← So to Speak: The Free Speech Podcast
So to Speak: The Free Speech Podcast
Ep. 237: A tech policy bonanza! The FCC, FTC, AI regulations, and more
01:04:48
Does a cat stand on two legs or four? The answer to that question may tell you all you need to know about the government involving itself in social media content moderation. On today’s show, we cover the latest tech policy developments...
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- [00:00]
Ari Cohn
This is the long and unfortunate and ugly history of the Federal Communications Commission. Threats and intimidation becoming a way to do backdoor censorship. And now they're just trying to extend it in the digital age with threatening letters. You know, nice platform you got there. Shame if anything would be happening to it. You know, it's kind of like that's. It's o mafiosa politics somewhere.
- [00:18]
Jennifer Huddleston
I read of the freedom of speech.
- [00:21]
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. Welcome back to so to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perino. And today we're going to look at the world of tech free speech news. Got a distinguished panel here with me around the table in Fires DC Podcast studio. Ari Cohn, how many times you been on this podcast now?
- [00:54]
Adam Thier
This is only my second time.
- [00:55]
Nico Perino
This is only your second time? Well, we have those conversations every morning during our rapid response meeting. So I feel like, I feel like we're talking about the issues we're going to talk about today much more frequently than that. Ari, of course, is FIRE's lead counsel for tech policy. Ari, welcome back.
- [01:08]
Adam Thier
Thanks for having me.
- [01:09]
Nico Perino
We also have Adam the, who is resident Senior Fellow for Technology and Innovation at the R Street Institute. First time on the show. Adam, welcome.
- [01:17]
Ari Cohn
Thanks for having me.
- [01:18]
Nico Perino
And we have Jennifer Huddleston, Senior Fellow in Technology Policy at the Cato Institute. Jennifer, welcome onto the show.
- [01:24]
Jennifer Huddleston
Thanks for having me.
- [01:25]
Nico Perino
Another first time guest. All right, so where should we start here, you guys? Okay. Starting with section 230. Sure, sure, let's do it. On Sunday, February 23rd, Federal Communications Commissioner Anna M. Gomez posted an X thread. She wrote. I'm seeing reports that the FCC plans to take a vague and ineffective step on section 230 to try and control speech online. She continues an advisory opinion on Section 230 is an attempt to increase government control of online speech. It is meant to bully private social media companies to comply with direct demands from the administration. This, I think, comes on the heels of an exclusive report from the New York Post, which came out on February 22nd. And that reporter said that the FCC, with a new GOP majority chair led by Brendan Carr, is the top regulator of media new and old. It has the legal authority to interpret section 230 and change the prior guidance that has given those expansive protections to big Tech. And then he says that Brendan Carr can weaken or eliminate the shield by issuing a so called advisory opinion. I think that's where Commissioner Gomez chimed in. Ari, before we start on what authority the FCC has to regulate Section 230, can you just tell our listeners what Section 230 is?
- [02:47]
Adam Thier
Sure. Section 230 is a 1996 law that is responsible for the Internet unfolding and developing the way that it did. It has two primary provisions and this is going to be important in this conversation because CAR does not seem to acknowledge that one of them exists. The first precludes treating, let's say, a social media platform. Just for simplicity's sake.
- [03:08]
Nico Perino
I've got the definition here too, so we'll see how you do.
- [03:10]
Adam Thier
Okay. As the publisher of any information posted by another information content provider, for example, a user.
- [03:19]
Nico Perino
So this is C1 that says no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. So if I post on meta platform something that's defaminatory against someone else, I'm responsible, not meta. Right?
- [03:36]
Adam Thier
Right. And not only that, but if I retweet that, I am also not responsible because it protects users as well as the platform.
- [03:45]
Nico Perino
Interesting.
- [03:45]
Jennifer Huddleston
And I would just like to jump in here. And while it's easy to think about this in the social media context, one of the things that came up, particularly when we were seeing some of the litigation by NetChoice and CCIA regarding the Florida and Texas laws around content moderation, is how much broader user generated content is on the Internet. So social media is the way that we commonly hear section 230. But it's also particularly critical to things like review sites. And you can imagine again, thinking about somebody doesn't like a review, how in a world without Section 2 30, you could quickly be sued for hosting a bad review, even if it was.
- [04:26]
Nico Perino
So this is Amazon. I'm posting something about, yeah, review section.
- [04:30]
Adam Thier
Of the Wall Street Journal.
- [04:31]
Jennifer Huddleston
TripAdvisor, the comment section of a blog post. It's also things like Etsy see where you see. And that was certainly something that, that came up in ebay, ebay, etc that where you see listings posted that may be user generated.
- [04:46]
Adam Thier
That's a, that's a really, really good note. Those kinds of issues do sometimes get lost in the, you know, sexy stories about social media censorship or what have you.
- [04:56]
Nico Perino
So, so that's C1. Right. So these platforms are not liable for the content that's posted on their platforms by their users. C2 means.
- [05:04]
Adam Thier
So C2 has two provisions. We're not, we're going to ignore C2B because everyone else does. C2A provides another protection. This provides protection against liability for actions taken to remove or restrict access to.
- [05:24]
Nico Perino
Content that is obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable. So this is content moderation.
- [05:34]
Adam Thier
Well, but here's the thing. 90 some percent of content moderation cases are actually decided under C1 because the interpretation given to C1 is to protect the traditional editorial functions. So whatever a publisher traditionally does, you can't be liable for, which includes decisions whether to post, remove, modify, restrict, what have you. The way that C2A comes into that, because a lot of times what you hear is that, oh well, why do you need C2A? Why do you need C2A if C1 covers all that stuff? If you look at C1, it covers only information provided by another information content provider. So if the social media platform is for some reason responsible in part for the creation or development of that content, they cannot get protection under C1. What C2A does not have is that requirement. So if, say, a platform is responsible in some sense for creation, creating or developing some kind of tortious or unlawful content, they can still take action to say, take it down without being exposed to liability for that action of taking it down. It's belt and suspenders.
- [06:55]
Nico Perino
Got it, Got it. So, Adam, does the FCC, the Federal Communications Commission, have authority to implement Section 230, so to speak? Like, is it the regulatory authority for this law?
- [07:06]
Ari Cohn
No, and it's not. And you know, let's step back here because first of all, I was lucky enough to be present at the birth of Section 230, working in the mid-1990s at the Heritage foundation and worked closely with Chris Cox and Ron Wyden's office on a whole variety of issues. And you know, the thinking back then was that, you know, the Telecommunications act was about getting government out of the business of regulating communications and media. And the thrust of it was very much market oriented, deregulatory in context. And section 230 was really, in my opinion, sort of the. It's the policy secret sauce that unlocked the digital revolution. It basically gave us not only the greatest outpouring of human speech and expression in history, but also, economically speaking, put us in the driver's seat as a nation in the digital revolution.
- [07:50]
Nico Perino
So you have people retiring on Section 230, basically.
