Ep. 265: Anthropic, age verification laws, and press freedom

Summary

So to Speak: The Free Speech Podcast

Episode 265: Anthropic, Age Verification Laws, and Press Freedom

Date: March 11, 2026
Host: Nico Perrino (FIRE)
Guests:

• Jennifer Huddleston (Cato Institute, Senior Fellow - Technology Policy)
• Mike Godwin (AI and Privacy Expert, Former EFF/Wikimedia Counsel)
• Greg Lukianoff (President, FIRE; Free Speech Author)

---

Episode Overview

This episode covers three major free speech flashpoints:

1. The Pentagon’s dispute with AI company Anthropic over government demands and the First Amendment.
2. The emerging wave of age verification laws and regulatory efforts, with a focus on privacy, anonymous speech, and implications for online rights.
3. A recent government search of a reporter’s devices, reviving debate over the Privacy Protection Act and constitutional protections for journalists.

The panel dives deep into constitutional law, tech policy, market reactions, and cultural history—often with humor and references to pivotal legal moments.

---

1. The Pentagon vs. Anthropic: AI Ethics, National Security & the First Amendment

Background

(03:19) Anthropic, a US-based AI company, refused to let the Pentagon use its AI for “domestic surveillance or to control deadly autonomous weapons.” The Pentagon retaliated by designating Anthropic as a “supply chain risk” and barring federal use of its products, prompting lawsuits from the company alleging First Amendment violations.

Key Discussion Points

• Corporate Ethics vs. Government Power

  • Jennifer Huddleston: “Here in this case, we have the American government pressuring an American company to change its morals and values, and that goes right to the heart of the First Amendment.” (01:00, 05:12)
  • This is usually associated with foreign regimes; it’s new to see the US government in this role.

• When Procurement Becomes Censorship

  • Mike Godwin: The dispute was more than contractual, “there’s no question that viewpoint discrimination is actually informing the government’s…unconstitutional response.” (07:16)
  • Anthropic’s CEO publicly objected, which may have triggered further government pushback.

• Nationalization & Compelled Speech

  • Greg Lukianoff: Invoking the Defense Production Act “sounds an awful lot like nationalization.” He warns about the danger of compelled speech: “Write me code that you don’t want to write—no, I’m going to make you due to the DPA. That’s a serious compelled speech issue.” (08:12)
  • The threat reaches the “epistemic layer”—control over knowledge and reality.

• Precedent and Marketplace Impact

  • Mike Godwin: “If you want to build [an AI company] around ethical practice…why should we stomp on it, especially for a needless quarrel with the Secretary of Defense and the President…” (12:29)
  • Jennifer Huddleston: The public sided with Anthropic, as seen by a spike in downloads vs. a drop for OpenAI after it accepted a Pentagon contract. (13:37)

• National Security Claims and Technical Alternatives

  • Mike Godwin: “Apparently there are other players in this market. It strikes me as a failure of imagination on the part of the DOD...” (14:25)
  • Discussion of alternatives, both technical and policy-based, for safeguarding civil liberties.

• Echoes of Encryption Wars

  • Mike Godwin draws parallels to the 1990s debates on encryption and backdoors, highlighting recurring national security justifications. (18:19)

• Red Lines and Oversight

  • Jennifer Huddleston: “The government has a lot of data that you don’t voluntarily get to give…We need clear guidelines around what that data can be used for.” (19:43)
  • Mike Godwin adds the need for rules modeled after post-Nixon reforms to prevent data abuse, specifically referencing IRS data protections. (21:03)

Notable Quotes

• “If power gets its grubby mitts on the truth machine…this could be a backdoor way to achieve it.” — Greg Lukianoff (09:55)
• “You might almost call it a freedom of association.” — Mike Godwin (12:04)
• “Unconstitutional laws protect no one.” — Rep. Trahan (as recounted by Jennifer Huddleston, 46:30)

---

2. Age Verification Laws: Free Speech, Privacy & the Problem of “Papers, Please” Internet

Background

(22:08) The FTC and Congress are ramping up pressure for age verification online, possibly requiring ID or biometric checks for broad swaths of the internet, including social media.

Key Discussion Points

• Infringement on Anonymity and Adult Free Speech

  • Jennifer Huddleston: “The only way to deal with age verification for individuals under a certain age is to verify everyone over a certain age. We aren’t just talking about kids and teens, we’re talking about all users…” (24:37)
  • Historical frame: Founders valued anonymous speech; many wrote under pseudonyms.

• Privacy & Surveillance Dangers

  • Mike Godwin: “Child protection is kind of the national security of the domestic front. It’s the issue people raise when they want to … have an ace to play.” (28:28)
  • A growing left-right consensus is emerging against government- and industry-driven surveillance.

• Analogies to 1990s Legal Battles

  • Mike Godwin and Greg Lukianoff highlight the legacy of Reno v. ACLU and early internet fights over age verification and “indecent” speech. (30:10–31:10)
  • Many arguments against age verification echo those from that era, but technology and surveillance have advanced.

• Split Within Civil Liberties Community

  • Greg recalls his disagreements with Jonathan Haidt over kids and social media: “Even to the extent to which I agree with him, creating a situation of what some other commentators have called a papers, please Internet is terrifying.” (33:36)
  • FIRE’s stance: no further extension beyond current legal carveouts for “obscene as to minors” content.

• Technological “Solutions” and Their Limits

  • Mike Godwin: “To me, the idea that this can devolve to how well the social media companies have advanced in technology … is dodging the real issue, which is that there ought to be a real right to be left alone…” (43:53)
  • Huddleston explains that current tech still requires highly invasive verification, and there’s no way around collecting sensitive info for a basic binary age threshold. (45:46)

Notable Quotes

• “This is about the rights of adults just as much as about the rights of kids. Of course, kids also have rights as well.” — Greg Lukianoff (34:07)
• “Do you want your prerogative as a parent to teach the values that you want your kids to carry... or do you want that decided by an unelected bureaucrat in Washington, D.C.?” — Mike Godwin (41:16)

---

3. The Privacy Protection Act & Press Freedom: DOJ’s Battle Over a Reporter’s Devices

Background

(47:27) Federal agents recently seized devices from a Washington Post reporter in an investigation related to government leaks. The judge involved rejected the DOJ's request to search, invoking concerns over the Privacy Protection Act (PPA) of 1980, and press freedoms.

Key Discussion Points

• Legal Context and Precedent

  • Mike Godwin: Explains the roots in Zurcher v. Stanford Daily (1978), which allowed newsroom searches—Congress responded with the Privacy Protection Act, limiting them. (49:59)
  • Steve Jackson Games case was a pivotal moment in his own legal career and for digital privacy.

• Judicial Skepticism and the Scope of Warrants

  • The judge’s skepticism of DOJ’s filter teams is based in reality: “If they grab your computer, they are grabbing your whole life… Anyone who has access to my phone or iPad knows more about me potentially than I know about myself.” — Mike Godwin (53:51)
  • Agencies often over-collect and leave the onus on subjects to fight after the fact.

• Societal Cost and Normative Concerns

  • Huddleston: Would we tolerate this level of government intrusion in an offline, paper-based world? The expectations shouldn’t shift with digital. (54:56)
  • Tension between law enforcement’s duty and preserving confidential sources, which are vital for accountability journalism.

