September 25, 2024 • 49 mins
In this episode of "The Fourscore Project," Roger Clark concludes his compelling discussion with Professor Barry McDonald from Pepperdine University, exploring the evolving challenges of free speech in the digital age. The conversation delves into the origins and interpretations of the First Amendment, the role of social media companies in moderating content, and the ongoing debates over government influence on online speech. McDonald provides historical context for free speech protections and examines contemporary issues such as the impact of algorithms, the potential dangers of misinformation, and the legal complexities surrounding social media platforms. The episode offers a nuanced perspective on the balance between free expression and the need for regulation in an increasingly connected world.
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Episode Transcript
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(00:21):
Well, let me come back.
I didn't want to come back to this conceptof what is free speech
and we all know it'ssomething that Americans identify.
It's the First Amendment.
Although I think when Madison wrote
the draft Bill of Rights,it wasn't the First Amendment.
I think it was the third Amendment,
but I think it was the first twothat didn't get approved.
So what was third became number one.
(00:42):
So I think somewhere internally,most Americans say, Ah ha.
The First Amendment,
the reason it's the First Amendmentis because it's who we are.
It's our basic essence is the free speech.
That's who we are as Americans.
And that's why so many Democratsand Republicans, I think, can agree
on the concept of free speech,because that's really deep inside.
It's not so much a political issue.It's a statement of our identity.
(01:05):
So we come to this free speech,but the First Amendment,
I think it says something alongthe lines of Congress shall make no law
respecting or prohibiting free speech or.
Make no law abridging freedom of speech.
Or or the press or its Congress.
Yeah,
but it's far broader than thatnow, isn't it?
Because it is.
(01:25):
It applies to the government,not just Congress.
So how did that come to be?
What I'm looking for is, is our currentconcept of what free speech is from
its infancy to our current concept.
Because that to meand the First Amendment,
it's actually a very narrow language.
It says Congress.
It doesn't say the United Statesgovernment or anything of that nature, but
(01:47):
it certainly has grown over the centuries.
How did we come from that point
in the First Amendment to where we arenow with the concept of free speech?
Yeah.
So the original First Amendment was,I think
Akhil Amar from Yale argues this,and I think he's right.
It was mainly designedas a federalism provision.
So the whole Bill of Rightswas meant to further
(02:09):
when there was a lot of concernthat this new federal government
that was being authorizedby the Constitution,
there just weren't enough structurallimits on its power and its ability
to grow vis a vis state governmentsand and people living in various states.
And sothat's why they demanded a Bill of Rights
to put more limitson the power of the federal government.
(02:31):
And that's why the First Amendment saysCongress shall not.
You know, if you look at the necessaryand proper clause in the Constitution,
it says Congress may make any law
that is necessaryand proper to carry into execution.
The foregoing powers.
And so this was the counterpartto Congress being able to make laws.
(02:51):
Congress shall make no law abridgingthe freedom of speech or the press.
So it was mainly designed to say,Congress,
you're supposed to dealwith the national economy,
national defense, not domestic issueslike free speech, freedom of religion.
That's for the statesthat have historically
governed these issuesin their respective states, their state
(03:14):
governments, to doso is basically a hands off you.
You stay out of this.
So you're saying that the attitude wasthe states can restrict.
And. They teach, but not the Congress.
They did.
So that's a state federal governmentissue, not a personal rights.
Correct.
I mean, state and local governments.
There wasn't a lot of free speech.
(03:36):
You know, itall depended on in the founding area,
all depended on sort of the stateand local laws that govern it.
And, I think there's a lot of recognitionthat,
free speech is really a modern concept.
As late as 1919 World War One,
people were being thrown in prisonfor opposing Woodrow Wilson's
(03:57):
involvement of America in that war,and they were going to jail
for lengthy prison terms of 10to 20 years in the Supreme Court.
You know, it said, hey, you know,
it's it's wartime.
You can't you can't protestthe government's war policy
and you can't interfere with that.
You know, it's somethingthat would be unthinkable to us today.
(04:20):
And that was justthat was just 100 years ago.
And it wasn'tyou know, it was really Justice
Oliver Wendell Holmes, Jrthat got the ball rolling
in his powerful dissentsand Louis Brandeis that would join him
in these dissents to sayand in Homs had an epiphany.
Originally, Holmes was on boardwith just affirming
(04:42):
these convictions of these protestersgoing to jail for their speech.
But hehe had an epiphany the summer of 1919,
when he had certain conversationswith Zachariah Chafee,
who was a Harvardlaw professor that was a colleague of his
with Judge one hand
who were who were saying, you know,do you really think that,
(05:05):
you know, the freedom of speech means
that you should go to jail for protestingwhat the government is doing?
Look at what our forefathers did.
I mean, we we werewe were born out of revolution,
you know?
So if if you know, if there's anythingcause that should be protected
by the First Amendment,it's it's political dissent.
(05:27):
And and I think
I think that cut Holmes to the quickyou know that
that they were sort ofsubtly criticizing him on this issue.
And so sure enough in the fall of 1919,in a very important case,
the United States versus Abrams,he wrote his first powerful dissent
that said, you know,we really need to be protecting speech
(05:52):
unlessthere is a clear and present danger.
So that's where that term comes from.
Is Oliver Wendell Holmes, Jr. Clear? Yes.
Well, actually, he he rolled it outas in a case in the spring of 1919
as the test,but he applied it really ruthlessly.
He just said, yeah,because they sent these
(06:14):
these defendants sent these
pamphlets to people that had been inductedinto the Army, calling this
an unjust war and trying to say, don't,don't, don't go, don't, don't join up.
His clear and present danger testsaid, that was a clear and present danger
to national security and thereforethese people should go to jail.
I mean, he so he rolled out the testin the spring of 1919,
(06:38):
but he didn't apply it the way it sounded.
And that's where he got that criticismduring the summer.
And that's where in the fall of 1919,he said, okay, my bad,
we really need to start taking thisthis seriously, that that the government
shouldn't be in the businessof punishing people
unless there is a clear and presentdanger of of harm to the country.
(06:59):
That is, you know, that is worth
rises to the
magnitude that people can go to jailfor their free speech.
So we're in a sense, you and I and
all Americans are children of OliverWendell Holmes Junior in so far
as our concept of free speechtoday is concerned.
Certainly he got the ball rolling. Yes.
(07:21):
Although this of his colleaguesdidn't listen to him.
So he was in dissentuntil he retired from the bench.
For the most part, it was only and so so
he left the Supreme Courtin the early 1930s.
And it was only until the latethirties, 40, 5060s
that his colleagues began to say, okay,he was right.
Yeah.
Now we're listening to both Holmesand Brandeis, who Louis Brandeis.
(07:43):
See, you know, in termsof their powerful dissents on free.
Speech, I guess that'swhen people ask, why write a dissent?
You know, why why
write a if you're the only justicevoting against something
and you've got a against you,why even write the dissent?
Who's listening?
But I think the people who are listeningare the next generation.
(08:05):
Absolutely.
And the next not only the next generationof of people and lawyers,
but also the next generation of justiceson the Supreme Court.
Because if they're being askedto apply a precedent in a modern case,
they not only read the majority opinion
from that precedent, that older case,they read the dissenting opinion.
And a lot of timesthey all agree with the dissent.
(08:27):
That's fascinating.
Well, you know, Holmes was, what, fouror five generations after the founders.
But I remember this from my civics class
and probably in high school in the late1700s, John Adams was president.
He is one of the foundersand so there's this Alien
and Sedition Actthat he pushes through Congress.
(08:51):
So it seems to me that here's a generationthat's responsible
for the First Amendment
that says Congress shall passno law restricting the freedom of speech.
But yet that very same generationand this Alien Sedition Act,
Congresspasses a law that is trying to restrict
the political dissent.
They pass the law to do what WoodrowWilson did in.
(09:14):
How do you. Reconcilethat philosophically?
You've got the generationsaying you can't do it, but they.
But they do it at the same time.
I would recommend to any viewers that wantto sort of understand the phenomenon,
to go back to Leonard Levy's multi
treatise, or I should say he wrotea number of books about
freedom of speech in the founding era,and he demonstrates that
(09:36):
freedom of speechwas a very narrow concept in the founding.
So it was mainly designed to saythat you don't need a license
from the governmentto be able to publish your thoughts
as theas the early British government had done.
And that was the main purposeof the freedom of speech clause.
And there was a huge debate,
(09:58):
the huge, huge debate about whetherthe First Amendment was meant to abolish
what are called seditious libel laws,which would throw you in prison
for unduly criticizingthe government or government officials.
And so that wasn't even clear.
That was a big debate.
Levi, I think, thinks that, you know,there was a pretty good case
(10:21):
that the First Amendment was not designed
to outlawseditious libel laws, and that's why
John Adams was able to get Congressto pass
a seditious libel law that would throw youin jail for criticizing.
So so the was a philosophical, if nota legal justification for the distinction
to those folks in 17 whenever they passedthe Alien and Sedition Act.
(10:45):
yeah.
I mean, you know, they they just didn'tview free speech as being very free.
And that's why when you you know,when you read these modern
Supreme Court decisions on free speech,
you know, the conservatives today, theythey want to go and look at a,
you know,the original meaning of the words,
the original understanding of whatthe Constitution was designed to do.
(11:08):
And they do this particularly in a gun
rights cases,but in a lot of other cases, too.
I can. DOBBSThat overruled Roe versus Wade.
But the one area you really don't seethe Supreme Court paying much attention
to historical understandingsis these modern free speech cases.
It's all about sort of these teststhat the Supreme Court has just made up
(11:29):
and they're throwing out there
that, in my opinion,are really just designed to sort of
give a legal rationalefor a balancing of interests
that the courtis trying to do behind the scenes.
But there's very little discussion oforiginalism or historical understanding.