- [07:54]
Ari Cohn
I mean, you're talking about 2022. The Bureau of Economic Statistics found that it constituted 10% of GDP, trillions of dollars, something like $4 trillion of gross value added output, millions upon millions of jobs. More importantly, again, this is why the United States leads. And a really important forgotten part of the importance of Section 230 is that America has many benefits, but we have one of the most overly litigious hells in the world when it comes to filing frivolous lawsuits. And this really helped make sure that didn't happen, and especially made sure it didn't happen for small and medium sized enterprises, which of course flourished in the resulting digital environment. But getting back to your point, no, the FCC is not supposed to be utilizing Section 230 as a regulatory cudgel to basically take down enemies. People have asked me, how do you summarize the Trump administration's approach to Section 230 and communications policy more generally? And I said, have you ever heard the old Klingon proverb that revenge is a dish best served cold? Because that's basically what it's all about. It's like vendetta politics. They're going to use whatever instruments are at their power at their discretion, including ones that don't have anything to do with regulating, to try to indirectly regulate or to browbeat people into submission. And that's what I think is going on.
- [09:12]
Nico Perino
So are you saying that Brendan Carr is wrong when he writes, and I'm looking at the Project 2025 document, when he writes that Section 230 is codified in the Communications act and the FCC has authority to interpret that law and thus provide courts with guidance about the proper application of the statutory langu.
- [09:29]
Ari Cohn
Well, I'm going to let these two take on some of the more technical. But I'll say this, I mean, what Chairman Carr is ignoring is the broader thrust of the act within it sits and the fact that this was not meant to be the sort of regulatory sledgehammer that he and others in the conservative world are trying to turn it into now. So just the general thrust of where he's heading with this is problematic and deserves attention in its own right. And why in world are conservatives the one leading the idea of empowering the FCC to do these things? I was part in my lifetime of not one, but two different projects with conservative groups to abolish or downsize the fcc. This used to be the normal state of affairs in the conservative world was like, we need to get rid of this analog age relic. It's a dinosaur. It is the source of our problems. It created media scarcity and limited competitive options. And here we have today conservatives empowering this agency to try to be more aggressive and do more regulating than ever before. That's insane to me.
- [10:27]
Adam Thier
And section 230, it's self executing. Don't need to do anything for section 230 to be quote unquote implemented. A court looks at it and says this applies or this doesn't apply. There is just simply nothing for the FCC to do.
- [10:42]
Nico Perino
So the FCC doesn't give guidance on section 230 then?
- [10:44]
Jennifer Huddleston
Not currently. And I think that they're not, as I said, not currently and not to date. And I think that there would be some. I know this is a free speech podcast, but I've got to play admin law junkie for a minute here if it's okay. I know, I know, I'm sorry, we gotta get into that boring part. But I do think it's important to look at what has happened with net neutrality in the FCC if we want to see why separate from the free speech concerns. This is a risky path for an agency to consider going down. When you've seen the kind of revitalization of things like Major Questions Doctrine, the death of Chevron deference with Loper Bright, there seems to be an indication that the courts are not okay with agencies these days stepping beyond their brand, beyond their normal bounds of authority, and that they want clear congressional delegation. What's really interesting about section 230 is we've got the authors still around and they've kind of talked about this and whether or not they think the FCC has Authority over Section230. And I'm not saying that always has to be controlling, but if you look at the original legislative record, you have we do not want a federal computer commission. And then you also have, when this came up the first time in the prior Trump administration, Senator Wyden and former Representative Cox filing comments saying you do not have this authority under the law that we wrote. So I think that at a minimum, you would see this challenged pretty significantly on administrative law grounds from a kind of philosophical point of view. You also have a weird conflict of that people who are advocating for overturning net neutrality and removing the FCC from one layer of the Internet, in part due to the potential impact on speech related grounds, are looking at potentially inserting the FCC into this other element of the Internet that has been incredibly useful for speech, including for conservative speech. In the last few months alone, we've had Elon Musk speaking about how important section 230 was to X and its ability to make changes to content moderation and to have that kind of platform that it wanted. But then you can also think about things like Trump's own Truth Social or other platforms that have sprung up on both the left and the right as alternatives. We often hear about Section 230 in the context of big tech. But it's incredibly important to more niche platforms, platforms that are serving a very specific audience, that are going to have perhaps content moderation rules that are different than the norm. And section 230 actually enables competition that way. Because while I know we have a lot of lawyers at this table right now, it means if you're a startup in Silicon Valley or anywhere in the US who wants to host user generated content for a set of voices that you feel are underserved, your second hire doesn't have to be a lawyer who's going to tell you what to do when somebody uses your platform for what you didn't plan on it being still should be.
- [13:48]
Nico Perino
But you know, well, Ron Wyen said this.
- [13:50]
Adam Thier
You know the you don't even actually necessarily even have to get to net neutrality, although that is a very salient point to see the kind of internal incoherence here, at least from a free speech standpoint, in that what you have here are government officials saying we believe in free speech and what's the best way for us to foster free speech? Government intervention. I mean it's classic. I'm from the government and I'm here to help.
- [14:19]
Nico Perino
To Jennifer's point, Ron Wyden, I believe after this New York Post article came out, said the reason former representative Christopher Cox, who I've had on the show before and I wrote this, was for small users, people who didn't have PACs and clout and influence. And I still still feel that way. But Brendan Carr, speaking to the conservative censorship on social media issue, is arguing that section, what is it? C2A says that any action voluntarily taken in good faith to restrict or the availability of material that the provider or user considers to be obscene mood. That whole list we went through before. He's. What he's arguing is that over the past decade you have these big tech platforms run by our liberal overlords who are censoring conservative speech. They're doing it arbitrarily, they're doing it capriciously, they're doing it without a lot of transparency. And what he's arguing is that this is not done therefore in good faith. And section 230 says that these moderation actions need to be taken in good faith. Why is he wrong?
- [15:23]
Adam Thier
That Definition of good faith itself requires violating the First Amendment. You know, the, the one area where good faith has actually been used and this is again, keep in mind that actually most of these content moderation court cases are decided under C1. So to your earlier point, ignoring the vast majority of these, but the C2.
- [15:47]
Nico Perino
It'S there, it's there, it says good faith.
- [15:49]
Adam Thier
Even, even if, even if he's right that content moderation cases are under C2A. You know, the one area where C2A has been in effective in terms of getting rid of bad faith things is when it comes to anti competitive animus. When you are say doing something, you're removing this not because you actually think it's say otherwise objectionable, but because you are trying to say harm a competitor.
- [16:17]
Nico Perino
So your ex and Apple posted something on your platform announcing a new product and you're trying to undermine that product because you see it in competition to your product.
- [16:25]
Adam Thier
And the, the, and the precedent behind it is, is not entirely fleshed out and clear. It's pretty much come up like once, once or twice. And if you try to broaden that to what Brendan Carr is talking about, what does that entail? So look at what you would be talking about proving in a court. Say it's a quote unquote hate speech, you know, content rule.
- [16:52]
Nico Perino
Sure.