Notable Quotes

• “The guidance that Congress offered in the Privacy Protection act of 1980 is a good model for us to look at when there are searches and seizures conducted on anyone who’s acting as a journalist, which might be a citizen journalist writing a Substack out of their basement.” — Mike Godwin (52:34)
• “Unconstitutional laws protect no one.” — Rep. Trahan (as cited, 46:30)

---

Notable Quotes & Moments

• On Pentagon/Anthropic

  • “You might almost call it a freedom of association.” — Mike Godwin (12:04)
  • “If Power gets its grubby mitts on the ability to define what is true, that’s ultimate power.” — Greg Lukianoff (08:12)

• On Age Verification

  • “The only way to deal with age verification for individuals under a certain age is to verify everyone over a certain age.” — Jennifer Huddleston (24:37)
  • “Child protection is kind of the national security of the domestic front.” — Mike Godwin (28:28)

• On Press Freedom

  • “Anyone who has access to my phone or iPad knows more about me potentially than I know about myself.” — Mike Godwin (53:51)
  • “Do you want that decided by an unelected bureaucrat in Washington, D.C. at the FCC? … I know which way I would go.” — Mike Godwin (41:16)

• Humor & Pop Culture

  • The episode wraps on a lighter note with Green Lantern lore and comic book jokes among the hosts (58:01–59:39).

---

Key Timestamps

| Time | Segment | Details | |-----------|-----------------------------------------------|---------------------------------------------------------| | 01:00 | Anthropic vs. Pentagon | Federal pressure on AI ethics and speech rights | | 07:45 | Nationalization and Compelled Speech | Defense Production Act, epistemic control | | 12:04 | Freedom of Association & Retaliation | Corporate beliefs vs. government retaliation | | 22:08 | Age Verification: FTC and Congressional Action| Regulatory developments and chilling effects | | 28:28 | Privacy & Surveillance Arguments | National security rhetoric parallels | | 30:10 | Reno v. ACLU and Historical Context | Legal echoes and lessons from the 1990s | | 34:07 | Dissent within Civil Liberties Advocates | Jonathan Haidt & collective action among parents | | 43:53 | Technological Feasibility Debate | Privacy risks vs. advances in age verification | | 47:27 | Press Freedom: DOJ Search, PPA, Precedent | Technology’s impact on press protection | | 53:51 | Digital Searches and Scope of Warrants | Lived experience and legal process issues | | 58:01–59:39| Green Lantern Lore & Farewell | Hosts’ camaraderie and comic relief |

---

Summary

This episode delivers a comprehensive, insightful, and often witty analysis of current free speech battles at the intersection of law, technology, and public policy. The hosts and guests clearly separate technical, legal, and ethical issues, highlighting the persistence of certain constitutional dilemmas and the shifting forms they take in new technological contexts. From the Pentagon’s attempted arm-twisting of an AI innovator, to identity verification's impact on anonymous speech, to the continuing struggle for robust press protections against government overreach, the core message is clear: new tools and new threats demand renewed vigilance—and the best answers often come from a deep appreciation of first principles.

---

For more on these topics, watch and subscribe on FIRE’s YouTube or Substack, and don’t forget to check out the video version for comic book cameos!

Transcript

[Nico Perino]

Hey folks, before we get started today, I wanted to plug a quick reminder that tickets to our big Free Speech Conference are on sale now. From November 4th through 6th, we're bringing the nation's leading thinkers on free speech issues to Philadelphia, the birthplace of American liberty. Nadine Strossen will be there. Nick Gillespie will be there. Matt Taibbi will be there. David Latt, Heather McDonald, John McWhorter, the list goes on. Former ACLU executive director Aryeh Nair will be there, along with many other former so to Speak guests. With more speakers and exciting keynotes to be announced soon. Now, FIRE doesn't do general audience conferences very often. In fact, this is the first time we've done one in our about 27 year history. So if you care about free speech, open debate, and the future of free expression in America, you won't want to miss this. Get your tickets now. Only 500 are available and we expect them to sell out soon. You can visit soapbox.fire.org for tickets and more information. Again, that's Soapbox Fire. We'll also have a link in the show notes and I hope to see you there. Now onto the show.

[Jennifer Huddleston]

Typically, when we think about tech companies having to stand up to a government around their ethics and what they will or won't allow to be done to their product, particularly in the speech venue recently we've often thought about foreign governments. We've thought about what should American companies do when they get this pressure from totalitarian countries or even just from countries that want to use their technology to censor or take down certain information. Here in this case, we have the American government pressuring an American company to change its morals and its values. And that goes right to the heart of the First Amendment.

[Mike Godwin]

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. 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 the law, philosophy, and stories that define your right to free speech. I am your host, Nico Perino. Now we have a lot of news to cover today, including the Pentagon's fight with the artificial intelligence company Anthropic Congress, and the Federal Trade Commission's fight to implement age verification across the Internet, the Department of justice effort to search a Washington Post reporter's cell phone and other digital devices, and maybe, just maybe, one more story. We'll see if we have time. Joining me to break it all down is to my right, Jennifer Huddleston, a senior fellow in technology policy at the Cato Institute. Jennifer, welcome back onto the show.

[Jennifer Huddleston]

Thanks for having me, Nico.

[Nico Perino]

And then to my left is Mike Godwin. He is an AI and privacy expert. He served as the first staff counsel at the Electronic Frontier foundation, the first full time general counselor at Wikimedia, and and he is the author of two books which I have read on Internet law and policy, cyber rights, and the splinters of our discontent. And Mike, I should also note you are featured prominently in one chapter of my forthcoming book. Mike, welcome onto the show.

[Mike Godwin]

Glad to be here. I look forward to reading that chapter. It's a mystery to me, sorting it out for me.

[Greg Lukianoff]

It's pretty salacious.

[Nico Perino]

And then, of course, that booming voice you hear from me across the table is our president, Greg Lukianoff here at Fire. Greg, you're also in the book, in the chapter on free speech and also the prologue and kind of how I talk about my getting into the fight.

[Greg Lukianoff]

Well, you know, longtime fan, first time caller.

[Nico Perino]

All right, let's do it, folks. Shortly before we hopped into the studio today, Anthropic sued various federal agencies, including the Department of War. I never know whether to call it the Department of War, the Department of Justice, we'll just call it the Pentagon. Anthropic was formally labeled by the Pentagon as a supply chain risk. And President Trump also ordered the federal government to stop using using the company's products. The Department of War, DoD, whatever you want to call it, wanted Anthropic to agree to let the department use its systems for, quote, any lawful purpose. But Anthropic maintained its systems could not be used for domestic surveillance or to control deadly autonomous weapons. Why? Well, the company claims it has a moral and political objection to these uses, and apparently it had restrictions on these uses in its contracts with the government, contracts that were first agreed to by the Biden administration and later by the Trump administration. And now, as I said in two lawsuits today, Anthropic alleges, among other things, that the punitive actions taken against the company were a violation of its First Amendment rights. We exercise our classic First Amendment rights to speak up and disagree with the government. Anthropic CEO Dario Amadei said disagreeing with the government is the most American thing in the world. And we are patriots and everything we have done, I can him kind of beating his chest right here. Meanwhile, the Pentagon has asserted that once it acquires the technology, it must be free to use the tool for any lawful purpose under its own policies. And that it cannot accept private vendors dictating operational uses on a mission by mission basis. Defense Secretary Pete Hegseth posted on X that America's warfighters will never be held hostage by the ideological whims of Big Tech. Now, Jennifer, you had said that it's applaudable that a company stood up to the government in order to maintain what it felt were its ethics and business choices, even in the face of these potentially crippling policy responses. At what point does government pressure cross the line into unconstitutional behavior?

