Loading summary
Transcript59 lines
- [00:00]
A
This is a Monday.com ad, the same Monday.com helping people worldwide, getting work done faster and better. The same Monday.com designed for every team and every industry. The same Monday.com with built in AI scaling your work from day one. The same Monday.com that your team will actually love using the samemonday.com with an easy and intuitive setup. Go to Monday.com and try it for free. Yes, the same Monday.com all right, we're live. Welcome to the Tara Palmieri show and the Red Letter. We've got Stuart Brotman, a media law professor who is out with a new book that everyone should grab because it is hitting the moment more than probably anything right now. And that's the First Amendment and free speech and censorship and being able to speak openly. Tell me about the new book.
- [01:03]
B
So the new book is called Free Expression Under Fire, Defending free speech and free press across the political spectrum. And that may even be more timely than the previous book.
- [01:18]
A
Yeah, both of them very important. So I just want to talk about this moment we're in right now. And, and you do really write about it in the book. You must have whipped this book out very quickly because you even cover Charlie Kirk in there and, and the shift in the Trump administration and the Right. But there really does feel like a noticeable shift in which side is Champ championing. Championing, excuse me, free speech. Trump likes to argue he's the most transparent president ever. And he does, you know, take questions from reporters. But I think he really enjoys the back and forth and just pummeling them. But, you know, it does seem like he is trying to suppress the media. He can't control, you know, the media that isn't in his face, the written media, polls that he didn't like, like Ann Seltzer, the pollster who he is suing. He's suing the Wall street journal for $10 billion for reporting on the card that he allegedly gave to Jeffrey Epstein, the 50th birthday card in the shape of a woman, the vial card that basically was handed over by the Epstein estate, saying as part of Epstein's birthday book, you know, between his lawsuits against Paramount, the FCC regulations, DHS seeking data from users while they're tracking ice, anti ICE accounts. Like, what do you see as the most concerning? And we're going to get into all of this, by the way, in the interview. But what concerns you the most?
- [02:51]
B
Well, I think the title says it all, Free Expression Under Fire. Because literally both sides of the political spectrum are sort of firing away, undermining Free speech and free press protections. And not just in the First Amendment sense, but, but in a much broader sense, because part of what we're dealing with is really a cultural phenomenon dealing with free expression, not just technically what the First Amendment covers. Because First Amendment, as you know, is a prohibition on the government interfering with free speech and free press. But we have all sorts of other mechanisms that are being used to suppress or to undermine free expression. And those sometimes could be equally dangerous.
- [03:42]
A
Can you give me some examples of those?
- [03:45]
B
Well, we know about what we call cancel culture. So the notion that we have a lot of private actors, these are not government forces essentially going out into the sort of social media world and elsewhere and, and essentially exerting pressure on people to either get out of the public spotlight or kicking them off of the public spotlight because of what they've said or what they stand for. And so that whole phenomenon typically has not been the government coming in and saying, you cannot be part of our society. It's basically other people. And certainly we have so many examples of cancel culture that have come up. Now what's interesting is that particularly in the Charlie Kirk situation, we have seen sort of a combination of cancel culture in the private sense and also government cancel culture because we've seen a number of people who have been fired or have been actually imprisoned for a Facebook post or, or even an emoji dealing with, for example, Charlie Kirk's murder. And so now we have the government enforcing cancel culture. And I think that combination could be very, very dangerous.
- [05:08]
A
Yeah, I mean, it does seem like cancel culture, it only exists if a corporation decides to fire you. Right. Or a mob of people if you're, say you're an independent journalist or, or you have your own business and people decide, you know what, we don't really want to buy your products anymore because we don't like what you stand for. Isn't that just personal choice? Cancel culture. Unless it's a corporation or a government that is, that is removing this person from their position, which may be forward facing.
- [05:36]
B
Well, it may be person of choice, but obviously in an employment situation, it may be, as you said, people actually being fired for expressing their opinions. Also, we have a number of situations where people are not identifying with the company they work for or being an employee. They're doing their private social media and all of a sudden the company says, you know, even though you're communicating this privately, you're not reflecting the values of our company and therefore you are going to lose your job on the nature of it. So, yeah, because of that. So that. That's a really sort of extreme but more pervasive situation now, where we see a lot of private communication on social media now being punished by companies.
