Live from Music Row Wednesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed New York City attorney Akiva Cohen to the newsmakers line to explain why Trump’s Big Tech lawsuit may not have jurisdiction in Florida due to state action as outlined in Facebook’s contractual agreement.
Leahy: We are delighted to welcome to our newsmaker line our good friend Akiva Cohen. He is an attorney who specializes in First Amendment, media, and Big Tech issues. Welcome, Akiva Cohen.
Cohen: Good to be back, Michael. How have you been?
Leahy: I’ve been great. I’ve been great. So I want to get your opinion. We were at Donald Trump’s news conference with America First Institute in Bedford, New Jersey, when he announced this lawsuit against Facebook, Twitter, and Google and their CEOs.
Now, our friend Vivek Ramaswamy, the very successful billionaire who lives in Cincinnati, has written an article in The Wall Street Journal.
I’m guessing you may not agree with this headline, but I’ll read the headline and get your response. Headline: Trump Can Win His Case Against Tech Giants. There’s ample precedent for calling it state action. But what is your reaction to that?
Cohen: Yes, I do disagree with it. There are a couple of things. Number one, procedurally that’s going to happen first, right out of the gate.
Each of these companies has terms of service that say, if you’re going to sue us over something that happens with your account, you’ve got to do it in the Northern District of California and not in Florida, which is where the former President Trump filed these things.
And that’s important because the Northern District of California, just a week and a half ago or so, actually addressed this exact issue.
There was a vaccination information group called Child Health Defense that had filed a lawsuit against Facebook for taking their page down on the exact same theory that Section 230 and the sort of comments of public officials made Facebook’s decision to take them down a state action.
And what the courts said just a week and a half ago was, no, that’s not a state action. The fact that the government may have a regulatory interest in a particular area doesn’t transform private action into state action.
So President Trump’s lawsuit has a real big problem, just from a recent precedent that it’s going to have to deal with because it’s going to get moved to California on the basis of those terms of service and the contracts that everybody who signed up for it agreed to.
And there was a judge in that district who just decided this issue in a way that’s not good for him. I think it’s unlikely that it’s going to have a different outcome in this case.
Leahy: Akiva, Crom Carmichael is our all-star panelist, has a question for you.
Cohen: Sure.
Carmichael: Akiva, I think what you said is Trump filed his lawsuit in the state of Florida. So it will go before a court in Florida, will it not? I mean, to begin with? In other words, will the first hearing be in Florida, or will the first hearing be in California?
Cohen: It depends on what you mean by first hearing. So he filed in federal court in Florida. The very first thing that Facebook and Twitter and Google will do is they’re going to file what’s known as a motion to transfer.
And they’re going to say, look, before we get into the merits of all of this, there’s a contract governing it. The contract that everybody signed when they joined our website says, if you’re going to sue us, you have to sue us in the Northern District of California.
Those clauses are enforceable and they’re routinely enforced, and you should move it to California. Now, I don’t frankly know if President Trump’s lawyers are going to put up any sort of fight in response to that for the simple reason that there really isn’t anything to fight about.
Courts enforce clauses like this all the time. Fighting against it will be a losing move.
But if he does fight it, then the very first hearing will be if the Florida judge feels like he needs a real argument, which I think would be unlikely, would be in Florida about whether or not the case has to go to California. A Florida judge would not be looking at the substance.
Carmichael: When you say judges do this ‘all the time’, do you mean regularly and most of the time? Or do you really mean truly all the time?
Cohen: No. Truly, truly all the time. If you have a contract that says we are going to litigate this and any disputes between us in a particular location, judges will not get into the substance unless you’re going to argue that you were somehow defrauded into agreeing to that particular choice of venue.
If you’re alleging that somehow somebody lied to you, you didn’t actually sign the contract, and your signature is forged, that they’ll decide.
But if you agree, yes, this is a contract that I signed that had this provision, there is a chance that any judge will say that’s not enforceable.
It happens every time. Literally, every time this issue comes up. If there’s a venue clause and one of the parties files in a different place and the other party tries to enforce it, that’s not to say there isn’t some crazy judge out there who might do something different on some random occasion.
I don’t know every case in the country, but it would be a massive shock to everybody if it did not.