[Jennifer Huddleston]

I think one of the big things we saw with this was this was not just a basic procurement dispute of trying to change vendors because you decide a better product would fit your needs. When we saw the retaliation, there is without a doubt a question of First Amendment rights, of free expression rights, and of some of our basic values as Americans when it comes to civil rights and civil liberties. One of the things I think is really interesting in this conversation is typically when we think about tech companies having to stand up to a government around their ethics and what they will or won't allow to be done to their product, particularly in the speech venue recently, we've often thought about foreign governments. We've thought about what should American companies do when they get this pressure from totalitarian countries or even just from countries that want to use their technology to censor or take down certain information. Here in this case, we have the American government pressuring an American company to change its morals and its values, and that goes right to the heart of the First Amendment.

[Nico Perino]

How so? Because I think for a lot of people, they think, well, this is just a contract dispute, a procurement dispute, as you said, there's really no speech issue at play here. Mike, do you have any thoughts on this?

[Mike Godwin]

Yeah, sure. I think that even if the government tries to characterize this as just, you know, as just a contract dispute, the fact is, we know from reporting in the Washington Post and elsewhere that the negotiations between Anthropic and the government about possibly working through some kind of modus vivendi is, you know, was going on until the publication of Dario's email, which just said, you know, they're going after us because we won't, you know, praise Trump or we won't bend the knee. Well, that seems to be what the. That's what the Post reports was the thing that caused the discussions to collapse and lead to the. To the action slide.

[Nico Perino]

So you're saying Dario publishing this email or not publishing this email or having it leaked really pissed the Trump administration

[Mike Godwin]

off, and that would be well, you know, honestly if you're here as a CEO of a company or you're director of a company and you can't explain the real politic of the decisions that the company is making, that's a restriction on your speech for sure. And there's no question that viewpoint discrimination is actually, in my mind that viewpoint discrimination is actually informing the government's hardline and precipitous and overreaching and in my view unconstitutional response.

[Nico Perino]

So Greg, you had said that the invocation of the Defense Production act in particular sounds an awful lot like nationalization. And on the speech front you note when the government pressures a company to race its carve outs, it isn't only punishing for capability, it's also pushing for control over the rules of speech. You go one level deeper and saying that the threat of this emergency authority reaches to the epistemic layer. So can you unpack that for us? How is this nationalization? What is the epistemic?

[Greg Lukianoff]

I like the word epistemic but you know, like intellectual doesn't quite cut it because I'm always taught talking about not just what is known or can be known, also what can be known. So, so it's the whole world of knowledge essentially like and how we, how we know things. And power has always wanted control of knowledge. It's wanted to basically define what is true. And we've had wonderful, you know, speech free speech friendly developments like the printing press, the scientific method, all of these things that actually help us undermine. Fukobe damned the. I could say that all day that one of my big objections to him is he talks about, you know, truth ultimately comes from power. And it's like he's totally right for the 13th century, but we've had so many of these developments since the scientific revolution and the Enlightenment that sort of break the control of power over knowledge. So the Catholic Church had tremendous control over like what was allowed to be known essentially. So did the Russian Orthodox Church, all of these things. But power wants the ability to define reality. If it can get its grubby mitts on the ability to define what is true, that's ultimate power. So I've been worried for a long time that some of these dumb regulations are and some of the stuff I see frankly coming, well certainly coming out of China and Russia and Iran, but even out of the European Union they're about controlling like what its outputs are, what it says is true and there's no restraining kind of power to the Defense Production Act. So basically saying that you have to do this it also brings up a free speech issue we haven't mentioned, which is compelled speech that essentially, like, write me a program. Write me code that you don't want to write. No, I'm going to make you due to the dpa. That's a serious compelled speech issue. But I think that really, if Power and Dean Ball wrote some really apocalyptic stuff, but really accurate stuff about, like, what if Power gets his grubby mitts on the truth machine, you know, like. And I think this could be a backdoor way to achieve it. So I'm also concerned about the killer robot stuff.

[Nico Perino]

Yeah, please pop in here.

[Jennifer Huddleston]

But I think this also brings up a good point in that we think a lot about what this means in terms of AI companies ethics and whether or not these are red lines. But I think we also have to think about what this means for AI policy and what this means for other companies when they're faced with similar pressures from the government. If we do see this action upheld by some way, that means that this similar pressure to change the way your company is run can be placed on other companies on the basis of government contracts. And it also signals a dramatic departure from the approach we've typically seen from this administration when it comes to AI policy, which is a very light touch approach, very much let different models fight it out in the marketplace. And the last time we saw the Defense Production act mentioned in AI policy was actually during the Biden administration in that executive order, something that was highly criticized, particularly by those on the right, as a potential overreach of government authority by potentially compelling disclosure, let alone the kind of changes that we're seeing be requested by the Pentagon now.

[Nico Perino]

Yeah, so if we're looking at the First Amendment concerns here, they seem like threefold. One is you have the compelled speech angle or the censorship angle. So to the extent that the government is forcing this company to write code or remove code, that would violate its. Its free speech rights. We can talk about the code of speech issue here in a second. But the second one is that the company seems to have been formed up around this idea of artificial intelligence safety. Now, regardless of what you think of this AI safety debate, that was its modus operandi, and it put in these restrictions on its code for a reason, because they comport with its, you know, stated belief of this company. And corporations have the right to exist around different beliefs going back, you know,

[Mike Godwin]

you might almost call it a freedom of association.

[Nico Perino]

Yes, yes, yes, I like that.

[Greg Lukianoff]

You should coin that.

[Mike Godwin]

Yeah, I know. I'll print that up in a Pamphlet.

[Nico Perino]

And then you have, Mike, what you were talking about earlier with the retaliation, the fact that the company had criticized the government's response here brings up, like, petition the government for redress of grievances claims as well as free speech claims.

[Mike Godwin]

But I think that's right. I mean, I think that the fact is we do look, we try to look at government and different administrations. We look for consistency in policy or inconsistencies in policy with this administration. It's very, very hard to find a through line that's coherent on First Amendment, on First Amendment ideas, because, you know, in the same news cycle that we're in, you know, we have sitting members of Congress talking about banning kids, you know, for having engaged in unlicensed association. You know, that. That was also in today's news. So. So the government's not very consistent on this. But apart from that, you. You can start any kind of AI company you want to if you've got the resources, but if you want to build one around ethical practice, I like that idea. I like the idea of companies being free to build something that fits their dreams of what this technology should be and why should we stomp on it, especially for a needless quarrel as this quarrel with the Secretary of Defense and with the President has turned out to be.

[Jennifer Huddleston]

And we've seen that in the market, Claude's downloads are up largely, it seems like the public respects them for taking this. And OpenAI, who accepted a contract with the Department of War or the Pentagon in. In the midst of all this, has actually had a number of. Of D downloads of that. It seems to be dropping in terms of popularity amongst the American consumer. So if we really see this as you can run your model based on the set of values that you choose to have as a company, and people can respond to that separate from this issue, we do see the marketplace actually having a reaction to this as well.