And I think that's that's for a purposeis because there wasn't
a very broad conceptionof free speech at the founding.
(11:52):
And so I think that's that'sa real problem for originalist modes
of constitutional interpretation,is that in a lot of areas,
the way the founding generation viewed
something is much different than the waywe value or believe about things today.
So so where we are currently 2024 ERA
(12:13):
is this concept of free speech appliesto the federal government,
the state government, all the agenciesand organs of those governments,
but it doesn't apply to private business,private companies.
And I think that'san important distinction to make.
Let me know if I'm again,I'm drifting off center on this.
But, you know, most people in this countrysaid we have the right of free speech
(12:35):
and it gets kind of vagueand lumped together, says, were you, Mr.
Employer, you can't tell me what to saybecause I have the right to free speech.
But yet there'sno constitutional prohibition against Mr.
employer or employertelling me that I can't say something.
Is that correct?
That's correct.
I mean, so not just free speech,but all constitutional rights
(12:59):
limit the way that the governmentcan exercise its power
with respect to a certain individual.
It's all about the government.
Now, the court has created some exceptionscalled the State Action Doctrine, where
a private
party can be considered to be
a state actor for purposes of havingto honor a constitutional rights.
(13:19):
But they're fairly limited.
And so the general principle isthe government is bound
by the First Amendment.
Private actors are not.
And they they they, you know, can
do whatthey want with respect to free speech
as long as it comports with lawsthat the legislature may have passed
(13:40):
or perhaps state constitutionsmight have something to say about it, but
but not really the federal courts.
So so pressures or restrictionson free speech in the private sector
come about through generally economic
or social pressures
and or personal relationships.
Things are things of that natureas opposed to demands or instructions
(14:02):
from the United States government, whichI'm not sure everybody understands that.
And of course, that's something that we'reencountering today in the Internet world
is because there's so muchshouting across shouting going on it.
You would think it would chillprivate speech somehow,
but it seems to result more in peoplenot listening to each other,
(14:25):
you know,
instead, because to me, private speech
or the freedom of speech is very
closely related to freedom of thought,because freedom of speech
is like water to a garden, to meaning,you know, freedom of thought.
If you can speak freely, it's hardto develop your thought.
I was I was at a
(14:45):
when my my younger sonwent to Boston College,
one of the introductory comments,but one of the professors there was
talking about how he considered himselfto be an intellectual
and that he wanted all these studentsto become intellectuals.
And his definition of an intellectual wasfor someone to listen to, someone state
a point of view, and then the personwho had been listening say, yes,
(15:10):
but and then you carve out the exception.
Then the person sitting acrosswould then respond.
Yes, but and you go back through thisand I guess it's kind
of like a John Stuart Mill,
you know, of freedom of discussion.
John Stuart Mill, the 19th century
British philosopherwho was a huge proponent of free speech
(15:30):
and talked about the marketplace of ideasand things of that nature.
The idea is not to sayif there's a bad idea out there, it's
not to suppress the idea, but it's to havemore speech is his thought process.
But we're not therenow, and I don't hear anybody.
Well, I maybe there are, but
but it seems like no one goes. Yes.
(15:53):
But anymorethey shout back and they don't listen.
And that certainly is not
only my impression,but it's the impression of so many people.
And and in.
Any thoughts on what why why have we seemto have degenerated into a
anti-intellectual failureto have a meaningful discussion.
All we do is shout at each other anymore.
(16:14):
Boy, that's a that's the big $64 question.
I mean, I've I've oftenthought about that.
I mean, because it's it seems clear that,
you know, if for a long time
we were willing to sort of discuss
a different points of view and sort
of give peoplethe benefit of the doubt that they had,
(16:35):
they were acting in good faithand they had sincere intentions.
Today, it's almost turned into,
you know, a competition.
It's almost becomesort of a tribal ideology.
You're part of the tribeand you need to defend that ideology.
It's a good point. Tribal ideology,interesting thought.
(16:56):
And it's like,okay, who's going to win now?
Not not how are we going to sort of
figure this outand meet in the middle somewhere?
And I mean, I'm not a sociologist, so butit's it's a very interesting thing to me.
I mean, last night on the TV, you had
Ron DeSantis
(17:18):
debating Gavin Newsom,governor of California.
No, no, Yes.
Californiaagainst the governor in Florida.
And right out of the gate.
I mean, DeSantis was calling Newsom a liarand Newsom was calling DeSantis a liar.
It's just it's appalling the level
of our that our civic discourse,our public debate,
(17:39):
even by our purported leaders,are engaging in it.
They're just shouting at each otherand calling each other liars
and questioning each other's motives,you know, and
it's just
I don't know why this has happened. And,
(18:00):
you know, it's it'sI just hope that we get through.
I think we will get through.
I had a conversationwith a software engineer not long ago.
You know,he's in the in the tech world. And
he was making a point about algorithms,
you know, on the on the Facebooksof the world, Instagrams of the world
(18:21):
and all that sort of stuff.
And was making the point thatthe algorithms are written in such a way
to drive viewer content and viewership
is that they only want to reinforce things
that you've read previously,but do so in a very dramatic,
aggressive way.
(18:41):
So it identifies you with the tribalideology, so it gets you to click on it.
So you another one,but that's all you get.
So you don't get a counter point of viewand all it does
is get everybody angry and informsanybody.
It forms upeverybody into their tribal group,
so to speak, so that in a certainway to me strikes me as the Internet being
(19:07):
a threat to democracy.
Because if that is true,if what the software engineer is saying,
we're all victims of these algorithmsthat are forming us
into these very hostile
tribal groups, and that's to me, terriblefor democracy as we know it anyway.
Absolutely.
And there have been those allegationsand whistleblowers, etc..
(19:28):
And I hope I hope
Mark Zuckerberg and othersare sort of taking those things seriously.
And and really looking at that.
But yeah, itdefinitely is a threat to democracy.
And but, you know, to pin itjust on social media companies, I think is
is an oversimplification.
(19:48):
You know, obviously
that that's a contributing factorto the extent that that happens.
But I mean,
I think the Internet is a classic dualuse technology.
Social media companies are classic dualuse technology.
It can have very beneficial usesas the Internet has the the the
(20:12):
the spread of communication and ideas and
and understandingand spread of knowledge and
but I mean, it
can have very harmful consequences tooif it's if it's misused. And
and so we just have to be vigilant
to make sure that, you know, we're
(20:33):
getting the most good out of itand minimizing the bad about it.
And this isn't athis isn't a modern problem.
The founders struggled with thiswith freedom of the press.
The First Amendment in its inceptionwas all about freedom of the press.
The founding generation didn'thave a notion about what freedom of speech
meant.
James That was only in a few stateconstitutions, and James Madison
(20:53):
sort of inserted that.
But what you really saw in the stateconstitutions was freedom of the press.
And that'sbecause they relied on the print.
It wasn't about the news mediaor journalism that didn't exist back then.
It was about the printing press
and the right of any individualto be able to communicate.
The theory wasthat if you're going to have a democracy
and you're going to have servantsthat are running the government,
(21:17):
purported
servants, youneed to be able to keep a check on them
as the people you know,because they are doing your bidding.
And the printing press was the waythat you could sort of keep tabs,
have that discussion and keep tabs onwhat the government was doing
and sort of voiceyour approval or disapproval.
And so it was all aboutfreedom of the press.
(21:37):
But back in the founding days,
the press was extremely partizan
after at least after George Washingtonand even before that stepped down.
And it was
I mean, it was really
salacious.
It was the people were personally abused.
(21:59):
And and so the founders were well awarethat the press could be misused.
But in their judgment, those sort of evils
were necessary to get the good
the sort of the fourth pillarof democracy, the ability to people to
talk about issues of governance.
And so it wasthey had to take the bad with the good.
(22:20):
And I think that's the same thing withthe Internet, with social media companies.
We have to take the bad with the good,but we have to do our best
to minimize the harms, the flow,and do our best
to maximize the benefitsof these new technologies.
There's some andthis is somewhat reminiscent, I think, of
(22:42):
the tobacco litigation once upon a time,
but there's current litigationgoing on, very recent litigation
filed by the attorney generalsof various states, including Bonta,
Attorney General in California.
But there's also private litigation
seeking class action certificationon behalf of various minors
(23:03):
pending in both federal and state court.
And the allegations are
that the social
media sites have used their algorithms
to improperly groom and recruit
children, minorsto get addicted to their Web sites.
And there is a hearing on thisnot that long ago
(23:25):
in court here in Los Angeles,
where we're against a challenge
by the social media companies coming backto Section 2/31 Amendment issues,
which which at this point, anyway,the judge has rejected, said, no,
this is going to proceed.
We're going to get into the discoveryphase of this to see if actually
you have been using these algorithmsto addict it, if that's the right word.
(23:49):
Children to the site,which sounds very similar to the issues
that were alleged against the tobaccocompanies, against once upon a time.
So if that's true and you know, the funny
followingthe money can be very corrupting.
And it's nothing new about knowing that.
But if that is true,then these social media companies
(24:11):
are sacrificing their children
in some way, because we all knowwe've heard about the increase
in suicides and depression,major depressive episodes with children.
And it all seems to go back toabout the time, particularly with phones,
the smartphones coming out.
And again,
I mean, should free speech protect
(24:33):
these social media companiesfrom appealing to these minors
and trying to recruit them to participate
in the social media activitiesor get them addicted to it?
You know,I can't wait until I get that next click
or I get that next to hold sign sayingsomeone wants to hear from me.
You know, that that kind of social mediainteraction, I mean, any thoughts on that?
yeah.
(24:53):
No, I don't think that free speechwould protect that.
That'sthat's more conduct than it is speech.
And there is a big lawsuit,I think has been joined by a
some 33 attorney generals.
So this isn't just a red blue issue.
