2024 Freedom of Thought Conference: Panel 4 - The NetChoice Problem - The Freedom of Thought Podcast

Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:07):
The final panel of the day, and I do just
want to take this moment to thank everyone who has
been just such a tremendous help and resource internally within
the Federalist Society for supporting this conference and allowing it
to happen, and all of the friends who helped spitball

(00:30):
ideas and sort of figure out which ones were sort
of a little too crazy and which ones were in
that sort of that sweet spot of like just crazy enough.
And I just think it's been a it's been a
great day, and I can't wait to have the final
conversation where we take all of these threads and tie
them together. We've talked about corporate rights, We've talked about
individual liberties. The question for this panel is how to

(00:51):
synthesize all of that. Looking ahead to the challenges of
the moment, the tension between competing this competing claims to
freedoms of speech and conscience. Is there something new about
this moment? Do we need to be refining our thinking
about power and liberties.

Speaker 2 (01:13):
And how do we go about doing that?

Speaker 1 (01:15):
Moderating this The very fantastic Judge Trevor McFadden, who is
doing the difficult work on the DC Court a District
Court for the for the District of Columbia. I will again,
in the interest of time, refer you to his fantastic
bio on the Federalist Society website. Judge McFadden, floor as yours.

Speaker 3 (01:39):
Thank you, Alita, and really great to be with you all.
As Alida suggested, this is the moment you all have
been waiting for. This is where we synthesize everything that
you've heard over the last few hours and think about
where do we go from here? This term, the Supreme
Court is considering a pair of cases that deal with

(02:00):
the government's ability to regulate corporate America. The two net
choice cases involve state laws that prohibit social media companies
from banning certain speech on their platforms. Each law was
enacted in response to a perception that platforms like Facebook
and x formerly known as Twitter were systematically disfavoring specific

(02:25):
viewpoints while allowing others to be shared unchecked. That is,
states believe that the platforms were engaged in viewpoint discrimination,
but the platforms have challenged the laws, arguing, among other things,
that they have their own rights under the First Amendment
to promote or suppress whatever speech they like on their

(02:46):
own platforms. In short, there's a clash between competing claims
to liberty between natural persons and corporate persons. Cases like
net choice pose a number of hard questions. Should those
interested in free speech focus on government coercion or can
massive corporate power pose an equally significant threat our corporate

(03:10):
efforts to suppress speech entitled to First Amendment protections at all?
What do areas of the law that deal with the
use and abuse of corporate power, like anti trust have
to say about all this? And should large publicly traded
corporations have the same First Amendment rights that closely held
companies possess. Our panelists today will help shed some light

(03:33):
on these questions and clarify where we go from here.
I'm joined on the stage by five prominent attorneys, each
of whom brings a unique and important perspective on these issues.
So without further ado, I'll go ahead and introduce our panelists.
As Alida said, I'm just going to hit the highlights
of their biographies, which are long and distinguished despite their

(03:55):
young ages. You can learn more about them and your
program materials. Jonathan Barry, to my immediate left or your
immediate right, is the managing partner of Boyden Gray PLC,
a law firm focused on constitutional and administrative law. His
practice focuses on complex constitutional and administrative appeals, especially in

(04:19):
the area of labor and employment law. He has developed
a practice relating to problems stemming from the emerging overlap
between government, Corporate America, and capital markets, particularly around ESG initiatives.
His commentary on these issues and others involving complex constitutional
questions has been published in The Wall Street Journal, The

(04:40):
New York Times, and First Things. James Burnham next down
the row, is the president of Vallacto Capital LLC, a
firm which helps finance important public interest litigation by plaintiffs
who may lack the means to fund it themselves. He
is also a principal at King Street Legal Bautique, law
firm that he founded after leaving Jones Day. Apart from

(05:04):
his private practice, he served in numerous roles within the
Department of Justice and the White House, including as a
senior official in the Justice Department's Civil Division and in
the Office of the Attorney General. Next is Aaron Hawley,
who serves as the senior counsel to the appellate litigation
team at Alliance Defending Freedom. Before joining ADF, she was

(05:26):
an appellet litigator at Kirkland and Ellis, Bancroft and King
and Spalding. Her practice has often focused on issues of
religious liberty and conscient conscience protection, including in cases before
the Supreme Court such as FDA versus Alliance for Hippocratic Medicine.
Erin has also served as counsel to Attorney General Michael

(05:47):
Mukasey and his associate professor of Law at the University
of Missouri, where she's taught, among other subjects, constitutional law.
Next up is Todd Ziwiki. He is the George Mason
University Foundation Professor of Law at the Antoninscalia Law School.
He is a leading scholar in law and economics and
antitrust law. He's testified numerous times before Congress in these

(06:11):
areas and has been published in The Wall Street Journal,
New York Times, and Washington Post. Professor Zuwicki is a
former chairman of the Competitive Enterprise Institute and currently chairs
the Academic Advisory Council for the Bill of Rights Institute.
And finally at the far end is Casey Maddox. He's
the Vice president for Legal Strategy at Stand Together and

(06:33):
a senior advisor at Americans for Prosperity. Before that, he
was a litigator who practiced in thirty five states and
many federal courts, with a focus on defending the First
Amendment rights of students, faculty, healthcare workers, and religious organizations.
He's also served as Senior council at ADF. My first
question is to you, John. I want to start with

(06:56):
some of your ideas to address the concerns about too
much corporate power. One solution that has been floated is
returning corporations to their historical routes like turnpike and bridge
corporations from days gone by. Traditionally, these corporations had to
be individually chartered by a state legislature and identify a

(07:18):
public purpose that they pursued rather than just chasing profits.
And I think Professor Barnett touched on some of these
ideas earlier today. What kind of an approach or would
that kind of an approach help fix some of these
problems we're seeing now? If not, what else? What's better?

Speaker 4 (07:35):
Wonderful? Thank you, Judge McFadden. Thank you to Alita and
the Freedom of Thought Project for having me. It's great
to be back for some really fascinating conversations. So cases
like net choice, they present the question of how far
state regulation of corporate persons like tech companies can go,

(07:59):
but that of course assumes the fact of corporate personhood.
Another way to come at the issue is to think
about how state action creates the corporation, something we've hit
on from a couple different angles, and I'm going to
try to try to advance the conversation here. I want
to I'll start with an analogy that's come to mind
over the over the course of the day talking about

(08:22):
corporate corporate rights, that corporate rights are to corporate governance internally,
as individual human rights are to human virtues. It's a
far from perfect analogy, but the conversation sort of entirely

(08:42):
about external corporate rights and maybe limits there too, is
incomplete if we don't think about sort of internal self
regulation as well, which itself is is a real question
of how the law is structured.

Speaker 5 (08:57):
Uh corporations.

Speaker 4 (08:59):
In the Founding Generals illustrates how, of course these are
creatures of These are creatures of state charter.

Speaker 5 (09:07):
They're originally individually.

Speaker 4 (09:09):
Chartered to serve these certain public purposes. Bridges, turnpikes, and
usually they're they're always they were limited and public purposes,
usually for enterprises requiring more capital than held by any
individual person, such as public infrastructure, even after special incorporation

(09:29):
gave way to general incorporation statutes in the later part
of the nineteenth century. In the US States, then before
and after limited corporate powers to the purposes the corporations
stated in its charter and enforcement which would it would occur.
Under the ultra vires doctrine, states could even invoke the

(09:50):
remedy of Cool Toronto to revoke a corporation's charter where
it abused or neglected its franchise. States also imposed many
the charter based limits that reflected public policy. So these
are limits like retaining the state's power to amend a
corporate charter after it was issued, dissolving charters after a
period of time unless it was affirmatively renewed by the state,

(10:14):
requiring majority of directors to be residents of the chartering state,
privileging small vote small shareholders votes over those of large
and limiting the total capitalization of the corporation. This comes
out of the Anglo American traditional view that corporate privileges
were suspect, not per se inappropriate, but suspect they confer

(10:38):
these superhuman capacities things that allow the expansion of these
artificial persons beyond anything resembling human scale, with concentrated capital,
perpetual existence, later limited liability that inevitably encroached on those
capacities would encroach on the liberties of natural persons in
ways that were explored on the Panlacher's previous is.

Speaker 5 (11:00):
Accordingly, these privileges.

Speaker 4 (11:02):
Were only bestowed when they were needed to accomplish public
purposes that individuals could could not. So you know, do
I think that this very brief summary of the history,
unpacked in greater detailed by previous panels.

Speaker 5 (11:17):
Do I think we can just.

Speaker 4 (11:18):
Go back to or should we go back to special
incorporation statutes? No? I don't, But I want to emphasize
this history because it, I mean, it shows that the
current state of affairs is not is not inevitable, like
that alternatives are possible and have existed in our own traditions.
And to get us thinking about the law governing the

(11:40):
internal affairs of corporations again, thinking in terms not just
of individual rights, corporate rights, but also even corporate virtues
in a way that conservatives already understand that individual virtue
is at least as, if not more important to deliberations
about the.

Speaker 5 (11:58):
Good life than right are.

Speaker 4 (12:01):
Many of the problems we have with corporate power today
come from internal governance gone awry es G and d
e I. For example, They often lead to unlawful external conduct,
and federal and state positive laws can regulate that. Like
Title seven for example, often restricts a lot of de

(12:22):
I practices.

Speaker 5 (12:23):
But these these external these kind of these these.

Speaker 4 (12:25):
Bad fruits of of E S G and d e I,
those are not those are not causes in and of themselves.
They are They are fundamentally corporate governance ideologies that permeate
entire institutions. They they reflect more systematic harms that when

(12:45):
when embodied his ideologies, things like simply making shoddy products.

Speaker 5 (12:50):
I'm not saying that.

Speaker 4 (12:51):
Like Boeing's problems are reducible to to d I, for example,
but there are, you know, there are, there's some interesting
parallels or working other systemic harms the way that DEI
perpetrates a vision of race essentialism, that is, that is
toxic to a healthy polity. A lot of these things,
though are not are not prohibited by external positive laws

(13:14):
like Title seven and many of them.

Speaker 5 (13:16):
Just in prudence should.

Speaker 4 (13:18):
Not be like that that external laws on restraints on
corporate conduct are simply not effective or not cost justified
or burden justified. What we need instead is better corporate governance,
and in order to do that, we've got to go
back to the internal law of corporations, what governs, how
corporations are run, and who runs them. One advantage of

(13:41):
this approach is it should put states on firm or
regulatory terrain. I think, relative relevant to net choice, states
should have more latitude to regulate corporate charters, which define
the corporate person for the purpose of asserting any constitutional
rights that that person may hold. Uh then then maybe

(14:03):
not maybe more of that compared to latitude to regulate
the external conduct of already constituted corporate persons. So I
think some some ideas for consideration along these lines. One
is to ask, should corporate charters in some way privilege
the views of flesh and blood retail investors over institutional

(14:23):
investors and asset managers, or should they continue to be
treated I identically. Should corporate charters impose greater qualification requirements
for board candidates such as for their character or real
worlder experience, real world experience or liking America should should
corporate charters prohibit or limit the use of ESG and

(14:46):
DEI and business management? Or should corporate charters limit corporate size.
The main problem here for reinvigorating regulation via internal corporate
affairs is is a is a jurisdictional problem for our purposes.
Most of the corporations that would be the subjects of
regulatory attention are are incorporated in Delaware, and so regulating

(15:12):
internal affairs requires addressing Delaware's monopoly on corporate law. Two
ways to look to this are alternative states. Red states
could recruit other companies to their jurisdictions or attempt to
regulate the internal affairs of Delaware companies.

Speaker 5 (15:31):
The first option is in the news.

Speaker 4 (15:32):
Of course, tesladjust successfully voted to shareholders voted to reincorporate
in Texas. Texas and multiple other Red states are setting
up business courts which are now about in Texas. They're
going to get a doozy of of some corporate cases.

Speaker 5 (15:50):
These are natural experiments.

Speaker 4 (15:52):
My hope is that these states are going to find
ways to attract companies while achieving their public policy goals. Texas,
for example, has some is contemplating some significant anti ESG legislation.
There are going to be companies that won't like those
restrictions on their ability to operate, so there's a natural
experiment there. The second option that Ryan Newman and others

(16:13):
have alluded to today is regulating corporate internal affairs. Even without
corporations moving their charters.

Speaker 5 (16:22):
You could push the states could push.