[Nico Perino]

What do you think of the national security claims here? The idea that the Department of Defense, Department of War, whatever you want to call it, can't be hamstrung by one company's restrictions on how it uses?

[Mike Godwin]

Well, you know, apparently there are other players in this market, and it strikes me as a failure of imagination on the part of the Department of Defense that they can't figure out how to work with some of the companies that are willing to work with them. Including OpenAI.

[Greg Lukianoff]

Yeah.

[Mike Godwin]

An X. An X. An X AI too, for sure.

[Nico Perino]

Well, the argument that you're seeing out there is that when the government procures a service and integrates it within its system, it's really hard to unintegrate it or remove it from the system.

[Jennifer Huddleston]

I think one of the things this goes to is that one of the areas in AI policy that we do need clear federal guidance is around government use of AI, particularly as it relates to some of these difficult civil rights and civil liberties questions. There are many beneficial uses of AI in government, whether it's connecting constituents with services or note taking in a confidential meeting. But American citizens are rightly concerned about how technology could be weaponized against them, how it could be used to build a potential surveillance state about, you know, how it could be used to track protesters or any other number of concerns. And clarifying in law what the right balance of making sure those civil rights and civil liberties are protected in our AI era will help not only innovators know how to handle perhaps some of these questions. It'll help citizens feel more comfortable with this technology, both in private life and in some of those beneficial uses. And it would also be helpful for government agencies to know what that unlawful line is. So I think that's where some of the concerns come is this question of, well, would these uses be unlawful under current law? And if so, is a pinky promise from a department that we're not going to use it worth more than the paper that it's written on to a, to a particular company?

[Greg Lukianoff]

Yeah, I, I, when it comes to the, the argument too that the companies are making about autonomous weapons, their argument is scary and accurate at the same time. Basically saying we're nowhere near, you know, a stage at which we could actually have our AI power, autonomous weapons, and have anything other than, you know, be a disaster. And like the idea that that's going on.

[Nico Perino]

Scary. Yeah, yeah. So their argument on that front is sort of twofold. Morally, they're opposed to not having a human in the loop for autonomous killing and two, that they just don't think that technology is capable enough to do it with a high degree of confidence,

[Greg Lukianoff]

which has that character. There's always in the sci fi movie going like, you know, like, it's like I was warning that that's right.

[Mike Godwin]

I mean, I think that one of the things that one of the most frightening things that any government can do is order the death of other people and outside any of the normal frameworks of human judgment and any of the legal frameworks, like due process, if you have machines making that decision for you, in my view, based on what we know about the state of the art of AI models as of today, you should not deploy these things and just set them free in the world and let the Department of Defense or the president for that matter, willy nilly decide who dies without, you know, by, by saying you just run along, little robot, and decide who you're going to kill and just give us a report at the end of the month. You know, that that would be morally vacuous.

[Greg Lukianoff]

I can't believe you're worried about unaccountable killer robots who have to obey the president.

[Mike Godwin]

Weirdly enough, you know, of them are people. By the way,

[Nico Perino]

hey, Mike, do you see any of this as a reflection of those early Internet moments? Maybe some of the debates over encryption as a munition? Has any of this given you deja vu over the emerging technologies and concerns over national security and what is and isn't speech, right?

[Mike Godwin]

Well, I think it does because I think the parallels, I think the parallels that. To the 1990s that we're seeing today are the government making essentially unsubstantiated claims about their need for something. You know, whether the need is for a backdoor in powerful encryption tools or whether the need is for AI models to target whoever the government wants to target. You know, they may. The claims are always grounded in national security. And the reason for this, of course, is that historically national security claims tend to when in court, until you finally reach a carve out or you finally reach a breaking point. We don't have to make our law that way. We could make a more morally driven or more constitutionally driven set of decisions at the outset and try to get things right the first time before hundreds or thousands of people are killed by robots. That's my robot uprising for the game.

[Greg Lukianoff]

I wanted to ask you, particularly as Cato Libertarian, like, when you're talking about creating some of those red lines, you know, I assume you meant Congress having some. Yes, some red lines. I mean, of course there's the issue of, like, do we, you know, even trust them? But, like, what do you think, like, smart ones would look like? What do you think potentially disastrous ones would look like?

[Jennifer Huddleston]

You know, I think a lot of it is the government has a lot of data that you don't voluntarily get to give. I mean, you can't decide not to file your taxes. And, you know, there are certain things that by possessing a driver's license or a passport, the government has. We need clear guidelines around what that data can be used for when it comes to the government's deployment of AI. And we have some frameworks around this with things like census data that census data is only supposed to be used for census purposes. We have some frameworks around this that have traditionally been understood in the IRS context. Now we've seen some of those traditions be broached recently. And so making sure that again, individuals know that the government has a standard, they. Right. It's not just a current administration thing. And so making sure that individuals know that if they're having to interact with the government in these regards, that that data is not going to be used against them in ways that they don't. And in some cases it may be having those kind of human in a loop moments, whether it's around the decision that we were discussing with, with potentially the killer robots thing or things like that, but in ways that very specifically go to the harm that's trying to potentially be prevented or resolved versus more generally saying something like the Department of Defense can't use AI and then accidentally banning them from having, you know, the auto captions on in a zoom call or something like that.

[Mike Godwin]

I want to jump in here, especially about Jennifer's mention of irs, because, you know, when, when I was first starting to practice law, it was understood as kind of a post Nixon reform that IRS was essentially walling off their data from other agencies so that it wasn't a treasure trove of financial information that any government agency could get without any lawful procedure, without any kind of due process. And we've seen that erode, I think, partly because a lot of people who remember what Nixon did with IRS or get. But I'm still alive and I remember and I thought that was a good set of rules. And I'm sorry to see that they're eroded and I hope to live long enough to see them uneroded.

[Jennifer Huddleston]

So I think in many cases what it is, it's about the government restraining itself so that whether versus putting something on companies or on cis, kind of

[Greg Lukianoff]

like a comprehensive privacy law, you know,

[Jennifer Huddleston]

hope springs eternal that we can have this conversation, which is one that's needed both in this context and in the kids online safety context.

[Nico Perino]

Yeah. To close out this context. Anthropic, at the end of its First Amendment count in its lawsuit in the Northern District of California, says to the extent the government asserts a compelling interest in obtaining AI services without the two narrow safeguards Anthropic insists upon, the challenged actions were not the least restrictive means of achieving that interest. The department had a straightforward and unrestrictive option that would have fully served that interest, terminate the contract and hire a different developer. So we'll leave that one there. We'll See how these lawsuits unfold. And we'll move on now to the FTC, Congress and age verification. On February 25, the Federal Trade Commission issued an enforcement policy promoting the adoption of age verification technology, signaling a significant shift in its enforcement approach under the Children's Online Privacy Protection Act. The policy statement from the FTC encourages broader adoption of age verification technologies by providing certain operators online with enforcement flexibility provided they meet certain conditions. Now, under coppa, covered operators must provide parental notice and obtain verifiable parental consent before collecting, using, or disclosing personally identifiable information from children under 13 online. Now, this has created a compliance dilemma for businesses that need to deploy age verification technologies because some of these technologies may require the collection of personally identifiable information, such as the user's photograph, date of birth, or biometric data. And this catch 22 puts covered operators in a difficult position, risking violating COPPA by failing to verify a user's age or risk violating COPPA by deploying age verification technologies. Now, meanwhile, as the FTC is putting out this policy statement, last week, a package of kids online safety bills advanced out of a House of Representatives committee, which could lead to a codified requirement for age verification to access broad swaths of the Internet. And at least 17 states have enacted or are advancing laws requiring platforms to limit access to underage users. Now, the FTC's Bureau of Consumer Protection has described age verification tools as some of the most child protective technologies to emerge in decades. Now, Jennifer, what is wrong with that?