Carmichael: Let’s assume that it gets moved to California and then it gets tried in California and the courts out there rule in favor of Big Tech. It will get appealed. At that point, it gets appealed to a higher court…
Leahy: The Ninth Circuit.
Carmichael: The Ninth Circuit. And let’s just say the ninth Circuit sides with Big Tech. If the U.S. Supreme Court takes it, then the decision is not being made by what I would describe as a liberal-leaning court – meaning the district court in San Francisco and the Ninth Circuit. It would be then decided at the Supreme Court level.
And there is a precedent at the Supreme Court level for claiming that companies that are benefited. And that’s what the other gentleman from Cincinnati said. He listed two cases.
Leahy: Norwood v. Harrison 1973 was one of those cases. And then Railway Employees’ Department v. Hanson in 1956 were the cases that he referenced. And I guess Crom’s question to you is, Akiva, are you buying that?
Cohen: And the answer is no. And the court in California actually just recently analyzed all of that. And frankly, it was persuasive.
It’s worth reading the Children’s Health Defense versus Facebook. And there are a couple of issues here, right? So, number one:
If anything that gets a government benefit and anything that they do is state action, then frankly, every corporation that exists is bound by the First Amendment because the corporate form is itself a government benefit.
We have laws that say you can incorporate and you get limited liability as a result of it. And so this is a benefit that’s created by the government. It doesn’t exist other than, as a matter of law. Every corporation would be bound.
Carmichael: Now wait. Not every corporation is covered by Section 230 and has the protections of Section 230.
Cohen: Correct. If the theory, Crom, is that just getting a benefit from the government – meaning you got some special benefit from the government, therefore, anything you do is government action – If that’s the case, there’s no reason why the benefit of Section 230 would be any more special or triggering of that rule to the benefit of the corporate form in the first place.
Carmichael: Well, then did the two core cases that were cited in the other article, why did they go the way they did?
Cohen: Those cases were not Section 230 cases.
Carmichael: I know that. But they were still on the greater question that you’re trying to raise. You’re trying to say Section 230 isn’t the dispositive question here. You’re trying to say that if the government helps anybody, then it helps everybody, and therefore Section 230 doesn’t matter. But these other two cases were not about Section 230, but they did argue that because the government helped those particular companies that the judges ruled differently than the way that you’re arguing.
Cohen: I don’t believe that’s accurate. And it’s been a little bit since I looked at those cases. But if I remember correctly, those cases weren’t about the government giving somebody a benefit.
It was about the level of government control of the specific action. So, for example, in the railway case. If I’m remembering correctly, what it was was the government said that rail companies were required to conduct alcohol testing if I’m remembering correctly, on employees and crashes.
And what the Supreme Court said was, look, people have a Fifth Amendment right against self-incrimination. They have rights, First Amendment rights.
And if the state couldn’t have its police force do this because of people’s constitutional rights, it can’t pass a law that says you private company need to do this because that’s the same thing.
And the problem here with applying that theory to Section 230 – there are two major problems. Number one is just in general. If you look at Section 230, it doesn’t mandate any specific content or any specific content rules. You could have a site that says I want to ban all discussion.
Leahy: Hey, Akiva. We’re running a little bit of time here. But what a great discussion. By the way, Akiva, let me just say this one thing. If I’m ever in trouble in New York State, I am hiring you as my attorney. (Carmichael laughs)
Cohen: I appreciate that. Thanks for having me, guys. (Carmichael laughs)
Leahy: All right. Thanks, Akiva.
Listen to the third hour here:
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Photo “Akiva Cohen” by Kamerman, Uncyk, Soniker & Klein
Live from Music Row 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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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.
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Live from Music Row Wednesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – guest host Ben Cunningham welcomed Star News Media’s CTO Christina Botteri in studio to discuss Big Tech censorship and the concept of publisher versus platform.
Cunningham: Christina Botteri is across the table. Cristina, thanks so much for joining us. Appreciate it.
Botteri: Great to be here.
Cunningham: Chief Technology Officer of Star Media and Grant Henry with Americans for Prosperity. Grant, thank you so much for joining us, too. Two days in a row here. Thank you.
Henry: I’m available for three if you need it.
