Live from Music Row Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed the original all-star panelist Crom Carmichael to the studio to discuss Big Tech censorship as it relates to being a private company versus common carrier and what that means for federal regulations.
Leahy: Crom, you know, one of our guests here, you kind of liked his last name. Professor of law at Columbia Law School, Philip Hamburger.
Leahy: He’s an expert on the rise of the deep state, the administrative state. And he’s a champion of pushing back against that and basing our actions on the Constitution. I note that he’s written an article with Claire Morel for The Wall Street Journal on Big Tech and censorship.
Carmichael: And that was July 31st. And when we interviewed him, which would have been a month – or a month ago, we also interviewed Naomi Wolf. Now Naomi Wolf has – since we interviewed her – has actually even been canceled even more.
And so this is going to be a very interesting lawsuit. The article that Philip Hamburger and Claire Morel have written in The Wall Street Journal argues that Facebook and Twitter and all these giant tech companies are really more like common carriers. Because the common carrier, by the way, can be a private company.
In fact, they all are private companies, but they still are regulated by the federal government. For example, Verizon cannot cancel your phone service if they disagree with what they think you’re going to say on the phone. They can’t do that. That’s not allowed.
Leahy: That’s good because they would have canceled me a long time ago. (Chuckles)
Carmichael: So my point is they can’t.
Leahy: They’re not my carrier.
Carmichael: They can’t. I’m not sure. So you have these big tech companies that are essentially canceling their service to people based on their political opinions. And it isn’t based on whether or not they’re right or wrong. It is truly based on their political opinions. And that’s why when you heard Jen Psaki say that the administration is working with Facebook.
Leahy: Working with Facebook.
Carmichael: Yeah. On misinformation. Naomi Wolf has said that she has tried to put out the word on the facts about COVID and immigration, and they cancel that. Now, those are facts. That it isn’t incorrect or misinformation. The disinformation is incorrect. It’s false information. Misinformation is whatever I don’t like.
Carmichael: And I think that Trump’s lawsuit and the other thing that he’s writing about, the Hamburger and Claire Morel are writing about, is the state laws.
This article is focused on the state laws that say that if you operate in our states, you cannot discriminate based on what people’s opinions are. It’ll be very interesting to see how those lawsuits work because Florida has already passed that law.
Leahy: But the courts have struck it down.
Carmichael: They hadn’t gotten to the Supreme Court yet. A court has struck it down.
Leahy: Let me follow up on that. Here’s what they said about that particular.
Leahy: A district court struck it down. Here’s what Philip Hamburger has said about that. ‘The recent court dependent questioning the Florida anti-censorship statute noted that in censoring some speech the tech companies are choosing what speech they will convey. From this, the court concluded that the company’s platforms and services were more akin to newspapers than common carriers.
Unlike a newspaper, these platforms and services are offered to the public for the conveyance of their speech. Unlike a newspaper, they serve the function of a common carrier. What is more, they enjoy market dominance.
Carmichael: This is what Hamburger told us when he was on our call. That was before …
Leahy: Trump’s lawsuit.
Carmichael: And before Florida’s decision. And so this will work its way up in the courts, and we’ll find out. And I think ultimately it will end up in the Supreme Court. The Supreme Court obviously takes very few cases.
Leahy: It’ll be the Supreme Court probably in the 2022 to 2023 session.
Carmichael: I think it’ll be sooner than that.
Leahy: Before the next 2021 or 2022.
Carmichael: Yes. I think it will be before the ’22 election.
Leahy: Okay. So here’s the problem. I’ll give you two words that are a problem. The first word is John. And the second word is Roberts.
Carmichael: No. This will be a very interesting court case. This will be an entire court case.
Leahy: Do you think Roberts will surprise us?
Carmichael: I think the whole Supreme Court might surprise us. But here’s the difference. A newspaper has its own opinions, and it controls everything in the newspaper, and everybody knows that. But in the case of Facebook, Facebook allows some people to express their opinions and disallows other people to express their opinions just because they don’t like the opinions.
Well, that’s not the same thing as a newspaper. I think the question will come down to, are these entities more like common carriers or more like newspapers? And if they are judged to be more like common carriers, then they will lose their ability to censor. And they are censoring.
Let’s be very clear about what they’re doing. They are censoring. If they were censoring all Black people from conveying their opinions, they would be guilty under the Civil Rights Act violation. There would be a violation of the Civil Rights Act.