[Jennifer Huddleston]

So, so much?

[Nico Perino]

I mean, is there any, is there any problem with requiring these companies to verify content on the Internet, especially if they have these certain requirements for collecting data of individuals under the age of 13? Like, how else are you going to know they're under the age of 13 without verifying their age?

[Jennifer Huddleston]

And the problem with it is just that the only way to deal with age verification for individuals under a certain age is to verify everyone over a certain age. So we aren't just talking about what this means for kids and teens. We're talking about what this means for all users of the Internet. And you know, we were joking about Mike coining the term freedom of association and maybe he should write a pamphlet about it. I feel like oftentimes for those of us that work in free speech world, and particularly who work on free speech tech issues, we get the question of, well, the founders never would have understood the iPhone or they would be aghast.

[Greg Lukianoff]

They're underestimate.

[Jennifer Huddleston]

And I also like to think that, look, some of the founders would have had really, really Good substacks. And I'm pretty sure that Alexander Hamilton would have been getting into fights with folks on X like, I think that.

[Mike Godwin]

And winning.

[Jennifer Huddleston]

And winning.

[Nico Perino]

Yeah, I would love to see Benjamin Franklin.

[Jennifer Huddleston]

I think there would. I think the idea that they wouldn't have been into this is a bit of an overstatement. But even that aside, they did very much understand why it was important to have anonymous speech. Many of them were writing anonymously at the time, when they were expressing different opinions with their government at the time. This is a reason that when we're thinking about age verification, we have to think about what it means for. In that it is basically identity verification. And that's going to have a significant impact on the free speech rights of adults as well as on. On young people who do have speech rights. As Fire certainly has been involved in arguments about. And it's also going to have massive privacy concerns as well. One of the concerns I had about watching this particular markup, there was a lot of focus on things like preemption, a bit on things like private right of action and whether the FTC had a role. There was very little focus on these two major underlying issues of what it meant for free speech and what it meant for user privacy. And I think in what was probably an interesting moment for many of us, one of the folks who really brought that up was Representative Alexandria Ocasio Cortez.

[Nico Perino]

Yeah, hold that thought here. Hey, Emily, can you play that clip?

[Jennifer Huddleston]

Discord, a platform where a lot of kids have been targeted and put in danger, mind you, tried to roll out this idea of a data verification or an age verification technique. They decided to launch a teen default setting where they will lock you into a quote, unquote, what they call a teen appropriate experience, which means you can't access certain content, which, mind you, if you are an adult that does not opt in, you then get cordoned off into the teen experience. The only way to get out of that censored version is by scanning your face. But what's more shocking is that Discord made the decision to move forward with this after they had been hacked and at least 70,000 users had their data stolen.

[Nico Perino]

So, Jennifer, were you up there screaming, preach, preach, preach.

[Jennifer Huddleston]

It's a bit of a did not have that on my 2026 bingo card moment. But yes, I actually have a piece and a recent issue of Cato's Free Society that argues that many a similar thing. And the thing is, at this point we know the consequences because we've seen these roll out in other places. In the world like the uk, which is in part how that discord breach occurred. And we know that they are impacting adults free expression rights and that they're also removing what is oftentimes a very valuable lifeline for kids that are in vulnerable situations.

[Nico Perino]

Well, someone will say, you know, if you want to buy a porn magazine, let's say Playboy or Penthouse at the, at the newsstand on the corner, you got to show your id. Adults do, because that sort of content is deemed obscene. As to minors, they want to make sure that minors don't get access to it. So how is this any different? Mike, do you have any thoughts on that?

[Mike Godwin]

Well, my view has always been that child protection is kind of the national security of the domestic front. It's the issue that people raise when they want to win and they want to have an ace to play.

[Nico Perino]

You hate children is what you say.

[Mike Godwin]

You hate children, right? Are you for children or against them? Are you for national security or against it? These are hard questions to sort out in a binary way. So here I'm coming out as non binary. So I think that what you see in AOC's public statements are something that I see a lot of in different segments of the political spectrum. And that's that the surveillance issues, the personally identifiable information issues are things that will unite the right and the left, people who have traditionally been on opposite sides of some issues. I think that everybody is beginning to recognize that the threat of privacy invasion through surveillance, not just public surveillance of public spaces, which we think is probably allowable and should be allowed, but also in terms of what you do at home on your own when you're interacting with services, or what you say in private mail that may be surveilled by a government agency or someone else. These are things that I think strike a common chord among people of every political stripe. And I'd like seeing consensus emerge. So I'm looking forward to having that fight on surveillance because I don't think the people coming down for pro surveillance positions are going to win that one.

[Nico Perino]

Yeah, if you look at the 1990s, Mike, you were co counsel on the ACLU. The Reno case that turned into Reno v. ACLU when it got petitioned to the Supreme Court. That was a challenge to the communications. The reason why I went to law

[Greg Lukianoff]

school, by the way.

[Jennifer Huddleston]

Oh, great.

[Mike Godwin]

I have to take the blame for somebody else going to law school. I'm so sorry about that. I hope your loans are paid off. Oh, that's. That's very exciting.

[Nico Perino]

But in that case, they were targeting indecent speech, trying to apply broadcast standards to the emerging technology that was the Internet. And part of the ways to do that it was also a criminal statute in prison, up to two years, a quarter million dollars for violations. But part of the way you could come into compliance was through age verification tools. But you had, I'll never forget, I read an article you wrote in Slate about the outcome of that case and you more or less said you thought you could retire from civil liberties work. The Supreme Court and its nine zero ruling having done most of your work for you. It seems like we're fighting that same battle here. What is it, 30 years later?

[Mike Godwin]

Let's put it this way, I had a long vacation before this resurfaced. But I will say this and that's that. The impulse of the in this case it was primarily religious right activists, but the impulse to use some ambiguities in First Amendment doctrine regarding broadcast as an opportunity to limit freedom of expression for new media, that to me was the central issue there. So it was a bit divisive, honestly when it comes to the present day. I saw a lot of people who were on the opposite side of that fight in Reno versus ACLU sort of move at least more towards the center on issues of surveillance. I mean Phyllis Schlafly did. A lot of people who self identified as conservatives began to recognize that the government was already extending its power to surveil people's speech and punish them for it, either directly or indirectly. So I think that there's more potential for consensus now on the anti surveillance side. So that's a difference between that and the 1990s. But once again, the habit of trying to play your best card first is something that we see paralleled in the national security debates. Child safety is the national security of domestic policy.

[Nico Perino]

Greg I would be remiss as the co author of the Coddling American Mind with Jonathan Haidt to not ask you about this. Jonathan Haidt is one of the big boosters of regulating kids access to social media. And that's largely what we're talking about here. We're also in some context talking about regulating minors access to porn. But the stuff that you're seeing in Congress right now, the FTC push seems to be related to social media. His book the Anxious Generation was on the bestsellers list for dozens of weeks. He's really become the face of this push.

[Greg Lukianoff]

Sold like 2 million cops.