Cunningham: I’m actually a little bit more alert this morning than it was yesterday, so I don’t know, maybe I’m acclimating a little bit. I was a little foggy yesterday. We were talking about Facebook and Project Veritas and their disclosures from a Facebook insider that Facebook has been censoring the people who have vaccine hesitancy.
That sounds like a disease itself. And it’s extraordinary the hubris that the corporate leaders have to come out and tell Americans, we’re not going to allow you to say that. That is not allowed speech on the Facebook platform.
That’s scary as the devil. And if they’re censoring something like that, you know, they’re censoring other stuff. What other speech on Facebook is censored? And I get messages every day about people that got a 30-day suspension for this or a seven-day suspension for that.
This literally is like some morality bureau where they are sitting up there and punching the button and the floor falls out from under you and your chair goes down in a hole. (Botteri laughs)
And nobody knows where you’re gone and you’re never to be heard from again. It’s almost like that, you know? And the arrogance of these people that believe that they can censor our speech. And obviously, there are lots of people concerned about this.
And Marsha Blackburn, in particular in Congress, is saying we need to revise Section 230. Grant, you were talking about Section 230. What does that involve? Where would that get us if Facebook became not a publisher? That’s what you were talking about, right?
Henry: Yeah.
Cunningham: They would not be a publisher, they would be?
Henry: A platform, basically. This all started, obviously, in the tech bubble wave, and we’re in the 90s into the 2000s. And the idea was if we have a website that has a message board or a forum, if you will, you can’t hold the website accountable for any random individual that would jump on there and just post whatever they want to.
Especially if there’s no process by which you vet this information before it gets on there. It’s logical. And to not stifle the growth of the Internet itself, the great frontier of information you have to give them some elite as some allowance, is that you wouldn’t give a normal publisher.
And to be fair, Facebook has always said that we’re not going to be in the game of dictating what is and is not true. We’re just going to let you get out there and have an interaction. But I will say, Ben, whether it’s from Twitter, say, censoring the information of the Hunter Biden story during the election.
Or whether it’s from Facebook censoring this vaccine information right now and whether it’s from Google shutting down stories about this Wuhan Lab leak, it seems to be fairly ubiquitous that we have a problem with access to information.
If I could be so bold as to play Devil’s advocate for a minute here, there are several libertarian-leaning Conservatives that will make the argument, or should I say just conservatism in general that will make the argument of, hey, this is a free company.
They can do what they want. A private company, let them do what they want with their own product. If Facebook wants to create a terrible product and drive its revenue into the ground, then, by all means, let them do it.
Something else to come up and take its place. And I don’t know, I’ll throw it out there to the audience to see. I have my own personal opinions on this, but it is something that Conservatives are left in a little bit of a conundrum to figure out how to deal with. Part of our world uses the free market. The other part says this is a major, obvious, objective problem we have here.
Cunnigham: Christina, what’s your take on that?
Botteri: (Chuckles) Well, you are wrong. People who think, oh, we’ll just wait until something better comes along. And the problem with that is that, as you mentioned, in the early days of the whole tech boom in 1999, I’m old enough to remember 1998, let me tell you something. (Laughter)
Cunningham: Cry me a river.
Botteri: At that time, the Internet was this grand frontier. That’s a wonderful way to put it. And special deals, carve-outs were provided for these new companies, these new endeavors that were going to connect people across the globe.
So Section 230 was sort of one of those special deals. And so companies like Facebook and Google and others, Twitter, and MySpace at the time got these special exemptions. And they grew and they prospered for the most part. (Laughter) They did. They grew.
They prospered. And because they knew what they were doing, and they improved as the technology improved. I’m thinking of Facebook in particular, Twitter, especially, they were able to effectively create a monopoly of instant communications and a freely available communications monopoly on the basis that they were going to be a platform.
And so when they start picking the winners and losers, they very quickly do not become a platform. They are a publisher. I think it’d be really tough for anybody and I’ll go nose to nose with anybody on that one.
Cunningham: And Facebook owns Facebook, of course, huge. They own Instagram. They own WhatsApp. And those are probably three of the biggest social media platforms around. And Microsoft owns LinkedIn. I can tell you that from first-hand knowledge because the Nashville Tea Party was thrown off of LinkedIn with 40,000 followers three weeks before the 2020 election.
