Ep. 236: JD Vance, 60 Minutes, the Associated Press, the FCC, and more

Summary

Summary of "So to Speak: The Free Speech Podcast" Episode 236 Title: JD Vance, 60 Minutes, the Associated Press, the FCC, and More
Release Date: February 19, 2025
Host: Nico Perino (FIRE)
Guests: Ronnie London (FIRE’s General Counsel), Bob Korn. Revere (Chief Counsel)

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1. Introduction to the Episode

In this episode of So to Speak: The Free Speech Podcast, host Nico Perino engages in a comprehensive discussion with FIRE's legal experts, Ronnie London and Bob Korn. The conversation delves into recent developments concerning free speech both within the United States and internationally, addressing significant events and policy changes that impact the fundamental right to express oneself.

2. JD Vance's Munich Security Conference Speech

The episode opens with a focus on JD Vance’s controversial speech at the Munich Security Conference. Vance expressed concerns about internal threats to European values, particularly emphasizing issues related to free speech.

Notable Quote:

JD Vance [02:23]: "At Europe today, it's sometimes not so clear what happened to some of the Cold War's winners... police have carried out raids against citizens suspected of posting anti-feminist comments online as part of, quote, combating misogyny on the Internet."

Discussion Points:

• Ronnie London highlights that while Vance raises valid concerns about restrictive free speech laws in Europe, he inaccurately dismisses external threats like Russia and China.
• The panel contrasts European free speech protections under the European Convention on Human Rights with the more rigid First Amendment protections in the U.S., noting Europe's broader and more malleable restrictions on speech.

3. European Free Speech Laws vs. U.S. Protections

The conversation dives deeper into the differences between European and American free speech frameworks.

Notable Quote:

Ronnie London [05:05]: "We assume that speech is presumptively protected and that there are a few well-defined and narrow exceptions."

Key Insights:

• Europe's approach involves balancing free speech with other societal harms, leading to broader restrictions.
• Contrastingly, the U.S. promotes a presumption of protection for speech, allowing only narrowly defined exceptions.

4. 60 Minutes Segment on German Police Raids

Nico Perino references a 60 Minutes segment that showcased German police raiding individuals for posting allegedly hateful content online.

Notable Quote:

Margaret Brennan [08:06]: "Inside, six armed officers searched a suspect's home, then seized his laptop and cell phone... prosecuting against hate speech online."

Discussion Points:

• Bob Korn and Ronnie London express concern over the permissive stance German authorities take towards censoring online speech.
• The panel criticizes the lack of free speech advocacy in the 60 Minutes segment, pointing out that even minor infractions, like insulting comments, can lead to severe penalties.

5. Critique of Margaret Brennan’s Statement on Free Speech and Genocide

The panel addresses Margaret Brennan’s controversial statement to Marco Rubio, where she alleged that free speech was weaponized to conduct genocide.

Notable Quote:

Marco Rubio [14:43]: "Free speech was not used to conduct a genocide. The genocide was conducted by an authoritarian Nazi regime..."

Key Insights:

• Ronnie London and Bob Korn rebut Brennan's claims by clarifying that Nazi Germany severely restricted free speech, using propaganda and censorship to oppress minorities.
• They reference Nadine Strossen’s explanation that hate speech laws in the Weimar Republic were ineffective in preventing the rise of the Nazis.

6. The Trump Administration’s Stance on Free Speech

The discussion shifts to the Trump administration’s actions and rhetoric regarding free speech, including his promises versus actual policies.

Notable Quote:

Ronnie London [18:43]: "The Trump administration's attitude... seems to be, do as I say, not as I do."

Discussion Points:

• Bob Korn criticizes the administration for selectively promoting free speech while simultaneously targeting media outlets like the Associated Press for minor editorial disagreements.
• Examples include penalties imposed on AP for referring to the Gulf of America instead of the internationally recognized Gulf of Mexico, illustrating inconsistent application of free speech principles.

7. FCC’s Regulatory Actions Under Brendan Carr

The episode examines the Federal Communications Commission's (FCC) recent activities under Chairman Brendan Carr, focusing on attempts to regulate broadcasters and enforce editorial standards.

Notable Quote:

Nico Perino [33:47]: "With all due respect, Chairman Carr, it is not enough to hear what a government official may say about his or her commitment to freedom of expression. What matters is how that person acts once entrusted with the power of the office."

Key Insights:

• Ronnie London discusses how Carr has reinstated complaints against major broadcasters like ABC and CBS for perceived editorial biases, despite the FCC traditionally limiting its content regulation.
• The panel highlights the Supreme Court’s stance in Loper Bright and NRA v. Volo, reinforcing that the FCC’s authority to regulate content is significantly restricted.

8. Elon Musk’s Role and Free Speech Advocacy

Elon Musk’s recent actions and statements on free speech are scrutinized, particularly his criticism of journalists and use of Twitter (now X) as a platform for expressing authoritarian views.

Notable Quote:

Elon Musk [55:07]: "Reporting the names of these government officials is doxing."

Discussion Points:

• Ronnie London and Bob Korn argue that simply naming officials is not doxing, as traditional definitions of doxing involve sharing personal, non-public information intended to intimidate.
• The panel criticizes Musk’s contradictory stance as a "free speech absolutist" while advocating for punitive measures against journalists, undermining genuine free speech principles.

9. Executive Orders and Foreign Nationals' Free Speech Rights

The discussion concludes with an analysis of a Trump-era executive order targeting pro-Palestinian protesters, especially those on student visas.

Notable Quote:

Ronnie London [61:15]: "We've defined the First Amendment into what we want to prohibit."

Key Insights:

• While the First Amendment protects free speech for all within U.S. jurisdiction, the executive order's broad language threatens to infringe upon these rights by targeting non-citizens based on their speech.
• Bob Korn emphasizes the dangers of such policies, highlighting how they can lead to the suppression of dissent and the exclusion of individuals from the country based on their viewpoints.

10. Conclusion and Final Thoughts

Nico Perino wraps up the episode by summarizing the key issues discussed, reiterating the importance of maintaining stringent free speech protections and resisting governmental overreach that threatens these fundamental rights.

Closing Remarks:

• The panel underscores the necessity of distinguishing between lawful free expression and unlawful actions.
• They advocate for vigilance against attempts to manipulate free speech laws for political or ideological gains, emphasizing the need to protect journalistic integrity and individual liberties.

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Notable Quotes with Timestamps:

1. JD Vance [02:23]: "...politicians is not a crime to post these kinds of words."
2. Ronnie London [05:05]: "We assume that speech is presumptively protected..."
3. Margaret Brennan [08:06]: "Prosecutors say those electronics may have been used to commit a crime."
4. Marco Rubio [14:43]: "Free speech was not used to conduct a genocide."
5. Elon Musk [55:07]: "Reporting the names of these government officials is doxing."

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This episode provides an in-depth exploration of the current state of free speech, highlighting the tensions between governmental policies, media practices, and international perspectives. Listeners gain a nuanced understanding of the complexities surrounding free expression in both digital and traditional arenas, underscoring the ongoing struggle to preserve this fundamental right.

Transcript

[Ronnie London]

In all of these executive orders, it says this order is not intended to and does not create any right or benefit, substantive or procedural, enforceable law inequity by any party against the United States, its departments, agencies or entities, its officers, employees or agents, or any other person. In other words, these executive orders aren't worth the the paper they're written on. Somewhere I read of the freedom of speech.