- [06:27]
A
I mean, I can kind of understand that, though. I mean, if someone was communicating, you know, was identifying with my company, and they were communicating in a way that I didn't think reflected my brand, I think I'd have a right, you know, to say, this isn't working. Right?
- [06:42]
B
Well, that's one side of the argument. The other side of the argument is these individuals, again, have the right to free expression. They're not associating the company. So in a number of situations, people don't even know the person works for a company. They're not saying anything about the company. They're just an individual. And then somehow people find out that they work for a particular company, so they go to the company and say, have you seen what this person said on social media? And the company then says, we'll launch an investigation. And then they say, well, we don't believe that what that person said reflects the values of our company, and therefore that person is no longer with the company.
- [07:28]
A
I feel like this has been happening forever because I remember when Twitter started, back in, like, 2008 or 2009, I'd gotten on Twitter, I was a young news assistant at cnn, and we were all warned, be careful, and Facebook, be careful of everything you write and do, because you could probably. You could lose your job because of it. I don't think this is a new phenomenon, frankly.
- [07:51]
B
Well, it's not new. I think maybe the. The velocity and the intensity of it is probably due. And then, you know, the other part of it is this whole phenomenon of self censorship, which is that people who would have said things previously now are thinking, gee, before I press that button, should I be thinking about the implications of what my employer might say? Or if someone finds out that I said this even though I did this entirely privately?
- [08:23]
A
So.
- [08:24]
B
So this is more of a cultural issue, which is we have a lot of self censorship going on now in society, not just in the workplace, but in classrooms and variety of other contexts. And I think that that's a troubling aspect when you look at the overall climate for free expression.
- [08:44]
A
Yeah, I guess I'm thinking about it from a. Because I've only worked in the communications field. I do think, like, what you say and how you communicate obviously has a lot to do with your position. So I kind of understand that. But, yeah, I guess, you know, if someone's an Accountant at some big consultancy and they have an opinion that their boss doesn't agree with, should they be fired for it? You know, I mean, it's a fair question.
- [09:10]
B
Absolutely. And of course, the other aspect of cancel culture is, other than in the employment context, is it typically doesn't work. So we have so many examples of people who have been canceled, but guess what? They're still around. Louis CK is still around, JK Rowling is still around. Mel Gibson is still around.
- [09:32]
A
So not quite as around anymore, but
- [09:34]
B
yeah, not quite as around. But these people, and of course they make comebacks over time. So unless you are maybe a Harvey Weinstein who is obviously incarcerated, if you've been convicted of a crime, typically those people have very difficult times getting back. But by and large, cancel culture sort of fades away or has a way for people to come back and say,
- [10:00]
A
you know, I think it depends on the crime and what was said. Like with everything in life, the comeback usually, you know, reflects. And the time it takes usually reflects what, Whatever you said. And I mean, sometimes I just think it's offensive and people don't like offensive, are offended easily. And yeah, that's just. And then there are always consequences when you're offending people.
- [10:23]
B
You lose relationship. There are actually. What's really interesting is there is law behind this which is sometimes ignored. But a few years ago, the Supreme Court had a decision with a high school student who was a cheerleader, and she said all sorts of nasty things about her cheerleading squad and about the teachers, everything else. But she did it on her private social media. And so the question was, could the school punish her for saying all those things, even though she didn't do that in relation to anything at school. And the Supreme Court actually said, no, she cannot be punished for that. And so we know from a legal perspective that people can be protected from that. But of course, then we have situations, particularly in the workplace, where we have other laws that might control that.
- [11:21]
A
Got it. I do want to go back to Stephen Colbert because this is a pretty recent case where he claimed, you know, censorship from the fcc, citing the equal time rules for candidates. And that's the rule that, you know, each that there, the guidance is that there should be equal rule time for the other candidates on tv. And he couldn't meet that by only featuring an interview with James Talco. Now, in the age of YouTube, you know, you posted on. He decided to post it on YouTube, where there are those rules don't apply, rather than CBS, a broadcast channel which has to deal with FCC rules, And he probably got a big, a bigger viewership for that interview than he would have ever gotten on his show. What do you think about that? I mean, is that considered an assault on, on free speech? A Mochi moment from Mark, who writes, I just want to thank you for making GLP1s affordable. What would have been over $1,000 a month is just $99 a month with mochi money shouldn't be a barrier to healthy weight. Three months in and I have smoked smaller jeans and a bigger wallet. You're the best. Thanks, Mark. I'm Mayra Amit, founder of Mochi Health. To find your mochi moment, visit joinmochi.com Mark, is a mochi member compensated for his story?