And we asked, why did you throw us off? And they said, well, you were trying to influence the election. Us and like 100 million other people were trying to influence the election. It was just an absurd, absurd thing. They obviously didn’t like our politics and that I think they are beginning to respond.
The creation of this board where they decided about whether that they should keep Trump off is at least a PR attempt to create transparency. But they’re going to have to create a whole lot more transparency about how they handle these complaints.
Henry: Well, this is always what happens, right? The law always takes a prolonged period of time to catch up with technology. You certainly understand that. And I think that’s where we are.
But I will say ever the optimists, at least this morning, let me tell a quick story about what happened in the Tennessee legislature just this past session. Representative Mike Sparks, actually carried a bit that was fairly similar to what DeSantis just signed in Florida, and his ability to crack down on Facebook and social media’s quite obvious bias that’s going on right now.
Now, I don’t believe it made out of sub-committee. I’m almost certain it didn’t make it out of committee, but Representative of Michael Curcio made a fairly interesting argument in subcommittee, something to the effect of…
Cunningham: For or against?
Henry: Against.
Cunnigham: Good. Thank you for that.
Henry: Yeah, he made your arguments against why this shouldn’t pass. And his argument went something like this. He said, hey, I was just hanging out with my nieces over the past weekend, and I asked them something about Facebook.
And they almost give me this stunned, stoned perplex look on their face like they didn’t know what it was. They just don’t know what Facebook is. They’re not on there anymore. They don’t use Facebook.
So Curcio’s point was given another five years, and this entire argument itself will be moved. It will be obsolete because the product itself will no longer be used by the upcoming generation.
There are such a plethora of things to choose from nowadays, whether it’s Snapchat or Twitch, or TikTok. I can’t even remember all of them. And here’s the point that I’m making. Conservatives, here’s the optimism thing.
Conservatives, we believe in free-market choice, and we are doing that. If we can’t get the legal side, we are making the act of choice. Look what we did with Parler. We pushed that to the moon and back.
We pushed it so far that they shut it down and you can’t download the app anymore. Conservatives, we do believe what we say. We believe to some extent. And I think we actually go out there and use the alternative forms of media if we’re being censored on the other one.
Now, I think there is some conjunction use between making the legal aspect there. I mean, understandable fair, and free and at the same time, forcing free-market decisions to hold Facebook accountable at the same time.
Botteri: I’m sorry, but the thing of it is that when you have behavior that is unacceptable where a platform is, behaving like a publisher, you need to enforce the law.
Cunningham: Yes. I don’t think there’s any question. Something’s gotta change. Somebody has got to feel some pressure for free speech. And hopefully, that will evolve into something that’s useful to everybody.
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 Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed the original all-star panelist Crom Carmichael to the studio to weigh in on the abomination of Section 230 and the strategy to right it.
Leahy: In studio, the original all-star panelist, Crom Carmichael. Crom, you say it’s time for the Republicans and Conservatives to get smart on tactics?
Carmichael: Yes. Why is it that big tech is able to do what they do and get away with it legally?
Leahy: They have protection from Congress.
Carmichael: And that is called Section 230. If Republicans regain the power of the House, the Senate, and the presidency, first of all, the filibuster is a very important Senate institution. And one thing that is often misrepresented is that when Republicans did control the House twice, they didn’t have 60 votes in the Senate. And so the House passed an immense amount of legislation that never saw the last day in the Senate because the Democrats could use the filibuster, even when the Republicans had a majority. But you can’t use the filibuster in reconciliation.
Leahy: Now just for our listing audience, explain what reconciliation means.
Carmichael: I’m going to take a stab at it. But I think it has to do with budget bills.
Leahy: It does.
Carmichael: And spending. Because this big COVID bill that just passed wasn’t a budget, but it was spending. And it passed with a 50 to 49 majority, which Republicans could filibuster that. Here’s what I would do if I were the Republicans, and I get control of all three because I think that Section 230 is an abomination.
The protection that it affords allows these platform companies to have a political agenda. I would increase taxes to 80 percent for all companies that are protected by Section 230. I could do that through reconciliation. And I might even impose a huge tax on the net worth of executives that have money because of Section 230 because they’re getting all of the benefits because of that law.