[Nico Perino]

You're listening to so to Speak, the Free Speech podcast, brought to you by fire, the foundation for Individual Rights and Expression. Okay, welcome back to so to Speak, the Free Speech Podcast. We have a lot to discuss today. Joined by my colleagues, Ronnie London and Bob Korn, Revere. Ronnie, of course, is FIRE's general counsel. Bob is our chief chief counsel. Last time you guys were in the studio, we were debating the exceptions to free speech in the First Amendment.

[Bob Korn]

And lo and behold, now we have so many more, apparently.

[Nico Perino]

What are those, Ronnie?

[Bob Korn]

No, they're the ones that the current administration is working in between the lines of their executive orders and their speeches in foreign countries.

[Nico Perino]

We had a lot on the agenda before this past weekend, didn't we?

[Bob Korn]

We did.

[Nico Perino]

And then this past weekend, what happened? J.D. vance gave a speech at the Munich Security Conference. Margaret Brennan told Secretary of State Marco Rubio that free speech was weaponized to conduct a genocide. And then 60 Minutes also did a segment on free speech in Germany where they followed along as German police raided the homes of people who posted allegedly hateful things on the Internet. Where should we start? Should we start with J.D. vance's speech? The Munich Security Conference?

[Ronnie London]

Sure. Set the stage.

[Nico Perino]

All right, I'll set the stage. So JD Vance is at the Munich Security Conference, and he says the threat.

[J.D. Vance]

That I worry the most about vis a vis Europe is not Russia, it's not China, it's not any other external actor. And what I worry about is the threat from within, the retreat of Europe from some of its most fundamental values, values shared with the United States of America.

[Nico Perino]

He goes on to focus on the freedom of speech. He says, and unfortunately, when I look.

[J.D. Vance]

At Europe today, it's sometimes not so clear what happened to some of the Cold War's winners. I look to Brussels, where EU Commission commissars warned citizens that they intend to shut down social media during times of civil unrest the moment they spot what they've judged to be, quote, hateful content. Or to this very country where police have carried out raids against citizens suspected of posting anti feminist comments online as part of, quote, combating misogyny on the Internet. A day of action. I Look to Sweden, where two weeks ago the government convicted a Christian activist for participating in Koran burnings that resulted in his friend's murder. And as the judge in his case chillingly noted, Sweden's laws to supposedly protect free expression do not in fact grant, and I'm quoting, a free pass to do or say anything without risking offending the group that holds that belief. And perhaps most concerningly, I look to our very dear friends, the United Kingdom, where the backslide away from conscience rights has placed the basic liberties of religious Britons in particular in the crosshairs.

[Nico Perino]

He continues along that tract. Anything wrong with what he says there? I mean, these are things that we at FIRE have been concerned about in Europe as well.

[Ronnie London]

Yeah, well, he makes some very good points, except for the fact that I didn't know China was in Europe. But when he says that he doesn't worry about Russia or China, I think he really should worry about Russia or China. But he makes some good points about European law not protecting free speech, people being imprisoned for things they post online. And those are things that we need to both combat just worldwide, but also to make sure that we distinguish the American system from other systems that don't have the same high regard for freedom of speech.

[Nico Perino]

Yeah. How do the Europeans look at freedom of speech? What, they don't have a First Amendment right?

[Ronnie London]

Well, they don't have a First Amendment, but they have the European Convention on Human Rights, which is, let's just say, more malleable than the First Amendment. The way we approach free speech in the United States is that we assume that speech is presumptively protected and that there are a few well defined and narrow exceptions. Notwithstanding our previous debate on that issue of exceptions, the European Convention is different in that it purports to guarantee free speech, but sort of in a squishy kind of way that balances it with.

[Nico Perino]

Balances harms.

[Ronnie London]

It balances harms.

[Nico Perino]

That's not something we do in the United States.

[Ronnie London]

Well, we do in a much more structured and strict way there. First, you have to qualify for free speech that doesn't denigrate other rights guaranteed by the Convention. And you also have different provisions of the Convention that can remove those rights if they violate other interests as well.

[Nico Perino]

So is it safe to say the Europeans will say they have free speech, they just define it differently?

[Ronnie London]

Well, it's. It's free up to a point, as long as it doesn't violate either what the government has declared as beyond the pale, or you have someone who can claim to be a part of a protected class that is insulted by that speech.

[Bob Korn]

Well, I think the Swedish court was quite clear on the point in the quote that you read. And so were the German scent. Can I call them censors? The German censors that were on 60 Minutes Sunday night who, you know, treated going and arresting people or giving them citations for thousands of pounds or thousands of marks of fines as if.

[Nico Perino]

I think it's euros in German.

[Bob Korn]

Is it euros now?

[Nico Perino]

I believe it is.

[Ronnie London]

It is.

[Nico Perino]

Okay, so there was a point at the end of that segment where one of the prosecutors is looking at one of the fines levied against someone and.

[Ronnie London]

Not a parking ticket.

[Nico Perino]

Not a parking ticket. I think I recall it being like 3500 and change euros. Yeah, it was definitely not a parking ticket.

[Ronnie London]

It was a high fine. But what was disturbing to me in particular, two things about the 60 Minutes reports on people being made criminals for insults online is that the prosecutors were actually chuckling about it, saying, oh, this is just enforcing the law. We like this. And the idea of saying that it's all right to have pre dawn raids with multiple police knocking on people's doors, taking their computers, taking their phones, because the state has decided it doesn't like the tone of their conversation.

[Bob Korn]

And it's not even a complaint based system. Right. They're just scouring social media to find people saying things that are hateful or insulting. I mean, you know, they, they said that, you know, so if I say a politician is a jerk or a dick, as I understood it, yes, that's actionable. And then also while we're at it, they take away your phone and your computer too. So they seize the means of communication along with imposing a fine for communicating.

[Nico Perino]

And the prosecutors are chuckling about taking away the phones because they're like, people don't want their phones taken away.

[Ronnie London]

That's right. That's right. And the other thing that was disturbing about it is that CBS didn't have a single free speech advocate as part of the broadcast talking about why this might be a problem.

[Nico Perino]

I want to turn to the segment now and quote or play some from it. So this is the beginning of the segment.

[Margaret Brennan]

It's 6:01 on a Tuesday morning and we were with state police as they raided this apartment in northwest Germany. Inside, six armed officers searched a suspect's home, then seized his laptop and cell phone. Prosecutors say those electronics may have been used to commit a crime. The crime crime. Posting a racist cartoon online. At the exact same time across Germany, more than 50 similar raids played out part of what prosecutors say is a coordinated effort to curb online hate speech in Germany.

[Nico Perino]

And this is where the CBS reporter chimes in. Interviewing the German prosecutors, she asks, what's the typical reaction when the police show up at somebody's door and they say, hey, we believe you wrote this on the Internet. One of the German prosecutors responds, we are here with crimes of talking, posting on the Internet, and the people are surprised that this is really illegal to post these kinds of words. She says, they don't think it's illegal. He says, no, they don't think it was illegal. And they say, no, that's my free speech. And we say, no, you have free speech as well, but it also has its limits.

[Ronnie London]

That's right.

[Nico Perino]

And then the CBS reporter says, is.

[Margaret Brennan]

It a crime to insult somebody in public?

[Ronnie London]

Yes. Yes, it is.

[Nico Perino]

And they all say, yes.

[Ronnie London]

And you all three prosecutors. That's right. And then you had an advocate. Hate Aid.

[Bob Korn]

Great name.

[Ronnie London]

Yeah, Hate Aid sounds like a concert for hate speech. But, you know, basically saying, well, you have free speech, but everything has to have its limits. You can't have all that freedom out there.

[Nico Perino]

Well, and that's why I ask, is it safe to say, or can you credibly claim they have free speech in Germany if insulting someone is a criminal offense?