- [16:53]
Adam Thier
So what Brendan Carr is going to be arguing in court that your definition or application of hate speech rules are, is in bad faith because I don't agree with it. Which requires necessarily defining hate speech, defining hate speech and then imposing whatever the government's preferred definition of hate speech or the government's preferred definition of the consistent application of hate speech over the private party whose editorial discretion it is in the first place. You are by necessity supplanting the private editorial decisions of a social media platform, say with the governments. And if there's anything that violates the First Amendment, it has to be that.
- [17:41]
Jennifer Huddleston
If I can just jump in really quick because I think we're focusing on one element of what content moderation is, which is certainly important, which is the debate over what gets taken down. But content moderation isn't just a debate about what gets taken down. It's also a debate about what gets left up and the reason I, and to what extent it gets received and all these other tools. I'm sure we may talk about some of those later on in this conversation. The reason I want to make this point now though, and that I think it's so important is for those who think that good faith hasn't been properly interpreted and that they are somehow willing to allow the government to be the arbiter of good faith. The reason this should be so chilling as a First Amendment violation is imagine if someone that you disagree with had that power. As we all know, once you give the government the power over speech, it is very, very hard to get back. So that could mean that impossible. That that could then mean that someone after Commissioner Carr, after Chair Carr is looking at using this to complain to, you know, for conservatives out there to complain about conservative content getting left up that platforms are not in good form, faith executing on their hate speech rules nearly enough.
- [18:56]
Nico Perino
If we got rid of section 230 or sunset it would this result in more censorship on social media?
- [19:02]
Adam Thier
Almost assuredly for one of two reasons, one of which being it would then become just infeasible to host user generated content at any kind of meaningful scale.
- [19:12]
Nico Perino
Because these platforms would be liable for what everyone says.
- [19:14]
Adam Thier
Yeah, and you know, maybe one platform would try to stick it out for a while with a huge legal budget, but forget about any kind of competition between platforms because most of them will go under in a heartbeat. And two, you know, the other meaningfully reasonable thing that a platform could do is decide to simply pre screen every single piece of content and avoid anything that could potentially reek of trouble.
- [19:38]
Nico Perino
I want to close out this part of the conversation and turn now to something, Adam, that you had tweeted about on, I believe Friday you had responded to something that Brendan Carr said on Twitter. He noted. Brendan Carr noted, I have received complaints that Google's YouTube TV is discriminating against faith based programming. These concerning allegations come at a time when American public discourse has experienced an unprecedented and unacceptable surge in censorship. And he concludes his tweet by saying, I'm asking Google for answers. I have the letter that he sent on March 7 to the Chief executive officers of the various Google companies, including YouTube, where he says that the FCC has authority to regulate multi channel video programming. Distributors cites section 230 says likewise Google's office, a range of projects that have benefited from the protections contained in section 230 of the Communications act with respect to those covered products. Google's conduct is only protected to the extent its actions as relevant here are taken in good faith. So he's looking at faith based programming on YouTube TV. Adam, what was your thought on this?
- [20:55]
Ari Cohn
Yeah, well this is quite silly. I mean, so substantively speaking, if Google is really making an attempt to try to censor faith based programming on YouTube, they're doing an absolutely horrible job you know, there's never been a platform in human history where more faith based programming, religious programming in general, has ever been available freely to the masses. And this distinction between YouTube TV versus YouTube is irrelevant and dumb because as long as you can go online and search, you can find these things, you know. And what is the FCC doing regulating Google in general?
- [21:28]
Adam Thier
Not just that, but like on YouTube, all the stuff is free on YouTube TV, you have to pay. So like, if there's more stuff available on YouTube, like, that's great.
- [21:35]
Ari Cohn
And even if he wants to make.
- [21:37]
Nico Perino
YouTube TV is what they call over the top streaming platform.
- [21:39]
Ari Cohn
Right. So you could get into the technicalities of like FCC law, media law, MVPDs and all this jargon. But the bottom line is conservatives used to be in favor of getting rid of most of that stuff, trying to eliminate these ridiculous archaic analog age media regulation rules.
- [21:56]
Nico Perino
And these rules, Adam, were they implemented because of broadcast scarcity? The spectrum scarcity?
- [22:01]
Ari Cohn
That's part of it. But then we also got the FCC got involved in the business of regulating cable and satellite television. They grew their mission and it was loosely based on scarcity rationales and then competitiveness rationales. The bottom line is that those rationales are all gone. It used to be that we could literally, and I used to do this in a publication that I wrote on media ownership issues. I used to go out and count cable channels and we used to think for a while like 50, wow, that's pretty great. And then it moved to like 500. And then it moved to thousands are like, we're going to stop counting.
- [22:31]
Nico Perino
And you still couldn't find anything to watch.
- [22:33]
Jennifer Huddleston
Explain to people what cable was at this point. You used to, rather than going to your various streaming services, have this like box or this cable that ran into.
- [22:42]
Ari Cohn
Your tv and it's all crazy now. I mean, what do we even have these?
- [22:45]
Adam Thier
Settle down.
- [22:46]
Ari Cohn
It's like we're in this search for a metaphysical definition of what is media, what is a channel, what is television? Who cares?
- [22:54]
Adam Thier
We have choices on one channel.
- [22:56]
Ari Cohn
Yeah, it's all that matters is that we have choice.
- [22:58]
Jennifer Huddleston
I also want to kind of point out something else with this letter that I think has to be part of this conversation, which is some of the conversation around jawboning, because there are the actual kind of debates to be had over what authority does the FCC have if it were to try and actually bring a claim against Google over YouTube, or if it were to try and issue an advisory opinion. But then there's also this question of what happens when we kind of continue to see these kind of letters. What kind of pressure, both informally and formally are we seeing placed on private actors by the government around how they choose to host speech? And what does that mean for the culture of free speech? Speech not only when we see the US Government doing that, but when we see governments around the world who might not have the First Amendment, where we could sit here and say, well, if they did that, that could be challenged under that. What does that mean in terms of how platforms are able to continue to offer these forums that have really benefited those who might not have traditionally had a voice?
- [24:03]
Nico Perino
But Chairman Carr says here he's just asking questions. People are asking him questions. So he's asking Google questions, right? What's wrong with that?
- [24:10]
Ari Cohn
So let's go back to a podcast you hosted recently with Ronnie and Bob here at Fire and talked about regulation by raised eyebrow. This is all a shakedown racket. This is about threats and intimidation and jawboning. And you know, regulation by raised eyebrow has a long and unfortunate history at the FCC where knowing that the First Amendment provided a barrier to, you know, direct regulatory threats to companies and media outputs, you could go the opposite route, go indirect routes and threaten at the margin. And so in the old days, it would be basically like CBS was considering running something in primetime. The FCC chairman would call them in the office, say, you're going to run what tonight? And he'd raise his eyebrow at them. And then all of a sudden it wasn't run. And so censorship happened indirectly without any law or regulation being implemented. And so this is the long and unfortunate and ugly history of the Federal Communications Commission. Threats and intimidation becoming a way to do backdoor censorship. And now they're just trying to extend it in the digital age with threatening letters. You know, nice platform you got there. Shame if anything would be happening to it. You know, it's kind of like that's it's o mafios apology.