- [12:41]
B
Well, that situation is a little complicated. Obviously the way it's been covered has been in broad strokes and I don't want to get too much into the weeds. But essentially equal time or equal opportunities, and it's not an FCC rule, it's actually a law and the law is part of the Communications Act. And that provision in the law, which is called Section 315, applies to what are called legally qualified candidates. So when you look at that, what is a legally qualified candidate? So if you're running in a primary, it means that you are running against your opponent in a primary. So in the case of the Colbert broadcast, he had invited someone who's running for the Senate on the Democratic ticket in Texas. And so it wasn't essentially saying that anyone who's going to be running for the Senate will have to have equal time. It's just the Democratic candidates. And of those there were three candidates. So all that CBS would have had to provide is equal opportunities, not equal time. So it's really interesting about equal opportunities. It doesn't mean that you necessarily have to then invite the other two candidates to appear on Colbert show. You can provide other opportunities in the broadcast schedule. So let's say you did a 10 minute interview with them. You could decide, gee, we're going to have a 10 minute interview with Jasmine Crockett, for example, who's running against him. Maybe we put her on, maybe we put her on CBS Mornings instead.
- [14:24]
A
Oh, okay. I was going to ask that if you could move them around different parts of the network so it doesn't feel redundant. You know what I mean?
- [14:31]
B
You can. And what's really interesting is obviously when Trump appeared on Saturday Night Live, there were complaints about actually was when Kamala Harris appeared, there were complaints whether or not Trump should get equal opportunities. And it turned out that of course that was not a news interview show. So CBS or NBC decided they needed to give that. Where did they give that time? They did it during a NASCAR broadcast. So you never saw Trump appeared again on Saturday Night Live after Kamala Harris. They just decided to put him someplace else in the schedule for about the same amount of time. So it's not quite as onerous as it seems, because first of all, it just applies, for example, to primary candidates and it doesn't necessarily restrict political people from coming on. If you're not running for office, you can be on every day. You could have Bernie Sanders on every day if you want. And.
- [15:38]
A
But that's often why a lot of these guys don't give up their jobs at Fox or wherever until the very last minute. So they can have that airtime and then announce.
- [15:46]
B
Right, exactly. And just to stay in the weeds for 30 more seconds. So what the FCC has had to implement, or what are called the exceptions to that rule or law, one of the exceptions is if it's a bona fide news interview program, that equal opportunities doesn't apply. So the question with Colbert or now with the View is are those considered bonafide. Bonafide news interview programs?
- [16:19]
A
Right.
- [16:19]
B
And so in 2006, when Arnold Schwarzenegger came on the Tonight show with Jay Leno and, and announced he was running for governor, then obviously people complained and said, wait a second, that violates this equal opportunities provision. And that's not a news interview show. And the FCC had to decide whether or not the Tonight show was a news interview show. And it decided that it was. And that has been a precedent that has remained in place for 20 years now. So the question is, is that precedent going to continue or is the FCC going to begin to narrow what it considers to be a news interview show?
- [17:04]
A
So what they're doing is not narrowing, but expanding to have more control. I mean, that's my sense that this FCC is very heavy handed.