So now the question is, can they discriminate against people based on their opinion? Can they discriminate against a Black person based on that person’s opinion? Like, could they cancel Ben Carson if he wrote an article about COVID?
He is an eminent physician and what he would – it would likely be entirely accurate, but it would be different from what the Biden administration would want. Would Facebook have the right to cancel him?
Leahy: Here’s what I think about this, Crom. I think you’re right. I think ultimately all of these Big Tech lawsuits, ultimately, in one version or another will go to the Supreme Court.
Leahy: There’s no question about that. What makes me nervous about that is the tendency of the chief justice to make political rather than legal decisions. That’s what makes me nervous.
Carmichael: I think the opinion may be a bit watered down, but I would be astounded if the Supreme Court ruled in favor of censorship because that would be what they would be ruling in favor of. They would be ruling in favor of censorship.
Leahy: I was astounded in 2012 when the Supreme Court ruled in favor of Obamacare.
Carmichael: But you have three different justices on there now.
Leahy: And I am disappointed in all three of them.
Carmichael: I am more optimistic, perhaps realistic, maybe. We don’t know.
Carmichael: I think it will work its way up through the courts. Philip Hamburger’s article is a very interesting one. And poor Naomi Wolf. She was a leftist, and she’s going to be in our camp now.
Leahy: She’s a realist now. (Chuckles)
Listen to the full third hour here:
– – –
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 General Counsel Kim Herman of the Southeastern Legal to the newsmakers line to discuss her newly filed case against the federal government for discriminating against White farmers seeking COVID relief loan forgiveness and fighting federally funded racism in K-12 schools.
Leahy: I am delighted to welcome on the newsmaker line, the general counsel for the Southeastern Legal Foundation, Kim Herman. Good morning, Kim.
Herman: Good morning. How are you?
Leahy: Well, you guys are heroes of mine because your group succeeded in getting the Supreme Court in 2019 to reject the ridiculous EPA Waters of the U.S. Rule. Congratulations. That was fantastic.
Herman: Thank you. Thank you. It was a lot of fun to take the case up there and to win it also.
Leahy: Were you arguing in the Supreme Court, or were you just present? Did you hire an outside firm to do the arguments?
Herman: We actually brought the case with a number of other public interest law firms. And so I did not personally argue it, but I was there just to be part of the team and to work on the case.
It was our second big win against EPA in the last 10 years up at the U.S. Supreme Court. And to be up there for a second time, it’s just surreal.
Leahy: The EPA was suing farmers who had basically little creeks that they were trying to move around. It was just crazy. Totally crazy.
Herman: With one sweep of the pen, basically, the EPA took jurisdiction over every single piece of property in the entire country. And I guarantee people don’t even realize it, but for most of your listeners, it means they could come in and regulate your personal property.
Leahy: It was crazy. So Congratulations on that. Last week, the Southeastern Legal Foundation and Mountain States Legal Foundation found the lawsuit in federal court challenging the unconstitutional race discrimination in the United States Department of Agriculture’s Farmer and Rancher Loan forgiveness program.
The challenged provision in the America Rescue Plan Act of 2020. Wait for this…provides automatic loan forgiveness of up to 120 percent of the loan amount for farmers and ranchers unless they are White. Tell us more about this.
Herman: We teamed up with Mountain State Legal Foundation. And on behalf of a great mama rancher who’s a sixth-generation rancher out in Wyoming, we filed this lawsuit because, as we all know, the government cannot discriminate against people because of their race. And that is exactly what they are doing here.
It is black letter law. They put it right into the COVID rescue plan if you can call it a rescue plan. But into this COVID relief bill that was signed under Biden that farmers and ranchers if you have a loan with the government, you’re going to get automatic loan forgiveness, and then you’re going to get a check for 20 percent of the loan value unless you are white. It violates the Constitution.
Leahy: Unless you are White. That’s plainly a violation of the Constitution. No question about it. It is racial discrimination against White farmers. Now, this was filed in the United States District Court in the District of Wyoming. What’s going to happen with this case?
Herman: Well, we just filed it. And so now we’re going to have to go through the process of litigating it. But yesterday, the Sixth Circuit Court of Appeals, so that’s in your area, issued a really great opinion in a case challenging a similar program under the Small Business Administration, where they were favoring what they call ‘socially disadvantaged’ business owners and giving them relief money over Whites.