Speaker 4 (16:23):
The envelope on the current doctrine with state specific shareholder
inspection laws exercising a right to jury trial by suing
in local state court and not in Delaware chancery where
there are no juries or even securities disclosures, although that
raises the question of federal preemption in the security space,

(16:44):
and this of course runs into some current conceptions and
internal affairs. And then second and last I'll say at
the opening is that states could also require potentially a
state specific corporate charter for doing business in the state.
Ryan mentioned the article that Steve Sachs at Harvard has
written about after after Mallory. States could potentially achieve their

(17:08):
policy interests by requiring foreign corporation to accept to file
local charters with all the limits that accompany those charters.
So those are just some some opening thoughts to help
with conversation.

Speaker 3 (17:23):
Okay, thank you, Thanks John. I want to pause. Anybody
want to respond to that. I got questions for the
rest of you, But if anybody want opportunity to engage
with John's idea, I'd love to hear you.

Speaker 6 (17:40):
John, are you concerned about on your last proposal about
internal corporate charity? Are you concerned about the effect on
interstate commerce?

Speaker 4 (17:50):
I mean, yeah, I think that I think there are
The answer is yes, I think there are, todd I
think they're meaningful trade offs here that in the in
the sense that all else equal, sort of greater assertions
of of state sovereignty in the way that I'm proposing

(18:11):
are going to.

Speaker 5 (18:14):
I think they will.

Speaker 4 (18:14):
Create some frictions on interstate commerce that otherwise wouldn't exist.

Speaker 5 (18:20):
But those.

Speaker 4 (18:23):
In the absence of those frictions, we don't want to
assume that simply allowing frictionless interstate commerce is the only
kind of the only.

Speaker 5 (18:33):
Value we want to we want to vindicate. So it's
it's a it's a real issue.

Speaker 3 (18:39):
I guess something that occurs to me there, John, is
I'd imagine with every state that is looking to impose
values that you know you might agree with. You can
imagine another state looking to impose values that you would
disagree with.

Speaker 5 (18:59):
They already do that, okay, And so.

Speaker 3 (19:02):
Is that your kind of your your sense that one
side is already doing this, and so time for the
rest to join the thread?

Speaker 4 (19:11):
I mean a little bit, yeah, that you have so, uh,
Delaware law and a lot of complimentary federal law is
already in the hands of It's in the hands of
a relatively narrow class of people who have pretty specific views,
out of which ESG and DEI are just these natural,

(19:32):
natural overflows. And so having allowing like alternative visions, real
breathing room to operate, I think would be a I
think would be a.

Speaker 3 (19:44):
Very healthy thing. It strikes me that when we're kind
of to Todd's point, when we're talking about really interstate
commerce with these these very large corporations, that you know,
maybe Congress is the right place that we should be
looking to do you do you have thoughts about going

(20:04):
going there as opposed to looking to kind of the
the laboratory of states.

Speaker 4 (20:11):
Potentially The challenge with the challenge with congressional action in
something like this is that's going to impose a degree
of standardization that's going to limit, that could potentially limit
pretty seriously the amount of local, local variation that's that's permitted.
I think I said a version of this last year

(20:35):
between like the efficiencies that come oftentimes from economies of scale,
greater market access, there are there are real trade offs
on issues like resiliency, like are all of these corporations
succumbing to a kind of group think as I believe
is happening with ESG and de E I.

Speaker 5 (20:54):
And then also subsidiarity allowing.

Speaker 4 (20:57):
If you had, if there was all else equal, a
little more friction on interstate commerce, that would tend to
redown to the benefit of local companies, for whom compliance
with only a single jurisdic like state jurisdiction's rules actually
allows it to be a comparative advantage businesses that end
up being more more human scale and kind of closer

(21:19):
to the communities that they that they serve.

Speaker 3 (21:21):
Thank you so, James, I think In the fifth Circuit
Net Choice case, Judge Edith Jones referred to this David
versus Goliath litigation and kind of welcomed that and suggested
that this reversing the preliminary injunction would would help facilitate that.
I think, regardless of what the Supreme Court does, we

(21:44):
were certainly likely to see more of this David versus
Goliath litigation coming, where individuals are suing corporate bms over
their policies. What kinds of legal challenges do you think
are most likely to be successful and addressing some of
the current concerns we've talked about today, Are we going

(22:04):
to see new originalist critiques of the ideas of corporate
speech rights? Are we more likely to see state legislatures
act and the corporations suing to enjoin those laws.

Speaker 7 (22:16):
Yeah?

Speaker 8 (22:16):
Thanks, Thanks Judge for the question, and before I sort
of answer, just thanks to the Federalist Society for this
great event. You know, I've been coming to Federalist Society
events for twenty years since I was kind of a
weird college kid and went with my mom to the
old Separation of Power seminar at Veil.

Speaker 7 (22:31):
Remember this Justice Scalia and John Baker. It was awesome.
It was me and a bunch of like eighty year olds.

Speaker 8 (22:37):
Watching Justice Scalia talk about separation of powers and it
was really It sort of set me on the path
I am today, for better or worse. Some of you
are probably happy. Others are probably not so happy. Like
John Yurick. Now you're weird and middle aged, that's true,
But now now I'm just eccentric.

Speaker 3 (22:54):
You still look like a college student.

Speaker 7 (22:56):
First, well, thank you so much, Judge.

Speaker 8 (22:58):
But in all seriousness, I think the Society's ability to
stay relevant and to sort of always be where the
conversation is is why it's the most successful nonprofit in
probably our country's history. And so I'm just glad to
be here so now to answer your question and all that.
So yeah, I mean, look, obviously, I think you're going
to see increased interest from conservatives in holding mega corporations

(23:19):
to account.

Speaker 7 (23:20):
You already are.

Speaker 8 (23:21):
That's basically the theme of today. Were saying the national
at the beginning.

Speaker 3 (23:25):
You know, this is like a new.

Speaker 8 (23:26):
World that we're in and we can debate. You know
why that's the case. You know, I think one reason
is a sort of obvious reason, which is the political
posture corporate America has adopted for the last seven or
eight years, right, political advocacy, woke policies, et cetera. Corporate
America on a pretty you know, uniform scale, has taken
side in politics, and you know, conservatives have noticed that.

(23:47):
But I do think there's more than that. So the
anti woke stuff is like the gateway drug. I think
for many conservatives to be like, well, wait to wait
a minute, maybe all these guys actually are not our
friends toward what has become a much broader rethinking of
the problems with concentrated corporate power. And you know, I
don't know how many of y'all were at Commissioner Ferguson's
lunchtime remarks, but I think that kind of captured what
I'm talking about. And that's an intellectual journey that I

(24:10):
and I'm sure many others here.

Speaker 3 (24:11):
Are going on right now.

Speaker 8 (24:12):
So let's turn to the two speech rights and net
choice as an example, because I do think originalists have
a lot to say here, in large part because the
sort of chamber of commerce originalism that prevailed in the
nineteen nineties. Punitive damages or unconstitutional corporations are people too.
You know, I think that stuff is probably not the
most theoretically grounded doctrine. You could imagine a lot of

(24:34):
those are Justice Kennedy opinions, love Justice Kennedy, you know,
not probably the greatest originalist in US legal history. And
now that the Court has shifted away from the Suitor
Kennedy O'Connor court, where that kind of doctrine is predominant,
I think you're.

Speaker 7 (24:49):
Going to see a lot more revisiting. So let's talk
about net choice.

Speaker 8 (24:52):
So, just to state the obvious, James Madison did not
live tweet the Constitutional Convention. And I think it is
very hard to claim that an original understanding of the
First Amendment has really anything to.

Speaker 3 (25:04):
Do with Facebook or Twitter.

Speaker 8 (25:06):
These are modern innovations that are just completely you know,
a thousand degrees separated from anything that existed at the
founding or during the reconstruction amendments when they rati when
it was incorporated against the States or well, we can
debate how that happened, but anyway, that's what the Supreme
Court has said.

Speaker 7 (25:21):
So it must be right. If the original meaning.

Speaker 8 (25:24):
Of the Constitution doesn't resolve an issue, originalists are supposed
to say, well, okay, then the democratic process takes the reins.

Speaker 3 (25:30):
That was one of Justice Scalia's many refrains.

Speaker 8 (25:33):
You know, as he put it, quote, you don't need
a constitution to keep things up to date.

Speaker 7 (25:37):
All you need is a legislature and a ballot box.

Speaker 8 (25:40):
That's what we used to say. That was the mantra
that underlay dots, right, that was the whole point. The
Constitution has nothing to do with abortions. So you guys
can go fight about it in the state legislatures, which
we're doing right right now. And so in net choice,
we're talking about state laws, and if the social media
companies don't like the laws, they don't have to offer
Instagram and Facebook and tick talk and all these products

(26:02):
in Texas or Florida. Paul Clement, one of the best
Supreme Court advocates there is, said, and I'm sure he's
right at the Supreme Court, that they could geo defense
the states.

Speaker 7 (26:09):
Of course they can. And if the people of.

Speaker 8 (26:11):
Florida really want their TikTok, you know, they can vote
for a new governor who's not Governor DeSantis and they
can get their TikTok back. Well, they can't get TikTok back,
that one's going away, but they could probably get Instagram back.
You know, this is just basic stuff. This is stuff
that we all used to agree about. And I also look,
I also don't want to be mechanical about it because
someone's gonna come up and say, oh.

Speaker 7 (26:30):
You know the Second Amendment, and they be had muskets.

Speaker 8 (26:33):
And now people say that means you can't have like
a glock, and it's no, that's not what I mean.
Muskets and blocks are the same in the sense of
the Second Amendment. The Second Amendment protects the right to
bear arms, the right to self defense. Okay, self defense
at the framing meant like the you know thing with
the stick or whatever, And now it means I'm not a.

Speaker 7 (26:51):
Real big gun. Guys, so you might be able to tell.

Speaker 8 (26:53):
But it means, you know, like a cool pistol and
you can carry that around. And so the nature of
the arms required for some defense keeps up with the times.
That's the right of self defense. The nature of the
arms is different, but the right clear established easy. This
just does not work for social media.

Speaker 3 (27:09):
Okay.

Speaker 7 (27:09):
The First Amendment protects the right.

Speaker 8 (27:11):
Let's just start it like another basic The First Amendment
protects the right of free expression for humans like us,
like people, like real people, not for platforms, and not
for algorithms. Okay, no one knew what an algorithm was,
and certainly not for disembodied algorithms that just operate on
their own without any human input. If you extend the
principle of free expression for humans to free expression for

(27:31):
public companies, which you know has been in Supreme Court
doctrine in one form or another for a.

Speaker 7 (27:35):
While, that's already a big step.

Speaker 8 (27:38):
But I think it becomes a step that is really
difficult to justify when we're talking about companies that are
conduits for information. Okay, so we're talking like the telegram
or the telegraph rather phone companies, and particularly when those
companies that are conduits for information are invoking their sort
of corporate First Amendment right to tell people to shut up.

(27:58):
I mean, you've got to it's just bizarre. I mean,
to state it, I mean, it's not as bad as
maybe it is as bad as Morrison versus Olsen. But
to describe this case is to decide it. I think,
because you're talking about something that has very tendentious claims
to constitutional rights, which is like the Instagram platform versus
real people talking about matters of public concern that the
platform that they used to talk to each other like

(28:19):
a phone wants to wants to silence that conversation. Okay,
now let's say I'm sorry so that's kind of my
thesis on the originalism.

Speaker 7 (28:28):
Now let's get outside of originalism.

Speaker 8 (28:30):
So let's just say you're not an originalist, which plenty
of people are not originalists. I think that's totally fine.
But then you have to justify your constitutional.

Speaker 3 (28:38):
Rule on the merits.

Speaker 7 (28:39):
Right.

Speaker 8 (28:39):
Then we have to have like a policy discussion about
whether it's a good idea to have a constitutional.

Speaker 7 (28:44):
Rule that comes in and preemps the field.

Speaker 3 (28:46):
It's a cliche.

Speaker 8 (28:47):
I think that everybody's heard that the people who run
and found social media companies don't let their kids use
social media. Okay, why because social media is really bad.
It is dangerous, it is novel, It is harmful to kids,
It causes.

Speaker 3 (29:00):
All kinds of problems.

Speaker 8 (29:01):
It is not necessarily a good thing for the world
that we can all tweet at each other, even though
you know Stolar really likes to yell at people on
it probably not.

Speaker 3 (29:09):
Good for his opponents.