[Nico Perino]

Yeah. A ridiculous number of changing policy nationally in Australia, for example, which is now restricting access to minors on social media. If you're 16 or under or under the age of 16. So you and your dear, dear friend, who I know you love, Jonathan Haidt, have you guys fought about this? I mean, where are your heads at?

[Greg Lukianoff]

We disagree on it. And he just needs to. I understand where he's coming from, and his concerns are utterly sincere. And my concerns are obviously from a point of view of civil liberties and the thing. So I'll start with some of the stuff I agree on. I do actually think that social media use, but particularly by some subset of young women is not healthy. But that's a decision that I'd rather leave up to parents. I do think that schools saying that, listen, we wouldn't let you have a VCR or a ham radio set, a computer, a TV on your desk so the distraction machines go away for the day. Doesn't bother me at all. In fact, I think it's probably good policy. But I'm afraid that partially, some of the stuff that we pointed out in coddling the American mind is being used to basically create a situation where you have to show ID to use the Internet. And that's certainly what a lot of countries want. That's certainly what I think the EU wants, certainly what Putin wants. And I think that I don't want anything to do with that. I did see the, the Supreme Court decision saying that you can use some age verification for porn. You know, I kind of saw that one coming, you know, and that is the law now. But that's as far as fire, like, basically, like fire is like, no farther. Because just like Jennifer said, like, this is about the rights of, of adults, you know, just as much as about the rights of kids. Of course, kids also have rights as well. So I'm extremely concerned about. And of course, John and I very much disagree on this. But even to the extent to which I agree with him, creating a situation of what some other commentators have called a papers, please. Internet is terrifying. Yeah.

[Nico Perino]

Well, at least with the Free Speech Coalition v. Paxton case, you're talking about speech which is obscene as to minors. It's an accepted category from the First Amendment as it pertains to minors.

[Greg Lukianoff]

It's a smaller subset of websites.

[Jennifer Huddleston]

I could also point out, not that

[Nico Perino]

I like the decision, I think there are less restrictive means that the decision

[Jennifer Huddleston]

gets attempted to be much more broadly interpreted than what the court actually says.

[Greg Lukianoff]

Absolutely.

[Jennifer Huddleston]

Because first off, the court did reject Texas rational basis argument and said, no, this still gets at least intermediate scrutiny. And they really did focus it within the jurisprudence as sexual content obscene as to minors and I think there's some question in that Texas law, even, which is broader than that traditional definition of what would happen if we start to see this law applied beyond that typical online porn context. What would happen?

[Mike Godwin]

Yeah, I'm sorry to jump in, but one of the things that troubles me about this is that the debates about social media, as long as we're looking for historical parallels, remind me so much about the debate about broadcasting, radio and television. And for a long time, I grew up in a world in which it was was widely presumed that television, or watching too much TV is bad for you. And now here in the 21st century, every family that takes that subscribest pays out of its pocket for a TV service directly is really enjoying an entertainment bargain compared to what it was like when you had to spend 50 or 100 bucks to have an evening out with a family. It's the movies. So I, I think that social media are probably more positive than negative in their impact on social life. But I also think that people do use social media badly. I've used social media badly. I'm confessing.

[Greg Lukianoff]

Who among us.

[Mike Godwin]

Who among us. Who among us is the first one who's never used social media to flame someone? Raise your hand, and I do not see any hands in this room. So I, I think those are things that, that we have to take into account. If you take a historical perspective about how new media technologies are absorbed by the culture, we still are in the first generation of our culture, absorbing what it means to have that kind of always on connectivity, not just to your community and other people like you, but to the rest of the world. And that is a really hard problem. I'm actually working on an article about how to solve this problem. It'll probably become a.

[Greg Lukianoff]

Is it a government mandate?

[Mike Godwin]

It is not a government mandate.

[Jennifer Huddleston]

I do think it's important that we pause here a bit. And this gets to something Greg was saying too, of the fact that most of us are disagreeing with, you know, and are focusing on the potential consequences that this legislation should have does not mean that we don't think that parents or other trusted adults should do things to protect young people online. What the. Really, what's at issue here is not should we or should we not teach young people to use the Internet and forthcoming AI tools responsibly. The question is, is it a parent and a trusted adult's responsibility to teach the young person that, or is it the government's responsibility to make that decision with these other unintended consequences for adults?

[Nico Perino]

Well, let's Be honest here. I think part of the problem is parents recognize or think that there is a problem with screen usage, with social media usage, and there's this incentive for kids to get on it younger and younger because their friends are on it. And parents are fighting this constant battle between their kids who want a smartphone and who want to be on these social media platforms and their peers who are all on the platform. They want to keep their kids off. They're essentially being the bad parent who's not letting them do what all the other parents are letting their kids do. Jonathan Haidt has called this a collective action problem. And I get it. You know, I have three kids of my own. They will constantly nag me over things. You know, at a certain point, sometimes I give in, sometimes I don't. You don't, as a parent, want to give, you know, deprive your kids of opportunities that other kids have. But is the solution then if certain parents don't want their kids on social media to then call up the government and say, ban my kids from being on social media or create all these tools where the default is that they can't be on social media until I opt them in? I don't know. The Supreme Court has previously said where these tools voluntarily exist and parents don't want to adopt them. It's not the government's job to meet that collective yawn with government action. And I think that's probably right. That probably has to be right. While I recognize the collective action problem and just the exhaustion that parents have from trying to address this issue.

[Jennifer Huddleston]

But I want to ask something else, and maybe this comes from my time teaching of a. But the problem there is there's not even an agreed upon what is the problem with quote unquote, kids on social media. And you said you have three kids,

[Nico Perino]

you probably not on social media yet.

[Jennifer Huddleston]

Not on social media yet, but you probably already have different concerns with each of those kids based on their personalities, based on their tendency, based on particular vulnerabilities. And, and I think we see this in this debate a lot. For some parents, it's just sheer screen time amounts. They're worried about what that does to brain, brain development or time waste. For others, it's exposure to specific types of content. They're worried about drug content or eating disorder content or just content that goes against family values. For others, it's the more traditional. Look, I was the kid in the mid-90s that Mike was That the laws were trying to protect. It's the more traditional child predators online who are going to kidnap your kid. And for others, it's offline concerns as well, like is bullying from school, following my child online. All of those have different solutions and within a family that can involve very difficult conversations. But trying to do all of those things by policy is going to get to a very scary place for speech rights.

[Mike Godwin]

Jennifer, you reminded me of, of talking points that I developed in the 1990s about this. And one of them at that time, if you recall, the Communications Decency act was positioned to put at least some versions of it, was positioned to put the FCC in charge of enforcing the anti indecency provisions of the act, at least as regards to Internet content. And what I said, what I and I would sit home writing these lines to myself, I say, do you want your prerogative as a parent to teach the values that you want your kids to carry with them every day wherever they see TV or wherever they see the Internet, or do you want that decided by an unelected bureaucrat in Washington, D.C. at the Federal Communications Commission? I'm a parent. I know which way I would go.

[Nico Perino]

I want to close out here by playing a clip. Emily, from the Tennessee Attorney General, Jonathan Scrometti. Emily, can you play that clip? And then, Mike, I'm going to ask you to respond to it. I have a question about the Supreme Court case in Reno Baclu. All right. We have an age verification law, and this is pretty controversial.