- [25:12]
Nico Perino
And so hold on to just put clarity to what Brendan Carr is alleging. As an example, he tells Google, Great American Media wrote a letter to me in which they claim that YouTube TV deliberately marginalizes faith based and family friendly content. Great American Media states that its Great American Family Network is the second fastest growing channel in cable television. And while they are carried on a range of cable and streaming services including Comcast, Cox, hulu, FuboTV and DirecTV, YouTube TV refuses to carry them.
- [25:42]
Adam Thier
That's like 1% of the streaming services, by the way. Like, that is not a long list of streaming services that carry it for.
- [25:48]
Nico Perino
The Rest, I subscribe to Sling and I don't see Sling lists there. Maybe they'll get a letter here soon enough, I don't know.
- [25:53]
Ari Cohn
And cars. Undercutting his own point because he's pointing out all the other ways you can get this speech right. Who cares if one of these don't? You know, this is a long part of FCC regulation going back to like, things they used to debate, like, should we have the tennis channel on Comcast? And like the tennis people would come and say we must have tennis. You know, there's always going to be a special interest or constituent says, I want my stuff there And I want.
- [26:14]
Adam Thier
17 Big Ten overflow channels.
- [26:15]
Ari Cohn
Yeah. And not only do I want it there, but I want like preferential channel treatment. Like I want the white glove treatment. You know, bring me up into the upper tiers and all this stuff. This has been going on forever. This is all what cuts back to editorial discretion and the question of what like media companies should be allowed to do with their editorial discretion as a First Amendment basis. And the FCC should get out of this game entirely. Not just for old analog, but obviously for new companies. They have no jurisdiction back to what.
- [26:40]
Adam Thier
Both of you were talking about. Jawboning, like, can. Let's just also, like, remember context here. There was an entire lawsuit filed because a candidate for president said that social media was killing people. And there was just a whole brouhaha over just that. And here we have an actual person in immense government power writing threatening letters and the same type of thing that he himself complained about under prior administrations. And just crickets. Completely crickets.
- [27:14]
Nico Perino
So Brendan Carr criticized this sort of activity when he was not determined to say that.
- [27:18]
Adam Thier
Yeah, he went in front of house panels and whined about it for weaponization.
- [27:24]
Ari Cohn
Yeah, they kept going back to weaponization of regulation. And in one sense they were right. You know, I mean, this is the thing is, and getting back to a point Jennifer made earlier, it used to be that, you know, a lot of conservatives believe that, like, well, we don't want to have these rules in the books when the next crowd comes into town. But unfortunately they've kind of given up on that and they said, no, it's our turn. Turnabout's fair play. You know, revenge will be served and served cold. And this is that moment. And so they've given up on principle and they're now just down to just good old fashioned like vendetta, politics.
- [27:52]
Nico Perino
Owning the libs.
- [27:53]
Ari Cohn
Yeah, owning the libs. And in some cases, I don't even think that Carr and others necessarily want to see a conclusion to this. It's just the whole process of making people grovel before them and like hurt the pain of it and then the cheering that goes on in their base. And again, both sides play this game. The left plays this game too. And at the end of the day, this grievance politics that we've seen infect the world of technology oftentimes, in fact rarely has a full conclusion, judicially speaking. But in the short term, it can inflict a lot of pain and create a lot of attention, especially among your base.
- [28:25]
Nico Perino
It's very weird sadism to multi million dollar settlements with the president.
- [28:30]
Ari Cohn
Well, that's, you know, on your previous podcast.
- [28:32]
Nico Perino
Yeah, we talked about that a lot.
- [28:33]
Ari Cohn
That is what's really scary. I'm really concerned about media companies, technology companies caving and signing these agreements to make, to get out of the short term pain. Like, you know, somebody's applying the cause.
- [28:44]
Adam Thier
Of long term pain.
- [28:45]
Ari Cohn
Well, that's exactly in the broader world of free speech and First Amendment long term pain. Right? Because we'll say, well, now we've got precedent. People settling, they knew they were doing something wrong, even though that's not what was the case of the settlement. They're just like getting out of, getting out of harm's way in the short term and it has terrible long term ramifications.
- [29:02]
Jennifer Huddleston
And again, I want to go back to some of the international dynamic here in places where we don't have a First Amendment of if you have companies making these deals with a government when they could have pushed back under the First Amendment, what's to stop a more totalitarian government from saying, no, we want you to do xyz. And then you have, well, you settled with them. Why won't you play with us kind of conversation.
- [29:26]
Nico Perino
Well, this is the problem when you abandon principle, right, is you have no moral leg to stand on when authoritarian countries abroad do the same thing. This was my, my deep concern about the TikTok ban, right? You have Russia, you have China, you have all these authoritarian countries banning American platforms within their borders. And then here we go, a platform that people can voluntarily choose to use, banning it within our borders.
- [29:48]
Ari Cohn
And one, and one added component to this, Nico, which is really important, is that there is the added danger of sort of regulatory quid pro quos when like a company has like a merger going on or some other business before the FCC or any regulatory body and then the sitting regulators start playing games like, oh, we see you've got something you need to have done over Here. Well, it'd be nice if you could do us a little favor over here. And many, many conservatives wrote very long law review articles about what a bad idea that was, how that was. Merger extortion and regulatory blackmail they called it, and quite rightly so. But now turnabout's fair play. They're all playing the same game now. It's just a question. Is our guy in power to help extract.
- [30:27]
Nico Perino
So Ben Smith, who runs semafor the news outlet, asked Chairman Carr about this on Thursday, February 27th.
- [30:34]
Ben Smith
It sounds like the argument you're making, but correct me if I'm wrong, is that the FCC and the previous administration was acting against or looking into conservative media inappropriately and that you want to righten the ship by inappropriately looking into the. What I'm saying is the FCC is a police.
- [30:52]
Jennifer Huddleston
Really?
- [30:52]
Ben Smith
Is that not. That's not what. What I'm saying is the SEC is a place that operates by case law and by precedent. And these cases and precedent that were developed over the last four years were apparently not controversial when the Democrats were in charge. I was surprised that applying the same precedents is now considered controversial. But you thought that many said at the time you thought they were partisan and inappropriate. There are things that the FCC does that once they do it, that creates those rest of them, that grace to keep case. That creates the thing that the SEC is supposed to follow. What we're doing right now is following the law that the SEC has developed over the last four years.
- [31:26]
Nico Perino
So it seems like Brennan Carr's interpretation of the Federal Communications Commission's authority has changed now that he is in power. Isn't that the story as old as time? That's right. Any thoughts on that or does it speak for itself?
- [31:42]
Adam Thier
It's a startling admission, to be honest. Like I would not be caught dead telling Ben Smith from semaphore on a C SPAN broadcast thing that I have absolutely no principles, but here we are.
- [31:54]
Nico Perino
But is he wrong? Is he wrong?
- [31:56]
Adam Thier
Yes, he's wrong. Of course he's wrong. Because precedent can't override the First Amendment.