Speaker 8 (29:11):
Like that may not necessarily be like a good development.
I don't know, but it's something that we have to
have a policy debate about if we're not going to
go in, if we're going to go outside of originalism,
and more importantly, we're talking about just constitutional law.

Speaker 7 (29:23):
The platforms have developed powerful algorithms.

Speaker 8 (29:25):
Based on just incalculable amounts of data that are unlike
anything we've ever had before that they use to keep
people focused on the platform by fostering addiction, depression, extremism,
and more.

Speaker 3 (29:36):
They want you looking at it.

Speaker 8 (29:37):
They don't care if you're sad, they don't care if
you're happy, they don't care if you're radicalized.

Speaker 7 (29:41):
They just want you to look at It's all that
matters to them.

Speaker 3 (29:43):
That's what they're for, and that has you.

Speaker 8 (29:46):
Know, it's been well documented now that that leads to
teenage depression, teenage suicide and all of that.

Speaker 3 (29:50):
So these are the consequences.

Speaker 8 (29:52):
I mean that we have to debate if we're going
to go outside of originalism and say that this is
something that can be regulated. I mean, just today, like today,
there was a Wall Street Journal story about Instagram that
says they push sexual content to anybody who signs up
with a new account.

Speaker 3 (30:06):
That says they're thirteen years old.

Speaker 8 (30:08):
Immediately, like immediately, it's like all the sex stuff shows up.

Speaker 7 (30:11):
And then according to the journal, you know, we think
we trust the journal.

Speaker 8 (30:15):
Within twenty minutes, adult entertainers are like messaging kids offering
them nude pictures.

Speaker 3 (30:20):
Look, I don't know.

Speaker 8 (30:21):
I mean that seems kind of bad, like like like, I.

Speaker 9 (30:24):
Don't know that.

Speaker 8 (30:25):
I think it's a great idea to say, well, well,
you know the constitution, you know, gosh darn it, we
you know, we fought a revolution, you know.

Speaker 7 (30:34):
Maybe, and I'm almost done, I promise. But there's there's
a little more so that.

Speaker 8 (30:40):
And that's just like the human component, right, there's also
a sort of a democratic component's all of this.

Speaker 3 (30:44):
Look, we all lived through.

Speaker 8 (30:46):
The COVID pandemic, right, and we all sat in our
houses with our masks on and the doors locked while
the social media companies got for yourself.

Speaker 7 (30:55):
Well, maybe I was very scared.

Speaker 3 (30:58):
I was spraying the boxes.

Speaker 8 (31:00):
I remember spraying the boxes with Yeah.

Speaker 7 (31:04):
I was weird, man, I told you I was a
weird kid.

Speaker 8 (31:08):
When the social media companies got together and distorted the
public flow of information in ways that imposed massive, massively
destructive policy consequences, it led to schools being closed, It
ruined kids' lives and more. And by the way, while
they're all up here beating their chest about the First Amendment,
where was this first Amendment When the government was trying
to get them to suppress misinformation about COVID. Right, everyone's

(31:28):
going to talk about the government. They do so much
damage when they interfere. Well, that was back in the
world where the social media companies had had their First.

Speaker 7 (31:34):
Amendment rights and they didn't do anything with it.

Speaker 8 (31:36):
They were like, heck, yeah, we're happy to kick all
these people off Twitter.

Speaker 3 (31:39):
That's the order of the day.

Speaker 7 (31:41):
We're all in.

Speaker 8 (31:42):
We also lived through the twenty twenty election, where these
same companies conspired to suppress derogatory information about Joe Biden,
particularly in the form of his son Hunter Biden's laptop,
the same laptop that now underlies three felony convictions in Delaware.
So you know, to me, that's like a real problem, Okay,

(32:02):
And it's not hard to imagine, by the way, if
the phone companies were armed with the same First Amendment
doctrine that we have today, why they wouldn't claim the
same thing, and they could easily do it. I'm sure
there's an AI out there somewhere that could hop into
my phone and censor out any conservative stuff I say
when I call John Berry. And I don't know why
that argument. I mean, I think Paul actually said it.
The argument to Justice Alito that they have a First

(32:23):
Amendment right to censor Gmail. The thing is their speech,
it's not your speech. So when you send an email
that's Google talking there. I find that to be just extraordinary,
and I find it very hard to justify on originalist
or practical grounds.

Speaker 7 (32:37):
Okay, I think I'm oh last thing.

Speaker 8 (32:40):
The one other point people do make is oh, you know,
the market, The market's going to solve it. And the example,
the only example I think anyone really has of this
is Twitter because of Elon. I mean, guys like I
don't know that we can rely on like an eccentric
guy with you know, sixty billion dollars from South Africa
losing a ton of money buying one of the platforms
because he's angry about COVID or whatever, and think that's

(33:04):
going to kind of hold the rails together for us
as a society. It is obviously fortuitous that that happened.
I don't know that that's really something that free market
economics can explain because it is not, by any means
been a profitable acquisition for him, and no rational economic
actor would do it for the direct reasons.

Speaker 7 (33:20):
And so I think the last thing you asked about,
Judge is what can we do about it? Well, I
think it's pretty simple.

Speaker 8 (33:24):
We can start suing these companies so we can start
holding them accountable when they do bad stuff. So when
companies violate the law, when they violate privacy law, when
they violate anti trust law, when they hurt kids, when
Instagram is trying to get you know, thirteen year old
boys hooked on pornography by pushing stuff at them when
their parents thought if it was said at thirteen, that
meant there was some sort of parental control and it
was filtered, whether they thought.

Speaker 3 (33:44):
That reasonably or not.

Speaker 7 (33:45):
You know, I don't know.

Speaker 8 (33:46):
I don't I'm not on Instagram, so he can't look
at my posts. I think that's the kind of stuff
that they can be sued for. And look, guys, guys,
it's fun. It's just like suing the government, which we
all do that a lot, except at the end you
get money instead of an junction, and so it's actually
even more fun.

Speaker 7 (34:04):
That's all I have.

Speaker 3 (34:12):
James will be performing during the happy.

Speaker 10 (34:14):
Hour as well.

Speaker 7 (34:15):
Alita promised to hand out drinks at five.

Speaker 3 (34:19):
Any thoughts from the panel.

Speaker 11 (34:23):
All right, I'll be that guy because so, I mean,
first of all, you stepped on my question because I
was already like ready to go on the Second Amendment question.

Speaker 10 (34:33):
I heard an answer. I'm still not quite sure why
that works.

Speaker 11 (34:38):
That the distinction that you're creating between like the approach
you were taking to originalism was basically, oh, come on,
the Founding Fathers surely didn't mean Facebook and Twitter. I
don't understand why that doesn't mean doesn't lead you. I mean,
anyone else from the LAFT would make exactly the same argument.
They make it all the time and say, oh, come on,
the Founding Fathers clearly weren't talking about AR fifteen's and

(35:01):
so therefore.

Speaker 8 (35:03):
Yeah, I mean, look, I just because it's a bad
argument in one context doesn't make it a good argument.
Or I'm actually not sure I'm saying that correctly, but
let me just answer the question. So in the Second
Amendment context, look, the right is the right to self defense.
That's what it is for humans, for us, and so
that means you have whatever a weapon, a reasonable weapon
commensate with what you would have been able to carry

(35:24):
at the time, to go defend yourself and you're out
on the town.

Speaker 7 (35:26):
Okay, maybe now, it's a glock. Back then it was
a musket.

Speaker 8 (35:28):
Maybe it was a hatchet, you know, I don't know
what they were using in.

Speaker 7 (35:30):
Seventeen eighty seven or whatever.

Speaker 8 (35:32):
The First Amendment right is the right to people, us
humans to express ourselves. I don't think there's really any
helpful analogy between the right of people to talk and
the right of the Instagram algorithm or the disembodied Instagram
platform to tell people they can't talk to each other
through this mechanism that we've built that has an enormous

(35:56):
amount of people using it just.

Speaker 7 (35:57):
To communicate with each other. There's just they don't They're
just totally different.

Speaker 8 (36:01):
So like Citizens United, we had a panel about Citizens
United that Citizen Knight is obviously right in my opinion,
because it is just people. It's like five guys got
together and said we're going to do a movie about
Hillary and so yeah, of course, like those humans have
First Amendment rights, and they don't forfeit them because they've
gotten together through an LLC anymore than they would forfeit
them if all of us on this thing, you know,
got together and formed a little club to put out videos.

(36:23):
But I think in the social media context, it's like
originalism really has run out.

Speaker 7 (36:27):
I mean, we really are just outside the scope.

Speaker 8 (36:29):
Of what this right was meant to or what this
right was understood to protect.

Speaker 7 (36:34):
So that's that's my I.

Speaker 11 (36:35):
Mean, I don't know what you think, but well, I
mean the other thing I potentially raise there is it
feels to me.

Speaker 10 (36:40):
I mean, I've always thought social media.

Speaker 11 (36:41):
Platforms to me look much more like the very undeveloped press.
Like basically, I think it's I think there's a much
better argument that Look, Facebook and Twitter look a whole
lot like the traditional use of press, which is not
the way we talk about it now if it's like
the New York Times and news gathering, but basically like

(37:04):
mass communication of ideas platforms. Right, Yes, I guess I
handled it here like I'm just here to print your pamphlet.
Do you bring to your pamphlets and I'm printing your pamphlets?
And that was the freedom of the press.

Speaker 7 (37:17):
Oh you mean like Gutenberg?

Speaker 11 (37:18):
So not not like exactly right, Like, I mean, that
was what the freedom of the press was at the founding.
It had nothing to do with you know, people on
TV offering you know, breakdowns of the news.

Speaker 7 (37:29):
Right, So I think there's two.

Speaker 8 (37:31):
So I think the I thought you were talking drawing
an analogy to newspapers, which I don't find persuasive at all,
because newspapers are their own, predominantly their own speech, right,
It's just people saying.

Speaker 7 (37:41):
Their own thing.

Speaker 8 (37:42):
If you're talking about the guys that like operate the
thing with the typeface, I mean, I don't know. I'm
not sure. So wait, so your view is that the
printing press guy has a First Amendment right to decide
whose pamphlet his his machine.

Speaker 11 (37:54):
Well, I mean, you know, yeah, absolutely, I mean that
they certainly did at the time. Ben Franklin had the
choice to decide whether or not print your uh print
your pami.

Speaker 8 (38:02):
But I think, well, I thought that Ben frank I
have to look at this on my phone using using Google.
But I thought with Ben Franklin it was more direct
than that. It wasn't just like he was saying, you
can't use the factory to print your stuff because I
don't like your speech.

Speaker 7 (38:13):
But I could be wrong about that. How to look
into that?

Speaker 3 (38:15):
That might be an excellent counterpoint, James. I'm looking to it.
As soon as you're done with me, let me ask you, uh,
you know, just kind of thinking about the Green family
and their desire to honor their religious views through their company,
hobby Lobby or you know, Elon Musk and whatever his

(38:39):
desires are through you know, uh X or Mark Zuckerberg
and Facebook. You know, whether or not these are closely
held companies or not. You know, don't billionaires have rights too?
And and the fact that they're super rich and and
want to exercise their right it's through a company. Are

(39:03):
you concerned at all that we are if we took
your view, we would be impinging on their rights and
including you know, religious rights that.

Speaker 7 (39:12):
These so so so to me, like the touchstown is
human humans.

Speaker 8 (39:17):
Have rights, people, people have rights to speak, uh and
so of course billionaires have rights to uh. And so
you know, I think the hobby lobby example is actually
pretty easy because you have a closely held company where
the owners are.

Speaker 7 (39:28):
It's the owner's rights through.

Speaker 8 (39:30):
The company that they run that we're vindicating here or
that they own rather end run. Uh And so I
actually think that's quite easy. So you've got you've sort
of got two possible distinctions, both of which I think
have some merit, and neither of which, by the way,
is fully theorized, which is why I hope the Supreme
Court in net choice doesn't just like try to flip
the table on this and do some broad constitutional role.
The two distinctions would be and I think that these

(39:51):
are public companies. You know, the idea that like Mark
Zuckerberg is speaking in any meaningful way through the what
appears on Instagram is because he has no idea what
appears on Instagram. It's not him speaking. Mark can say
whatever he wants, wherever he wants, whenever he wants. It's
just not it's too removed any in any meaningful way
from him as a person.

Speaker 7 (40:12):
To count as some sort of derivative of his own speech.
That's one.