[Ronnie London]

No. And, you know, part of the problem is that they say, well, you have free speech, except. And then they throw this very broad net about what the exceptions are, which, as I said, contrasts with the law in this country. But nothing prevents the government from moving that line as it has over the past several decades. You know, these kinds of examples of, quote, hate speech are being used as today's example, but they're not limited to that. It's whatever the state decides is sufficiently important to restrict because bad things would happen from bad speech.

[Bob Korn]

Oh, and by the way, not only does the original poster have the liability, the reposters do as well.

[Ronnie London]

That's right. That's right. And, you know, they stopped short of saying that if you simply liked a comment online, that they'll go after you for that. But if you repost it, they will.

[Nico Perino]

Yeah. And this is what the CBS reporter asks. If somebody posts something that's not true and then somebody else reposts it or likes it, are they committing a crime? One of the German prosecutors say, yeah, in the case of reposting it as a crime as well, because the reader can't distinguish whether you just invented this or just reposted it. It's the same for us. The punishment for breaking hate speech laws can include jail time for repeat offenders. But in most cases, a judge levies a stiff fine, not a parking ticket. And sometimes they keep their devices. So JD Vance in his speech says that Europe is retreating from its fundamental values, free speech being the suggestion there. But has Europe ever been good on free speech?

[Ronnie London]

Well, it's been better than it is now.

[Bob Korn]

Compared to who?

[Nico Perino]

Compared to the United States?

[Bob Korn]

Compared to Russia and China? It was better.

[Nico Perino]

Yeah.

[Ronnie London]

Well, yes, but drawing comparisons is difficult because you have to ask at what point? And the United States hasn't always been great on free speech. It has gotten better through the 20th century as First Amendment jurisprudence developed, and now into the 21st. So that issues like hate speech are not a legal concept here. And that's. We use that term as if it is a legal thing. In Europe it is. In Canada it is. But in the United States, hate speech is not a category of speech that you can regulate under the First Amendment. It's not a thing legally. Hate speech is like pornography in that pornography isn't a thing. Obscenity is the legal concept. The word pornography is just a, you know, a disparaging term for sexual entertainment, but it isn't a crime to have pornography. Obscenity is the legal line, and it's a much narrower and stricter concept. Hate speech here is like that. It's like calling something pornography, but for hateful words.

[Nico Perino]

Well, you might have Europeans who say, well, you Americans have your free speech exceptions as well, obscenity being one of them. They might look at us as more prudish, for example, and saying, well, okay, what about your exceptions? We draw lines differently.

[Ronnie London]

They may well do that. But the point is, as I said at the outset, we have a limited number of categories. The Supreme Court has repeatedly stopped short of saying you can create new categories or stretch the boundaries of those categories. That stretchy boundary pushing nature exists in European law. It is written into European law so that anything that the state decides violates some sort of other value they have decided to promote can be unprotected by their free speech guarantees.

[Nico Perino]

In response to JD Vance's speech at the Munich Security Conference, you had Margaret Brennan, the host of CBS's Face the Nation, say to Marco Rubio, who came.

[Margaret Brennan]

On the show, well, he was standing.

[Ronnie London]

In a country where free speech was.

[Margaret Brennan]

Weaponized to conduct a genocide.

[Nico Perino]

This statement from Margaret Brennan was widely condemned, including by myself. But was she right?

[Bob Korn]

No, I think Rubio had the right response in pointing out the fact that it was a one party state at the time. There was no free speech at the time. And it's when I was listening to that, to kind of bring things forward, I kind of got feeling in the pit of my stomach because. Right. That's the first thing you always do is you seize the means of communication and the government takes over control, and then the government dictates what people get to hear. And I don't think we're quite that far here yet over the last few weeks, but at the same time, there has been an attack on the media here. But to go back before, without jumping ahead, to Marc Rubio's response, like I said, I think he had it right.

[Marco Rubio]

No, I have to disagree with you. Free speech was not used to conduct a genocide. The genocide was conducted by an authoritarian Nazi regime that happened to also be genocidal because they hated Jews and they hated minorities and they hated those that they had a list of people they hated, but primarily the Jews. There was no free speech in Nazi Germany. There was none.

[Nico Perino]

I think you would be hard pressed to argue that there was free speech in Nazi Germany. They were banning, they were burning books, they were raiding news outlets, they were imprisoning their political opponents. Political violence was rife, but you might say, well before the Nazis rose to power.

[Ronnie London]

But that's right. And in that point, Margaret Brennan was simply wrong as a matter of historical fact. And we posted a short video from Nadine Strossen, former president of the aclu, who is a FIRE Senior Fellow now, who explains that history. During the Weimar Republic, there were robust hate speech laws. And it's often called the Weimar Fallacy to suggest that it was hate speech that led to the Nazis. In fact, the Weimar Republic cracked down on Nazis, including Adolf Hitler, for routinely violating those hate speech laws. What that did, paradoxically, was, was help bring those people to power because they were seen as martyrs for their cause because of the use of law. And it shows the utter ineffectiveness of trying to use the power of the state to suppress speech, because all you do is bottle up the hatred they were trying to spew and give it more power.

[Nico Perino]

And you also had the critics of the Nazis who were subject to. To these hate speech laws as well. And it wasn't just the hate speech laws. It was the tepid reaction from Weimar Germany to political violence on behalf of the Nazis as well, the thuggery that was allowed to go on in the streets. So to say that you had free speech in Weimar Germany or Nazi Germany, you had speech, but it wasn't free. It was just subject to who had the most political force and to the extent that any hate speech codes were enforced, they just served to make martyrs out of. Out of their targets. There was a campaign when Adolf Hitler. I forget the exact years. It was something like two or three years. He was banned from speaking in Bavaria. And the Nazi party put together this big campaign that said alone, among 2 billion people, 1 man is prevented from speaking. It was like gold for Joseph Goebbels and his propaganda campaign.

[Ronnie London]

Absolutely. And it's a prime example of how these kinds of laws always backfire.

[Nico Perino]

Going back to JD's speech now, he says, I come here today not just with an observation, but with an offer. And just as the Biden administration seemed desperate to silence people for speaking their minds, so the Trump administration will do precisely the opposite. And I hope that we can work together on that. In Washington, he continues, there is a new sheriff in town and under Donald Trump's leadership. We may disagree with your views, but we will fight to defend your right to offer them in the public square. The Associated Press wants to call the Gulf of America the Gulf of Mexico, which is how it's internationally recognized. It has been barred from attending press events in the Oval Office and on Air Force One. Looks like they're going after the Associated Press's views, right?

[Ronnie London]

Yeah.

[Nico Perino]

What am I missing?

[Bob Korn]

At least they're in good company.

[Ronnie London]

Yeah. JD can offer up some nice words when he wants to, can't he? But the question is whether or not the actions of the Trump administration match the rhetoric. And I have to say, I do appreciate J.D. vance going to Europe and calling out that kind of problem with free speech. But the issue here is whether or not the Trump administration is going to be a new sheriff in town to promote free speech. The episode with the Associated Press is a prime example of where the Trump administration's attitude so far seems to be, do as I say, not as I do, or free speech for me, but not for thee. The issue of whether or not AP has a, quote, right to be at White House press conferences is really a bit of a misnomer. The question is whether or not the government can discriminate against a news organization because it dislikes its editorial policies. And as you point out, Nico, they are in international news organizations. Other countries have not yet jumped on these Gulf of America bandwagon. And what the White House is trying to do is simply to bully the Associated Press into following what it thinks its editorial policies should be.

[Nico Perino]

And the Associated Press's rationale here is that this is an international body of water. It borders multiple countries, not just the United States.