- [32:01]
Jennifer Huddleston
Right. And I would add there, though, too, to those that are pushing back against some of the concerns about the use of this in the current administration that are coming from the left to recognize that this is a prince. This should be a principled based approach in the pushback against it as well, in the sense that, you know, if you don't want the FCC under Carr to have this power, don't assume. Don't assume that you want it when it's the next time that it's a.
- [32:30]
Adam Thier
Democratic chair and even maybe admit where there have been missteps in the past and overreaches, I mean, that could go a long way towards actually creating that principled reaction. You say, you know what? Yeah, we did a couple of things wrong when we had power. And you know, even if it's a lesson learned late, it's still a lesson and it's still something that can actually teach the public and other people the, the value of the principle.
- [32:59]
Nico Perino
The FCC is an independent agency, right? At least theoretically, although the administration is trying to eliminate the independence of some of these agencies.
- [33:08]
Ari Cohn
Well, and we have history that says that presidential administrations have utilized, you know, backdoor mechanisms to basically encourage, like FCC chairs to go after media companies with the Fairness Doctrine and other types of regulatory instruments. You know, the threat of license revocation is a death sentence in the world of traditional media for broadcast outlets. Now, luckily, newer media outlets did not have those same licensing regulations regimes.
- [33:31]
Nico Perino
But the fcc, these are licensed to use a certain portion of the broadcast spectrum.
- [33:35]
Ari Cohn
That's right. And again, this just applies to broadcast radio.
- [33:37]
Nico Perino
Do you know how long those licenses last?
- [33:39]
Ari Cohn
Well, they, they seven years is what it used to be. But then they're really perpetual. They basically don't get pulled. But you can use the threat of pulling them or you can use other sort of indirect mechanisms to extract a lot of promises and put a lot of people.
- [33:51]
Nico Perino
Do they automatically renew absence if the licensee wants it? Yeah, okay.
- [33:57]
Ari Cohn
Yeah, it works differently than it used to. And luckily we don't have our government yank. We're not a third world republic quite yet. I mean, we basically don't have governments yanking license left and right, but they use other instruments to extract promises and concessions. And getting back to Ari's point, which is that a principled FCC chair would be saying, look, we need to attack this regulation at its source and get rid of it. This is relics of a bygone era and we've always been in favor of downsizing unnecessary regulations. And what about that whole doge effort, right? I mean, and like getting rid of rules. Let's do our part here by saying that rules were put in the books all these many decades ago, and in this case now a full century ago do not have the same relevance that they used to in an age of scarcity. I mean, we now live in a world of information abundance. The fundamental rationale of this agency has been challenged to its core, and we're still regulating like it's 1970.
- [34:48]
Nico Perino
We've been talking on this podcast a lot about the fcc. You think that's unwarranted?
- [34:53]
Ari Cohn
I don't think so because it still continues to put a lot of pressure on media and speech.
- [34:58]
Nico Perino
But. But has it been doing more in the last two months under the Trump administration than it has previously? I feel like I've been talking about it a lot more and I just want to be fair to the, the topic. Like, are we, are we blowing this out of proportion?
- [35:10]
Jennifer Huddleston
I think it's the nature of what this podcast discussed and what your, your focus is on. For a while, there were a lot of discussions around potential Section 230 reform in Congress. Congress, yes, there certainly are debates that impact free speech, particularly online speech, when we're thinking about something like the Kids Online Safety act or things like that in Congress. But a lot of the debates around section 230, around online content moderation more generally, that we've seen at least since the start of the year, have been at the fcc or I think we're going to get into what's going on at the FTC as well in a bit, at least agencies, as opposed to in Congress. There's also some action in the courts, but again, we saw the net choice cases last term around content moderation. We'll see what kind of happens next there. There's kind of some age verification cases, including Free Speech Coalition v. Paxton, that are before the court. But again, when we're thinking about these kind of broad questions of online content moderation, the government speaking, potential significant changes in violation of the First Amendment there, where we've seen the most recent action has been in this discourse around are the agencies going to act or not, as opposed to is Congress going to try and pass a law?
- [36:26]
Adam Thier
I think what you also seen before is the FCC has done, quote, unquote, done stuff in this area before, but it actually hasn't accomplished anything. And it's kind of just been this like perpetual state of limbo on these issues. And now you see Brendan Carr making this push to actually effectuate things instead of just dallying around arguing about it for four years, which is kind of how the FCC worked before. So, you know, it's a little bit more pressing now because there's actually a risk of something happening.
- [37:01]
Jennifer Huddleston
And one of those things was the petition under the prior, the NTIA petition under the prior Trump administration, which I think is why, particularly for folks who were following free speech debates about five or six years ago now, and remember when that was, was a concern and was a conversation that was being had and was being had under these same questions.
- [37:21]
Nico Perino
What is this petition for our listeners.
- [37:23]
Adam Thier
Those, the NCAA are the ones who petitioned the FCC to engage in section 230 rulemaking.
- [37:31]
Jennifer Huddleston
So this stemmed from the prior Trump administration issued an executive order around section 230 or social media and content moderation. I apologize, I can't remember the exact name of the executive order or how it was fully framed because the FCC is an independent agency. That order actually directed the NTIA to petition the FCC to engage in rulemaking and possibly also advisory opinions. I can't remember. Again, we're talking six years ago, but for the FCC to engage on the Section 230 issue, a initial kind of comment period was held, there was a change in administration.
- [38:10]
Nico Perino
And so so now they're picking it back up.
- [38:12]
Jennifer Huddleston
Now there's a, I think there's a lot of conversation from those who were engaged in, in free speech issues that during that time period with some of what we're hearing from, for example, Chair Carr with some of what was in Project 2025, are we going to see what seemed like it had kind of died down at the fcc?
- [38:31]
Adam Thier
But the docket was open. You know, the NTIA petition never was actually closed out, which is why they can just pick it back.
- [38:36]
Jennifer Huddleston
And so that's been why I think there's been so much attention on some of these comments.
- [38:40]
Nico Perino
Okay, let's, you had, you had teed up the Federal Trade Commission action on some of these issues. So let's, let's look at that. On Thursday, February 20th, Federal Trade Commission Chair Andrew Ferguson posted an X thread. They all post X threads, right? As we're all on X these days, although X was down this morning, so the world stopped. Ferguson posted this big Tech censorship is not just un American, it is potentially illegal. The Federal Trade Commission wants your help to investigate these potential violations of the law. We are asking for public submissions from anyone who has been a victim of tech censorship and then he has in parentheticals here, banning demonetization, shadow banning, etc. So they're looking for submissions from anyone, including employees of tech platforms or from anyone else who can shed light on these practices and the ways in which they might violate the law. Ari, you responded and said, but consumer protection law is no talisman against the First Amendment.
- [39:37]
Adam Thier
Well, I also just want to first flag my absolute favorite thing about this whole fiasco is that number one, probably the most censored people on social media are, say, adult film actors and people posting adult content. And the docket allows you to Upload attachments, just strategic blunder.
- [39:58]
Nico Perino
So the FTC is getting a bunch of porn right now, is what you're saying?