Speaker 8 (40:16):
And then and then the other I think is that
you know, that's especially acute when we're talking about a
product that is a that is a that method of communication.
And so I need to look into what Casey said
about the printing prints printing press, because there was a
bunch of litigation about telegrams at the beginning of the
twentieth century where the telegraph guys, you know, you'd be
shocked to hear said no, no union messages on the telegraphs.

(40:39):
You unions, you guys could build your own telegraphs and
everyone is like, that's ridiculous, and that got squashed and
they had to let the union people talk on the telegraphs,
and then we had FTR and the whole country fell apart.
But that's a separate panel, and so so I think
those are the two distinctions though, right, separation from humans
and and sort of conduit for information versus a thing

(41:01):
that has its own expressive message.

Speaker 7 (41:05):
And those are both ones, right.

Speaker 8 (41:06):
I think the tech the social media companies fail, probably,
Aaron can I can I.

Speaker 3 (41:10):
Ask you to I've got a different question for you,
but you've thought a lot specifically about kind of the
religious freedoms and cases like Hobby Lobby. I'd love to
get your impression on what James laid out.

Speaker 12 (41:23):
Yeah, I agree with a lot of that, And of
course in Hobby Lobby, the Supreme Court was applying riffra
and refer does define or the Dictionary Act defines corporations
or persons to include corporations, so that question wasn't directly presented.
But I agree that you don't lose your religious liberty rights.
You don't lose you for some minment rights to speak
by forming corporation. So I think closely held corporations are

(41:46):
the easiest example to see, where a business is exercising
the rights of its owners, so it's directly tied to
those owners. I think it gets more difficult for sure,
Like I don't think anyone would suspect that a fortune
five hundred company has really just liberty rights, that its
shareholders would have a wide variety of beliefs. So I
don't think you could bring a free exercise claim for

(42:07):
a fortune five hundred company. So I think there are
some limits to that base, probably on corporate size, probably
corporate size rather than corporate form.

Speaker 3 (42:15):
I would think, what about like Walmart, I don't I
mean I'm not super up on their corporate structure, but
you know, definitely huge company, but also very much associated
with the Walton family or Chick fil A for instance.
I mean these are these are massive companies.

Speaker 2 (42:33):
Yeah, Chick fil is a good example.

Speaker 12 (42:34):
I think my understanding Walmart, I could be wrong with
my understanding is that there are a wide variety of shareholders.

Speaker 2 (42:40):
So I don't think Walmart would have First Amendment rights
that it could exercise.

Speaker 12 (42:44):
Chick fil am if it's filed by a family which
I think it is.

Speaker 2 (42:48):
Then I think it would have those rights.

Speaker 3 (42:51):
So but I mean Walmart would have like, uh, they'd
have First Amendment rights in some context, right.

Speaker 2 (42:59):
Well, they'd have riffer for sure.

Speaker 3 (43:00):
Okay, all right, So let me get to the question
I wanted to ask you. Can you talk a little
more about whether we are should be worried about the
government or just power from whatever source? And I think
this is something Professor Barnett spoke about earlier as well.
Obviously a reoccurring theme is when the government collaborates with

(43:23):
powerful private interests, as in the Murphy case, we have
particular kind of combination of coercion there. So is our
core Should we particularly be concerned about the accumulation of
too much power in one set of hands? Or is
it that intersection of power with the government? And what

(43:45):
are some things litigators can be thinking about when they
address this?

Speaker 7 (43:50):
Sure?

Speaker 12 (43:50):
So, I think both are really important, the accumulation of
power and how that power is exercised, but even more
so when the government comes alongside as a collaborators, as
Ronald Reagan famously equipped. You know, the nine most terrifying
words in the English language are I'm from the government, and.

Speaker 2 (44:05):
I'm here to help.

Speaker 12 (44:06):
And the previous panel I think, discussed the below versus NRA,
the gun case, and in that case you had the
financial director of New York who came to Lloyd's and said, hey,
we've noticed you violated. You know, however many uptem number
of state regulations. Would you like to be prosecuted or
would you like to dbank the NRA A So so

(44:29):
as the Supreme Court found rightly in those sort of circumstances,
there is a coercion, as the Court said, of the
private banks to perform.

Speaker 2 (44:39):
The state's dirty work.

Speaker 12 (44:41):
So so you have this sort of constellation of cases
in which you have actual state coercion. The NRA case
was not difficult. Again, Justice Sodomyor wrote the case. It
was unanimous, and you know, the opinion does point out
that it was just at the twelve B six stage.
So the court had to accept all of the allegations
as true. But assuming they were, the Court found an

(45:03):
easy First Amendment violation. Now that said, I am not
so optimistic. I'm afraid, as James is on the net
Choice cases. I re listened to the oral arguments this
week in those cases, and there was an awful lot
of talk about standing, and there was also an awful
lot of talk about the fact that the plaintiffs had
brought a facial challenge. I read both of those things

(45:26):
as suggesting that the Court is not quite sure about
how the rights shake out, at least in part, particularly
the emphasis on the facial aspect of the case and
the question about whether the law was There was actually
sort of this weird debate. They were sort of getting
off topic. But it's the weird debate whether in the
First Amendment context you had.

Speaker 2 (45:46):
To meet Salerno.

Speaker 12 (45:47):
Typically you don't, but the Court was debating whether you
had to prove in every set of circumstances that the
law was unconstitutional, or whether it just had to be
constitutional in a broad sweep of cases. But this sort
of heated discussion by a number of justices on sort
of both sides of the traditional aisle, I think suggests
that they weren't putting to one side the idea that

(46:07):
Facebook and net Choice might in fact have.

Speaker 2 (46:10):
Those sort of First Amendment rights.

Speaker 12 (46:12):
And I think if the Court, I think certainly some
members of the Court will find that those First Amendment
rights do attach to entities like Facebook. However, some of
US might dislike that, and my guess is that they
would do it on the lines of that they are
acting sort of in the function of editors, as Paul
Clement said, they are content moderators, and I wouldn't be

(46:34):
surprised if some justices think that is enough.

Speaker 2 (46:37):
We'll see.

Speaker 12 (46:38):
But given that this sort of background, you know, will
net choice succeed, will the state law succeed? I think
we have another constellation of cases that are similar to below,
but not quite as the facts aren't as stark. They're
not as thuggish as the prior panel said. And one
of those is Murphy versus Missouri, although if you read

(46:59):
the complaints in those cases, there are some pretty suggish
emails back and forth from the White House to the
various social media companies. For instance, one of the emails
says that we've noticed, you know that there was an
RFK tweet we wanted taken care of asap, Like we
are directing you to take down this tweet. You know,

(47:20):
the first amount rights of RFK or anyone else to
the contrary in another set of circumstances. The complaint lays
out how that there was I think that a group
of advocates, individuals noticed the disinformation doesn't who promoted information
about covid or vaccines that the Biden administration disagreed with.
And so there's this long drawn out email exchange back

(47:42):
and forth between the White House between the administration and
these various public or us excuse me, social media companies,
and basically that at the end of the day they said,
you know, look, they're not violating our policies.

Speaker 2 (47:55):
We're not going to take them down.

Speaker 12 (47:57):
Then Press Secretary comes out and says, you know, we're
really thinking hard about Section two thirty.

Speaker 2 (48:02):
You know, maybe there's something we can do there. And
you know, by the way, maybe.

Speaker 12 (48:07):
Antitrust laws apply to companies like the social media companies.

Speaker 2 (48:13):
Guess what happened.

Speaker 12 (48:15):
The disinformation doesn't last lost their platform. So we see
these sorts of questions coming up. And as those of
you that listened to the Murphy versus Missouri argument, it
didn't go particularly well, I don't think for Missouri or Louisiana.
So I'm not sure how the Supreme Court will come
out on that. I think the question will be Louisiana

(48:35):
Solicitor General was really pushing for the line of encouragement
or maybe significant encouragement from the government and others. Justice Kagan,
Justice Kavanaugh who'd worked in the White House. We're really
saying it has to be a lot more than that.
Maybe it has to be coercion as in Volo. And
I actually look through the below opinion to control f
and encouragement is nowhere.

Speaker 2 (48:54):
In that opinion, not even significant encouragement.

Speaker 12 (48:57):
So that may be the line that the Supreme Court.
I think that line is incomplete. I think one of
the Supreme Courts you know, most noble tasks is that
it is liberty enhancing. The founders envisioned the three branches
needing to work in concert in order to constrain individual liberty.
And I think this is really an area in which

(49:19):
courts and the Supreme Court could give rise to protect
these sources of rides. The last case i'll mention is
one that's winding its way through the lower courts. But
it's another example in which I think just a straight
up coercion test is insufficient. And this is the case
of the Stanford Information Observatory. So back in twenty twenty,

(49:40):
I believe there was a group of so called information
gurus Stanford, Washington State, other folks who got together with
SISI CISA, which is a department in DHS, a newly
created agency, and these folks together that the federal bureaucrats,
along with the information gurus, decided that they would set

(50:03):
up a program to monitor disinformation. The way the program
works is that the federal regulator, excuse me, federal regulators
would send concerning emails to Stanford to Washington State. Stanford
and Washington State would scour the Internet for similar content,
and then would tell the social media companies, hey, take
this stuff down. So you have an active concert between

(50:27):
the federal government and private entities. You don't necessarily have
the sort of coersion you saw in Bulow.

Speaker 2 (50:33):
You had these private entities.

Speaker 12 (50:35):
She's really doing this thing, I think because that they
wanted to help with censoring speech in these sorts of ways.
So I think we need to think creatively about as
litigators what sort of legal doctrines. You know, maybe it's
borrowing from the state action framework in terms of when
a state actor is sufficiently involved in a project, then

(50:57):
that can count as state action, So something the courts
will have to sort out. But I think I guess
it's sort of bottom line. I'm not as optimistic about
the net choice cases. I think BOLO is great, but
I don't know that that we'll get that result in Murphy.
And I think the Stanford Information Observatory shows that we
need a more robust doctrine than just coersion in order

(51:21):
to get at this sort of interplay between government and
private entities.

Speaker 8 (51:26):
And just to be clear, I'm not opted on the
going to win. I view a win as Justice Barrett
writing some super narrow thing that gets rid of the
case and lets us fight another day. I'm terrified that
Justice Kavanaugh is going to write some like free Charter
of Liberty for big tech that ends the debate forever.
So I just want to be I love Justice Kavanaugh usually,
but on that one. Also, I figured out the answer

(51:47):
to the Ben Franklin thing. You want to know what,
So the late great Ben Franklin is not Facebook, right,
So Ben Franklin is Jack Smith, right?

Speaker 7 (51:54):
This is Ben is honest, Ben.

Speaker 3 (51:56):
He's in this thing.

Speaker 7 (51:57):
He's got his press.

Speaker 8 (51:58):
You can't make some guy who's sitting there with this press,
you know, print your pamphlet.

Speaker 7 (52:02):
Right.

Speaker 8 (52:02):
That is a very different thing from the nationwide Global
Communications platform. Along the distinctions, I said to you, but
was not smart enough to think of immediately.

Speaker 7 (52:09):
In response to Judge Maddox's.

Speaker 5 (52:11):
Question, you mean you mean Jack Phillips.

Speaker 7 (52:14):
Yes, not Jack Smith. He's definitely not wrong Jack.

Speaker 8 (52:20):
There are other founding people who are well known who
I would compare to Jack Smith, none of which were
fighting on our side.

Speaker 9 (52:26):
I was confused.

Speaker 7 (52:27):
Yes, Jack Phillips, thank you, thank.

Speaker 9 (52:30):
You McDonald veterans.

Speaker 3 (52:36):
So Todd piggybacking off my question to Aaron. It seems
like a lot of the critiques of corporate power boiled
down to the idea that some companies have just gotten
too big and wield too much power. If that's the
crux of the issue, how much do existing different areas
of the law like anti trust, unfair competition law have

(52:57):
to say about this issue? And you see that a
better way to get to these underlying.