This is something we're you know,the states are actually coming together,
suing Metta,you know, over a whistleblower allegations
(25:16):
that indeed they haveis particularly for Instagram.
They've designed their algorithms
to hook young people
in order to keep them coming back,coming back to get their personal debt,
more and more personal datathat they then sell to their advertisers.
So it's a moneymaking vehicle for them.
So to the extentthat those allegations are proven
(25:39):
that they are purposelyaddicting kids on their platforms,
I don't think thatthat should be shielded.
I don't think that's fair.
I think that's more conduct similar toyou can't use free speech as a as a
an excuse to harass somebody.
You're constantly calling them inand harassing them.
You know, at some pointthe courts are going to say,
that's not free speech,that's that's unwarranted conduct.
(26:01):
And I think you have the same thing here.
The difference between tobacco,of course, is you don't have a
minor, doesn't have a constitutional rightto have tobacco.
A minor does have some free speech rights.
And so if these if in policingsort of these actions
of of of these platforms, if they'reand if the allegations are proven,
they're indeed doing this,
(26:23):
they're going to have to be
careful about how they draft the laws,
etc., and the judgments they or whateverthe injunctions a court may order,
they're going to have to be carefulbecause now they are treading on
free speech ground
in terms of the rights of minorsto be able to use these platforms.
But they're just going to haveto be more careful about how they do it.
(26:44):
But I don't in the end,I just don't see an argument that,
you know, free speechshould allow companies to do this.
You know, it's all coming back to the goodand the bad with it with,
you know, the Internet and so forth.
It's kind of reminiscentof beware of Greeks bearing gifts.
You know,there's a lot of positive to these minors
the way it's presented,because you have this instant
(27:05):
communicationinformation, social interaction.
But on the other hand,
the Greek is stickingsomething in that horse to get inside
the walls of Troy to get these youngstersaddicted to to what is provided.
So which kind of raises the question,and I'm glad you brought this up,
because you said it's not like tobacco.
There's not a constitutional rightto use tobacco.
(27:25):
But minors do have some you know, I thinkyou said some right to free speech.
But yeah,the court has been very hazy about this.
But definitely they have said thatminors do have free speech rights,
but they can be limitedas appropriate for minors.
What happens if we get to the pointand maybe were there already?
But you look in all the statisticswith them coming back to this issue
(27:47):
of these major issues of mental illness,depressive
depressive episodes, suicides of minors,
which many claim correlate directly to
the social
media platforms and having access to this,
would it be constitutionalthen to limit minors access
(28:11):
to social media sitesif it is noted to be a serious health
epidemiclike tobacco is a health epidemic?
Could you could you say thatchildren are restricted in some fashion?
I don't know how you put thatinto a formula legislatively
for the for the children's
health and welfare, just like tobacco saidyou can until you're age 18,
(28:33):
you can't have unlimited accessto the social media sites.
Or would that be constitutional?
Well,you if you're if you're drafting laws
that are targeting kids in their families,that would be, I think,
not an approach that would be takenbecause just the enforcement of
it would be a nightmare.
I mean, you know what?
(28:53):
So I think the laws would be
mainly directed at the platforms
and what they can allow their minorsto do and what they can't.
And, you know, I do think thatif those laws are
are carefully drawn to to, you know,
to try to be, as they call it in the law,narrowly
(29:15):
tailored to address identified problems,
then I think that they would have
a good chance of succeeding.
Unfortunately, our Supreme Courtand I do think this is very unfortunate.
There are books out there with titles
like Save Our Childrenfrom the Supreme Court, and those titles
(29:38):
have emanated mainly from youmentioned the Communications Decency Act.
Congress put in provisions in there
to have websites,make sure they build in protections
so that kids weren't gaining accessor being subjected to pornography.
And the Supreme Courtstruck that down, saying,
you know,you just didn't do a good enough job
(29:59):
tailoring these laws and,
you know, it's going to keep porn from
it's going to make it too inconvenientfor adults to access this content,
which they have a constitutionalright to access.
And there was a series of decisionslike this where the Supreme Court seemed
to seem to be siding with the ability
(30:21):
of of adults to itwithout undue convenience,
access, very questionable contentover protecting children.
And I just think that the Supreme Courtgot its marshaling of values
in those cases absolutely wrong.
And so I don't knowwhat the current Supreme Court would do,
but I think that if laws were fair,
you know, drafted with a lot of intentin mind to to make sure that, you know,
(30:45):
they were not being too broad in terms
of the restrictionsand so forth on these social might.
Might pass musterthat the so-called strict scrutiny test.
Probably so, Yes. Yes. Interesting.
Well, you know, with with speech, we talk
there are obviously longstanding limitations
(31:05):
on the right of free speech.
I mean, the government,
through the courtsystem doesn't force defamation laws.
So you if you defamesomeone under the legal test,
you can be suedand ordered to pay damages for that.
You can't perjure.
You can be convicted for perjury.
So that's another limitation
(31:26):
in terms of calling for direct actionor direct threats.
The harassingI think you mention all various forms
of limitations on speech, But
but so many of those are after the fact.
What I mean by that,
you yes, you can go out and speakand defame someone,
call them a felon when they were notor whatever you want to call them,
(31:49):
but you pay a price for it at the end.
And if those that defamation charges proveand you pay damages,
which to me is a very different animalthan the prior restraint of speech.
So so
priorrestraint, you don't even get to say it.
And therefore your viewpointmight be suppressed
and that point never,never gets out there.
(32:11):
I wanted to come back to another casethat's pending before the Supreme Court.
It's the I think it's the Murphyversus Murphy versus Biden case.
It comes out of the state of Missouri,I believe.
I think it's the Murtha, Murtha, Murtha.
In term of unusual spelling,I think Murtha.
But it's going to be heard in the 2024term as well.
(32:33):
And the case, I think, was filed
in the western district of Louisianaand the district court,
which it meaning the trial court,federal trial court judge there.
I what the way I readthis was a scathing opinion.
And the point was that representedas the Biden
administration had been contactingvarious social media sites,
(32:53):
and we can
quibble about whether coercion was usedor whether requests
were made to take down
dissenting point of viewand various things like whether
you should wear a mask, whetherthere was a fraud in the 2020 election.
You know, it goes on the opinionlists, eight or nine things, all of which,
(33:15):
according to the factualfinding of the federal judge, says
he felt that there was a high degreeof potential success,
that the plaintiffs would showthat members of the Biden administration
had contacted the social media sitesand succeeded in having them suppress
a dissenting point of viewon a whole variety of things and issued
(33:36):
a preliminary injunction.
And some of the languagethat this judge used was astounding.
He said, if this if theseallegations are proven, it
arguably the greatest
transgression of the right of free speechin this country ever
and issued this injunctionis the Department of Justice,
the FBI,the Department of State, and others.
(33:57):
And then it goes to the I think thatLouisiana is in the Fifth Circuit.
So the Fifth Circuit affirms
that injunction, but limits it,I think, on the language.
To certain parties.
To certain parties.
And that goes up the Supreme Court.
The Supreme Court has taken the case, butbut then also
took out the injunction.
I believe it stayed the state.
(34:19):
State stayed the injunction. Yeah.
Just hear the case.
Hear the case.
And of course, that's very timelybecause 20, 24 is an election year.
And so and this to me, is a huge threat
to democracy in this countrybecause we have the sitting
administrationis able to call up the social media sites
indirectly or directly
(34:40):
where tens of millions of peopleget their news and make our suggestions
or coercion says, I don't carry thisdissenting point of view
because we don't want it tofor political purposes.
How can you have a functioning democracyif that's allowed?
Well, you can't.
And I think these allegations arethere's been a lot of hype,
(35:01):
I think, surrounding I think this wasmainly about the Biden's attempt.
We'll see when it gets to trial.
But, you know, from my cursoryreading of the papers is this was mainly
about the attempts of the Bidenadministration, including CDC officials,
to reach out to these platforms,about views
about vaccinations,
the effectiveness of vaccinationsand masks during the pandemic you know,
(35:25):
and they thought that they were spreadingmisinformation, disinformation.
And so,
you know,
so I thinkthe government has every right to,
you know, call up Instagram or Facebookand say we're you're aware that there's
this post that's getting a lot of hitsthat that, you know,
(35:45):
it seems to be counter to prevailing
scientific consensus
stop. They can do that.
But what they can't do is go on and say,if you don't take that post
down, you're going to suffer reprisalsfrom the government.
Well, that's kind of the distinction
between making a requestand using coercive tactics.
(36:08):
But the problem with the peoplewho are making the request have the power
to regulate and tax,which is the power to destroy.
So, you know,it strikes me that that simple request
is the equivalent to coercion.
I know in the scholarly areas they don'tmake the distinction based upon that.
You know, there's a difference
between making a requestand making it using coercive tactics.
(36:30):
And that's a legitimate point.
But when the person making the request hasthe power to destroy your your company,
then it'sa very fine line, it seems to me.
Perhaps, But the governmentdoes have the right to speak itself.
The Supreme Court has recognized
that there's the right of the governmentto express its viewpoint.
(36:50):
I mean, look at the presidentwhen he when he gives a speech.
I mean, he's expressingcertain viewpoints.
And we have to have that to have a viable
form of Republican democracy.
So, I mean, I just don't see any problem
with a CDC official, for example,reaching out and say,
can you look at this post?
(37:11):
We don't think it conformswith scientific consensus,
but it has to stop their notification
if there's anyif there's any sort of threat of reprisal
and tax issues or whatever, then I thinkthe government should be in hot water.
But the
allegations here are thatthey were being threatened.
(37:32):
You know, the the Facebook operatorsor whatever platforms that were at issue
were being threatened and actually underthe actual control of the government.
That's kind of an aiding and abetting.
To find that hard to believe.