[Ronnie London]

Including Mexico.

[Nico Perino]

Including Mexico, yes. But the Associated Press did change its editorial standards for Denali, which is the mountain in, I believe, Alaska. Alaska, if I get that right, Mount McKinley, which was changed by Obama from Mount McKinley to Denali, and Trump is changing it back. That's Mount McKinley. And the Associated Press's rationale is there. Well, this is entirely within the United States jurisdiction. There's no controversy over what its legal name is. Whereas the Gulf of Mexico, it's different international body of water. The Trump administration doesn't like that. It calls the Associated Press's editorial standard here misinformation. They say this is its legal name. But, but, but people will say there's a difference between denying the Associated Press access to Oval Office and Air Force One events. It still has its press credentials in the briefing room. And for example, jailing people who say hateful things on the Internet.

[Ronnie London]

That's right. But still, it is imposing a penalty because you don't like the editorial standards. It's one thing if you are excluding a news organization for some sort of neutral purpose, you've run out of room where it isn't actually a credentialed news organization. This is different. This is saying we're going to tell you what your policies must be, and if you don't adhere to them, you lose your spot.

[Nico Perino]

So the reason. Yeah, the reasons.

[Bob Korn]

It's only a different. It's only a difference of degree, not in principle. Right. You know, whether it's throwing them in jail or throwing them off Air Force One, hopefully metaphorically. You know, at the end of the day, the underlying principle is that if you don't conform to what the, well, for lack of a better word, new orthodoxy is on speech, and it just happens to be something particularly petty like the Gulf of America, Gulf of Mexico. It could be, it could be anything. It could be terms around dei. It could be, you know, what we.

[Ronnie London]

Call who won the election.

[Bob Korn]

Right.

[Ronnie London]

It might be.

[Bob Korn]

Won the election. It can be, you know, it's this. It's this monopoly on truth. And if you don't toe the line, then, you know, you'll suffer the consequences. And, you know, if you want to, you know, start comparing consequences and saying which are worse and which are less worse, go right ahead. But that, that doesn't really change the argument. I mean, you know, one of the executive orders, and it's not really, you know, mostly on point on free speech issues, but nonetheless, it does have its, its elements, is the, you know, the defending women from gender ideology, extremism and restoring biological truth to the federal government. And the reason I pick on this one is, you know, it talks about, you know, policy and definitions. The policy United States recognized two. Two sexes, male and female. It talks about it being a fundamental and incontrovertible reality. When people in government start telling me what is a fundamental and incontrovertible reality, that's when I start getting real freaking nervous. Because what that does is, you know, that you then bounce over to restoring freedom of speech and ending censorship. You have all this nice language about, you know, government censorship of speech is intolerable in a free society. How that sits comfortably alongside, you know, excluding someone from briefings and from the, you know, the Air Force One for not saying Gulf of America is, you know, a mystery to me. You know, no officer of the federal government, employer, agent, engages and facilitates in any conduct that would unconstitutionally abridge the free speech of any American. That's, that's great. That's easy to say, but you can't have that sitting alongside uncontrovertible reality. If you can't debate the reality of your circumstances, then, you know, what, what good is free speech to you? I mean, you can promise it, but, you know, toward what end?

[Nico Perino]

So you would still have a problem if, under the Biden administration, for example, they denied the New York Post access to White House events because, of course, they referred to a, a, a transgender White House official by the wrong pronoun.

[Bob Korn]

All right, well, that was the problem with the Biden administration leaning on the social media platforms about, you know, where, where, where covet originated or, you know, what effective treatments are or whatever else. I mean, you know, they've decided that the CDC had the right answer, and, by God, everyone's going to toe that line. It's not any difference. It's just as problematic.

[Ronnie London]

Well, that's right, and it's why Fire filed a friend of the court brief in the Supreme Court challenging the Biden administration policies of leaning on social media companies. The government doesn't get to put its thumb on the scale when it comes to free speech. And while I appreciate the Trump administration saying they're going to be a new sheriff in town and J.D. vance's speech in Europe. And I appreciate some of the free speech rhetoric that I've hear elsewhere, and including the executive order on restoring freedom of speech and ending federal censorship, the question is, what actions are they going to take? And if you read this executive order, and it's one of the first that he issued on his first day in office, what it says is over the past four years, the previous administration trampled free speech rights by censoring American speech in online platforms. And it's like, okay, fine, why are we looking backwards?

[Nico Perino]

But even there, some of the censorship started happening under his administration.

[Ronnie London]

And that was made clear in the court record in the case challenging the Biden administration. This is a time tested thing that has been done by administrations through the years, and this was just a continuation of it. And if your concern is that the federal government is pressuring social media companies, the answer is simple. Stop fucking doing it. Right. You don't need to.

[Bob Korn]

While you're at it, stop doing it to the traditional media companies too.

[Ronnie London]

Exactly. Which is a real problem here. And again, there's an entire subsection talks about past misconduct by the federal government. But here's the kicker. And this is the boilerplate language that exists in all of these executive orders which says they don't mean what they're saying. And that is the final line in all of these executive orders that says this order is not intended to and does not create any right or benefit, substantive or procedural enforceable law inequity by any party against the United States, its departments, agencies or entities, its officers, employees or agents, or any other person. In other words, these executive orders aren't worth the paper they're written on.

[Bob Korn]

So if the government otherwise I was going to rely on it.

[Nico Perino]

Well, no, let's translate that for, for our non lawyer listeners. That means you can't say sue. This isn't creating a right for you.

[Ronnie London]

Well, exactly. I mean, the language sounds great when it says that no federal officer. I want to find the exact language. We ensure that no federal government officer, employee or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen. It's a great statement. I'd like to see it made real. But the problem is the last line of this very same order says you can't enforce that.

[Bob Korn]

Yeah. Well, not only does it not provide any enforceable rights, more importantly, it doesn't provide any limits on the government.

[Ronnie London]

That's right.

[Bob Korn]

Right. And so, I mean, you know, you said that you, you know, appreciate that it says some nice things about free speech. We appreciate that JD Vance says some nice things about free speech. You know, I'm not, I'm not as appreciative as you are. And that's true as a general rule. But in this particular context, you know, I think you get to a point where what you're really modeling is the free speech for me, but not The. But more importantly, what you're modeling is that you can somehow in some ways, be good on free speech, despite the other ways in which you're horrible on free speech. And frankly, I don't buy that if you're horrible on free speech in any way, you're horrible on free speech, full stop. And this, you know, what President Trump in particular has done with his lawsuits, both before the current election and his becoming president again and currently is just bad for free speech. I mean, he's picking on traditional media. And the AP example is a perfect example of. Over a particularly small point. But he has sued traditional media for millions of dollars, billions of dollars, if you add it all up. His, you know, his. His appointed head of the FCC is falling into line and calling out the broadcast networks that Trump has a problem with and using the leverage of FCC licenses to basically try and secure settlements on lawsuits that I think were pretty universally viewed as having, you know, very little chance of actually prevailing.

[Nico Perino]

So some of the settlements you're talking about, Meta agrees to pay $25 million to settle a 2021 Trump lawsuit. This is a lawsuit stemming from Meta's deplatforming of President Trump after the January 6th.

[Ronnie London]

That's right.

[Nico Perino]

Riot.

[Ronnie London]

And that is after the Supreme Court has said that when social media platforms make these decisions, they are protected by the First Amendment.

[Nico Perino]

And then you also had, most recently x reaching a $10 million settlement with Trump over their suspension of his Twitter required post January 6th. And you had ABC famously settling for $16 million over comments who was a George Stephanopoulos made during a broadcast. And the list goes on. And, Bob, you are in court right now representing pollster and Seltzer, stemming from a poll she conducted leading up to the most recent election, right?