[Greg Lukianoff]

You know, the companies are concerned about it, but if you don't know that

[Nico Perino]

the users are kids, you can't have the heightened standards to protect them.

[Greg Lukianoff]

So we're talking about companies with more

[Nico Perino]

data about their users than literally any company age in the history of the world. They need to be able to differentiate that and limit some of the opportunities for harm. And you can't do that if you don't know how old the users are. And given where technology is now, there are some really good solutions possible that preserve privacy and still make sure that young users aren't able to access content they shouldn't be able to access. Now, Mike, when I was studying the Reno v. ACLU case, I read the the transcript from the oral argument in that case, and there was a moment that stood out to me where Justice Antonin Scalia says, you know, I replace my computer every couple of years or whatever. He says technology is developing so fast and, you know, these privacy concerns, these feasibility practicality concerns surrounding aid verification are coordinating out this decent content. They may exist today, but the technology might advance to a place where it's not so Much of a concern where the privacy implications are minimal compared to, to what it actually takes to verify someone's age. Is that a concern for you? I mean, if the justices look at this question today, are they going to say the technology is just different than it was in 1996 and 1997?

[Mike Godwin]

So I think that what you see in kind of the interlocutory exchange with Justice Scalia, the oral argument, is an attitude that was quite common in the 90s, especially on the side of Congress imposing obligations on tech companies as they existed then. So here we're talking about companies that mostly don't exist anymore, like aol. But they were worried and their argument was, you can't tell me that Microsoft and Apple and aol, with all the technologies that they have at their beck and call, can't come up with a tool. And to me that is a faith based argument because it assumes that the problem is a technological advanced problem rather than a problem rooted in principle. The fact is, I'm a lawyer. I know people who are lawyers and are doctors. We have ethics that we have to abide by regardless of what the technology is. In fact, they're written in technology neutral ways. And to me, the idea that this can devolve to how well the social media companies have advanced in technology and how much information they have gathered on all of us, to me that is dodging the real issue, which is that there ought to be a real right to be left alone that we recognize in our constitutional law and we ought to maybe recognize to a large extent in our regulations as well. So that's a kind of a weird pro regulatory thing to say here at this forum. But I do think that the ethical questions have to come first and they have to inform whatever regulation we consider down the road. It can't just be a question of feasibility.

[Jennifer Huddleston]

I would like to add here this did come up in some ways in the FSCV Paxton case as well that we mentioned of had technology advance to the point that this was possible in a data privacy protective way. And all I keep thinking is I have yet to see a technology currently that can know when it's midnight on someone's 16th, 18th birthday, which means you're always going to have to have that much more invasive privacy option at least as part of this conversation. Because more than likely, until we get to a point where technology can be completely private, double blind, encrypted, like, I'm not saying it couldn't happen, but I've yet to be convinced that there is one that wouldn't have the consequences for adult users or for users over what age is set. And I think that one of the other really powerful moments in the markup, and I live tweeted all 5 plus hours of the markup I know was I believe, and so forgive me if I'm a little fuzzy here, I believe it was Representative Trahan who said unconstitutional laws protect no one. And so I think that's really got to be at the. Yeah, I was going to say it sounds like a fire. Fire statement. There is. You know, I did and I did a double take. Did I have the fire podcast on in the background? You know, that we have to really. I do think people are coming with the best of intentions to these conversations, and I think many of the people in the 1990s were coming with the best of intentions to this conversation. But we have to have a very serious conversation about those speech and privacy concerns.

[Nico Perino]

Well, one of the big ones, of course, is that for now, social media and the content that's found there to a large degree isn't accepted from constitutional protection for minors. Right now, the only exception is speech deemed obscene as to minors. So for any of this to work, you would need to create a new exception to the First Amendment, which the Supreme Court has been reluctant to do in past decades. You're seeing some of these age verification laws get challenged when they come out of the states. They've largely been struck down by courts. We'll see what happens coming out of this markup at the federal side, but there's not much moving through Congress at the moment. President Trump said he's going to sign no new bills until that Election Reform Save act gets passed. We'll see how that ends up panning out, but this is one that we will continue to watch. I want to turn now to the last story I think we're going to have time to discuss. On January 14, the federal government executed a search warrant on a Washington Post reporter's home in Virginia as part of its investigation into a government contractor who was indicted on charges of unlawfully obtaining and sharing classified materials. Agents seized a phone, two laptops, a recorder, a portable hard drive and a Garmin Watch. Prosecutors say the reporter exchanged messages with government contractor before his arrest, and the prosecutors asked a federal judge to allow a government filter team to search through the reporter's devices for relevant information. But this is where it gets interesting. If it wasn't already. The Judge rejected the DOJ's request to search the devices, ruling that the Question Court would instead be responsible for conducting the search because the government couldn't be trusted to conduct the search on its own. The judge wrote in his opinion that the government's interests are at odds with freedom of the press, and allowing the search could risk exposing over a thousand of the reporter's sources to investigators who want to stop leaks to the media. The judge also criticized prosecutors for not briefing him on their search warrant application. On a federal law that protects reporters against searches in many situations. That law is called the Privacy Protection act of 1980. Mike, I'm going to you because I know you have experience with this one. You have a reporting background. You were the editor of the student newspaper at the University of Texas at Austin. There are press freedom concerns here, obviously. Two questions for you. Is there ever a point where a national security risk justifies the seizure of a journalist's assets? And also the Privacy Protection act of 1980 was at issue in a case from 1990 that you were very involved in, the Steve Jackson games case. So can you talk about what's going on here?

[Mike Godwin]

Sure. Well, as you know, there's at least there are statements in our First Amendment jurisprudence in which various hallowed justices say, well, of course, you could probably stop a newspaper from printing troop movements in time of war. That's not a very useful principle, especially when the troop movements are in Minnesota. But I think that what you see there is the Supreme Court trying to stick to its cases and controversies jurisprudence. So it's saying there's a case that's not before us, which is the troop movements case. But what's before us in this or that case is not that the Privacy Protection act is a case that I paid a little attention to when I was a journalist, but certainly paid a lot more attention to when I was a law student and became a lawyer working in First Amendment issues. And that's Zurcher versus Stanford Daily. In Zircher the Reporter, the Stanford Daily Reporter is resisting having their notes seized and their contacts and their confidential contacts identified through a search and seizure. And what happens in the Zurcher case is that the Supreme Court rules against the reporter and the newspaper, but Congress at this time a little more friendly to the press than maybe it is today. Maybe Congress and the press had a more consolidated lobby, let's just face it, in 1980, than they have in 2026. But Congress said, oh, wait, we can't let that stand. We have to at least create some rules that searchers and seizures will have to follow when they're doing newsroom searches or doing searches of a reporter's notes. So that's one piece of the puzzle. And of course they should have briefed of course the government should have briefed the Privacy Protection act of 1980, because that was the statute that we went on in the Steve Jackson games case. So they should definitely invoke or pardon me, the defendants should definitely invoke Steve Jackson. Steve Jackson Gaines case is what gave me my entire career. So I have a lot of fondness for the Privacy Protection act of 1980. But I think that what you see there is a recognized need as early as 1980, and certainly in the post, in the Watergate era. Still in the Watergate era, you see a recognition that for the press to do what the press does best, which is surface stories of the public interest that need to be surfaced, sometimes you have to use unidentified sources. There's just no way around that for all the stories that you're going to have to tell if you are a committed journalist or a committed newspaper, whatever a newspaper is these days. So I think that the guidance that Congress offered in the Privacy Protection act of 1980 is a good model for us to look at when there are searches and seizures conducted on anyone who's acting as a journalist, which might be a citizen journalist riding a substack out of their basement.