But if that's proven right
and you know, I'm not taking any positionuntil the proof is in,
if that's proven, then then, you know,the government is violating
(37:55):
the clearly violating the First Amendment.
You can't take a private actorand make it an agent of the government
to do something that the governmentcan't constitutionally do.
That would be a blatant violationof the First Amendment.
They know that.
That's why I would be shockedif these allegations proved
have any merit.
But I think what the Supreme Court is going to do in this case is just, you know,
(38:18):
you know,they're going to see what the facts are.
But if they are, as I sort of suspectthey are, that the government was
perhaps,
you know, contacting them in a way
that perhaps could be viewed as
sort of intimidating or, you know,I think the Supreme Court
is just going to use this case to senda very clear message to the government.
(38:39):
You've got to be very carefulin the way you do this.
But they didwith the stay on those lower court on a.
Like a54 opinion, I believe.
Well, three of the just the far rightJustices Alito, Thomas and Gorsuch
dissented.
But the bulk of the justices
were receptiveto the views of the solicitor general
(39:00):
that this is really going to chillproductive communications
of the government between the governmentand these social media platforms.
And I think that the Supreme Courtwas receptive to that.
Obviously, they had read all the papers.
And so if they thought that if the sixjustices in the majority here had thought
that there was something really seriousand nefarious going on here,
(39:20):
I don't think that they would have liftedthe stay on these lower court.
Well. KAGAN joined the dissent,but without an opinion.
So we don't know what Kagan's thinkingwas, I believe I think I think it was a54.
So you had the four justices plus Kagan,But Kagan just had a separate dissent,
I don't think, signed on toany dissenting opinion.
So it's a pretty good book.
I didn't see that.But I'll have to go back and look. Yeah.
(39:42):
So so I guess before the Supreme Courtthen on this more free case is is not
not a
it's not going to bea factual determination
because I don't thinkthe case is ready for.
But but it's a legal determination.
So maybe the most we can hope foris the Supreme Court
will give us some kind of teston what would be permissible con tact
(40:03):
from representatives of the federalgovernment to the social media sites.
That's probably the bestwe can get out of that, I think is what?
Yeah, I.
Mean, I think the law here is pretty easy.
Everyone knows that the governmentcannot coerce a private speaker
to censor the speech of somebody else.
That becomes government actionsubject to the First Amendment.
(40:26):
And so I
don't I don't think there are going to beany major pronouncements in the law here.
I think it's going to be justmainly an emphasis on the law.
But really sort ofthis is going to come down to,
okay, let's see what kind of factsand circumstances can be developed here.
Right.
Well You know, that you mentionedalso information,
disinformation, misinformation.
(40:48):
I think the distinctionmost people get with misinformation
is just a cluelessmisstatement of the facts
were disinformation is intentionalmisrepresentation of the facts.
This is my problem.
Who decides what's misinformationor is disinformation?
That's Big Brother stufffrom George Orwell's 1994, because,
you know, we look back over the last threeor four years, you take
(41:10):
Anthony Fauci,he first said masks are no good.
Then he switches gears and says, no,you got to have a mask.
So was he giving us disinformationand misinformation
the first time or is he doing it?The second time?
You know, it's the same thing with theyou know, first to the theory
about the natural or, you know,the COVID virus coming out of China
(41:33):
from froma wet market that had to be accepted.
Anybody suggested itcame out of the nearby
lab was all disinformation misinformation.
Everybody who said that was shouted down.
Now, most people think that it is,in fact, coming from the lab, not from the
the wet market of the same thingwith the Hunter Biden laptop
(41:54):
that was all shouted downas being Russian disinformation.
And I think there's what, 52 people fromintelligence community signed on to that
and said, yeah, it's all disinformation,but now we know it's it's it wasn't.
It's true.
And so who decideswhat's misinformation, disinformation,
because it's the government.
It has the right to decidesomething is disinformation
(42:15):
or misinformation,therefore should be suppressed.
Then we don't have a free speechin this country.
If that's big brother stuff, is it not?
Yeah, I mean, I mean, we're talkingabout misinformation and disinformation.
We have to distinguish between, I mean,free speech is you can break it down
into three broad categories opinions,ideas, facts, factual statements.
(42:39):
There's no such thing as a false opinionor a false idea.
There may be bad opinions, there may bebad ideas, but you know, facts.
Is it objective reality or isn't it?
And who decides what the facts are?
Well, I mean, I think sometimeswe can all agree on certain facts.
The sky is blue.
You know, when the sun is shiningor the sun
(43:02):
usually rises in the morning in the east.
And so if somebody says it isn't,I think we can say that
that's misinformation,that that's sort of what judges calls
things that you can takejudicial notice of,
things that are sort ofjust taken as a given fact.
(43:23):
But then, you know,
there are other things that you needconsensus in, particularly
sometimes scientific consensus, sometimesother consensus to call something So.
So it tends to be opinionthat morphs into fact as there is more
consensus coalesces around that.
So it's a very it's a spectrum, right,in terms
(43:44):
of what misinformation is and who decides?
Well, certainly government agenciesand bureaucrats
cannot have the last word on that,but they can certainly take a position
that this is counterto prevailing scientific consensus.
And then if you want to challenge that,then you should have the right
(44:04):
to get in front of eitheran administrative tribunal,
maybe administrative law judge,or in the end,
a court of law or a federal courtwith a jury.
In the end,I guess the jury is the ultimate arbiter
of of whether something iswas a misstatement of fact or not,
because the jury is off and decides thoseissues and decides what the facts are.
(44:27):
That's a classic Americana.
I think we're the only countrythat probably does it,
certainly to the degree that we do itthrough a jury, let the people speak.
I guess that's the most direct democracywe have.
Well, the founderscertainly viewed the right to jury
as one of the pillars of democracy.
Well, isn't that coming backto this misinformation, disempowerment?
(44:47):
Who decides? Is it Big Brother?
Because over the last three or four years,we've had the government
or Big Brothertelling us one things we know is not true.
But yet at the time that people tooka dissenting viewpoint, we're suppressed.
So if you take this Mercury caseand if those allegations are proven
that because of these
indirect coercion or suggestions
(45:09):
from from the government,these sites were taken down,
That's prior restraint of speech.
To me,
it seems to meand let me know if you agree or disagree,
but the better approach tothis is rather than suppress
speech through prior restraint,it's to have some kind of disclaimer
on everything, whether it's coming fromthe government or private speakers saying
every reader should consider the facts,think for themselves.
(45:31):
There are dissenting viewpoints,but take it all into consideration.
They need to hear that.
That's what John Stuart Mills would say.
I think it says that the The cure here isnot the answer is not suppression
of speech. It's more speech.
I mean, what's your thought onthat? Well, no question that
if you think that there's
problematic speech in termsof being misinformation or disinformation,
(45:53):
the ability to raise a notice
or a red flag to, you know,this has not been verified,
would be the preferable way to go inand in disclosure requirements.
Well, here here again,I mean, you have to distinguish whether
a platform voluntarily adopts those,and it's their right to do it
as long as it's in their terms andconditions or whether the government is.
(46:15):
Would that get to that Backto the content of the contract issue
you were saying or whether or notthey're a public forum now?
You know, which I think I think that'sa Texas case, the net choice.
That's that's the issue that the SupremeCourt's going to have to wrestle with.
Right.
So so can you can you contract awayif there's a constitutional right
for the user to speak?
Can you contract that away?
(46:36):
I mean, can you contract that awayif you sign up
for a right to use a media platform?
no doubt. Yeah.
I mean, so if if your terms and conditionssay that I agree that,
you know, Facebook or whateversocial media company
can moderate jury to remove my contentfor whatever reason it deems advisable.
(46:59):
I mean
you know,
you've agreed to that even though you meanyou might challenge it and say,
I didn't really agree to it, even thoughI clicked on the terms and conditions,
there wasn't mutual assent to a be.
Kind of an arbitraryand capricious kind of requirement.
You get these
only these so-called adhesion contractsthat would be insurance policies
that kind of thing.
Yeah,we sign the document on the dotted line,
(47:21):
but we didn't have any choice.
That's that's the argument,I suppose. Yes. Yes.
And you so you can attack iton those sort of contract defense
arguments,you know, as a contractual matter, but
as a free speech matter, again, you know,unless it's the government that is
either forcing the social media companies
to do this or punishing people themselvesfor what they said,
(47:44):
you really don't have a free speech,at least a legal free speech component.
Well, that's the issue about the contractis just to me, it's fascinating.
And I did not realizethat you could contract away of
a contractual rightif it's really an arm's length contract.
I think if it's a contract of adhesion,that's a subject to prove.
I suppose there may be a who knows,might be a class action out there
(48:07):
or somebody that's going to challengethat.
Well,there could be public policy arguments
that, you know, we should abide by freespeech norms and so forth.
And so if a contract is ambiguous, maybethat would come into play or something.
But I mean, so if a contract were to say,
you not only agree that we can censoryour speech, but that the government can
come in and tell us to censoryour speech, that would not be waiver.
(48:30):
But you can't you can't you generallycan't waive your constitutional rights.
I mean.
Well, you can in certain circumstances,but it's very it's very murky.
But we're not talking about that.
We're talking about a transactionbetween a private two private
parties, one a company, one and one usersigning up for their terms and conditions.
And so it's really sort ofit's viewed as a consensual transaction
(48:54):
even though that's a fiction,because no one ever reads those things.
But that's how that'show it's administered under the law.
I bet there's a good chancethat the Supreme Court justices
who partake of social media probablynever read those contracts either.
does So yeah.
Yeah.
Unless you're writing a law review articleabout them and then your eyes
(49:14):
glaze over when you're
well.
Professor McDonnell,this is a fascinating subject.
I'd love to have you back some time
to even expand on this, particularlyas the election year goes forward.
Well, thank you, Roger.