Speaker 6 (53:03):
Concerns, I went, necessarily a better way, but one way
to be considered thinking about this, and before we think
about whether maybe antitrust is the solution, we need to
really think about what is the problem before say that.
I just want to say James said he's been involved
the Federal Society a mere twenty years, and Josh is

(53:23):
a mere babe at twenty one years involved with the
Federalist Society, I'm well beyond that. But I do want
to echo James's point about how exciting this is in
you know, there's no other place that does what the
Federal Society does, which brings together this kind of level
of dialogue among different ideas, addresses the ideas of the

(53:47):
era from all these different perspective, all sort of thinking
about these questions of freedom, the rule of law and
the like. And so I just want to echo joint
at my voice to the importance of the work that's
going on here and the and the value this program.
And so what's the problem, what's the solution? I think
if all we think of is this this an economic problem,

(54:10):
and the only thing anti trust addresses is economics, then
I think it's a pretty good case here to leave
it alone. It's like, I mean, it's an economic product.
Twitter's free, Facebook is free, YouTube is free. Right, I
mean it's uh in that sense, it's a pretty simple question.
So really the only question is is are there other

(54:33):
values here that are implicated by this and should those
values be a concern of anti trust laws? So let's
think about sort of the free speech issues that relates
to this censorship, whether by the government or by private actors,
has real implications for people's lives.

Speaker 9 (54:51):
People were fired because they were because.

Speaker 6 (54:54):
They were sending out misinformation about vaccines, stopping infection and
transit kids. My students were expelled from George Mason because
of this garbage, right, How many people would have thought
differently about leaving schools closed if they knew the truth
about what was going on with kids, rather than basically

(55:15):
having the Great Barrington Declaration suppressed and everybody who was
trying to bring this out suppressed. How many people in
this room might have made different decisions about getting vaccinated
if you knew that six months later they're going to
tell you how to do it all over again, or
that wasn't going to be won and done four or
six months later, you're going to have to get a

(55:36):
booster shot if.

Speaker 9 (55:37):
You wanted to not get fired.

Speaker 6 (55:38):
Right, This has real implications for people's lives, regardless of
whether the government suppresses it or whether private actors have
the ability to suppress and manipulate information. As James said it,
it affected elections through the way that they manipulated this
in the Lake and so start with that premise, which

(56:00):
is there are.

Speaker 9 (56:01):
Real values here, right.

Speaker 6 (56:02):
And I think the thing to think about here is
this isn't just an economic question.

Speaker 9 (56:07):
This isn't just how much it costs.

Speaker 6 (56:09):
For a canopies or you know, hubcaps or whatever we're
talking about now.

Speaker 9 (56:15):
Is an economic something that's delivered through.

Speaker 6 (56:17):
A market, but has important spillover effects on people's ability
to make decisions about their health, to make decisions about
their children's futures and the like, And so.

Speaker 9 (56:32):
This really matters.

Speaker 6 (56:34):
I would also add, if you go back and you
read Virginia Pharmacy Board, right, this is the canonical commercial
law speech.

Speaker 9 (56:41):
What do they talk about there? You don't just have
a right to.

Speaker 6 (56:43):
Speak, You also want to the first and men have
a right to listen. You have a right to receive
information that is important to you. These are all things
that are important to.

Speaker 9 (56:55):
People.

Speaker 6 (56:55):
Right when I sued my university, I couldn't get good
about the vaccine man, Dad, Where.

Speaker 9 (57:02):
Was I going for information?

Speaker 6 (57:04):
I was going to Twitter to try to find these
renegade doctors who would actually provide the truth about vaccines
and natural uni and.

Speaker 9 (57:14):
Then one by one they would disappear.

Speaker 6 (57:17):
Is that they were as they were eliminated, right, and
I lost access to those sources of sources of information because.

Speaker 9 (57:25):
They would basically be liquidated. And if you don't know,
I know, I've talked about it before. I myself when
I went out to talk about my case. When I
went out to talk about my.

Speaker 6 (57:34):
Civil rights case and the importance of understanding all of this,
I had videos removed from from YouTube. I was censored
on YouTube, right, taken down for vaccine or some sort
of misinformation.

Speaker 9 (57:46):
To this day, I.

Speaker 6 (57:47):
Don't know what that information supposedly was, because everything.

Speaker 9 (57:50):
I said was true.

Speaker 6 (57:52):
I don't know whether it was something I said, something
somebody else said on those broadcasts or the like.

Speaker 7 (57:57):
Right.

Speaker 6 (57:58):
And so start with the premise there's spillover effects here
from these things that affect people's lives in very important ways.
And the traditional way we've thought about that is let
people speak and allow the competition of ideas to allow
the truth to come out.

Speaker 9 (58:14):
And people to be able to hear what they want. Right.

Speaker 6 (58:17):
So what about the market solution, Well, as we know,
basically what they said for the longest time was well,
if you don't like Twitter, start your own Twitter. Well
they did start their own Twitter. It was called Parlor,
and I doubt anybody's on Parlor right now because, as
far as I know, it doesn't exist anymore. Why because
all the other tech companies ganged up and killed Parlor.

(58:40):
And the icing on the you know, the cherry on
the top was when Jack Dorsey of Twitter tweeted the
day that Parlo was liquidator or if you saw this,
he tweeted that for the first time in like three weeks,
Parlo was not the most downloaded app on the Apple
App Store and he just tweeted a screenshot of the
app Store that day with I think a heart on it, right, basically,

(59:04):
thank you for killing my competition.

Speaker 9 (59:06):
Right, So that was the that was the that was
that experience. Right.

Speaker 6 (59:11):
So now we have the fallback position that James alluded to. Right, well,
market is self correcting. Now, look, Elon Munk Musk bought Twitter, right,
I'll you know, echo James's point. Eccentric billionaires willing to
buy social media companies and lose billions of dollars.

Speaker 9 (59:29):
That's not a strategy for first.

Speaker 6 (59:36):
And why is Elon Musk He's losing billions of dollars
because woke activists and woke corporations are ganging up and
have basically decided to boycott Twitter and not advertise on Twitter.
Why because the Elon Musk allouse free speech. Oh goodness,
the world is going to end, right, But more than that.

Speaker 9 (59:54):
What is it? It's a signal. It's a signal.

Speaker 6 (59:57):
It's a signal that anybody out there who's thinking about
being on us, don't be Elon Musk or the same
fate awaits you. Right, every one of these things are
a signal. Even when they try to cancel somebody speaking
on campus, when the lift tries to cancel, whatever it is,
it's always a signal. Even when they lose, they win
because they raise the costs so much.

Speaker 9 (01:00:17):
From anybody trying to do it again in the future.

Speaker 6 (01:00:20):
It's just purely detern But even that point, right, it
still doesn't address these spillover effects, right, it still doesn't
address these necessarily address these spillover effects.

Speaker 9 (01:00:30):
Third, why might anti trust be relevant?

Speaker 6 (01:00:33):
A small number of companies are simply easier to coerce
into collude than a large number of companies.

Speaker 9 (01:00:41):
It's as simple as that.

Speaker 7 (01:00:42):
Right.

Speaker 6 (01:00:44):
When a few weeks ago, I testified in Congress before
the House Weaponization Committee about my experience with censorship, and
they actually managed to get the two sensors in chief.

Speaker 9 (01:00:56):
From the White House, Andy Slavint Rob Flaherty to show up.

Speaker 6 (01:01:00):
And one of the things that came out during that
hearing that was very important was it came out through
the emails and the questions they did not care whether
what they were censoring was true or not.

Speaker 9 (01:01:12):
They did not actually care whether it's misinformation.

Speaker 6 (01:01:15):
And that hearing, those gentlemen were constantly expressing miss or
disinformation about things themselves, actually about what the vaccines could
do and that sort.

Speaker 9 (01:01:26):
They didn't care whether it's true or not.

Speaker 6 (01:01:28):
What they cared about was whether it obstructed their political agenda,
i e. Promoted vaccine hesitancy with you know, obstruct their
policies on masks or whatever the case would be. Right now,
that's a lot of and one of the things that
came out was in the email correspondence was one of
the things they said to Facebook, because Facebook was reluctant

(01:01:51):
to get in the censorship game, they said, why can't
you be more like YouTube?

Speaker 9 (01:01:55):
YouTube's on the cutting edge here of shutting down all
this this stuff. Why can't you guys be more like them?

Speaker 6 (01:02:02):
They're the gold standard right, and basically use that as
a cudgel to beat them up. It also came out
they announced that hearing that Amazon the whole time that
this is going on, it is like Amazon must have.

Speaker 9 (01:02:14):
Been in on this racket, right, there's no way.

Speaker 6 (01:02:16):
And of course it came out Amazon was in fact
manipulating search results, bearing books, hiding books that obstructed the
official narrative. Now that's really important, right if Amazon refuses
to carry a book because it's politically incorrect, or Amazon
is suppressing discovery of a book that's equivalent to essentially
mean it can't be published. Right, If they can keep

(01:02:39):
book A from being spot no publisher's going to publish
Book A prime.

Speaker 3 (01:02:47):
Right.

Speaker 6 (01:02:48):
And so Amazon, because of its market dynamism, actually has
the ability to essentially act as a censor on what
books get published. And they were effectively get engaged in
virtual book banning at that at that particular time. Right,
So what's the answer here, which is it's just said,
if we just think of this as an economic thing,

(01:03:09):
then you know, I think these are pretty high value companies.
I think whether it takes five years, ten years, whatever,
if they start doing that bad job, we all know
the MySpace Facebook legacy and all that.

Speaker 9 (01:03:22):
Sort of stuff.

Speaker 6 (01:03:23):
Right, that's great, But in the meantime, what are we
going to do about that? In the meantime, what are
we going to do about their ability to manipulate information? Right?

Speaker 9 (01:03:33):
How many people have already been harmed.

Speaker 6 (01:03:37):
By their censorship policies during COVID. How many elections are
they allowed to affect by basically suppressing certain speech at
the expense of other speech?

Speaker 9 (01:03:49):
Right? I don't know about you, but ten.

Speaker 6 (01:03:53):
Years seems like a long time to me, and understand,
they will do it again. They have never apologize to
what they did during COVID. They've never apologized during what
they did what they did during COVID. They've never admittedly
did anything wrong. They never will. They keep lying and
saying that they are just suppressing this information when in
fact they weren't.

Speaker 9 (01:04:14):
Right, And so I.

Speaker 6 (01:04:16):
Think that, you know, we should consider these objects, right,
and I trust seems like a reasonable solution if we
know and Justice Gorsuch.

Speaker 9 (01:04:25):
Mentioned this in the Murthy argument. He had.

Speaker 6 (01:04:26):
One of the questions he asked, was is it the
case that the highly concentrated nature of these industries should
be relevant? And the answer was kind of well, maybe no,
I think maybe it should be relevant. I think some
of these things, right, NRA a versus vulo is or
should be an easy case from this perspective. Why banking
is an easy case because of the essential facilities essentially

(01:04:47):
that Director Choper talked about, but also because the government
controls entry into that industry. They have this sort of
soft power ability to use guidance to tell these companies
what to do, and they're still engaged in debanking as
far as I can tell, right.

Speaker 9 (01:05:02):
Net choice I think is a reasonable solution.

Speaker 3 (01:05:06):
Right.

Speaker 9 (01:05:06):
What's concerned about net choice?

Speaker 6 (01:05:08):
I do worry a little bit that, you know that
that can be a pretty heavy handed government intervention. Comparing
net choice to anti trust in that sense, maybe anti
trust is a less invasive, less intrusive remedy.

Speaker 9 (01:05:22):
Than something like net choice.

Speaker 6 (01:05:23):
And that's saying they're necessarily you know, either or, but
it could be that.

Speaker 9 (01:05:30):
That might be a solution.

Speaker 6 (01:05:32):
And I think, you know, the Chips are really going
to be down on the on the Mirthy case because
I think that's.

Speaker 9 (01:05:38):
A really important case.

Speaker 6 (01:05:39):
If the court allows it to uh, you know, it
allows them to get away with what they are, what
they're what.

Speaker 9 (01:05:44):
They're doing there, and I think it is important.

Speaker 6 (01:05:47):
As Aaron mentioned, the SG is was mentioned by Maymon
in the last panel. Yesg was on the side of
the NRA in that case, but specifically so they could
be on the.

Speaker 9 (01:05:58):
Other side of the Mirthy case.

Speaker 6 (01:06:00):
And so to the point that Aaron made, that's exactly
the line the SG wanted to draw.

Speaker 9 (01:06:08):
That's why they intervened. It wasn't about the n RA.

Speaker 6 (01:06:11):
It was about preserving their ability to bully and coerce
companies under in under the Mirthy case more than it
was I think about protecting the NRA's rights, And it
was precisely to try to get them to buy into
that particular particular idea.

Speaker 3 (01:06:32):
Thank you Dad.

Speaker 6 (01:06:33):
Thanks.

