be allowed.
The immunity section that these North Dakota legislators are trying to override is Section 230 of the Communications Decency Act which says that basically, internet companies can allow comments on their websites. And if they moderate user content on their website, they can’t be sued for what they do in moderating it. and in that section it expressly says and this preempts any contrary state law.
This is Congress making a policy decision that this is best for Interstate Commerce and no state law can vary from it. So right at the outset, you can’t have a state law that says well, we don’t care federal government, we’re going to create a state cause of action to sue for the very thing that you said nobody can be sued for and by the way, where pre-empting state law. So it’s dead in the water. the question then becomes aside from the fact that is dead in the water legally the straightforwardly, as a policy matter is this really something that we want? And to me, that’s the more interesting question.
Leahy: And Akiva, if you could hold with us. When we come back we’re going to push back…
Carmichael: On the part that he says is the most important policy matter. I like that. That would be a good discussion.
Leahy: Well just as a heads up. I don’t know if you’ve heard of Vivek Ramaswamy and Jed Rubenfeld, but they had a contrary view in The Wall Street Journal will talk to you about that after the break.
(Commercial break)
Leahy: I’m going to read an excerpt brief excerpt from an article in The Wall Street Journal. I don’t know if you read it by Vivek Ramaswamy and Jed Rubenfeld. Have you seen this article?
Cohen: I’ve seen bits and pieces of it. I’m looking forward to hearing.
Leahy: I’ll read the excerpt and get your reaction to it. Conventional wisdom holds that technology companies are free to regulate content because they are private and the first amendment protects only against government censorship. That view is wrong. Google, Facebook, and Twitter should be treated as state actors under existing legal doctrines using a combination of statutory inducements and regulatory threats Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.
It is axiomatic the Supreme Court held in Norwood versus Harrison in 1973 that the government ‘may not induce encourage or promote private persons to accomplish what is constitutionally forbidden to accomplish.’ That’s what Congress did by enacting section 230 of the 1996 Communications Decency Act. Well, there it is. What’s your reaction Akiva?
Cohen: So my reaction is it fundamentally misunderstands Section 230. So Section 230 was enacted not in an attempt to induce anybody to censor things but to protect decisions that tech companies had already made that there was certain content they didn’t want on their servers. And essentially what had happened was somebody sued CompuServe because on a CompuServe message board where one CompuServe user had posted something defamatory about another CompuServe user.
And CompuServe in that litigation basically said look, we don’t have anything to do with that. This is between two users. We didn’t post it. We didn’t write it. We didn’t review it. And what the court there said was, yeah, but when people post things that for example offered to sell cocaine or offer to sell drugs you delete that stuff. So you have the capacity to moderate and you didn’t moderate it here.
So we are going to hold you liable for the private defamation that one of your users committed against another user. And this was a pretty big problem. And it’s a big problem because people keep misunderstanding what the internet is because we write stuff on the internet. So people think about the internet the same way they think about books or newspapers.
But really the internet Michael is more like your talk radio show. Users post things on websites without the website being able to review them in advance and decide if this something I want to be published or not. And I assume you guys have a seven-second delay or something on here in case I lose my mind and start cursing. But I got to ask you. If you were in a situation where you didn’t have a seven-second delay and any time a caller called your radio show they could say something that would expose you to millions of dollars in liability and legal costs. How many callers do you think you would have on your radio show?
Carmichael: Let me jump in. This is Crom Carmichael. I think you’re approaching it from one direction but that’s not what the issue is today. The issue today is not somebody posting something and then somebody else wanting to sue. The issue today is that these large companies are picking and choosing who they would like to be able to express themselves on their platforms.
And that’s an entirely different thing that is proactively telling Candace Owens a black female that she will not have a Twitter account. It’s telling Candace Owen, a Black female she cannot have a Facebook page. It is telling Brandon Straka a gay person that he cannot have a Twitter account because they don’t like what he is saying. So that’s the issue. The issue today is they are discriminating against particular points of view rather than doing what Section 230 is supposed to do. And that is to make them so that they can allow all parties to debate with each other and not be sued.
Cohen: Sure. But now you’re making a different argument than the argument in The Wall Street Journal. The Wall Street Journal piece said well, this is really state action because really what happened was Congress enacted Section 230 because it wanted private companies to have the ability, and to specifically they wanted them to engage in viewpoint discrimination.
So really when these private companies are engaging in viewpoint discrimination and saying we don’t want this type of topic or this type of commentary on our website it’s not really private. It’s really Congress doing it through other means and my point is it wasn’t Congress doing it through other means. That’s not what Section 230 was enacted to do.
As you said, what Section 230 was enacted to do was to provide a liability shield that enabled private companies to decide for themselves what type of content they want to have on their website. That to me is a core First Amendment right that anybody who cares about free speech should defend. One of my heroes from way before I ever became a lawyer was David Goldberger.
I don’t know if you guys know the story of David Goldberger, but he’s the Jewish ACLU lawyer who defended the Nazis marching through Skokie, Illinois in the 70s when Skokie, Illinois said look, we really don’t like Nazis. We don’t want them coming through. So we’re just going to ban them not because of any sort of neutral principle, but because they’re Nazis and we don’t like Nazi speech.
And it fell to a Jewish ACLU lawyer to say look, I don’t like their speech. But you the government have no right to say that they can’t engage in it just like any other group. And what that really comes down to is I may not like the moderation decisions that any particular private platform or website is making. They may not be the decisions that I personally would make. But it is critical from any First Amendment standpoint and from a free-speech standpoint that private parties get to make those decisions.
Carmichael: My argument is that members of Congress have threatened Big Tech with taking away their 230 protections if they don’t stifle speech that the members of Congress disagree with. And Big Tech has done exactly what those governments threateners demanded that they do. And so therefore that makes them a state actor.
Cohen: There the response to that isn’t to then say oh, well, then we should take away the 230 protection. It’s to reinforce that and to push back on the people who are saying you make your moderation decisions the way we want you to make moderation decisions, or if you don’t we’re going to open you up to all sorts of lawsuits. That would be the problem.
Carmichael: Does Candace Owens a Black person does she have a right to sue Big Tech for de-monetizing her?
Cohen: No, absolutely not. Not if she’s Black or if she’s White.
Carmichael: I thought we had federal anti-discrimination laws. And if we do and if she was being barred because of a protected characteristic, so if a tech company was barring somebody from their services because they were Black. Because they were gay. Because they were male. Because they were female. It doesn’t matter which one. If that was the basis for kicking them off the platform then that would be something that you could bring an anti-discrimination suit on.
Leahy: The basis is they don’t like what she’s saying.
Carmichael: So what you’re saying is these platforms are free to tell people who have a different point of view from the owners that the owners of these sites have a right to take away their first amendment rights?
Cohen: 100 percent.
Leahy: On that note Akiva. We have more to discuss. I think you’re also saying 230 is not unconstitutional?
Cohen: 100 percent.
Leahy: All right, we will continue the dialogue. Please come back because we’re going to load with more arguments of logic and perhaps law then and see what you have to say with them. Thanks, Akiva for joining us.
Cohen: My pleasure. Thank you, guys.
Listen to the full third hour here:
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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Akiva Cohen” by Kamerman, Uncyk, Soniker & Klein