It's been a very enjoyableand interesting conversation.
I've enjoyed it very much. And thank you.
Thank you.
This is Roger Clark, your hostof the Fourscore and Seven Project.
(49:37):
If you've enjoyed this program, be sureand like and follow us on our podcast.
I hope you have a wonderful day.
Thank you for watching and listening.
Well, let me come back.
I didn't want to come back to this conceptof what is free speech
and we all know it'ssomething that Americans identify.
It's the First Amendment.
Although I think when Madison wrote
the draft Bill of Rights,it wasn't the First Amendment.
I think it was the third Amendment,
but I think it was the first twothat didn't get approved.
So what was third became number one.
(00:42):
So I think somewhere internally,most Americans say, Ah ha.
The First Amendment,
the reason it's the First Amendmentis because it's who we are.
It's our basic essence is the free speech.
That's who we are as Americans.
And that's why so many Democratsand Republicans, I think, can agree
on the concept of free speech,because that's really deep inside.
It's not so much a political issue.It's a statement of our identity.
(01:05):
So we come to this free speech,but the First Amendment,
I think it says something alongthe lines of Congress shall make no law
respecting or prohibiting free speech or.
Make no law abridging freedom of speech.
Or or the press or its Congress.
Yeah,
but it's far broader than thatnow, isn't it?
Because it is.
(01:25):
It applies to the government,not just Congress.
So how did that come to be?
What I'm looking for is, is our currentconcept of what free speech is from
its infancy to our current concept.
Because that to meand the First Amendment,
it's actually a very narrow language.
It says Congress.
It doesn't say the United Statesgovernment or anything of that nature, but
(01:47):
it certainly has grown over the centuries.
How did we come from that point
in the First Amendment to where we arenow with the concept of free speech?
Yeah.
So the original First Amendment was,I think
Akhil Amar from Yale argues this,and I think he's right.
It was mainly designedas a federalism provision.
So the whole Bill of Rightswas meant to further
(02:09):
when there was a lot of concernthat this new federal government
that was being authorizedby the Constitution,
there just weren't enough structurallimits on its power and its ability
to grow vis a vis state governmentsand and people living in various states.
And sothat's why they demanded a Bill of Rights
to put more limitson the power of the federal government.
(02:31):
And that's why the First Amendment saysCongress shall not.
You know, if you look at the necessaryand proper clause in the Constitution,
it says Congress may make any law
that is necessaryand proper to carry into execution.
The foregoing powers.
And so this was the counterpartto Congress being able to make laws.
(02:51):
Congress shall make no law abridgingthe freedom of speech or the press.
So it was mainly designed to say,Congress,
you're supposed to dealwith the national economy,
national defense, not domestic issueslike free speech, freedom of religion.
That's for the statesthat have historically
governed these issuesin their respective states, their state
(03:14):
governments, to doso is basically a hands off you.
You stay out of this.
So you're saying that the attitude wasthe states can restrict.
And. They teach, but not the Congress.
They did.
So that's a state federal governmentissue, not a personal rights.
Correct.
I mean, state and local governments.
There wasn't a lot of free speech.
(03:36):
You know, itall depended on in the founding area,
all depended on sort of the stateand local laws that govern it.
And, I think there's a lot of recognitionthat,
free speech is really a modern concept.
As late as 1919 World War One,
people were being thrown in prisonfor opposing Woodrow Wilson's
(03:57):
involvement of America in that war,and they were going to jail
for lengthy prison terms of 10to 20 years in the Supreme Court.
You know, it said, hey, you know,
it's it's wartime.
You can't you can't protestthe government's war policy
and you can't interfere with that.
You know, it's somethingthat would be unthinkable to us today.
(04:20):
And that was justthat was just 100 years ago.
And it wasn'tyou know, it was really Justice
Oliver Wendell Holmes, Jrthat got the ball rolling
in his powerful dissentsand Louis Brandeis that would join him
in these dissents to sayand in Homs had an epiphany.
Originally, Holmes was on boardwith just affirming
(04:42):
these convictions of these protestersgoing to jail for their speech.
But hehe had an epiphany the summer of 1919,
when he had certain conversationswith Zachariah Chafee,
who was a Harvardlaw professor that was a colleague of his
with Judge one hand
who were who were saying, you know,do you really think that,
(05:05):
you know, the freedom of speech means
that you should go to jail for protestingwhat the government is doing?
Look at what our forefathers did.
I mean, we we werewe were born out of revolution,
you know?
So if if you know, if there's anythingcause that should be protected
by the First Amendment,it's it's political dissent.
(05:27):
And and I think
I think that cut Holmes to the quickyou know that
that they were sort ofsubtly criticizing him on this issue.
And so sure enough in the fall of 1919,in a very important case,
the United States versus Abrams,he wrote his first powerful dissent
that said, you know,we really need to be protecting speech
(05:52):
unlessthere is a clear and present danger.
So that's where that term comes from.
Is Oliver Wendell Holmes, Jr. Clear? Yes.
Well, actually, he he rolled it outas in a case in the spring of 1919
as the test,but he applied it really ruthlessly.
He just said, yeah,because they sent these
(06:14):
these defendants sent these
pamphlets to people that had been inductedinto the Army, calling this
an unjust war and trying to say, don't,don't, don't go, don't, don't join up.
His clear and present danger testsaid, that was a clear and present danger
to national security and thereforethese people should go to jail.
I mean, he so he rolled out the testin the spring of 1919,
(06:38):
but he didn't apply it the way it sounded.
And that's where he got that criticismduring the summer.
And that's where in the fall of 1919,he said, okay, my bad,
we really need to start taking thisthis seriously, that that the government
shouldn't be in the businessof punishing people
unless there is a clear and presentdanger of of harm to the country.
(06:59):
That is, you know, that is worth
rises to the
magnitude that people can go to jailfor their free speech.
So we're in a sense, you and I and
all Americans are children of OliverWendell Holmes Junior in so far
as our concept of free speechtoday is concerned.
Certainly he got the ball rolling. Yes.
(07:21):
Although this of his colleaguesdidn't listen to him.
So he was in dissentuntil he retired from the bench.
For the most part, it was only and so so
he left the Supreme Courtin the early 1930s.
And it was only until the latethirties, 40, 5060s
that his colleagues began to say, okay,he was right.
Yeah.
Now we're listening to both Holmesand Brandeis, who Louis Brandeis.
(07:43):
See, you know, in termsof their powerful dissents on free.
Speech, I guess that'swhen people ask, why write a dissent?
You know, why why
write a if you're the only justicevoting against something
and you've got a against you,why even write the dissent?
Who's listening?
But I think the people who are listeningare the next generation.
(08:05):
Absolutely.
And the next not only the next generationof of people and lawyers,
but also the next generation of justiceson the Supreme Court.
Because if they're being askedto apply a precedent in a modern case,
they not only read the majority opinion
from that precedent, that older case,they read the dissenting opinion.
And a lot of timesthey all agree with the dissent.
(08:27):
That's fascinating.
Well, you know, Holmes was, what, fouror five generations after the founders.
But I remember this from my civics class
and probably in high school in the late1700s, John Adams was president.
He is one of the foundersand so there's this Alien
and Sedition Actthat he pushes through Congress.
(08:51):
So it seems to me that here's a generationthat's responsible
for the First Amendment
that says Congress shall passno law restricting the freedom of speech.
But yet that very same generationand this Alien Sedition Act,
Congresspasses a law that is trying to restrict
the political dissent.
They pass the law to do what WoodrowWilson did in.
(09:14):
How do you. Reconcilethat philosophically?
You've got the generationsaying you can't do it, but they.
But they do it at the same time.
I would recommend to any viewers that wantto sort of understand the phenomenon,
to go back to Leonard Levy's multi
treatise, or I should say he wrotea number of books about
freedom of speech in the founding era,and he demonstrates that
(09:36):
freedom of speechwas a very narrow concept in the founding.
So it was mainly designed to saythat you don't need a license
from the governmentto be able to publish your thoughts
as theas the early British government had done.
And that was the main purposeof the freedom of speech clause.
And there was a huge debate,
(09:58):
the huge, huge debate about whetherthe First Amendment was meant to abolish
what are called seditious libel laws,which would throw you in prison
for unduly criticizingthe government or government officials.
And so that wasn't even clear.
That was a big debate.
Levi, I think, thinks that, you know,there was a pretty good case
(10:21):
that the First Amendment was not designed
to outlawseditious libel laws, and that's why
John Adams was able to get Congressto pass
a seditious libel law that would throw youin jail for criticizing.
So so the was a philosophical, if nota legal justification for the distinction
to those folks in 17 whenever they passedthe Alien and Sedition Act.
(10:45):
yeah.
I mean, you know, they they just didn'tview free speech as being very free.
And that's why when you you know,when you read these modern
Supreme Court decisions on free speech,
you know, the conservatives today, theythey want to go and look at a,
you know,the original meaning of the words,
the original understanding of whatthe Constitution was designed to do.
(11:08):
And they do this particularly in a gun
rights cases,but in a lot of other cases, too.
I can. DOBBSThat overruled Roe versus Wade.
But the one area you really don't seethe Supreme Court paying much attention
to historical understandingsis these modern free speech cases.
It's all about sort of these teststhat the Supreme Court has just made up
(11:29):
and they're throwing out there
that, in my opinion,are really just designed to sort of
give a legal rationalefor a balancing of interests
that the courtis trying to do behind the scenes.
But there's very little discussion oforiginalism or historical understanding.
And I think that's that's for a purposeis because there wasn't
a very broad conceptionof free speech at the founding.
(11:52):
And so I think that's that'sa real problem for originalist modes
of constitutional interpretation,is that in a lot of areas,
the way the founding generation viewed
something is much different than the waywe value or believe about things today.