Speaker 3 (01:06:33):
Anybody want to respond to the kind of potential for
anti trusts as a solution here, anybody I have concerned
about that?

Speaker 11 (01:06:42):
I just I just had a question on it. So
just maybe you can say little bit more. I'm trying
to understand how anti trust would would work here. So
if you've got to say you use anti tru basically,
if you've got like free speech problems with social media platforms,
censorship issues and social media platforms, and you break up platforms, right,

(01:07:05):
in response to that, so that there are multiple or
smaller platforms, Right, you've got download whatever the Southwest Bell
version of Twitter is, but you've got you know, you
sort of break it up. How does that actually get
us to more respect for free speech?

Speaker 10 (01:07:22):
Just by.

Speaker 11 (01:07:24):
Sort of divert like increasing the number of platforms. How
does that actually get us to more free speech?

Speaker 6 (01:07:30):
I would say, well, obviously doesn't guarantee free speech, right,
and they could all just be little carbon copies of
Google running around of implementing the same, the same strategy.

Speaker 9 (01:07:41):
What I do think.

Speaker 6 (01:07:42):
Is is that it is potentially a structural protection for liverty,
structural protection for freedom, which is it is clearly the case.

Speaker 9 (01:07:51):
I think that.

Speaker 6 (01:07:54):
Collusion among the large number of platforms, or coercion or
persuasion or whatever the government wants to do it sort
of leaning on these companies is much more difficult with
multiple platforms. Does that guarantee that we would get free speech? No,
not necessarily, but I think it's worth at least thinking

(01:08:16):
about about the possibility.

Speaker 9 (01:08:18):
And I'm not committed to any of these things.

Speaker 6 (01:08:21):
Right, every proposal we have has both an intended and
an unintended consequence.

Speaker 9 (01:08:27):
Right, I think it is relevant and thinking about anartrust, Well,
what are the economic implications?

Speaker 6 (01:08:32):
What are the economic trade offs in terms of this stuff?

Speaker 9 (01:08:36):
Right?

Speaker 6 (01:08:37):
These are global companies, They're kind of these uniform companies
that are unicorn companies that are very powerful global companies
for the United States. They do provide valuable services to consumers,
and I'm very concerned about those economic implications. I'm concerned
about the as I said about net choice and potentially

(01:08:59):
governed being kind of more involved in these things. What
I know, though, is that do nothing is not a
strategy just because there's unintended consequences of all these potential
things that we're possibly going down, and there could.

Speaker 9 (01:09:14):
Be unintended consequences.

Speaker 6 (01:09:16):
I am not persuaded anymore that simply doing nothing at
all is going to solve the problem. If we do nothing,
this is the world we're gonna live in. If we
do nothing, we're going to live in the world of
corporate censorship, period. And so that's not a world I
want to live in. And if that means we do

(01:09:38):
things that might end up not working, potentially backfiring, I'm
willing to. I'm willing to. This is a case of
which I'll take the devil I don't know over the
devil I know.

Speaker 9 (01:09:50):
Well.

Speaker 3 (01:09:51):
I think that teas us up well. For Casey, I
think you've heard from your panelists all looking for different
ways but feeling like we've got to do. Are they right?
Is the devil that we don't know actually worse than
the devil we know? Well?

Speaker 11 (01:10:07):
So I apparently I get to be the libertarian on
this panel, which if you know me at all, is
kind of hilarious given my background, but I will do
my best. Uh Yeah, I think government is the problem.
I think government is always the problem. That's the beginning
and end, and that will sort of sum up everything
I'm gonna basically say, and I'll begin with with with

(01:10:32):
this point is I think in order to be able
to figure out what the right solutions are, I think
we have to have a maybe a clear eyed understanding
of where we really are. And I think you through
the lens that I'm going to provide, I think there's
a very good argument that the market is in fact
working a lot better than than we are giving it

(01:10:55):
credit for. Everybody hates markets are we just can't agree
why right, But it's worth considering why. The mainstream media
in so many people on the left hate Mark Zuckerberg,
and it's not because he's some radical right winger. It's
basically because he cut in on their business. They had

(01:11:18):
a they were gatekeepers over information, They controlled who had
access to information, and Mark Zuckerberg messed that up. We
used to complain about about media bias right, and for
most of my life, the concern on the right, the
very correct concern on the right, was about media bias.

Speaker 10 (01:11:39):
I would argue that media.

Speaker 11 (01:11:41):
Bias is worse now than it has ever been, but
it occupies a lot more or a lot less of
my mind concerned about media bias because of the existence
of social media. And so this is not to say
at all that the social media doesn't have his own
bias problems. They have very large bias problems, and I'll

(01:12:03):
talk about some of that in a moment. But it
has never been easier for any individual to be able
to have an audience and be able to speak. And
it's both because the Supreme Court has been so protective
of free speech rights. You literally it takes a little
bit of work to try to think through the five
First Amendment decisions that the Supreme Court has gotten wrong

(01:12:25):
in the last couple of decades.

Speaker 10 (01:12:26):
I can do that for you.

Speaker 11 (01:12:27):
Christian Legal Society versus Martinez needs to be overturned. But
it's hard to work through that list because they keep
getting the First Amendment cases so right. And then on
top of that, we have social media platforms of all kinds.

Speaker 10 (01:12:42):
Most of us.

Speaker 11 (01:12:42):
Probably have four or five different apps on our phone
that allow us to be able to communicate. And there
are problems with those apps, there are problems with the
decisions that are made, but we have an ability to
be able to reach an audience that we otherwise would
not have in prior times.

Speaker 10 (01:12:58):
Right, if I say cat Turred, you know who.

Speaker 11 (01:13:01):
I'm talking about in all other times in human history,
that would be a preposterous sentence. Right for that matter,
I have people come up to me and tell me
that they know me from Twitter, which is both horrifying.

Speaker 10 (01:13:18):
No, I'll just leave it there. It's horrifying.

Speaker 11 (01:13:25):
So, and Donald Trump himself said that the fact that
I have such power in terms of numbers with Facebook, Twitter, Instagram,
et cetera, I think it helped me win all these
races where they're spending much more money than I spent.

Speaker 10 (01:13:37):
The gatekeepers can't gatekeep anymore.

Speaker 11 (01:13:40):
That's why, that's why the left in the mainstream media,
that's why they don't like social media platforms. And and
then of course Elin Musk exists, which is another good
argument for that.

Speaker 10 (01:13:54):
I agree.

Speaker 11 (01:13:55):
It's not a strategy. It's also not nothing. It's a
data point that instrates that, Okay, well there are it
is possible. In fact, there is change that is in
fact occurred. I'm not here to tell you again social
media platforms are getting everything right. I'm a former ADF attorney.
I was awake in October twenty twenty. But it's worth

(01:14:18):
considering where we are before we think about where we
should go. So we described this problem the legislators moderating
competing rights claimants to kind of zoom out a little
bit beyond net choice, specifically as a net choice problem.
But it could also be the Jack Phillips problem. It
could be the three or three creative problem. It could

(01:14:38):
be the Little Sisters of the Poor problem. It could
be the Christian Leaf Society versus Martinez problem. That's two
mentions of that terrible decision. In other words, there's nothing
here in my mind that's really a brand new thing.
And mentioning those examples should immediately lead you to two conclusions.

Speaker 10 (01:14:57):
At least it does for me.

Speaker 11 (01:14:59):
Government does a very poor job of deciding between competing
rights claimants who's going to be the winners and losers,
between whose rights get prioritized over whose rights.

Speaker 10 (01:15:10):
It does a very bad job of that.

Speaker 11 (01:15:13):
And even when government picks the right winner, it often
doesn't produce the result that the winner even wants. So
in the first point, let's think about three or three
Creative specifically, Yes, before I start, there are obvious differences
between three or three Creative and Facebook and Twitter and
everyone else. Three or three is not a global speech platform.

(01:15:35):
It's not a massive, publicly traded company with tens of
thousands of employees. Although I will say that I think
that Jack Phillips' rights should not depend upon how many
cakes he sales. If Jack Phillips, in my view, if
Jack Phillips has a thousand storefronts all over America, even
in California, then Jack Phillips's rights should.

Speaker 10 (01:15:59):
Be com completely unaffected by that reality.

Speaker 11 (01:16:01):
So then the number of sales the the size of.

Speaker 10 (01:16:05):
His company, in my mind, should not matter.

Speaker 11 (01:16:09):
I would even say if he begins to sell stock
and coincidentally, if you have not bought Jack Phillips's cookies,
you can buy them on his website and they are
very very good, quite affordable, and you would be supporting
liberty while at the same time purchasing cookies from Jack Phillips.

Speaker 10 (01:16:22):
So I would encourage everyone to go do that or.

Speaker 9 (01:16:25):
Jack Smith's cookies.

Speaker 7 (01:16:29):
Please do not buy anything from Jack.

Speaker 11 (01:16:31):
That's right, So you know, I think, Look, Colorado took
a view. So just compare three or three creative and
the and then a choice case. Colorado also had a
non discrimination law, right. Colorado's non discrimination law said UH
was going to compel people not to discriminate on certain bases,

(01:16:53):
including in the speech creation context, and they apply that
or were would have applied that to Laurie Smith in
three or three creative. Even when we're talking about a
content creator online, someone hosting a website online, which at
least facially sounds a whole lot like what's at issue

(01:17:17):
in Texas and in Florida except for the size of
the company, but the hosting of a website, hosting a
website for someone else whose speech you don't want to host.

Speaker 10 (01:17:29):
The argument from from from Texas was in.

Speaker 11 (01:17:37):
That choice was yes, but this isn't speech. The platforms
aren't engaged in speech. The platforms are engaged in censorship.
And Colorado's argument was, but three or three creative isn't
engaged in speech, three or three creative is engaged in discrimination.
I would argue that in both of those two cases,
all that is doing is essentially taking a free speech

(01:17:59):
colib and labeling it something else in order to justify
an imposition on speech. The only difference I think in
these stories, in my view, is basically that one is
a large company and one is a smaller company. Colorado
So anyway, so I'll sort of skip on if we

(01:18:24):
had that federal social media regulation, if we had government
compelled carriage of speech, I think that would ultimately, or
for that matter, at the state level, I think there's
no way to have government compelled carriage of speech that
doesn't immediately lead you to the opportunity for government restricted speech.
And given the recent history with the Biden administration in

(01:18:45):
Nrav Buloh, I think that is a very real concern
we need to be taking very seriously. I think maybe
one of the main points that I would would make
is simply that I think the Nrav Buolo case and
Murphy are both cases that we've had a lot of
conversation here about today, and I think one of the
mistakes we can make is to treat those cases as

(01:19:07):
if they are one offs. Is that, well, that's an
example of where the government did something really bad and
we need someone to step in, instead of the alternative possibility,
rather horrifying possibility, which is that in CLA and the NRA,
in NRA Vvulo discovered something that is actually far more

(01:19:32):
common than any of us would have ever hoped was real,
and that we're all here talking about what do we
do about private power, as if the private power is
truly just these private companies that are out there doing
things on their own, completely unaffected by anything happening in
any federal agencies.

Speaker 10 (01:19:51):
And maybe it's actually a lot more common than we thought.

Speaker 11 (01:19:55):
Maybe a lot of the things we're concerned about coming
from private companies are actually connected through not six degrees
set of Kevin Bacon, but maybe a couple of degrees
at the most of Kevin Bacon, if you know, the
reference back to some federal agency or federal regulator somewhere

(01:20:16):
who is pushing companies.

Speaker 10 (01:20:19):
I mean, one of the examples.

Speaker 11 (01:20:22):
And well so, and if that's the case, then the
story here about well what do we do to fix it?
Is well, let's think about the things we've been talking
about for the last forty years at the Federalist Society,
which is maybe the government's the problem. Maybe the real
story here isn't that there are there's this rise of

(01:20:42):
private power and it's this brand new thing that's completely
separate from everything else that we've ever talked about about
being concerned about government power.

Speaker 10 (01:20:52):
Maybe the actual answer is.

Speaker 11 (01:20:53):
That the government is the one pulling the strings, either
directly or indirectly behind the scenes, and that the ultimate
answer is going to be we've got to deal with
the federal leviathan, and until we do, we're going to.

Speaker 10 (01:21:11):
Be back in this exact same position. I'll stop there.