- [40:00]
Adam Thier
Almost certainly, if they're asking for examples, they're getting porn. Just really just bad idea, mind blowing.
- [40:08]
Nico Perino
But, but okay, let's steel man, this right. So Andrew Ferguson is saying that these tech platforms have policies. You know, Twitter used to say that they're the free speech wing of the Free Speech party. It's a public forum, what have you. And then you have content moderation happen. Posts are taken down. People see this to be contrary to the terms of services these platforms allow for. And this is the FTC saying, hey, you got stuff's taken down in violation of these terms of service. We want to know that because that's an unfair and deceptive trade practice.
- [40:40]
Adam Thier
But it's not, and for two reasons. One, it's the same argument as the good faith argument. You have to, you actually have to sit here and sit in just subjective editorial judgments. And there's no real way to do that. That's consistent with the First Amendment. But it's also just a standard concept in consumer protection law, that consumer protection law protects, you know, the reasonable expectations of the consumer. But terms that are not really subject to a concrete and pretty definite definition. You can't just base UDAP or some kind of competition claim on a piece of what's basically puffery or something that's so malleable and subjective as to not actually give the consumer a reasonable expectation that what they think that term means is actually what it means. And when you get to things like hate speech or abuse or harassment, there is just nothing about those terms that is narrowly definable such that it actually gives a consumer an expectation of exactly what that term means.
- [41:52]
Jennifer Huddleston
Which, speaking of terms and what they mean, can we talk about the use of the word censorship in this conversation? And, you know, I think it's very concerning that when the likely response of government action would legally be censorship of both private platforms and individuals on the basis of the government decision about what speech must stay up or must be taken down that we are calling what are content moderation decisions by private actors censorship.
- [42:27]
Adam Thier
Well, and the hilarious part is how willing everyone is to misuse the term Orwellian. And.
- [42:33]
Nico Perino
But this, this, this speaks to the decision in Moody v. Netchoice that the Supreme Court handed down last year, where in that decision they write, the reason Texas is regulating the content moderation policies that the major platforms use for their feeds is to change the speech that will be displayed there Texas does not like the way those platforms are selecting and moderating content and wants them to create a different expressive product communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose.
- [43:05]
Ari Cohn
So.
- [43:05]
Nico Perino
So getting back to your earlier point, Ari, what you were saying is that you have these terms of service. They ban things like harassing, discriminatory hate speech, or whatever it is you're saying. To define any of these terms for a regulator to look at whether they are deceptive or unfair is to define those terms, which the government cannot do, because that would be prohibited, again, by the First Amendment.
- [43:25]
Adam Thier
Right. I mean, take, for example, you know, a. The phrase from the river to the sea, Palestine will be free. Source of huge controversy. Some people interpret that as a call for ethnic cleansing Jews out of, you know, Israel and getting rid of the state of Israel. Some people view that as a, you know, statement, a slogan in support of, you know, Palestinian independence, and then you have.
- [43:52]
Nico Perino
Or the reunification of the British mandate, I guess.
- [43:54]
Adam Thier
Yeah, right. How do you judge whether or not that, say, is consistent with, say, somebody on Twitter saying, you know, America should be a white ethno state? How are you to judge the consistency of applications of content policy between those two things? Whether. Okay, so platform thinks this one is hate. Too hateful. But this one is not too hateful. How do you judge that?
- [44:26]
Nico Perino
It's like what happened to the college presidents in front of Congress. It calls for Jewish genocide. They were talking about from the river to the sea, Palestine will be free. Is that a call for genocide? Is that a call for. For a political solution to the Israeli Palestinian?
- [44:39]
Jennifer Huddleston
So I can give you an even more benign example.
- [44:41]
Nico Perino
Oh, please.
- [44:44]
Jennifer Huddleston
I'm not good at. One of my favorite content moderation examples to use is this subreddit that is just pictures of cats standing up. So everyone's with me here. The only thing we're allowing, our only content moderation rule is cats standing up. If we are moderating in good faith, does a cat stand up on two legs or four?
- [45:05]
Nico Perino
Ooh. What do you think, Adam? Do you have any cats?
- [45:10]
Jennifer Huddleston
So, to me, this is, you know, the example.
- [45:11]
Adam Thier
Well, it's too early in the morning for questions.
- [45:14]
Jennifer Huddleston
Are we going to. You know, you have obviously very controversial political, philosophical questions, but you also have very. What are oftentimes simple questions that just have to have a content moderator make a decision. And one platform may say, both of these, both two legs and four legs are allowed. One may say, we believe cats stand up on two legs, and we're taking down all the Four legged cats. One may say we believe that cats stand up on four legs and that a lion constitutes a cat. And we're going to have a very broad interpretation.
- [45:46]
Adam Thier
If it's standing up on its front.
- [45:47]
Jennifer Huddleston
Legged legs, is it a handstand? You know, things like that. You know, this is a very straightforward, benign content moderation rule. But it's very easy to see how decisions have to be made and that those decisions that may be different from perhaps what I'm guessing with the four of us, we would come up with slightly different interpretations of what a cat standing up rule.
- [46:08]
Nico Perino
I don't go anywhere where cats are involved.
- [46:11]
Ari Cohn
Well, we can tie this all together with a simple, simple line, which is that the editorial decisions of a private platform are not unfair and deceptive practices for purposes of FTC regulation. I mean, when we're talking about decisions about content moderation or just basic editorial discretion, unless there's some truly deceptive act going on by the actual speaker, the platform itself, then everything else after that is just speech. It's just, it's protected. And like the FTC is way out of bounds here.
- [46:42]
Nico Perino
So what might be an unfair or deceptive trade practice? Like X saying Your post got 500,000 impressions when it really only got 10.
- [46:49]
Adam Thier
Maybe in the case where you're monetized and that makes a difference to your bottom.
- [46:53]
Jennifer Huddleston
And if I can just add something here because there's a six question in this RFI that really doesn't have anything to do with cats. But Nika is going to be mabs. I'm going to bring in another area of law. Again, it has to do with antitrust. And that last question in that rfi, ask if content moderation occurred because of the nature of lack of competition in this space, which if I can just say not only is content moderation not an unfair and deceptive trade practices violation, it's also not an antitrust violation. And that if anything, antitrust intervention could make a lot of these debates around content moderation even more difficult, could result in platforms having even fewer tools to respond to the type of harmful content spam animal crime, ironically, beheading videos, ironically.
- [47:46]
Adam Thier
Would actually also make their decisions more in line with each other.
- [47:50]
Nico Perino
And ironically also the content moderation decisions of many of these platforms are what led to the creation of new platforms such as Rumble or True Social.
- [47:59]
Jennifer Huddleston
And if you like competition in social media, you should love Section 230 because it keeps that barrier to hosting user generated content low. So I just want to highlight that for perhaps any other antitrust wonks out there.
- [48:12]
Adam Thier
I like that.