[Ronnie London]

That's right. The Iowa poll, the famed Iowa poll conducted by Ann Seltzer in days before the November election that Kamala Harris was leading Trump by three points when, in fact, when the votes were tallied, Trump won Iowa by 13 points, as he had in the previous two elections. So what this lawsuit is trying to do on behalf of Trump and two other congressional candidates in Iowa is to make an inaccurate poll somehow actionable in law, which is just silly and contrary to all of our First Amendment precepts as we understand them.

[Nico Perino]

And they're alleging that it's a form of consumer fraud, is that right?

[Ronnie London]

Well, that's the other thing. What they're trying to do is to create a cause of action for, quote, fake news or false news, which, if you trace it back to the sedition act of 1798. We have a strong constitutional tradition against that kind of thing. But they are trying to convert political commentary and political news as a consumer product. Like it's turning back the odometer on a car and it's simply pounding a square peg into a round hole or attempting to. And that's what the courts are going to take a look at.

[Nico Perino]

Didn't progressives try and do this during the COVID era as well with Fox News? Oh, sure, there was.

[Ronnie London]

There was a case that was dismissed in the state of Washington where a, an activist group sued Fox News for what it called false reporting in violation of the state consumer protection law over COVID 19 and other issues that they claimed were false news. And again, these kinds of claims have been occasionally brought, but they're so outlandish that very few plaintiffs have ever attempted to bring these kinds of claims. And when they have, they have been promptly dismissed.

[Nico Perino]

Well, you see all these news organizations folding. They all happen to fold after Trump gets elected. It's almost as if they're engaging in anticipatory obedience. Right. It's, it's this weird dynamic where now you have a new sheriff in town, to use JD Vance's words, and all these news outlets that have a First Amendment leg to stand on, in some cases a very, very strong one are just folding and saying, let's pay the money. You can call it protection money. I've called it protection money before.

[Ronnie London]

A nice little network you got there.

[Bob Korn]

Well, and that's why the apartment giving Trump the gift of Gulf of Mexico rather than Gulf of America works so much in his favor, because he can take this relatively inconsequential, low stakes thing at least as to the underlying substance of whether it's the Gulf of Mexico or the Gulf of Mecca. Who honestly gives a shit and say.

[Nico Perino]

Okay, apparently the White House does.

[Bob Korn]

And it becomes, well, no, I don't think that maybe they do, but the cynic in me says they don't. Really. What they care about is now I can show all of the media what happens if you don't toe the line. You're not going to be able to do your job and cover. You know, you talk about ABC and CBS and the other companies falling into line. Funny, they're the ones who have FCC licenses that are absolutely necessary to conducting their businesses. They're the ones who have news bureaus who need to be here on Capitol Hill and at the White House to cover the news. And they have skin in the game unrelated to whether, if They've published anything that is actionable, because they haven't.

[Nico Perino]

So, Bob, you published a 3,000 word essay in the Columbia Journalism Review that got a lot of attention. It's titled A Plea for Institutional Unsolicited Advice from a Former FCC Chief Counsel. FCC is the Federal Communications Commission, correct? You were the chief Counsel for the FCC, what years 1990?

[Ronnie London]

Well, I was a legal adviser to a commissioner from 1990 to 1994. It was in 19, end of 93 and into 94 that I was chief counsel to James Coelho, who was elevated from a commissioner to chairman. So I was his chief counsel during that time.

[Nico Perino]

And now Brendan Carr is going to be the new chairman of the fcc. He has long been a commissioner.

[Ronnie London]

He's been a commissioner since 2017.

[Nico Perino]

And early in your essay, you say, with all due respect, Chairman Carr, it is not enough to hear what a government official may say about his or her commitment to freedom of expression. What matters is how that person acts once entrusted with the power of the office. What are you concerned Brendan Carr is doing?

[Ronnie London]

Wow, how long do we have?

[Bob Korn]

I'm just thinking the same thing. How much time we got?

[Nico Perino]

I knew this was kind of a softball. You could take it in whatever direction you wanted. You do it for 3,000 words here. Where should we start?

[Ronnie London]

I guess maybe I started with Brendan Carr's words themselves because he had said in 2024, when someone tells you where they stand on free speech, they've told you just about everything you need to know about their position on government power. And my point in that opening paragraph of the essay is, no, that doesn't tell you all you need to know. What you really need to know is what that person does with the power they're given. And with the fcc, it's a particularly critical thing because it is an agency that has been described as being one in the shadow of the First Amendment because it regulates broadcasting and to a certain extent, cable. And, you know, it has a lot of power in that regard. And as Ronnie pointed out, one of the ways in which officials can lean on large, seemingly powerful industries and make it too painful for them to stand up for their rights. And so what people actually do in that position is important. And Brendan Carr, as a commissioner, had a great track record of saying good things about the First Amendment. So, for example, when members of the House Commerce Committee would lean on broadcasters because they didn't like their reporting on Covid, he said he would remind them that the government has no business in dictating editorial standards and in telling people how to report the news.

[Nico Perino]

This is his direct quote, a newsroom's decision about what stories to cover and how to frame them should be beyond the reach of any government official not targeted by them.

[Ronnie London]

And I couldn't have said it better myself.

[Bob Korn]

You forgot to read the part where it says accepting myself.

[Ronnie London]

Yeah, exactly.

[Nico Perino]

Well, yeah. How is he accepting himself in the current moment? What is he doing?

[Ronnie London]

Well, he's done a number of things. On his second day in office, he reversed three decisions that had been made the previous week by the FCC to dismiss complaints against abc, cbs, and NBC. Those were patently vacuous and substanceless complaints about, quote, the news distortion policy. One complaint didn't like the way in which 60 minutes edit its interview with Kamala Harris. That's not news distortion. That's editing. Another one thought that having Kamala Harris on Saturday Night Live in a guest spot violated the, quote, equal time rule, when, in fact, NBC had provided equal time to Trump that very same weekend.

[Nico Perino]

During the NASCAR and NFL coverage. Right.

[Ronnie London]

And there was a complaint about ABC in the way it moderated the presidential debates. Complaints. All of those are classic examples of news judgment. And the FCC staff got it exactly right when they dismissed those complaints the week before the inauguration.

[Nico Perino]

What was the Fox one about was.

[Ronnie London]

That that was the fourth one, and that was a challenge to the renewal of Fox's Philadelphia affiliate over the way it had reported the 2020 presidential election. And the complaints about Dominion Voting and the fact that it had settled its libel claim. There were some, including a former executive at Fox, who were claiming that Fox should not just pay a settlement in that case, but also lose their licenses. That case was also dismissed by the previous administrator during the previous administration in its last week. And yet that was the one complaint that Carr did not reinstate once he became chairman.

[Bob Korn]

Well, come on, Bob. That one's completely different. It was a cable network, not a broadcaster. I mean, it's everything, you know, I mean, you read the part from, from Bob's column about, you know, starting with Chairman Carr's own words, even as recently as this fall when the FCC was proposing to make broadcasters disclose when AI was used in political advertising, he wrote a very, you know, I thought well reasoned dissent from that proposed rulemaking or a separate statement saying that it was a problem, you know, constitutionally to impose these obligations and to impose compelled speech. And in my, in my mind, you know, this in some ways makes it even worse. And this is what I was talking about before. You know, you can't be good on free speech in some ways and horrible and free speech in other ways and have it net out. I mean, especially when you demonstrate that you know better. And then the moment you're handed the king keys to the kingdom, as Bob said, on your second day in office, you're reopening cases that were closed for very obvious constitutional reasons. You're not good on free speech. I'm sorry.