- [17:12]
B
Well, it is, but it may have the effect. But obviously what's interesting here is, is they're selectively looking at particular programs like Colbert or like the View, where they feel that they don't have the right political balance or the right type of candidates they would like to see. I think if you were going to, you know, reimagine what a news interview show would look like. You'd also look at call talk radio and other things where people are appearing, but they may not be news interview shows. So it's, it is a very selective area that I think the commission is probably weighted into In a way that it either shouldn't or can't wait into. But. But I think one of the real issues here is whether or not the FCC is going to continue as an independent agency. So right now, there's a Supreme Court case which is testing whether or not the president has the ability to fire people like the commissioners of the FCC if the President doesn't like what they say or do. So since the 1930s, the Supreme Court has said, no, you can't do that. These people are independent. Even though they're nominated by the president, they're confirmed. It looks like the Supreme Court is going to reverse that, which means that the FCC will now be directly controlled by the President. That's terrifying, and that is the really scary outcome that we're potentially looking at, because, as I said, literally, a president could decide tomorrow. I don't like what the FCC has done here. I am firing the head of the agency. And I. I think to some extent what's going on now behind the scenes is a lot of the people at the agencies are very fearful that once this decision comes out, they may be fired. So they certainly want to toe the line.
- [19:23]
A
Yeah, I can only imagine what kind of impact that would have on the midterms as well. Right. And, you know, I do think about the fact that YouTube is becoming one of the largest networks in the world, if not the largest network in the world, but the FCC doesn't have control over it, and perhaps it'll only make it a more popular destination for people looking for alternative entertainment news.
- [19:49]
B
It may. And I think one thing that this episode raises is really the idea that if you can't watch it on broadcast television, and it doesn't mean that you can't watch it, there are a lot of other places you could get it. So I think the. The impact of equal opportunities is probably going to fade because as we see with the Colbert incident, you basically just put that same interview up on YouTube. And also, you're not restricted in terms of the time you could have an extended interview go up on. On YouTube. And more and more people are. Are looking at alternative sources. So I think over time, it's not quite much ado about nothing, but I think to some extent, that episode, I think, has been overblown a little bit.
- [20:36]
A
Okay, well, right now we're gonna hear from our sponsor chapter. So good, so good, so good. New spring arrivals are at Nordstrom Rack stores. Now get ready to save big with up to 60 off rag and bone, Marc Jacobs, free people and more. How did I Not know Rack has Adidas because there's always something new. Join the NordicLub to unlock exclusive discounts. Shop new arrivals first and more. Plus, buy online and pick up at your favorite Rack store for free. Great brands, great prices. That's why you rack. Millions of seniors are on the wrong Medicare plan, and Chapter makes finding the right one simple. They scan all of the plans in under 20 minutes, and they find the right one for you, saving seniors on average eleven hundred dollars. It's free. And if you're already on the right plan, they'll just tell you. And it gives you peace of mind. So for free and unbiased Medicare help, dial 305-515-5237 to speak with my trusted partner, Chapter, or go to askchapter.org/tara. And we're back. Thanks so much to Chapter for sponsoring the show. I do want to talk about Don Lemon. Basically, what we're seeing is the administration calling him an activist, even though he is an independent journalist. He was arrested for conspiracy to deprive rights and interfering with the religious freedom because he was covering a protest inside of a church. Um, you know, basically, they're saying that he used intimidation, threat of forced physical obstruction against people who are trying to exercise their First Amendment right of religious freedom at a place of religious worship. I don't know what you think, Stuart. Actually, I'm very curious to hear what you think. But to me, what I saw was a journalist covering a Protestant inside of a church. And what do you think?
- [22:38]
B
Well, I think that's probably what the jurors are going to find in this case. And, you know, the. The eyes don't lie. And I. I think from a factual standpoint, I. I think Lehman has an extremely strong case here, and it's a really, an unprecedented prosecution using what's called the Face act, which says that you can't interfere with religious service. So that is an assault on journalists. And I think what we see in the Levin case clearly is he wants to get this resolved as soon as possible. The latest news is that the Justice Department wants to sort of extend this and go into discovery and make this a much larger case than it needs to be. But I think if this goes before a jury relatively soon, that would send a pretty strong message that these type of prosecutions are going to be very difficult to maintain, particularly in a situation like we saw with Don Lemon, where clearly he was acting and functioning as a journalist.
- [23:46]
A
Right. Yeah. I mean, do you think they're trying to go into discovery because they're Trying to prove that Don has a leftward slant in his journalism.