Speaker 3 (01:21:15):
Let me let me ask you a quick question there, Casey.
One of Judge Oldham's justifications for HITS holding net choice
was on common common carrier consideration. What do you think
about that? As I mean, are we really is a
lot of kind of the adjuta here just about this

(01:21:36):
particular role that these platforms play, and as he points out,
there's a very long tradition of common carrier regulation. What
do you think about that?

Speaker 11 (01:21:46):
Yeah, so, I mean there's a long tradition of common
carrier regulation. But first of all, there's you don't get
to declare I mean in a Michael Scott sort of sense,
I declare you common carrier, common carriers or something that
that it just doesn't hasn't worked that way in the past.
And there's not an example of a common carrier.

Speaker 10 (01:22:08):
Like this, right, I mean, the.

Speaker 11 (01:22:11):
Platforms have they they have their own editorial ability, unlike uh,
you know, anything that would even be remotely similar, which
would be phone companies and things like that. I just
don't think the common carrier example or argument.

Speaker 3 (01:22:31):
I mean I thought I thought he kind of pointed
out telegraphs. Though, I think to James's point, well, you
know what if the telegraph carrier said, you know, we're
not going to take pro union messages.

Speaker 11 (01:22:41):
I mean, I mean one of the other arguments there too, though,
is that so in the in the one of the
pieces of the common carrier test is whether people would
treat would would assume that those that the common carrier
is actually endorsing the speech that's at issue. Look around

(01:23:04):
at the way that people treat social media platforms right
when when speech is on a social media plat I mean,
you have entire hearings in front of Congress repeatedly where
people are dragging people up in front of the platforms
and slamming the platforms over speech that was uttered on
the platform.

Speaker 10 (01:23:23):
I think it's hard to say that.

Speaker 11 (01:23:25):
Clearly, no one is going to attribute to the platforms
the speech of people on them in the same way
that people would would know that, like someone made a phone.

Speaker 10 (01:23:35):
Call, you know, on Verizon.

Speaker 11 (01:23:38):
Obviously, no one is going to treat Verizon as responsible,
even for the most heinous phone conversation that happened on
a Verizon phone.

Speaker 10 (01:23:46):
People do treat social media.

Speaker 3 (01:23:49):
James's question, what about Gmail?

Speaker 10 (01:23:52):
Gmail as a Would.

Speaker 3 (01:23:53):
Gmail be a common care Yeah?

Speaker 10 (01:23:55):
I still don't think.

Speaker 3 (01:23:56):
So, Okay, we're gonna have questions from the audience heres,
so get your hardest questions ready, but not quite yet.
I want to get some reactions, Aaron, did you want
to sure?

Speaker 12 (01:24:07):
Sure, I'll jump in real quick. So I don't think
the diet or I think there is a dichotomy between
Laurie Smith and Fear, or your creative and Facebook, And
not because of size, but because the nature of the speech.
The Colorado actually stipulated that Laurie Smith's websites were quote
pure speech.

Speaker 2 (01:24:26):
There was this dialogue between.

Speaker 12 (01:24:27):
The Colorado Solicitor General and Justice Gorsicch and Justice Goorcsiss
is talking about the things she does, such as, you know,
design pictures, put phrases on there. She makes the entire
you know, collage of the wedding website.

Speaker 2 (01:24:40):
She doesn't just host it.

Speaker 12 (01:24:41):
And Justice Gorsish leaves and says, I would call that speech.
On the other hand, what you get, even from Paul Clement,
who is defending that choice, is.

Speaker 2 (01:24:50):
Simply content moderation. No one is talking.

Speaker 12 (01:24:52):
About what Facebook is saying itself. They're they're talking about
editorial choices at most. So I think there are there
are quite different. And then I agree with the Gmail question.
The Solicitor General made a distinction in the net twists
argument and carved out Gmail as.

Speaker 2 (01:25:12):
Well as direct messages.

Speaker 12 (01:25:13):
It says those would not be a Facebook or Twitter's speech,
but rather than their creator speech. But but it sounds
like you would even sweep in that.

Speaker 11 (01:25:21):
Sort of thing, like Paul Well, I mean, so, I
mean thinking about Gmail. Gmail does, in fact, right now,
exclude all kinds of emails out of my inbox that
I am very grateful for. If you ever go over
to your uh, you know, to your your junk folders
and everything else, right, I mean, they have algorithms that they.

Speaker 2 (01:25:41):
Use their speech.

Speaker 11 (01:25:44):
No, my emails aren't their speech, but they they are
moderating content.

Speaker 7 (01:25:48):
I mean, I'm glad to hear Google endorses everything.

Speaker 8 (01:25:49):
You said progress, But can I actually just ask you
another related question on that.

Speaker 7 (01:25:56):
So you know, AT and T, Verizon.

Speaker 8 (01:25:58):
And Sprint tomorrow joined the Responsible Telephone Alliance and they'd say,
we're not going to allow any more hate speech on
the phone. It's January six was the national calamity on
the level of the fall of Rome, and you know
we're not gonna let that happen again with our phone company,
scotsh darn it. And by the way, right now, I
bet I don't know this for sure because I get
a lot of spam. They have technology right now that

(01:26:19):
filters out spam calls. I'm sure they could do this.
It should not be very hard in your view. Would
that mean, you know, like I'm back to the tin
can with the rope if I want to talk about
Trump on the.

Speaker 3 (01:26:29):
Phone or where we No.

Speaker 11 (01:26:30):
I mean, I think my answer would be, Okay, there's
a federal regulator.

Speaker 5 (01:26:33):
Around here somewhere.

Speaker 8 (01:26:34):
But you just said they would have a First Amendment
right to do that if they have editorial control.

Speaker 7 (01:26:38):
I thought that was what you said, and I could
be wrong.

Speaker 8 (01:26:40):
Like the email, then they are First Amendment protected from
any regulation if anything.

Speaker 7 (01:26:44):
Period. We're done. The Constitution has resolved this.

Speaker 8 (01:26:47):
And you know, I'm just gonna have to go hang
out at the Federal Society to talk to my friends.

Speaker 7 (01:26:51):
Right, which is fine.

Speaker 11 (01:26:53):
Yeah, maybe I'm misunderstanding your point.

Speaker 7 (01:26:57):
Yeah, well, so I thought, what is the line?

Speaker 8 (01:26:59):
So, like I guess I'm saying is it would seem
to me that all of your arguments apply equally to
phone companies, telegraphs, and email, and your distinction that you
drew as well, the social media companies have some sort
of you know, vague editorial control over what appears on Twitter,
and so therefore, like Elizabeth Warren gets mad at Twitter,
I don't know she actually does, but somebody gets.

Speaker 7 (01:27:18):
Mad at Twitter when they have kat tured on there.

Speaker 8 (01:27:20):
I'm just saying the phone companies could be the same
thing tomorrow, because they could just engineer it totally Cercain.

Speaker 3 (01:27:25):
I mean, the phone companies.

Speaker 8 (01:27:26):
Could get together and say we are no longer going
to platform through our telephone service anyone sympathetic to the
January sixth criminals, and then we're all done.

Speaker 9 (01:27:36):
We're all kicked off.

Speaker 11 (01:27:37):
Not that I'm syeah, well, I mean I think there
I didn't need to say.

Speaker 10 (01:27:40):
Yeah, And that's only one reason why.

Speaker 11 (01:27:42):
I mean, I think there are multiple reasons why phone companies,
for example, are in a different position. One is that
they use imminent domain to be able to get access
to to space, to be able to I mean there
are whereas social media companies are not.

Speaker 5 (01:27:56):
All the fiber optic lines like.

Speaker 10 (01:27:57):
Custom social railroads.

Speaker 11 (01:27:59):
Though that's I mean that's that'd be like a couple
of layers out. But I mean that's I think that's
it is potentially a good argument for saying, look, you know,
far enough left to stack, there may be someone that's
that's closer to being uh, the common the same level
of common carrier where the label fits in the same

(01:28:22):
way that does for the phone companies. But I think
not at the website level, which is what social media
companies are.

Speaker 12 (01:28:29):
Yeah, but it seems like there's a distinction between common
carriers and the first Amen. So so even a common
carrier might have a First Amendment right if they exercise
editorial control. Perhaps maybe not, but but it seems like
you can't just say that telephone companies are common carriers
and therefore they can't have first man rights.

Speaker 11 (01:28:46):
Yeah, maybe maybe maybe we're going to talk ourselves at
a circle because we're trying to imagine the like whether
whether or not you can be the the the the
common carrier who exercises editorial control, because it's sort of
the whole point is that you can't.

Speaker 10 (01:28:59):
You're sort of.

Speaker 3 (01:29:01):
Let me give him John an opportunity to speak, and
in case, you'll give you the last word. But I
do want to.

Speaker 7 (01:29:08):
I think we have thirty five more questions from.

Speaker 4 (01:29:11):
I have a lot of opinions on a lot of those,
mostly about Jack Smith.

Speaker 3 (01:29:15):
So that will be at the box.

Speaker 4 (01:29:18):
Yes, Casey, I want to. I'm curious. I'm curious about
something you you may consider to be a friendly amendment
here one of the one of the questions, one of
the issues you identified about like media bias and the like,
is I think one of your implicit concerns is regulation
meant to protect against the harms that I think a

(01:29:39):
lot of folks at this conference has been complaining about
may restrict innovative new entrants into into markets and might
have prevented the media company the social media companies from
presenting alternatives, couldn't.

Speaker 5 (01:29:54):
One way to.

Speaker 4 (01:29:55):
Address that issue be to essentially have a some sort
of size conscious or two tier system of regulation, such
that up to a certain market cap, for example, a
billion dollars whatever whatever it is, you're going to be
subject to lower regulation precisely so that it's easier for.

Speaker 5 (01:30:13):
You to get off the ground and compete.

Speaker 9 (01:30:16):
This is.

Speaker 11 (01:30:18):
Respond Yeah, I mean I so you could. I think
I am allergic to the idea that you know, because
I mean, Texas does something like this, right, Texas basically
tries to say, well, but this only applies about a
certain size.

Speaker 10 (01:30:34):
The thing I don't like about that is the.

Speaker 11 (01:30:36):
Idea that, like, if you build a successful website, then
you sort of success your way into a brand new
regulatory structure that completely changes everything that your company was
built on.

Speaker 10 (01:30:49):
Right.

Speaker 11 (01:30:50):
I think that's that's sort of a troubling approach to me,
that if you if you have success, then now your
company has to.

Speaker 4 (01:30:58):
Completely change what if we stick with purely existing regulatory
regimes and simply create a carve out.

Speaker 5 (01:31:05):
At the at the lower tier.

Speaker 11 (01:31:06):
So alternatively, we obliterate all regulatory regimes.

Speaker 10 (01:31:10):
That's my that's my secondary and corporate charters too.

Speaker 7 (01:31:14):
All right.

Speaker 3 (01:31:14):
I want to ask for hands from you on something
that actually Casey mentioned. Raise your hand if you agree.
JA is not a Republican debate. This is just kind
of lightning around them. Jack Phillips has one cake cake shop.
He has First Amendment rights in running that privately held

(01:31:36):
cake shop. Everybody agree? All right? Elon Musk gives him
a billion dollars and now he has one thousand cake shops,
but all owned by him. Does he still have first
do that? Does that cake shop? Those cake shops still
in First Amendment rights?

Speaker 1 (01:31:51):
All right?

Speaker 3 (01:31:52):
And now he puts this on the on the stock
exchange and it is publicly traded, does that come and
he still at First Amendment rights? Okay? All right, that's
thank you. That's fewer yeah people lining up? Yeah before
we got just one quick though.

Speaker 6 (01:32:12):
My I think the worst case scenario is that the
court rules against the States and net choice, They rule
for the government.

Speaker 9 (01:32:20):
Your murthy and all were left with it.

Speaker 6 (01:32:23):
They basically shut off all avenues other than anti trust
because you know, I think there's a mix here. I'm
afraid the Supreme Court is going to shut off a
lot of the potential avenues for experimentation onto to do this,
which I think would be very bad.

Speaker 3 (01:32:40):
All right, I'd love to hear from the audience. Remember,
questions are short and with the question mark sorry.

Speaker 13 (01:32:46):
Sure, I'm Charles Miller with the stupid free speech. Previously,
it was with Ohio when we launched the common Carrier
suit there against Google's search UH. And so I'm wondering
the discussion about common carrier is it confused simply because
of the.

Speaker 7 (01:33:03):
Term common carrier?