[Nico Perino]

The. The former FCC chairwoman Jessica Rosenwarzel said the facts and legal circumstances in each of these cases are different, but what they share is that they seek to weaponize the licensing authority of the FCC in a way that is fundamentally at odds with the First Amendment. Bob, I was reading something online. I want to get your gut check on this. It was an attorney who works in the broadcast communications space. He said that there's been no license case involving programming since the 1970s. The Telecommunications act of 1996 limited the criteria for revoking a license, he said. And he also said it was essentially impossible before 1996, and it is totally impossible now. Does that seem right to you?

[Ronnie London]

It does. And I would have to go back and see if the statement about no cases involving content since the 70s, I think that's probably an exaggeration. But the fact is, in the mid-1980s, the FCC itself concluded that its rationale for why it could regulate broadcasting more robustly than other media had expired, that the scarcity doctrine that the FCC's authority was based on was no longer valid. Congress said the same thing when it adopted the Telecommunications act of 1996. It's all right there in the scarcity.

[Nico Perino]

That's the broadcast spectrum.

[Ronnie London]

That's limited. Theory is that the broadcast spectrum is limited because. And because of that, we have to license it. And because we have to license it, we can also regulate to a certain degree what content is carried on those. Those frequencies. It has always been a very limited authority, and even more so now that the FCC has basically given up the game that that rationale was no longer valid. Or so we thought. But during the 1980s and into the 90s, there was a robust debate over that. And that's why the former policy, known as the Fairness Doctrine, was abandoned, because the FCC had said, we no longer have this authority. And that's why there have been no cases during that period or since that period in which the FCC has tried to use the, quote, public interest standard as a cudgel to get broadcasters to fall in line behind the editorial preferences of a given administration. But now we hear the new chairman of the fcc, Brendan Carr, actively saying, we have this club and we're going to use it.

[Nico Perino]

So is it fair to say that prior to Brendan Carr's FCC chairmanship, it was widely held that all the FCC could do was regulate the means of distribution, broadcast distribution, not the content and programming?

[Ronnie London]

Well, there are some vestigial rules that still exist. And by the way, there is a policy, not a rule about news distortion, but it is one that was born in the 1960s when the FCC's authority was considered to be at its peak. It has not been used. And even when it has, it relates to things like totally made up stories like Orson Welles War of the Worlds rather than simply not liking the way a news program has done its editing has nothing to do with that. And so it is a completely vacuous complaint, even under the news distortion policy as it existed in its heyday. And the point is that the regulatory atmosphere that surrounds the FCC now would never permit that. And that's the other thing too, by the way, the Supreme Court made clear that regulatory agencies, as we're trying to get rid of the administrative state, don't have the authority to apply the law to the maximum extent that they want to, where Congress has defined what the limits of their authority are.

[Nico Perino]

This is the Loper Bright case, the local Bright case. The Chevron overturned.

[Ronnie London]

The Chevron doctrine that basically said it is up to the courts, not to administrative agencies to apply the law. Something that Chairman Carr has cited frequently, including in the rulemaking that Ronnie was talking about earlier. He cited the Loper Bright case and said the FCC doesn't have this kind of authority. He seems to have forgotten that in the intervening months.

[Bob Korn]

And he seems to have forgotten it also in his references to section 230 and the FCC having any role whatsoever in interpreting it and applying it. There's nothing whatsoever in the Communications act that would suggest that that's the case, even though that's where section 230 lives. And I don't know how in the wake of Loper Bright, there would be any claim that without some kind of congressional enactment, the FCC has a role.

[Ronnie London]

Well, and it's not just in the extension of administrative power through applying rules and so on here. Looking at the CBS case in particular, where the news distortion complaint was over the way in which CBS edited Kamala Harris's answer during 60 minutes. And so this was brought to the FCC by an activist political group dismissed by Jessica Rosenwarzel in her last days as chairman and then reinstated by Brendan Carr. But he didn't just reinstate the complaint. He put it out on a public notice seeking public comment. Now, what's wrong with that? The FCC routinely asks for public comment when it comes to making rules in notice and comment rulemaking proceedings. But I can't think of any FCC case where in an enforcement action, the FCC is inviting people to provide public comments for whether or not they think someone violated a rule or a policy.

[Bob Korn]

Well, you gotta find the one. You've got to find the one where the boss has a lawsuit pending against that very broadcast, Right?

[Ronnie London]

Yeah. I mean, essentially it is conducting a show trial about whether or not those people who file comments with the FCC, like CBS editorial policies, the 60 minute.

[Nico Perino]

Segment that you're referencing with Kamala Harris, they turned over the raw footage.

[Ronnie London]

That's right.

[Nico Perino]

From that interview. Has that ever been done. Been done before? Did the FCC force them to do that?

[Ronnie London]

Well, there have been cases where outtakes and footage have been provided. I'll give you one example. The 2004 Super bowl indecency investigation where Ronnie and I, when we were in private practice, defended CBS in the indecency complaints against the network before the super bowl broadcast. And the wardrobe malfunction.

[Nico Perino]

Janet Jackson. Yeah, exactly. And Justin Timberlake.

[Ronnie London]

And there, as part of the investigation, the FCC demanded the shooting scripts and all kinds of information, including tapes of dress rehearsals. And we all provided that to the FCC as part of that investigation because it basically showed that this isn't something that was planned by cbs. But typically, particularly when it comes to news programming, CBS has a history of resisting that kind of demand for outtakes. And that goes back to documentaries like the selling of the PENTAGON in the 1970s when Congress demanded outtakes and other editorial information. CBS resisted that and Congress backed down here because CBS has a merger pending. Paramount and Skydance. There wasn't much pushback, but nonetheless, if you get the full transcripts and they are now available publicly, they really indicate that this was simply a standard case of editing where you take a politician's rambling answer and make it more concise because you can only have so much time in a broadcast.

[Nico Perino]

Yeah. And that's something Fox News has done with Trump.

[Ronnie London]

Well, yeah, exactly. And they're wide coverage of the Fox News barbershop interview with candidate Trump in which he was asked multiple times what he would do about taxes. And it took him a long time to get to an answer. But what you finally saw on the Fox broadcast was a question and an answer. Now, some people would call that deceptive. Again, I would call that editing, because, you know, we don't hold politicians to very High standards when it comes to how articulate they are. That went out with Obama.

[Nico Perino]

So we've talked about broadcast networks, but Ronnie brought up Section 230 as well, which applies to the Internet. It's the liability shield that's applied to Internet service providers and their car Seems to be flexing his muscle in a way that the FCC hasn't as well.

[Ronnie London]

He has taken a position that was floated by the first Trump administration and that is that the FCC has some role in interpreting what he calls the ambiguous provisions of Section 230.

[Nico Perino]

The good faith provision.

[Ronnie London]

Right, the good faith provision of Section 230. But the point is that's the exact issue that the Supreme Court in Loper Bright addressed, saying that under the Chevron doctrine, which allowed agencies to have deference when they interpreted, quote, ambiguous provisions, that doctrine is no more. The Supreme Court put an end to it. And so the kind of flexibility and the home court advantage that administrative agencies counted on simply doesn't exist. And the theory that the FCC has some role in interpreting what section 230 means is simply wrong.

[Bob Korn]

Yeah. I mean that 230 lever is one that, you know, always gets, if not pulled, somebody's got their hand on it looking expectantly towards you. And it's not just this administration. It was the last administration.

[Ronnie London]

Absolutely.