- [48:12]
Nico Perino
What is a conversation about tech policy without a conversation about artificial intelligence? Right, so let's close out there today. Adam, you caught my attention because on Sunday, February 23, you posted another X thread. X is just my news editor. I'm sorry, you posted. AI regulatory activity is completely out of control in the United States. We have already seen over 700 bills introduced less than two months into 2025. That's around 13 per day. Why is this out of control and why is that a problem?
- [48:45]
Ari Cohn
Well, unfortunately, first of all, here we are a couple weeks after that, we're now up to 800 bills.
- [48:49]
Nico Perino
Okay? You're the guy who's keeping track.
- [48:51]
Ari Cohn
A dozen plus, you know, bills a day. And the vast majority of these are state regulatory measures. There's never, in my, in my 34 years doing tech policy, I've never seen any tech, not just any tech issue, but any policy issue period, where within the first 70 days of a year you saw 800 bills on the topic introduced. That's unprecedented level of interest in an issue. And of course it's because for so many different people and so many different interests, AI is the ultimate boogeyman issue. It's coming after their jobs, it's coming after their, their, their content, it's coming after them, whatever, it scares people. And this has led to fear based policies leading the way as opposed to the Internet where we led with freedom based policies. And so as a nation, we're about to see a reversal of the Internet and digital economy and speech vision that we had, which was one of freedom, of permissionless innovation, of embracing, you know, the fear of the unknown was fine, we're going to go into it and take that leap of faith and we came out better for it. But now a lot of people say, oh but boy, we should have thought that through more, you know, like we don't want to have happen with AI. What happened to the Internet. I'm like, what you think we should have? What was so bad about that? I mean, we had all of these wonderful new choices and options and competition and oh, by the way, would you have wanted all licensed by design locked down prior restraint on everything on the Internet before we allowed it into the wild? That's called the European model. And we have really good experience from the past quarter century of how badly that has derailed innovation and speech on the other side of the Atlantic and here in America, by contrast, we've led. And our household names in the world of tech are Europe's household names in tech. And what was the greatest irony of this all is that the Europeans regulated aggressively on tech to try to go after large technology companies. And all they have left to show for it is large technology companies. They're the only ones with the compliance teams and the pockets to litigate and deal with all of the regulation. And so we're seeing an unfortunate moment for technology policy in the United States with very few people being defenders of the old vision. And now we're sort of holding on to past gains and praying that we don't lose ground on Things like section 230 and more broad based just, you know, economic freedom and permissionless innovation in the aia.
- [51:04]
Nico Perino
Can I try and pick a fight amongst you guys here because I've talked to you about this in the past? Ari, let's go back to the 1990s. You said we avoided fear based regulation in, in favor of freedom based regulation. I'm not so sure of that history. When you look at, for example, the cda, the Communications Decency Act. I just got done reading Mike Godwin's book Cyber Rights, where he talks about the, the cyber porn panic, what was it, summer of 1995 that led to the CDA essentially passing without any dissent. And he says that was actually a good thing because the law was so poorly written as a result of not having debate over it that it led to a comprehensive strike down on First Amendment grounds in the courts. And so, and, and it also, the law also allowed for immediate appeal to the, directly to the Supreme Court. So this all happened in kind of quick succession. Now Adam, I know you're a believer in a national framework for artificial intelligence regulation. Ari, I know you are very fearful of a national framework in because you're worried that maybe we'll get something like the cda. But if that goes to the courts for drawing on like the, the CDA comparison, like, wouldn't that help set up a really good challenge that will have implications across the country and will forestall some of this AI regulation? Like, I know we got many CDA's too, but still, what I actually worry.
- [52:28]
Adam Thier
About is I worry about a law. And this is true in many different cases. I worry about a law even if it is a, you know, whether it's state or federal, that is just good enough to make challenging it very difficult.
- [52:45]
Nico Perino
So not like the cda, that's the regulated indecency.
- [52:47]
Adam Thier
Yeah, the CDA was honestly, I agree with Godwin on this. You know, we got really great strong precedent that guided our First Amendment on the Internet for decades.
- [52:59]
Nico Perino
He later, he later wrote he thought he could just retire. He's like his job being so completely done by the Supreme Court.
- [53:05]
Adam Thier
But you know, the, the thing that I worry about, you know, I'm of many minds of this. I worry about 50 states passing 50 different laws making it literally impossible to operate in the United States. That is very possible. I also don't trust Congress to get it right. I would kind of prefer that maybe, you know, if I had my druthers, what we would stop doing is stop trying to anticipate problems before we know that they actually exist and, and try to shoehorn regulatory solutions to things that we aren't even sure how they would manifest if they do exist, because we're just going to screw it up more.
- [53:45]
Jennifer Huddleston
And we should also quit presuming things are new problems. Yeah, you know, that's, that's one of the concerns I have. When I look at some of the amount of action around both AI in state legislature as well as some of the bills we've seen at a national level, there certainly are debates to be had over what a broad AI framework should look like. Do we still. I'm an optimist, I still think we have the opportunity to get it right. And Adam is going, when you say.
- [54:14]
Nico Perino
We, you mean Congress.
- [54:15]
Jennifer Huddleston
I mean we as an American people have the opportunity to get this right and have that 96 esque moment with something that really reaffirms our belief in kind of innovation and, and the free market. And I'm getting looks from both Ari and Adam that indicate I might be alone.
- [54:34]
Adam Thier
You have a lot of faith.
- [54:35]
Jennifer Huddleston
But I want to say one of the things that I do think we certainly should talk about in this podcast are some of the AI proposals. While these broad frameworks often have implications for speech, there are ones that are more direct attacks on free speech, particularly in the election context. We've seen a lot of this at both a state and a federal level, kind of stemming from some of the debates around online election content, but then taking it further in ways that could have eliminated political parody, could have eliminated useful tools for a candidate reaching their audience by having auto generated captions in a different language or something like that.
- [55:16]
Adam Thier
You know, it's funny actually you say that because one of the things that always struck me from a couple years years ago when I was participating in the Senate AI Insight forums on elections was like right before that session happened, there was a moment where Eric Adams had a. Had deep faked his voice speaking other languages to constituents and people were aghast, like they were just, oh my God, how dare you mislead people into thinking you're a polyglot. And I'm sitting here thinking, actually if I'm a person who doesn't speak English as my first language and I get a call from the mayor in his voice, not a translator's voice, speaking a message in my language, the amount of inclusion in the political system that I feel, the amount of belonging I feel which then probably translates into participation, significantly outweighs any deception that I think. Eric Adams speaks languages that he doesn't. I mean, come on.