So so where we are currently 2024 ERA
(12:13):
is this concept of free speech appliesto the federal government,
the state government, all the agenciesand organs of those governments,
but it doesn't apply to private business,private companies.
And I think that'san important distinction to make.
Let me know if I'm again,I'm drifting off center on this.
But, you know, most people in this countrysaid we have the right of free speech
(12:35):
and it gets kind of vagueand lumped together, says, were you, Mr.
Employer, you can't tell me what to saybecause I have the right to free speech.
But yet there'sno constitutional prohibition against Mr.
employer or employertelling me that I can't say something.
Is that correct?
That's correct.
I mean, so not just free speech,but all constitutional rights
(12:59):
limit the way that the governmentcan exercise its power
with respect to a certain individual.
It's all about the government.
Now, the court has created some exceptionscalled the State Action Doctrine, where
a private
party can be considered to be
a state actor for purposes of havingto honor a constitutional rights.
(13:19):
But they're fairly limited.
And so the general principle isthe government is bound
by the First Amendment.
Private actors are not.
And they they they, you know, can
do whatthey want with respect to free speech
as long as it comports with lawsthat the legislature may have passed
(13:40):
or perhaps state constitutionsmight have something to say about it, but
but not really the federal courts.
So so pressures or restrictionson free speech in the private sector
come about through generally economic
or social pressures
and or personal relationships.
Things are things of that natureas opposed to demands or instructions
(14:02):
from the United States government, whichI'm not sure everybody understands that.
And of course, that's something that we'reencountering today in the Internet world
is because there's so muchshouting across shouting going on it.
You would think it would chillprivate speech somehow,
but it seems to result more in peoplenot listening to each other,
(14:25):
you know,
instead, because to me, private speech
or the freedom of speech is very
closely related to freedom of thought,because freedom of speech
is like water to a garden, to meaning,you know, freedom of thought.
If you can speak freely, it's hardto develop your thought.
I was I was at a
(14:45):
when my my younger sonwent to Boston College,
one of the introductory comments,but one of the professors there was
talking about how he considered himselfto be an intellectual
and that he wanted all these studentsto become intellectuals.
And his definition of an intellectual wasfor someone to listen to, someone state
a point of view, and then the personwho had been listening say, yes,
(15:10):
but and then you carve out the exception.
Then the person sitting acrosswould then respond.
Yes, but and you go back through thisand I guess it's kind
of like a John Stuart Mill,
you know, of freedom of discussion.
John Stuart Mill, the 19th century
British philosopherwho was a huge proponent of free speech
(15:30):
and talked about the marketplace of ideasand things of that nature.
The idea is not to sayif there's a bad idea out there, it's
not to suppress the idea, but it's to havemore speech is his thought process.
But we're not therenow, and I don't hear anybody.
Well, I maybe there are, but
but it seems like no one goes. Yes.
(15:53):
But anymorethey shout back and they don't listen.
And that certainly is not
only my impression,but it's the impression of so many people.
And and in.
Any thoughts on what why why have we seemto have degenerated into a
anti-intellectual failureto have a meaningful discussion.
All we do is shout at each other anymore.
(16:14):
Boy, that's a that's the big $64 question.
I mean, I've I've oftenthought about that.
I mean, because it's it seems clear that,
you know, if for a long time
we were willing to sort of discuss
a different points of view and sort
of give peoplethe benefit of the doubt that they had,
(16:35):
they were acting in good faithand they had sincere intentions.
Today, it's almost turned into,
you know, a competition.
It's almost becomesort of a tribal ideology.
You're part of the tribeand you need to defend that ideology.
It's a good point. Tribal ideology,interesting thought.
(16:56):
And it's like,okay, who's going to win now?
Not not how are we going to sort of
figure this outand meet in the middle somewhere?
And I mean, I'm not a sociologist, so butit's it's a very interesting thing to me.
I mean, last night on the TV, you had
Ron DeSantis
(17:18):
debating Gavin Newsom,governor of California.
No, no, Yes.
Californiaagainst the governor in Florida.
And right out of the gate.
I mean, DeSantis was calling Newsom a liarand Newsom was calling DeSantis a liar.
It's just it's appalling the level
of our that our civic discourse,our public debate,
(17:39):
even by our purported leaders,are engaging in it.
They're just shouting at each otherand calling each other liars
and questioning each other's motives,you know, and
it's just
I don't know why this has happened. And,
(18:00):
you know, it's it'sI just hope that we get through.
I think we will get through.
I had a conversationwith a software engineer not long ago.
You know,he's in the in the tech world. And
he was making a point about algorithms,
you know, on the on the Facebooksof the world, Instagrams of the world
(18:21):
and all that sort of stuff.
And was making the point thatthe algorithms are written in such a way
to drive viewer content and viewership
is that they only want to reinforce things
that you've read previously,but do so in a very dramatic,
aggressive way.
(18:41):
So it identifies you with the tribalideology, so it gets you to click on it.
So you another one,but that's all you get.
So you don't get a counter point of viewand all it does
is get everybody angry and informsanybody.
It forms upeverybody into their tribal group,
so to speak, so that in a certainway to me strikes me as the Internet being
(19:07):
a threat to democracy.
Because if that is true,if what the software engineer is saying,
we're all victims of these algorithmsthat are forming us
into these very hostile
tribal groups, and that's to me, terriblefor democracy as we know it anyway.
Absolutely.
And there have been those allegationsand whistleblowers, etc..
(19:28):
And I hope I hope
Mark Zuckerberg and othersare sort of taking those things seriously.
And and really looking at that.
But yeah, itdefinitely is a threat to democracy.
And but, you know, to pin itjust on social media companies, I think is
is an oversimplification.
(19:48):
You know, obviously
that that's a contributing factorto the extent that that happens.
But I mean,
I think the Internet is a classic dualuse technology.
Social media companies are classic dualuse technology.
It can have very beneficial usesas the Internet has the the the
(20:12):
the spread of communication and ideas and
and understandingand spread of knowledge and
but I mean, it
can have very harmful consequences tooif it's if it's misused. And
and so we just have to be vigilant
to make sure that, you know, we're
(20:33):
getting the most good out of itand minimizing the bad about it.
And this isn't athis isn't a modern problem.
The founders struggled with thiswith freedom of the press.
The First Amendment in its inceptionwas all about freedom of the press.
The founding generation didn'thave a notion about what freedom of speech
meant.
James That was only in a few stateconstitutions, and James Madison
(20:53):
sort of inserted that.
But what you really saw in the stateconstitutions was freedom of the press.
And that'sbecause they relied on the print.
It wasn't about the news mediaor journalism that didn't exist back then.
It was about the printing press
and the right of any individualto be able to communicate.
The theory wasthat if you're going to have a democracy
and you're going to have servantsthat are running the government,
(21:17):
purported
servants, youneed to be able to keep a check on them
as the people you know,because they are doing your bidding.
And the printing press was the waythat you could sort of keep tabs,
have that discussion and keep tabs onwhat the government was doing
and sort of voiceyour approval or disapproval.
And so it was all aboutfreedom of the press.
(21:37):
But back in the founding days,
the press was extremely partizan
after at least after George Washingtonand even before that stepped down.
And it was
I mean, it was really
salacious.
It was the people were personally abused.
(21:59):
And and so the founders were well awarethat the press could be misused.
But in their judgment, those sort of evils
were necessary to get the good
the sort of the fourth pillarof democracy, the ability to people to
talk about issues of governance.
And so it wasthey had to take the bad with the good.
(22:20):
And I think that's the same thing withthe Internet, with social media companies.
We have to take the bad with the good,but we have to do our best
to minimize the harms, the flow,and do our best
to maximize the benefitsof these new technologies.
There's some andthis is somewhat reminiscent, I think, of
(22:42):
the tobacco litigation once upon a time,
but there's current litigationgoing on, very recent litigation
filed by the attorney generalsof various states, including Bonta,
Attorney General in California.
But there's also private litigation
seeking class action certificationon behalf of various minors
(23:03):
pending in both federal and state court.
And the allegations are
that the social
media sites have used their algorithms
to improperly groom and recruit
children, minorsto get addicted to their Web sites.
And there is a hearing on thisnot that long ago
(23:25):
in court here in Los Angeles,
where we're against a challenge
by the social media companies coming backto Section 2/31 Amendment issues,
which which at this point, anyway,the judge has rejected, said, no,
this is going to proceed.
We're going to get into the discoveryphase of this to see if actually
you have been using these algorithmsto addict it, if that's the right word.
(23:49):
Children to the site,which sounds very similar to the issues
that were alleged against the tobaccocompanies, against once upon a time.
So if that's true and you know, the funny
followingthe money can be very corrupting.
And it's nothing new about knowing that.
But if that is true,then these social media companies
(24:11):
are sacrificing their children
in some way, because we all knowwe've heard about the increase
in suicides and depression,major depressive episodes with children.
And it all seems to go back toabout the time, particularly with phones,
the smartphones coming out.
And again,
I mean, should free speech protect
(24:33):
these social media companiesfrom appealing to these minors
and trying to recruit them to participate
in the social media activitiesor get them addicted to it?
You know,I can't wait until I get that next click
or I get that next to hold sign sayingsomeone wants to hear from me.
You know, that that kind of social mediainteraction, I mean, any thoughts on that?
yeah.
(24:53):
No, I don't think that free speechwould protect that.
That'sthat's more conduct than it is speech.
And there is a big lawsuit,I think has been joined by a
some 33 attorney generals.
So this isn't just a red blue issue.
This is something we're you know,the states are actually coming together,
suing Metta,you know, over a whistleblower allegations
(25:16):
that indeed they haveis particularly for Instagram.
They've designed their algorithms
to hook young people
in order to keep them coming back,coming back to get their personal debt,
more and more personal datathat they then sell to their advertisers.