[Bob Korn]

It's always if you don't, if you don't, you know, if you don't fix what we don't like and you can fill in the blank, we don't like misinformation, harming youth, whatever it is, if you don't fix it, we're going to yank your Section 230 immunity. That's always the threat. Or alternatively we're going to interpret it away at through an administrative agency or reinterpret it narrowly, which is the opposite of what courts have done. Courts have found that the 230 immunity is, you know, quite broad and protects, you know, against a great deal of liability for, you know, user generated content. And that's the whole idea. Right. We wouldn't have social media, we wouldn't have the Internet we have today if every online entity who allows third party content onto their, onto their service or site had to be potentially liable for because it means they'd have to look at every single thing, which is just impossible given the volume that we're talking about. Yeah. And they would have to be far more little C conservative with what they allow for fear of assuming liability. And when you start threatening, oh, we'll just take that away or we'll you know, overrule the courts that administratively. You know, that's another way to try and get, you know, social media companies to, you know, come come to the table.

[Nico Perino]

Ironically, it'll mean that more content gets taken off the Internet.

[Bob Korn]

That's right.

[Nico Perino]

Which is the exact thing that conservatives don't want to happen, they say.

[Ronnie London]

Exactly. But the threats to Section 230 are completely bipartisan. Both administrations, the Biden administration and the Trump administration have done it. And they do it simply because it's a power play. It's a lever that they know they can use to threaten big tech.

[Nico Perino]

Well, the thing that Brendan Carr doesn't like and the reason that he sent the letter to the CEOs of Google, Apple and Meta was the use of this thing called News Guard, which is a fact checking tool. And he, you know, this is part of the administration's frustrations with mis and disinformation. It's what they're also alleging that the AP is engaged in. They said that using News Guard might open them up to the ex. The good faith exception in section 230. Because using new News Guard isn't an exercise of good faith. I, I don't quite understand the argument.

[Bob Korn]

Well, it's funny because, you know, the good faith exception, people seem to think that it applies to all of 230. 230has two parts to it. There's one part of section 230, which is C1, if anyone cares about the statutory designation, that says essentially, and I'm paraphrasing here, that a interactive computer service shall not be liable for the content of another service provider.

[Ronnie London]

They won't be treated as the publisher. Right.

[Bob Korn]

They won't then be treated as a publisher, which means they won't take on liability for the content of another content provider. And by the way, that applies also to users of the service, not just the provider of the service. Section C2 is the other side of that coin, which says they can't be held liable for not putting something up, not publishing something as an exercise of their editorial discretion. And that's where it says in good faith.

[Nico Perino]

Yeah, I've got the text here. It says, any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. Yada yada, yada. Continue. So the suggestion here is that using a fact checking tool like News Guard to inform how you take down the content is not an exercise of your editorial discretion. That's in good faith.

[Bob Korn]

Well, no, the interesting part is that as what you just read talks about taking down content, and arguably there's some kind of good faith, you know, requirement there, although the courts have varied on, you know, what it means, if anything. But using News Guard does not result in anything being taken down. It results in it getting a check mark or another designator as to whether it's sufficiently factual. So it has nothing to do with section C2?

[Ronnie London]

Yeah. News Guard is a private entity. It uses journalistic standards and is transparent about them for why it gives different news organizations the ratings that it does. And so for Brendan Carr in his letter to the big tech companies to complain about News Guard is really missing the point. And whether or not someone relies on News Guard or some other source, that is entirely up to them. And they can decide whatever standards, journalistic or otherwise, they want to use in their moderation practices. And that's the other thing about the letter. It included a letter to the chairman of Apple, which doesn't run a social media network, has nothing. So I don't understand.

[Nico Perino]

Maybe they host a News Guard app. I don't know.

[Ronnie London]

Whatever the reason was, it was this indiscriminate broadside saying that we don't want you using these private actors and private businesses for rating content, which everyone has the right to do.

[Nico Perino]

Closing out the FCC discussion. The title is a plea for institutional modesty. Bob, what you're saying there essentially to Brendan Carr is you don't have as much power as you think you do. Right.

[Ronnie London]

It's almost like a paraphrase of the Princess Bride line. That word doesn't mean what you think it means. And that's part of the problem, both in terms of the statutory mandate that the FCC has. The ability to regulate content has always been more modest than many chairmen think that it is. And the courts have brushed them back from the plate numerous times on that. There are constitutional limits that have been broadly recognized, and that extends not just to actual actions, rulemakings, and enforcement actions by the fcc, but also to threats, sets of actions. And that's something that has been called by the courts as regulation by raised eyebrow. The D.C. circuit on numerous occasions has told the FCC that it can't engage in that practice. And just this last term, the Supreme Court in NRA v. Volo said that that kind of government jawboning can violate the First Amendment if you're trying to flex regulatory power to get someone to behave or to censor themselves over something that the government doesn't like that crosses a First Amendment line. And so with not just established precedent, but this recent precedent, it makes it all the more astonishing that you would have the head of the Federal Communications Commission issuing threats and trying to flex.

[Nico Perino]

Those kinds of regulatory muscles, closing out the fcc. I want to turn to Elon Musk. He's been tweeting a lot lately as he's engaged in this Department of Government Efficiency DOGE project. There was reporting done in the Wall Street Journal by a reporter, Katherine Long, who I guess was a former USAID employee prior to becoming a journalist with the Wall Street Journal. He didn't like that she was reporting on the activities of DOGE within USAID and naming some of the DOGE personnel who are involved in the project. And he said that she should be fired immediately. There were suggestions all over X that reporting the names of these government officials was doxing. Is it doxing?

[Ronnie London]

No.

[Nico Perino]

What does doxing mean? What does it mean now?

[Ronnie London]

Well, it seems like it's a very broad definition. According to Elon Musk, it means whatever.

[Bob Korn]

You need to mean.

[Nico Perino]

Well, historically, it's come to mean the distribution, often with the intent to intimidate personal information like Social Security numbers and address phone numbers, things, those kinds of.

[Ronnie London]

Things, so that people can bring pressure to that person. But simply naming people, rather than allowing to be shadow behind the curtain government employees who are dismantling the government, that's not doxing. That's reporting. And so, you know, it's convenient for.

[Nico Perino]

Doxing itself is First Amendment protected activity. It is to the extent the information is lawfully obtained.

[Ronnie London]

That's right. And so to hear that is disconcerting. But also, there's a lot of loose talk from Elon Musk about jailing people like this person. But also editors, 60 Minutes.

[Nico Perino]

Yeah. He said they deserve a long prison sentence for that Harris interview that we talked about.

[Ronnie London]

Well, that's right. Now. Now, this would all come across a little bit better if Musk himself didn't look like a Bond villain. But he, in addition to claiming to be a free speech absolutist and a free speech warrior, and I give him credit in certain areas for that. You know, again, as Ronnie said, if you're bad in some areas on free speech, you're bad on free speech as a general proposition. And in this country, we don't talk about jailing people for their reporting and for their words.

[Bob Korn]

Yeah. And, you know, I'll tell you, I mean, you know where I stand on even the categories of unprotected speech. But when someone calls themselves a free speech absolutist, I always kind of raise an eyebrow and wonder if they know what they're talking about.

[Ronnie London]

Well, that's right, because I've never met.

[Nico Perino]

A free speech absoluteist who's the closest that's come to it. For you, Ron, for you, Bob, and for you, Ronnie, as a brief aside, you go black in some sense.

[Ronnie London]

But you see, that's the thing. I don't think the word absolutist carries much meaning because there are always going to be for everyone, there will be a line, there will be a limit. Whether you're talking about, in the words of the Supreme Court in near versus Minnesota, the publishing, the locations of troops or the sailing that the schedule for sailing troop ships, there will always be some kind of limit. And what we do in this country is, as I mentioned earlier, you keep them very carefully defined in cabin to certain, certain exclusive categories.