[Nico Perino]

The interesting thing about this case to me is my understanding, I'm not a lawyer, but these filter teams that the government sets up to siphon off stuff that the government is targeting versus stuff that isn't being targeted as part of the investigation are pretty common. And so it's kind of weird for the judge to say, no, I don't trust you government to set up this filter team. We're going to do it ourselves.

[Mike Godwin]

Well, I think it sounds weird if you don't know about law enforcement agencies. The fact is law enforcement agencies, you know, we are our case law on searches and seizures is obviously very focused on what's said in warrants, when there are warrants, and what they can do without warrants and so on. But I think that one of the things that we discovered in the very first cases that helped give rise to the Electronic Frontier foundation and inspired Mitch Kapor and John Perry Barlow to start up EFF was that if they grabbed your computer, they were grabbing your whole life. And the fact is, anyone who has access to my phone or iPad knows more about me potentially than I know about myself. Right. If you've ever run a little AI tool just to track your usage, then you discover, did I really spend that much time on this hobbyist site for Star Trek, Apparently I did. And that's kind of. Kind of useful to know, but I don't necessarily want everybody else to know it.

[Nico Perino]

Yeah, yeah.

[Jennifer Huddleston]

And I think in that regard, it's important to also think. You know, I mentioned this when I was saying we knew the. The founders cared a lot about things like anonymous speech and freedom of the press. But when we're asking these questions, I think it's also important to ask, how would we tolerate this in an offline setting if this wasn't a smartphone, if this was back in the day of the filing cabinet and the newsroom and whatnot, what would the reaction have been then? And is it reasonable, which I think in many cases it is, to apply that same expectation of privacy to the digital devices of a reporter?

[Nico Perino]

Well, the government has a right to go after this government contractor who is alleged to have confidential or classified information. Right. The question that we're asking here is what then can the government do when that government contractor shared that information with a reporter who's presumably protected by, you know, the free press clause of the First Amendment to advance this investigation or advance this prosecution, while also respecting their rights as a reporter? And the courts have tried to balance this. Congress has tried to balance this. But it's not every day that you see a reporter's information like this or devices like this snatched up in a. In a search like this.

[Mike Godwin]

I think that's. But I think it's also. We also have to recognize that it's more of a norm. What happens is if there is an actual search warrant issued, regardless of how constrained the language of the search warrant is, the fact is that the executing officers who are going in there to do the search, they tend to think, I have a warrant. Anything I see that feels like that feels like is something I should grab. You know, I'll just grab it now, and then they can go litigate it against the police department or against the FBI later and see if we were overbroad in our search and seizure. So, in a way, the search warrant is, you know, getting a search warrant written well enough to pass the eye of a magistrate. That's the easy part. The hard part is when you're a searchee and you know that they took stuff that was outside the scope of the warrant, but then you have to go litigate it, and then the agency, the law enforcement agency may just indict you just to help focus your attention on something else.

[Nico Perino]

When you're getting the search warrant, though, do you have to tell the judge about the Privacy Protection Act. Is that like incumbent and responsibility on the government at that stage?

[Mike Godwin]

I would say that a responsible applicant would have included why this was consistent with the guidance that Congress issued following Zurcher vs Stanford Daily and consistent with the provisions of the Privacy Protection act of 1980.

[Nico Perino]

Stanford. They're a plaintiff in our challenge to the Rubio's deport the Secretary of State's deportation provisions. So might set good law there as well. All right, folks.

[Greg Lukianoff]

Oh, wait, wait, wait. Before we go though, we have put to point out Mike has a Green Lantern ring, and I'm pretty sure it works.

[Nico Perino]

What is the Green Lantern superpower?

[Greg Lukianoff]

What is the Green Lantern?

[Nico Perino]

By way of background here, I was Greg's assistant when I started my career here at fire. He is a comic book nerd. I know nothing about comic books. So I always felt out of my, I always felt out of my depth when he talked about them or referenced them. And I am no longer afraid to just say, I have no idea what you're talking about.

[Greg Lukianoff]

So it used to be the most powerful weapon in the universe, allegedly. But they've kind of demoted it a lot of times with a lot of

[Mike Godwin]

other, you know, with. They, they had a divers diversity initiative in the Green Lantern Corps. So they're now they're lanterns of all colors.

[Greg Lukianoff]

Well, I was going to say I'm an Indigo Lantern.

[Mike Godwin]

Yeah. Yes, you say you are.

[Greg Lukianoff]

Well, I, I, I hope I am, but I, I.

[Jennifer Huddleston]

This is getting way deeper in the lore than the early 2000s.

[Nico Perino]

Put your ring up to that camera. So, folks.

[Jennifer Huddleston]

Oh, yeah.

[Mike Godwin]

So we can just put the ring up to the camera. But I will say that I know that if I say in brightest day, in blackest night, you know how to follow.

[Greg Lukianoff]

Yes, absolutely.

[Jennifer Huddleston]

I was just gonna say this is far more into the lore than the, I think, mid-2000s movie version. Got me, so.

[Greg Lukianoff]

Oh, that was such a disappointment.

[Jennifer Huddleston]

I know. I missed.

[Greg Lukianoff]

Even with, you know, even with Ryan Reynolds.

[Mike Godwin]

It put Ryan Reynolds on the path to Deadpool, so how can we complain?

[Greg Lukianoff]

So there's. There's the Red Lantern, which is anger. There's the Violet Lantern, which is love. There's the Blue Lantern, which is hope. The Green Lantern is actually will power. There's the Yellow Lantern, which is fear. The Indigo Lantern is actually supposed to be compassion, so I always like that one.

[Nico Perino]

Okay, well, we're compassionate. We're hopeful here, folks.

[Mike Godwin]

I know where you can get one of those.

[Greg Lukianoff]

Really?

[Mike Godwin]

Yes.

[Nico Perino]

I do know where to get one.

[Mike Godwin]

What, an Indigo rent?

[Nico Perino]

I'll give you my house.

[Greg Lukianoff]

All right.

[Nico Perino]

Folks. That was Jennifer Huddleston, Mike Godwin, and Greg Lukianoff. I am Nico Perino and this podcast is recorded and edited by a rotating roster of my Fire colleagues, including Bruce Jones, Ronald Baez, Jackson Flago, and Scott Rogers. The podcast is produced by Emily Beaman. You can learn more about so to Speak by subscribing to our YouTube channel or our Substack page, both of which feature video versions of this conversation. You can check out Mike's Ring, which is on the video version of this conversation. You can also follow us on X by searching for the handle Free Speech Talk. We post the videos there as well. Feedback can be sent to so to speak@the fire.org Again, that's so to speak@the fire.org and if you enjoyed this episode, please leave us a review Apple Podcast, Spotify Wherever else podcasts are hosted, we take the reviews. And also don't forget to get your tickets to Fire's big Free Speech Conference in November. You can buy them@soapbox fire.org Again, that's Soapbox Fire. Org and until next time, thanks again for listening. The foundation for Individual Rights and Expression Fire and the Flame logo are registered trademarks of the foundation for Individual Rights and Expression.