Speaker 13 (01:33:04):
You know, this is something that was existed before that
business is affected with the public interests and applied to UH,
to toll bridges and to bakeries and mills. And is
it simply that the modern terminology that's causing confusion there?
And then a second question with respect to Mrthy, why
is it that there's a need to find the government

(01:33:26):
UH is coercing when they're asking someone to stop speech.
Isn't it offensive enough that the government is asking the
speech to be taken down?

Speaker 3 (01:33:34):
And do you want to take a lead on it?

Speaker 12 (01:33:36):
Sure, So I'll take the Murthy one and lead the
common carrier. So I think that was Louisiana's argument that encouragement,
or at least significant encouragement, should be enough.

Speaker 2 (01:33:47):
The SG got a lot of pushback on.

Speaker 12 (01:33:49):
That point from the core, especially Kagan and Justice Kavanaugh.

Speaker 2 (01:33:52):
We're saying, you know, they'd served in administrations and they.

Speaker 12 (01:33:55):
Called up reporters every day, and we're encouraging them to
change stories or to things down or those sorts of things.
So I think that personal experience really suggested to at
least those justices and potentially more, that something other than
persuasion was required. And that makes a little bit of
sense in that the government does have its own right
to speak and to convince about policy choices.

Speaker 2 (01:34:18):
But I agree with you that coercion is not enough.

Speaker 12 (01:34:22):
In below, the Court said that coercion could be either
inducement or threat, so that gets a little bit of
a way there. But I think maybe that significant encouragement
line that comes from prior.

Speaker 2 (01:34:34):
Cases would be helpful.

Speaker 12 (01:34:35):
I didn't see that in Bulow, and I frankly be
surprised if it's in Murthy, but hopefully that's too pessimistic.

Speaker 6 (01:34:43):
I think that line is stupid that they were trying
to draw. Everybody understands the world of the regulatory state.
In the world of regulatory state, government doesn't make little suggestions, right.
Everybody understands what it means when the government tells you
and they ask you to do something.

Speaker 9 (01:35:01):
Idiotic.

Speaker 6 (01:35:01):
Analogy that Kevanaugh and Kegan kept going to about reporters
just totally misses the point, right, which is, yeah.

Speaker 9 (01:35:09):
You can yell at a New York Times reporter and
the New York Times reporter.

Speaker 6 (01:35:12):
They've actually, you know, they've got the pen. Right, there's
there is a power balance there. You can yell at them,
but you don't yell at them too much because they'll
just write an unflattering story.

Speaker 9 (01:35:23):
Right, You're, you're, You're. There's sort of a give and
take there.

Speaker 6 (01:35:26):
When they call up Google and say gets the wiki
off of YouTube?

Speaker 9 (01:35:32):
What Why does Google?

Speaker 3 (01:35:34):
Why is Google.

Speaker 9 (01:35:34):
Gonna say no?

Speaker 6 (01:35:35):
Because it's really important that this no name guy is
able to spout off.

Speaker 9 (01:35:40):
On on on YouTube. It's just in you know.

Speaker 6 (01:35:44):
And so in the regulatory state world, whereas Aaron alluded to,
everybody understands that there's something behind the curtain there. It's
just a silly, stupid analogy to to compare it to
I thing, to to reporters, to protect third department, to
speech a third part.

Speaker 9 (01:36:00):
Which is what this is.

Speaker 11 (01:36:01):
So I just I completely agree with that. I think
if I'm looking for, you know, for like next steps,
I mean, but this is why I haven't. I haven't
been able to come up with what's the right First
Amendment answer for this? I think this is I view
that this is why I viewed the Murthy case as
much more a case about the administrative state than about

(01:36:21):
the First Amendment, because I just can't figure out how
would you exactly craft the solution using the First Amendment?

Speaker 10 (01:36:30):
I mean to maybe even to you know.

Speaker 11 (01:36:32):
The example that immediately came to mind thinking about that
case was what if what if you've got a merger
pending and it means billions of dollars for your company
and no one even has to say anything. They just
call you the day before and there's no record evidence
that says anything at all. It's just Hey, was just

(01:36:53):
wanted to give you a heads up that we saw
some some you know, tweets or Facebook posts that we
thought you should remove the message is loud and clear,
but there would be nothing for NCLA to then take
and say, here you go, here is your evidence of coercion.

Speaker 10 (01:37:08):
Right.

Speaker 11 (01:37:10):
But that's a real problem. And if government gets really
good at time the phone call to take down the
tweets or the Facebook posts at the at the right moment,
when they know that we're they're going to hear from
us tomorrow and they'll do the right thing. I think
that's still a big problem. Is just one that I
don't know how you solve with the First Amendment. And
that's why I think we need to return DC to

(01:37:31):
the state of a swamp.

Speaker 7 (01:37:34):
Judge. Yeah.

Speaker 8 (01:37:36):
The only other thing I would add to that is
government imposed neutrality principles are quite different from government coercing
the platform to silence a particular person. And so imagine
a case that isn't that case, but is instead Zuwiki
versus the social media companies and the government because all
of them conspire to deprive him of his right to speak.
That is a case that feels much more like a

(01:37:56):
true First Amendment case and one that I think would
make a lot more sense to people. I think the
problem with that case was the platforms were happy collaborators,
not the hapless victims. And that's why it just doesn't
it just doesn't fit.

Speaker 3 (01:38:10):
It's their so Miss Holly for up.

Speaker 14 (01:38:12):
Earlier that Press Secretary Jensofi said that maybe we should
use antitrust law as a means of convincing these these
tech platforms to de platform people from their platforms. So
my question is, why would we give the government more
enforcement tools to de platform or to prevent the deplatforming

(01:38:36):
of citizens when they have already used enforcement tools in
a way to encourage the deplatforming of citizens.

Speaker 3 (01:38:44):
Was that aimed at anyone in particular shir we mentioned,
Probably not Missdomatics. All right, anybody want to take that
one the go ahead?

Speaker 7 (01:38:58):
Well, no, that's the thing, is what I just said.

Speaker 8 (01:39:00):
So the historic common carrier rule has been non discrimination.
So like in the civil rights era, there were all
these hotels that wouldn't let African Americans stay at the hotel, okay,
and the government said that you can't do that. You
have to let everyone who wants to stay at the hotel.
On the side of there's an old common law rule.
Epstein's written about this. This goes back to England. I mean,
this is not a new concept, and so the government
saying no, you have to take all comers when you're

(01:39:21):
a common carrier is totally different from the government saying no,
you have to keep the Republicans out. I shouldn't have
used the Jay six guys those two ten inches. So
the simpler example is just the Republicans. The latter violates
the First Amendment potentially because you have the government targeting
through the company individual people. And so I think it's
very easy to say, yes, the government can require neutrality,

(01:39:42):
will not then saying but they can also tell the
companies basically Aaron's on, James is off, and Casey gets
whatever he wants.

Speaker 7 (01:39:49):
Which is what they would say, not the government, the company.

Speaker 15 (01:39:53):
All the question about competition among the states, mister Barry
suggests that that was a potential strategy, especially when you're
talking about incorporation. But if at the same time you've
got restrictions on foreign corporations and making them reincorporate, and
the atmosphere fear, I think legally has been to take
away things that encourage competition among the states. You know,

(01:40:16):
witness across state taxation for you know, whatever kind of
you know, ordering through through various kinds of books or whatever.

Speaker 9 (01:40:30):
How much.

Speaker 15 (01:40:30):
But I didn't hear anything with the panel on this,
So the question really is how much do we need
to focus on that. How much should encouraging and fighting
for competition, regulatory competition among the states figure into an
overall strategy.

Speaker 4 (01:40:48):
I am a huge fan obviously, and we should. Yeah,
we should be very skeptical of federal rules, including judgemente
doctrines like what appear to be entirely judgement doctrines like
like internal affairs that make that competition functionally, very functionally,

(01:41:13):
very difficult to pull off if we have if we
have instead essentially an enforced national market that put that
really puts a thumb on the scale in favor of
businesses that that can scale and occupy the field.

Speaker 6 (01:41:30):
Jem I've just add I'm less saying one about this
than Jonathan is my earlier question suggested with due respect
to Jonathan Hiller, Barlock and G. K.

Speaker 9 (01:41:40):
Chesterton.

Speaker 6 (01:41:41):
I'm a little more enamored of interstate UH markets UH
and that sort of Hamiltonian constitution.

Speaker 9 (01:41:48):
I worried very much about a lot of what a
lot of.

Speaker 6 (01:41:52):
What states do is just protect special interests at the
expense of their consumers, and and I think that's a
concern and in kind of unleashing this power I have
I have real concerns about about unleashing rent seeking at
the local levels.

Speaker 9 (01:42:09):
So and so I'd have to think about it.

Speaker 4 (01:42:11):
Moret Todd is it isn't it a I guess it's
a balance. When I'm saying it like it seems like
the scales are tipped entirely in favor of efficiency, maximum market.

Speaker 3 (01:42:21):
Size, and the like.

Speaker 5 (01:42:23):
That's so it'd be the thing to think about.

Speaker 16 (01:42:25):
I think it's a fair point on the On the
overall question, I guess I have a very simplistic question,
which is, Okay, there there's a problem.

Speaker 7 (01:42:36):
There's a problem with private companies.

Speaker 16 (01:42:40):
Why do the people who are sort of saying some
of this think the government will, in fact and practice
be a solution that will make things better.

Speaker 4 (01:42:53):
Part of my part of my initial response on that
would be is aspects of this problem are government created
in the first place. This was the upshot of my
presentation was the way that corporate chartering has evolved to
loosen all the shackles on corporate power. Is that's a
state act, that's a series of state acts that have
licensed things that have no cognate in nature like perpetual duration,

(01:43:18):
separate personality, uh and and limited liability as well. Those
are those are not natural conditions.

Speaker 8 (01:43:30):
I think it's just really it's a very complex system,
and I don't think we know yet how to make
it work. And I am mostly just concerned about immediately
constitutionalizing like a huge swath of social communications and economic
activity based on really you know, not strong analogies to
things at.

Speaker 7 (01:43:48):
The founding that are nothing like this.

Speaker 15 (01:43:51):
Yeah.

Speaker 2 (01:43:51):
I share that concern.

Speaker 12 (01:43:52):
And then also, you know, with the Bulow and Mrthy cases,
that wouldn't be additional government action. That would just be
you know, hopefully backing the federal government off from the
censoring three third parties.

Speaker 6 (01:44:03):
Yeah say, I mean I was in that camp for
a very long time. My observation is that I that
I agree the government may not make it better, but
I believe that we're at the stage where a lot
of the government can't make it worse. Which is, once
every institution starts tending in the left its direction, it

(01:44:28):
accelerates and just walls downhill. Universities, corporations, the media churches.

Speaker 9 (01:44:36):
Over and over and over. Once the left gets a stronghold.

Speaker 6 (01:44:41):
Name one institution in this society that has gone from
left to right, and do not.

Speaker 7 (01:44:50):
I said, Florida, except for politics.

Speaker 6 (01:44:55):
The only contestable institution left in this society is the political.
Everything else gets taken over by leftists, the leads, and
they are ready, that's what they're gonna do. Right. They've
taken over banking right, and thank god Vola at least
puts a little bit of a hold on there right.
And thank god for people like director Chopra who are
looking at that more from the left right. But we

(01:45:17):
know how this ends if you do nothing with social media.
With all you know, I agree with the course that
there's some green sprouts, but if we do nothing with
social media, it ends up like Harvard and Columbia, because
everything they touch ends up like Harvard and Columbia, including
all the corporations and the like. And so my view

(01:45:39):
again is that if we do nothing at all, it
just gets worse. And so I'm willing to try some
things in the one contestable areno, which is politics, to
perhaps potentially make it better.

Speaker 9 (01:45:52):
But I'm a pessimist and ready.

Speaker 11 (01:45:54):
For the bar, and I will just say that government
can always make things worse.

Speaker 7 (01:46:00):
I'm not happy nourselves.

Speaker 1 (01:46:07):
We sort of maybe made things a little bit better.
Please join me in thanking our panel for a fantastic
consocial

Speaker 4 (01:46:17):
H

All Episodes

2024 Freedom of Thought Conference: Panel 4 - The NetChoice Problem

Episode Transcript

Popular Podcasts

Stuff You Should Know

Dateline NBC

New Heights with Jason & Travis Kelce

.css-15opob5{left:0;position:absolute;top:0.8rem;} All Episodes

.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}2024 Freedom of Thought Conference: Panel 4 - The NetChoice Problem