Leahy: Yes. The significance of reconciliation in the Senate, it’s the budget process where they’re trying to finalize the budget. There are limitations only on the reconciliation process in the use of the filibuster. That’s why it’s important in the Senate.
Carmichael: Yes. And so the point that I’m trying to make is that if you put that in legislation, the executives who are protected by 230 would go nuts and the Republicans could go to them and say this is going to pass unless you go to your Democrat buddies and get them to do away with Section 230. So we’ll break the filibuster, you’ll help us break the filibuster, or we’re going to tax your butts and ruin your value.
Leahy: Well, that’s awful. (Chuckles)
Carmichael: And they’ll do it, Michael is what I’m saying is they will give up Section 230. They’ll give up Section 230. So what is the goal here? The goal here is not to tax them. The goal here is to get Democrats to agree to get rid of Section 230. So the way to get rid of Section 230 is to get the people who are protected by Section 230 to have more pain from the protection than they do by giving it up.
Leahy: Now, that’s a good tactical strategy.
Carmichael: Yes.
Leahy: However, how do you get Mitch McConnell to adopt such a strategy?
Carmichael: If you want to get rid of Section 230, that’s the strategy.
Leahy: I know.
Carmichael: If Mitch McConnell wants to get rid of Section 230, if he does, then Mitch, here’s how to do it. You put so much pressure on the people who are protected by Section 230. You put so much pain as long as they keep that protection that they run the Congress and say we’re willing to give up the protection.
Leahy: But Crom, here’s my problem with this and Mitch McConnell.
Carmichael: Don’t talk about Mitch McConnell.
Leahy: Somebody has to implement this strategy in the Senate.
Carmichael: Well, of course, you and I are just talking here. Well, I understand, but the Democrats do a great job putting pressure on people that they want to behave differently. Does big business support Democrats now?
Leahy: Totally.
Carmichael: Why?
Leahy: It’s in their self-interest.
Carmichael: It’s not just in their self-interest to send their self-interest because they don’t want to be punished. They fear the Democrats. They fear them. So they do what the Democrats want them to do. That’s just the way it is. I don’t like it. But if those are the rules and if that’s the playing field that I’m on, then I have a choice. I can either be highly principled and accomplish nothing. In fact, my side will always go backward.
Because the other side gets to use the fear of things like what we were talking about earlier. critical race theory. and all of these things to use power over others. Republicans, Unfortunately, it’s the world we live in today. Unfortunately, Republicans need to learn how to put pressure on other people that they want to change their behavior.
Leahy: I cannot disagree with you at all. The question is, how do you do that?
Carmichael: I just told you how you do it. I just told you.
Leahy: You’ve got to get a Mitch McConnel to change the behavior.
Carmichael: I understand that. But first of all, if you don’t understand if you don’t even understand the tactic and the reason for the tactic. In other words, you don’t know what you don’t know. What you and I are talking about here is that if there is a tactic that would work, what would it be? Because you also want to maintain the filibuster.
Leahy: I’m with you. Terry in Knoxville.
Carmichael: We have Terry in Knoxville…
Leahy: Who wants to join us. Terry, you want to weigh in on our lively discussion here this morning? Terry, Welcome
Caller Terry: Morning.
Leahy: Good morning.
Terry: Morning. As usual, I agree wholeheartedly with Crom. (Laughter)
Leahy: Terry, you’re such a smart guy.
Terry: I agree with everything he says. But, well, first of all, how can you tell who’s smarter? You can tell who’s smarter by who’s winning. And who’s winning? Well, it isn’t us.
Carmichael: That’s right.
Leahy: That’s a good point.
Terry: But you have to get back to the point where he said you control the House, the Senate, and the presidency. Well, we need the tactics to do that first before you can get to the point he’s talking about. And they had the opportunity to get rid of Section 230…
Carmichael: No, they didn’t. That’s the point. They couldn’t get rid of it because Democrats would not go along with it. You have to get 60 votes to get rid of Section 230.
Leahy: Terry, thanks for your call.
Carmichael: And thank you for your wonderful comment and call in anytime, Terry.
Leahy: You have plenty of fans and Terry’s one of them. We’ll be back with Naomi Wolf. That will be fun.
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.