- [56:12]
Ari Cohn
You know, I want to get back to first principles here with regards to like regulating AI. First of all, Jennifer's point's a good one. You know, we already have a lot of different forms of regulation for AI and the various harms that people identify, so called algorithmic discrimination and bias, things like that. We have civil rights laws, we have unfair and deceptive practice, we have other mechanisms. But there's a whole new class of regulatory proposals out there, especially at the state level, on numerous grounds to essentially, it's essentially a war on computation. And the problem here is that we got to talk about what do we mean by interstate algorithmic speech and commerce? I mean, at some level, you know, these algorithms and code don't just stop at state borders and say, is this safe? Is this protected here? Can I go to the next state to the Next. In the 1990s, whether we got this right by design or by accident is kind of irrelevant at this point. But the bottom line is we did get it right. We had a framework for global electronic commerce and we had a telecommunications act that generally treated the Internet and digital commerce more like a national resource or national platform and generally speaking, move towards a world of more forbearance. Except for a couple of notable things like the obscenity issues about that we also had the agription wars, right, that was terrible, but we won that. It's not to say it's all going to be good, but we do need to think about like what makes sense constitutionally speaking and practically speaking. We've got to think about what this means for free speech more broadly. Broadly, you know, last year at this time, Greg testified, Greg of fire testified at a great hearing on the concerns about weaponization of AI. And Greg said, but the most chilling threat that the government poses in the context of emerging AI is regulatory overreach that limits its potential as a tool for contributing to human knowledge. And I pointed out in a subsequent piece praising Greg's testimony, this is the next great technology of freedom, to borrow a phrase from an old book that inspired me by the political scientist Athel de Sola Poole, who wrote a book in 1983 called Technologies of Freedom and talked about how we had to get the prerequisites of free speech and free commerce right and set sort of basic frameworks up. And the frameworks were, however, rooted in forbearance. And this is the tricky part when it comes to communications technology, we do need a national framework of some sort, but it needs to be light, touch, market oriented, free speech embracing. Are we going to get all those things? Probably not. I think if we reopen section 230 in any way, shape or form in this modern Congress, it would be gutted. Right? And I'm concerned about creating a national framework where we overcome the misguided patchwork of hundreds of state rules only to get one big worse rule up here. This is a real time risk we face in every context. But it doesn't mean we don't need anything. We're going to need some because we already have a lot of existing rules and regulations. Far from being an unregulated Wild West, AI is very aggressively regulated by agencies like the fda, the faa, the ftc, nhtsa, all sorts of agencies. If anything, we need some deregulation and some protections. I don't know if we'll get them, as Jennifer knows. In my last two books I said that the greatest protection of online free speech and online commerce has nothing to do with the law. It's technology itself. It's the so called pacing problem, or what I call the pacing benefit, which is that technology races ahead very fast, evolving at least linearly, sometimes exponentially, and policy evolves incrementally at best. And the gap between them is called the pacing problem. But one person's pacing problem is another person's pacing benefit. The fact that technology evolves this fast is the ultimate check and balance in my opinion, on regulatory stupidity. And so maybe Congress just sits there and like dilly dallys and constantly debating yesterday's issue as fast as a new one's coming along and they have to shift. But the problem is, is that if the states are accumulating all of these additional regulations while Congress is doing that, then you've got multiple layers of controls on both speech and commerce that are hugely problematic for what is legitimately truly interstate speech and commerce. So I do think a national framework is needed.
- [60:08]
Nico Perino
I wanted to ask about Greg's testimony in the quote that you bring up there when you're talking about the rise of the Internet and speakers on the Internet and the Communications Decency act, which regulates indecency, which isn't a category of speech accepted from the First Amendment. And I know there's a whole debate around that, but we'll put that to the side. You're talking about, you're talking about speakers, you're talking about Ari Cohn on a chat forum or whatnot. You're talking about me speaking to my however many followers on X with artificial intelligence. It's an artificial intelligence now. There's a human who creates the code that does the reasoning, that does the learning, but they don't know necessarily what's going to get spit out by the algorithm. And I think what Greg's speaking to in that quote that you cited, Adam, is the other part of the First Amendment that's maybe less developed. It's the right to access information, it's the right to learn. It's the access to knowledge production. And artificial intelligence produces knowledge. It produces information. And what does the First Amendment say about our freedom to access that information?
- [61:13]
Ari Cohn
Well, great. Greg had an answer. He said, but AI offers even greater liberating potential. Empowered by First Amendment principles including freedom to code, academic freedom and freedom of inquiry. We are on the threshold of a revolution in the creation and discovery of knowledge. This is a legitimate information revolution and it is about not just our ability to speak, but as you said, our ability to consume and receive more information. That's a hugely powerful and important thing for us to be defending. Right. And so there's multiple layers of the First Amendment questions that we need to unpack here. A lot of them will be done, you know, in courts later, but at a threshold matter we should hope our policymakers can wrap their heads around, like why it's important that America once again embraces, especially with autocratic nations like China looking to lead the world and have their technology be dominant over ours. I just recently wrote a piece in response to the so called deep seq moment of China releasing a very powerful new open source AI model and said, take a look at what China's trying to do to counter America in one country after another around the world with their quote unquote digital silk road project, which is to impose their autocratic values and top down totalitarian vision through technological design choices. So this is where our free speech and our ability to, you know, push to the world our model is really powerful. Some might think it's elitist, but I don't care. This is about the power of speech.
- [62:33]
Nico Perino
Does it does our model win out?
- [62:37]
Ari Cohn
Look, in the analog age, what Hollywood did, people like to complain about it a lot, but the reality is, is that a lot of people across the world became familiar with American culture and values through the export of information and entertainment. Right? And so this has important ramifications for AI going forward. We want our systems, our technology, and a lot of our, yes, Western values embedded in these technological systems and exported to the world. This is why this is the most disturbing thing about the whole new MAGA movement to me. Is this idea about like coming, you know, more contained and closing ourselves off from the world and decoupling. No, we want to engage. We want to make sure our systems, our values and our technologies and especially our information systems lead Jennifer Ari, some.
- [63:16]
Nico Perino
Final words on this.
- [63:17]
Adam Thier
I love listening to Adam talk about this.
- [63:20]
Jennifer Huddleston
I said that's such a good thing.
- [63:21]
Ben Smith
Coming in on.
- [63:22]
Jennifer Huddleston
I think that help to be the last word.
- [63:24]
Nico Perino
All right, folks, well, this has been fun. On the next podcast, listeners, I promise we'll get out of the tech space and hopefully look at some of the other news that's breaking across the country. We've got some developments at Columbia and with Immigrations and Customs Enforcement and dhs, and there's just too much news right now. Honestly, folks, I, I don't know how I'm going to get a weekend over the next four years, but we will try. Ari Cohn, Lead Council Tech Policy here at fire. Thank you for coming on the show. Adam Thier, Resident Senior Fellow Technology and Innovation at the R Street Institute and Jennifer Huddleston, Senior Fellow in Technology Policy for the Cato Institute. Folks, I appreciate you joining me.
- [64:03]
Ari Cohn
Thank you so much.
- [64:03]
Nico Perino
I am Nico Perino and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Sam Lee, Aaron Rees and Chris Maltby. It's also co produced by my colleague Sam Lee. To learn more about so to Speak, you can subscribe to our YouTube channel or substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle Free Speech Talk. We often post clips from these conversations on that X channel. If you have feedback, you can send it to sotospeakire.org again that's sotospeakatthefire.org and if you enjoyed this episode, please please please consider leaving us a review on Apple Podcasts or Spotify. Those reviews help us attract new listeners to the show and until next time, I thank you all again for listening.