[Nico Perino]

Musk has called himself a free speech absolutist. At the same time, he is calling for the jailing of journalists.

[Ronnie London]

Once he acquired Twitter and it became X, he did release what were called the Twitter files that provided a window into this behind the scenes manipulation by the Biden administration and starting with the Trump administration, leaning on social media platforms.

[Nico Perino]

Is this a form of job roaming? He's a government official.

[Ronnie London]

Well, there are a lot of really complicated law school exam type questions that come out of this where you have someone who is sort of a government employee and sort of not, they call him a special government employee who happens to own a huge social media platform and he's conducting government business over that platform. The question is whether or not he has turned himself and his platform into a public forum subject to constitutional rules. There are many questions that arise out of this, but the first of them is how seemly is it for having someone in that position talking about jailing people for their speech.

[Nico Perino]

Do you have any thought on that, Ronnie? Is it jawboning to have a government official like Elon Musk saying that certain journalists should be jailed for their.

[Bob Korn]

Oh, absolutely. I mean, again, if you accept the premise that he's a government official and that's kind of nebulous. It, you know, reigns to be tested, I think.

[Nico Perino]

But you have, you have de facto and right.

[Bob Korn]

Exactly.

[Nico Perino]

For all intents and purpose, he's a government official. He's telling all his teams to go into these different.

[Bob Korn]

No, I would tend, I would tend to agree with that. But I mean, I think you could.

[Ronnie London]

Bring a constitutional claim against Musk for performing this role and threatening people's speech.

[Bob Korn]

Yeah. And when you. And when you threaten people's speech with apparent authority to do something about it, as Bob said in, you know, this, in the Vulo case, the court reminded us that that's unconstitutional, and particularly by.

[Ronnie London]

Someone who aspires to have access to your tax returns.

[Bob Korn]

And even if you don't have the authority, but you come across as having the authority, or threaten to be able to bring the authority to bear, that's sufficient. And even if you ultimately fold up your tent and goes home, go home, as they put it in the Backpage case where Sheriff Dark came after them, the threat itself is still actionable. The fact that you levied the threat, even if you never follow through on it, is a constitutional violation.

[Nico Perino]

I want to close out here. There was another executive order issued on Trump's first day in office, protecting the United States from foreign terrorists and other national security and public safety threats. This was their effort to go at pro Palestinian protesters on college campuses, particularly those who are here on student visas or aren't naturalized United States citizens. There was a fact sheet associated with this that made it very clear that this is what they were trying to do. The order itself comes across as more cabined, but it's raised this larger question of what are the First Amendment rights of foreigners when they are in the United States and subject to the United States jurisdiction?

[Ronnie London]

Well, if you're in the United States, the First Amendment does protect you, and it is the law that we have to obey in this country. And while I understand, you know, some objectives that you can say are praiseworthy, when you have something that is drafted this broadly and this indiscriminately. For example, this executive order says that we're going to prevent people from espousing hateful ideology. We're going to make sure that people do not bear hostile attitudes toward United States citizens, culture, government, institutions, or founding principles.

[Bob Korn]

Now, don't you dare say that counting someone as three fifths of a person was a bad idea. Don't you dare, or you're out of here.

[Ronnie London]

Exactly. And so, essentially, what they have done is define the First Amendment into what they want to prohibit.

[Nico Perino]

But, Bob, you say that to the extent these foreigners are in the United States, they get full First Amendment freedoms.

[Ronnie London]

Well, yes, unless they're violating some other law. If you're just simply going to say that we're going to exclude you because of we don't like your attitudes, then that is a constitutional line.

[Nico Perino]

Can they. Can they exclude you prior to your arriving here for Viewpoint based.

[Ronnie London]

You have. There is more authority for the government to keep people out of the United States than to deport them once they're here.

[Nico Perino]

Okay, Ronnie, anything else to add on this? I mean, this is sending the wrong message to students studying here in the United States. Yeah, you can come here, but you can't really enjoy the full freedoms to speak your mind, question the unquestionable challenge, the unchallengable, as Yale puts it, when you're in a university classroom because you might violate this executive order and get the boot.

[Bob Korn]

Yeah, well, and by the way, it's not just the executive order that's a problem. Right. Because you've got these lingering, if not speech codes on campus, certainly an orthodoxy on campus. And if the administration thinks that you've said something, I don't know, just pick something, I don't know, anti Semitic, and they suspend you or expel you. Well, your visa requires you to be actively in school and an enrolled student, next thing you know, you've said the wrong thing. You're not just kicked out of school, you're kicked out of the country.

[Nico Perino]

And this is one of the reasons that colleges and universities haven't been applying punishment even to students who engage in acts of violence on campus is because the consequence for these students is greater than a suspension. For example, it's, you have to leave the country. Yes, but you're probably not getting back in at that point.

[Bob Korn]

Yes, but they, but they have sanctions at their disposal where you have broken rules by doing something violent or vandalizing or destroying parts of a building, whatever. There are disciplinary things that a school can do, short of suspension or expulsion, that would subject you to losing your visa, and they're not doing that either. And that's a bit of a problem because you can't have, you can't protect free speech adequately or fully on campus. If when you transcend speech into unlawful conduct, you don't punish it because you know, either you're protecting a body of activity both expressive and non expressive, which renders the idea of free speech and engaging in ideas somewhat meaningless, or you're doing it the other way and you're punishing everything, both the unlawful conduct and the speech that you might have simply been engaging in while someone else was doing something unlawful nearby to you that you had nothing to do with, had no idea it was going to happen, and next thing you know, you're in the administration's office. Office.

[Nico Perino]

Yeah. I don't remember if it was the fact sheet or some other statement, but there's the suggestion seemed to be that if you are participating in a protest and something somewhere within the protest transgresses. First Amendment protected activity. Maybe someone's violent, maybe. I don't know. What was it? The Louisiana protest where someone threw a rock at police officers and Deray McKesson was held accountable for something that happened elsewhere in the. In the protest and you could be held liable for it. Right.

[Ronnie London]

And that is a problem. And the Supreme Court, when that case came to it for the second time, basically sent it back to the lower court saying, you know, basically, get real.

[Nico Perino]

But colleges do have a duty to prohibit and punish violent unprotected. Right. That's what Nazi Germany didn't do, is you had marauding gangs in the streets targeting political dissenters, went unpunished, and so they felt like they had license.

[Ronnie London]

Violence and property destruction are not examples of free speech. Political assassination sends a message, but it's not protected expression.

[Nico Perino]

Right.

[Bob Korn]

We have free speech that you don't have to do those things.

[Ronnie London]

Exactly.

[Nico Perino]

All right, guys, I think we've covered as much as I think we need to in the course of this hour and 15 minutes or so. I thank you both for joining. Again, it's Ronnie La London fires general counsel, Bob Korn. Revere fires chief counsel. Hope to have you guys back on the show sometime soon.

[Ronnie London]

Thanks, Nico. I was always fun to be here.

[Nico Perino]

I don't have my outro. This podcast is hosted and recorded by me, Nico Perino, edited by Aaron Reese and produced by Sam Lee. You can find us on the major social media networks. We're on X. We're on Substack. We're on. What else are we on, Sam? We're not on Instagram anymore. Anymore. We stopped doing some of the platforms. But you can email us at sotospeak@the fire.org with any comments or questions that you might have. Please leave us a review on Spotify or Apple Podcasts, wherever. Get your podcast. It does help us attract new listeners to the show. And until next time, I thank you all again for listening.