So it's a moneymaking vehicle for them.
So to the extentthat those allegations are proven
(25:39):
that they are purposelyaddicting kids on their platforms,
I don't think thatthat should be shielded.
I don't think that's fair.
I think that's more conduct similar toyou can't use free speech as a as a
an excuse to harass somebody.
You're constantly calling them inand harassing them.
You know, at some pointthe courts are going to say,
that's not free speech,that's that's unwarranted conduct.
(26:01):
And I think you have the same thing here.
The difference between tobacco,of course, is you don't have a
minor, doesn't have a constitutional rightto have tobacco.
A minor does have some free speech rights.
And so if these if in policingsort of these actions
of of of these platforms, if they'reand if the allegations are proven,
they're indeed doing this,
(26:23):
they're going to have to be
careful about how they draft the laws,
etc., and the judgments they or whateverthe injunctions a court may order,
they're going to have to be carefulbecause now they are treading on
free speech ground
in terms of the rights of minorsto be able to use these platforms.
But they're just going to haveto be more careful about how they do it.
(26:44):
But I don't in the end,I just don't see an argument that,
you know, free speechshould allow companies to do this.
You know, it's all coming back to the goodand the bad with it with,
you know, the Internet and so forth.
It's kind of reminiscentof beware of Greeks bearing gifts.
You know,there's a lot of positive to these minors
the way it's presented,because you have this instant
(27:05):
communicationinformation, social interaction.
But on the other hand,
the Greek is stickingsomething in that horse to get inside
the walls of Troy to get these youngstersaddicted to to what is provided.
So which kind of raises the question,and I'm glad you brought this up,
because you said it's not like tobacco.
There's not a constitutional rightto use tobacco.
(27:25):
But minors do have some you know, I thinkyou said some right to free speech.
But yeah,the court has been very hazy about this.
But definitely they have said thatminors do have free speech rights,
but they can be limitedas appropriate for minors.
What happens if we get to the pointand maybe were there already?
But you look in all the statisticswith them coming back to this issue
(27:47):
of these major issues of mental illness,depressive
depressive episodes, suicides of minors,
which many claim correlate directly to
the social
media platforms and having access to this,
would it be constitutionalthen to limit minors access
(28:11):
to social media sitesif it is noted to be a serious health
epidemiclike tobacco is a health epidemic?
Could you could you say thatchildren are restricted in some fashion?
I don't know how you put thatinto a formula legislatively
for the for the children's
health and welfare, just like tobacco saidyou can until you're age 18,
(28:33):
you can't have unlimited accessto the social media sites.
Or would that be constitutional?
Well,you if you're if you're drafting laws
that are targeting kids in their families,that would be, I think,
not an approach that would be takenbecause just the enforcement of
it would be a nightmare.
I mean, you know what?
(28:53):
So I think the laws would be
mainly directed at the platforms
and what they can allow their minorsto do and what they can't.
And, you know, I do think thatif those laws are
are carefully drawn to to, you know,
to try to be, as they call it in the law,narrowly
(29:15):
tailored to address identified problems,
then I think that they would have
a good chance of succeeding.
Unfortunately, our Supreme Courtand I do think this is very unfortunate.
There are books out there with titles
like Save Our Childrenfrom the Supreme Court, and those titles
(29:38):
have emanated mainly from youmentioned the Communications Decency Act.
Congress put in provisions in there
to have websites,make sure they build in protections
so that kids weren't gaining accessor being subjected to pornography.
And the Supreme Courtstruck that down, saying,
you know,you just didn't do a good enough job
(29:59):
tailoring these laws and,
you know, it's going to keep porn from
it's going to make it too inconvenientfor adults to access this content,
which they have a constitutionalright to access.
And there was a series of decisionslike this where the Supreme Court seemed
to seem to be siding with the ability
(30:21):
of of adults to itwithout undue convenience,
access, very questionable contentover protecting children.
And I just think that the Supreme Courtgot its marshaling of values
in those cases absolutely wrong.
And so I don't knowwhat the current Supreme Court would do,
but I think that if laws were fair,
you know, drafted with a lot of intentin mind to to make sure that, you know,
(30:45):
they were not being too broad in terms
of the restrictionsand so forth on these social might.
Might pass musterthat the so-called strict scrutiny test.
Probably so, Yes. Yes. Interesting.
Well, you know, with with speech, we talk
there are obviously longstanding limitations
(31:05):
on the right of free speech.
I mean, the government,
through the courtsystem doesn't force defamation laws.
So you if you defamesomeone under the legal test,
you can be suedand ordered to pay damages for that.
You can't perjure.
You can be convicted for perjury.
So that's another limitation
(31:26):
in terms of calling for direct actionor direct threats.
The harassingI think you mention all various forms
of limitations on speech, But
but so many of those are after the fact.
What I mean by that,
you yes, you can go out and speakand defame someone,
call them a felon when they were notor whatever you want to call them,
(31:49):
but you pay a price for it at the end.
And if those that defamation charges proveand you pay damages,
which to me is a very different animalthan the prior restraint of speech.
So so
priorrestraint, you don't even get to say it.
And therefore your viewpointmight be suppressed
and that point never,never gets out there.
(32:11):
I wanted to come back to another casethat's pending before the Supreme Court.
It's the I think it's the Murphyversus Murphy versus Biden case.
It comes out of the state of Missouri,I believe.
I think it's the Murtha, Murtha, Murtha.
In term of unusual spelling,I think Murtha.
But it's going to be heard in the 2024term as well.
(32:33):
And the case, I think, was filed
in the western district of Louisianaand the district court,
which it meaning the trial court,federal trial court judge there.
I what the way I readthis was a scathing opinion.
And the point was that representedas the Biden
administration had been contactingvarious social media sites,
(32:53):
and we can
quibble about whether coercion was usedor whether requests
were made to take down
dissenting point of viewand various things like whether
you should wear a mask, whetherthere was a fraud in the 2020 election.
You know, it goes on the opinionlists, eight or nine things, all of which,
(33:15):
according to the factualfinding of the federal judge, says
he felt that there was a high degreeof potential success,
that the plaintiffs would showthat members of the Biden administration
had contacted the social media sitesand succeeded in having them suppress
a dissenting point of viewon a whole variety of things and issued
(33:36):
a preliminary injunction.
And some of the languagethat this judge used was astounding.
He said, if this if theseallegations are proven, it
arguably the greatest
transgression of the right of free speechin this country ever
and issued this injunctionis the Department of Justice,
the FBI,the Department of State, and others.
(33:57):
And then it goes to the I think thatLouisiana is in the Fifth Circuit.
So the Fifth Circuit affirms
that injunction, but limits it,I think, on the language.
To certain parties.
To certain parties.
And that goes up the Supreme Court.
The Supreme Court has taken the case, butbut then also
took out the injunction.
I believe it stayed the state.
(34:19):
State stayed the injunction. Yeah.
Just hear the case.
Hear the case.
And of course, that's very timelybecause 20, 24 is an election year.
And so and this to me, is a huge threat
to democracy in this countrybecause we have the sitting
administrationis able to call up the social media sites
indirectly or directly
(34:40):
where tens of millions of peopleget their news and make our suggestions
or coercion says, I don't carry thisdissenting point of view
because we don't want it tofor political purposes.
How can you have a functioning democracyif that's allowed?
Well, you can't.
And I think these allegations arethere's been a lot of hype,
(35:01):
I think, surrounding I think this wasmainly about the Biden's attempt.
We'll see when it gets to trial.
But, you know, from my cursoryreading of the papers is this was mainly
about the attempts of the Bidenadministration, including CDC officials,
to reach out to these platforms,about views
about vaccinations,
the effectiveness of vaccinationsand masks during the pandemic you know,
(35:25):
and they thought that they were spreadingmisinformation, disinformation.
And so,
you know,
so I thinkthe government has every right to,
you know, call up Instagram or Facebookand say we're you're aware that there's
this post that's getting a lot of hitsthat that, you know,
(35:45):
it seems to be counter to prevailing
scientific consensus
stop. They can do that.
But what they can't do is go on and say,if you don't take that post
down, you're going to suffer reprisalsfrom the government.
Well, that's kind of the distinction
between making a requestand using coercive tactics.
(36:08):
But the problem with the peoplewho are making the request have the power
to regulate and tax,which is the power to destroy.
So, you know,it strikes me that that simple request
is the equivalent to coercion.
I know in the scholarly areas they don'tmake the distinction based upon that.
You know, there's a difference
between making a requestand making it using coercive tactics.
(36:30):
And that's a legitimate point.
But when the person making the request hasthe power to destroy your your company,
then it'sa very fine line, it seems to me.
Perhaps, But the governmentdoes have the right to speak itself.
The Supreme Court has recognized
that there's the right of the governmentto express its viewpoint.
(36:50):
I mean, look at the presidentwhen he when he gives a speech.
I mean, he's expressingcertain viewpoints.
And we have to have that to have a viable
form of Republican democracy.
So, I mean, I just don't see any problem
with a CDC official, for example,reaching out and say,
can you look at this post?
(37:11):
We don't think it conformswith scientific consensus,
but it has to stop their notification
if there's anyif there's any sort of threat of reprisal
and tax issues or whatever, then I thinkthe government should be in hot water.
But the
allegations here are thatthey were being threatened.
(37:32):
You know, the the Facebook operatorsor whatever platforms that were at issue
were being threatened and actually underthe actual control of the government.
That's kind of an aiding and abetting.
To find that hard to believe.
But if that's proven right
and you know, I'm not taking any positionuntil the proof is in,
if that's proven, then then, you know,the government is violating
(37:55):
the clearly violating the First Amendment.
You can't take a private actorand make it an agent of the government
to do something that the governmentcan't constitutionally do.
That would be a blatant violationof the First Amendment.
They know that.