And the Sixth Circuit came down and said, you cannot do that. That violates the Constitution. So we’re going to move this case as fast as we can in the District of Wyoming to get a similar ruling up there in our case.
Leahy: It sounds like you are optimistic that you win this case. Will it ultimately go to the Supreme Court of the United States?
Herman: That depends on how hard the government wants to dig in. But with the Biden administration, I wouldn’t put it past them. We’ve got a couple of more cases that we’re going to be filing challenging this exact same program all throughout the country.
We need to bring as many lawsuits as we can to challenge racial discrimination that we can right now because it’s not just in this area. As you know, it’s in our schools. It’s in our K-12 schools.
We’ve got state-sanctioned racism and state-sanctioned discrimination in every single facet of our lives right now. And we won’t stop until we root that out. So yes, if we need to take it up to the Supreme Court, we absolutely will.
Leahy: So let’s talk in general about state-sanctioned racism in our K12 public schools funded 10 percent by the federal government. The federal government apparently, is putting together a rule that would require the teaching of critical race theory in schools, that of course, will be litigated.
But broadly speaking, do you see this kind of litigation where the Democrats have codified racial discrimination against White people and others? Do you see an increasing level of litigation coming against the federal government and perhaps against school systems, and against publicly traded corporations that are implementing similar policies?
Herman: Oh, absolutely. I can tell you right now, we’re gearing up about five to six lawsuits against school districts throughout the country challenging unlawful and unconstitutional critical race theory.
We’ve got some schools that are showing middle schoolers videos about George Floyd and then separating students by race into different rooms and teaching them different lessons. It baffles me that our public education system is doing this, and it doesn’t get more discriminatory than that. You just cannot treat people differently because of their race. End stop period. It’s in the Constitution.
Leahy: My guess is that you will succeed with those challenges ultimately.
Herman: I sure hope so. I’ve been really encouraged by all the parents that are coming forward and wanting to challenge this, especially in places where most people wouldn’t expect it.
A recent poll came out and over 80 percent of the parents polled do not want this in our K-12 schools. You wouldn’t know that if you watch watching mainstream media but over 80 percent do not want this because they know that it’s discriminatory. All it does is to divide our country and teach our kids to hate each other.
Leahy: Let me ask you this. Are publicly traded companies that are implementing what they call diversity, equity, and inclusion mandatory training programs that many people argue are, in fact, also racist, are they in any legal jeopardy from lawsuits?
Herman: They are in a different way. We as a public interest law firm. It is a 501 (C) (3), we sue the government because that is what our mission is and that is what our charter is.
But, yes, there are employees that can certainly bring hostile work environment claims. The laws of our country, the federal laws prohibit discrimination based on race. If they were doing this and turn the table and they were doing it and they were discriminating against minorities, you can bet there would be lawsuits all over the place.
And there should be no discrimination in this country. And so, yes, lawsuits are going to be brought. I have no doubt. And I have no doubt that many of those employees are going to win those cases.
Leahy: The mission of the Southeastern Legal Foundation is to just sue the federal government, state government, and local government school systems? Are you limited to that?
Herman: No. We do a lot of property rights work, as you mentioned with our Waters of the United States case in our EPA case. When the government infringes on your constitutional rights, on your individual liberty, on your equal protection, on your free speech, that’s when we can step in and we can sue the government on your behalf.
Leahy: Wow. That sounds very interesting. If somebody out there wanted to support the Southeastern Legal Foundation, how would they do that? Do you say you’re a 501 (C) (3)?
Herman: We are we’re a nonprofit. We provide all of our legal services to our clients completely pro-Bono, so completely free. They can find us at slfliberty.org.
Leahy: And if they want to make a donation to your 501 (C) (3), they could do that as well?
Herman: They absolutely can. They can do it there with the donate button. So I appreciate that. Thank you.
Leahy: Well, we’re happy to do that. You are based in the Atlanta area, which is I think now a growing center for all of the issues going on in the country down in Atlanta. We certainly are delighted to have you on Kim Herman, the General Counsel for the Southeastern Legal Foundation, and on the web at Slfliberty.org. Will you please come back and tell us more about these cases as they go forward?
Herman: Absolutely. Absolutely. I’d love to.
Leahy: Kim Herman with the Southeastern Legal Foundation. Thanks so much for joining us today. A great interview.
Listen to the full show here:
– – –
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.