That's why I would be shockedif these allegations proved
have any merit.
But I think what the Supreme Court is going to do in this case is just, you know,
(38:18):
you know,they're going to see what the facts are.
But if they are, as I sort of suspectthey are, that the government was
perhaps,
you know, contacting them in a way
that perhaps could be viewed as
sort of intimidating or, you know,I think the Supreme Court
is just going to use this case to senda very clear message to the government.
(38:39):
You've got to be very carefulin the way you do this.
But they didwith the stay on those lower court on a.
Like a54 opinion, I believe.
Well, three of the just the far rightJustices Alito, Thomas and Gorsuch
dissented.
But the bulk of the justices
were receptiveto the views of the solicitor general
(39:00):
that this is really going to chillproductive communications
of the government between the governmentand these social media platforms.
And I think that the Supreme Courtwas receptive to that.
Obviously, they had read all the papers.
And so if they thought that if the sixjustices in the majority here had thought
that there was something really seriousand nefarious going on here,
(39:20):
I don't think that they would have liftedthe stay on these lower court.
Well. KAGAN joined the dissent,but without an opinion.
So we don't know what Kagan's thinkingwas, I believe I think I think it was a54.
So you had the four justices plus Kagan,But Kagan just had a separate dissent,
I don't think, signed on toany dissenting opinion.
So it's a pretty good book.
I didn't see that.But I'll have to go back and look. Yeah.
(39:42):
So so I guess before the Supreme Courtthen on this more free case is is not
not a
it's not going to bea factual determination
because I don't thinkthe case is ready for.
But but it's a legal determination.
So maybe the most we can hope foris the Supreme Court
will give us some kind of teston what would be permissible con tact
(40:03):
from representatives of the federalgovernment to the social media sites.
That's probably the bestwe can get out of that, I think is what?
Yeah, I.
Mean, I think the law here is pretty easy.
Everyone knows that the governmentcannot coerce a private speaker
to censor the speech of somebody else.
That becomes government actionsubject to the First Amendment.
(40:26):
And so I
don't I don't think there are going to beany major pronouncements in the law here.
I think it's going to be justmainly an emphasis on the law.
But really sort ofthis is going to come down to,
okay, let's see what kind of factsand circumstances can be developed here.
Right.
Well You know, that you mentionedalso information,
disinformation, misinformation.
(40:48):
I think the distinctionmost people get with misinformation
is just a cluelessmisstatement of the facts
were disinformation is intentionalmisrepresentation of the facts.
This is my problem.
Who decides what's misinformationor is disinformation?
That's Big Brother stufffrom George Orwell's 1994, because,
you know, we look back over the last threeor four years, you take
(41:10):
Anthony Fauci,he first said masks are no good.
Then he switches gears and says, no,you got to have a mask.
So was he giving us disinformationand misinformation
the first time or is he doing it?The second time?
You know, it's the same thing with theyou know, first to the theory
about the natural or, you know,the COVID virus coming out of China
(41:33):
from froma wet market that had to be accepted.
Anybody suggested itcame out of the nearby
lab was all disinformation misinformation.
Everybody who said that was shouted down.
Now, most people think that it is,in fact, coming from the lab, not from the
the wet market of the same thingwith the Hunter Biden laptop
(41:54):
that was all shouted downas being Russian disinformation.
And I think there's what, 52 people fromintelligence community signed on to that
and said, yeah, it's all disinformation,but now we know it's it's it wasn't.
It's true.
And so who decideswhat's misinformation, disinformation,
because it's the government.
It has the right to decidesomething is disinformation
(42:15):
or misinformation,therefore should be suppressed.
Then we don't have a free speechin this country.
If that's big brother stuff, is it not?
Yeah, I mean, I mean, we're talkingabout misinformation and disinformation.
We have to distinguish between, I mean,free speech is you can break it down
into three broad categories opinions,ideas, facts, factual statements.
(42:39):
There's no such thing as a false opinionor a false idea.
There may be bad opinions, there may bebad ideas, but you know, facts.
Is it objective reality or isn't it?
And who decides what the facts are?
Well, I mean, I think sometimeswe can all agree on certain facts.
The sky is blue.
You know, when the sun is shiningor the sun
(43:02):
usually rises in the morning in the east.
And so if somebody says it isn't,I think we can say that
that's misinformation,that that's sort of what judges calls
things that you can takejudicial notice of,
things that are sort ofjust taken as a given fact.
(43:23):
But then, you know,
there are other things that you needconsensus in, particularly
sometimes scientific consensus, sometimesother consensus to call something So.
So it tends to be opinionthat morphs into fact as there is more
consensus coalesces around that.
So it's a very it's a spectrum, right,in terms
(43:44):
of what misinformation is and who decides?
Well, certainly government agenciesand bureaucrats
cannot have the last word on that,but they can certainly take a position
that this is counterto prevailing scientific consensus.
And then if you want to challenge that,then you should have the right
(44:04):
to get in front of eitheran administrative tribunal,
maybe administrative law judge,or in the end,
a court of law or a federal courtwith a jury.
In the end,I guess the jury is the ultimate arbiter
of of whether something iswas a misstatement of fact or not,
because the jury is off and decides thoseissues and decides what the facts are.
(44:27):
That's a classic Americana.
I think we're the only countrythat probably does it,
certainly to the degree that we do itthrough a jury, let the people speak.
I guess that's the most direct democracywe have.
Well, the founderscertainly viewed the right to jury
as one of the pillars of democracy.
Well, isn't that coming backto this misinformation, disempowerment?
(44:47):
Who decides? Is it Big Brother?
Because over the last three or four years,we've had the government
or Big Brothertelling us one things we know is not true.
But yet at the time that people tooka dissenting viewpoint, we're suppressed.
So if you take this Mercury caseand if those allegations are proven
that because of these
indirect coercion or suggestions
(45:09):
from from the government,these sites were taken down,
That's prior restraint of speech.
To me,
it seems to meand let me know if you agree or disagree,
but the better approach tothis is rather than suppress
speech through prior restraint,it's to have some kind of disclaimer
on everything, whether it's coming fromthe government or private speakers saying
every reader should consider the facts,think for themselves.
(45:31):
There are dissenting viewpoints,but take it all into consideration.
They need to hear that.
That's what John Stuart Mills would say.
I think it says that the The cure here isnot the answer is not suppression
of speech. It's more speech.
I mean, what's your thought onthat? Well, no question that
if you think that there's
problematic speech in termsof being misinformation or disinformation,
(45:53):
the ability to raise a notice
or a red flag to, you know,this has not been verified,
would be the preferable way to go inand in disclosure requirements.
Well, here here again,I mean, you have to distinguish whether
a platform voluntarily adopts those,and it's their right to do it
as long as it's in their terms andconditions or whether the government is.
(46:15):
Would that get to that Backto the content of the contract issue
you were saying or whether or notthey're a public forum now?
You know, which I think I think that'sa Texas case, the net choice.
That's that's the issue that the SupremeCourt's going to have to wrestle with.
Right.
So so can you can you contract awayif there's a constitutional right
for the user to speak?
Can you contract that away?
(46:36):
I mean, can you contract that awayif you sign up
for a right to use a media platform?
no doubt. Yeah.
I mean, so if if your terms and conditionssay that I agree that,
you know, Facebook or whateversocial media company
can moderate jury to remove my contentfor whatever reason it deems advisable.
(46:59):
I mean
you know,
you've agreed to that even though you meanyou might challenge it and say,
I didn't really agree to it, even thoughI clicked on the terms and conditions,
there wasn't mutual assent to a be.
Kind of an arbitraryand capricious kind of requirement.
You get these
only these so-called adhesion contractsthat would be insurance policies
that kind of thing.
Yeah,we sign the document on the dotted line,
(47:21):
but we didn't have any choice.
That's that's the argument,I suppose. Yes. Yes.
And you so you can attack iton those sort of contract defense
arguments,you know, as a contractual matter, but
as a free speech matter, again, you know,unless it's the government that is
either forcing the social media companies
to do this or punishing people themselvesfor what they said,
(47:44):
you really don't have a free speech,at least a legal free speech component.
Well, that's the issue about the contractis just to me, it's fascinating.
And I did not realizethat you could contract away of
a contractual rightif it's really an arm's length contract.
I think if it's a contract of adhesion,that's a subject to prove.
I suppose there may be a who knows,might be a class action out there
(48:07):
or somebody that's going to challengethat.
Well,there could be public policy arguments
that, you know, we should abide by freespeech norms and so forth.
And so if a contract is ambiguous, maybethat would come into play or something.
But I mean, so if a contract were to say,
you not only agree that we can censoryour speech, but that the government can
come in and tell us to censoryour speech, that would not be waiver.
(48:30):
But you can't you can't you generallycan't waive your constitutional rights.
I mean.
Well, you can in certain circumstances,but it's very it's very murky.
But we're not talking about that.
We're talking about a transactionbetween a private two private
parties, one a company, one and one usersigning up for their terms and conditions.
And so it's really sort ofit's viewed as a consensual transaction
(48:54):
even though that's a fiction,because no one ever reads those things.
But that's how that'show it's administered under the law.
I bet there's a good chancethat the Supreme Court justices
who partake of social media probablynever read those contracts either.
does So yeah.
Yeah.
Unless you're writing a law review articleabout them and then your eyes
(49:14):
glaze over when you're
well.
Professor McDonnell,this is a fascinating subject.
I'd love to have you back some time
to even expand on this, particularlyas the election year goes forward.
Well, thank you, Roger.
It's been a very enjoyableand interesting conversation.
I've enjoyed it very much. And thank you.
Thank you.
This is Roger Clark, your hostof the Fourscore and Seven Project.
(49:37):
If you've enjoyed this program, be sureand like and follow us on our podcast.
I hope you have a wonderful day.
Thank you for watching and listening.
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