- [23:56]
B
Well, you can find out everything in discovery, right? One thing that discovery does is literally the word discovery. It opens people up to find out all sorts of information, some of which may never become part of evidence, but you find out things about a person that you then can leak elsewhere. So discovery is a very potent tool in litigation, which is why the Justice Department wants to try to get as much information as possible, particularly because we've seen all the videos and we understand what the context was. But now the Justice Department wants to get more information, right?
- [24:40]
A
Yeah. No, it is another moment of don't believe your eyes like what we saw with Alex Preddy. I do want to talk to you about the Department of Home Homeland Security. They have issued hundreds of administrative subpoenas to major tech companies, including Google, Meta, Reddit and Discord, trying to identify users who criticize or track ICE activities. It's basically a way to uncover identities behind anti ICE posts. What do you make of all of this?
- [25:09]
B
Well, here's where we have the First Amendment apply because clearly the ICE is part of the government. And what the government is trying to do is restrict information from going out there. And they're doing it typically in the name of national security, that we need this in order to protect the borders, maintain our national security. So national security has always been a big flag that government likes to waive when it tries to restrict free expression. And we've, we've seen that for decades and decades. And certainly many people are familiar with the Pentagon Papers case, which was in the early 1970s, classic case where the government did not want information about the Vietnam War leaking. Daniel Ellsberg obviously got that information, leaked it to the New York Times. That case went to the Supreme Court. The government said, you can't publish that because it's national security. And the Supreme Court said the government really has an extremely high bar it needs to meet in order to essentially suppress that information. So even though this is not a situation where we're trying to suppress prior publication, I think many of the principles apply here, which is it's really difficult for the government to say this is a national security issue. So I think if those companies push back and if it's tested on national security grounds, I think those companies would probably be successful in saying the government has not met the burden of showing why it needs this information in order to enforced border security, for example.
- [27:06]
A
Yeah, it seems like it is becoming a catch all justification, right?
- [27:11]
B
Absolutely. But the good part is courts are really really skeptical. And I have not seen any erosion in that skepticism. To some extent, there might even be an increase. But courts do not just accept what the government is saying as national security. And in order to side with the government, courts typically are asking really hard questions and typically are saying, you have not met the burden of showing us specifically how this is going to undermine national security. I think that'll be the case here, too.
- [27:46]
A
So I want to get into the domain that sort of, as an independent journalist, publisher, I see a lot of threats coming from the administration towards the Wall Street Journal, like we mentioned earlier, $10 billion for publishing his 50th birthday card that is allegedly signed by President Trump. You know, another suing a pollster and seltzer for a poll that President Trump didn't like during the 2024 election, suing the New York Times for billions dollars for a piece that he just didn't like. I mean, this is this textbook lawfare. Using the courts not to necessarily win, but to intimidate and exhaust.
- [28:26]
B
It is. I guess, if there is a silver lining here, it's this area called slap laws. And slap laws are laws that essentially are anti SLAPP laws. These essentially are suits that you can file against people who are pursuing these types of litigation saying that you are inhibiting my First Amendment rights and you're only suing me with for the purpose of inhibiting my First Amendment rights. And so right now we have 40 states, including the District of Columbia, which have these anti SLAP laws. That means if someone is sued, you can defend that suit by saying the suit should be thrown out because those people are trying to inhibit my First Amendment rights. And that's really the reason why they're bringing the suit. So SLAP is an acronym for Strategic Litigation Against Public Participation, but it's a really powerful defense tool to try to blunt the force of some of these actions.
- [29:34]
A
Do you think that powerful figures are just realizing you can just make journalism expensive and that's how you avoid getting written about?
- [29:43]
B
Well, that's part of it. And it's not just personally expensive, but as you know, there are a lot of expenses involved in insurance. And most media companies have insurance policies, and they either have large deductibles or they have all sorts of exclusions. So it's getting more difficult now to get the right type of insurance policies written. And if you don't have the right insurance, then you might make decisions based on not having that.
- [30:15]
A
We. I want to take a question from our audience. I think it's back up here. Hold on one second. Let me take a look at it. Hold on. Sorry, I'm just trying to get a look at it. Reps. Reps have serious dirt on Talarico. Fake strategy. I don't understand what that means, but. Okay. The Free Press is not free. It's owned by six people. Corporations. That's what happens when you deregulate Mania Media, get rid of the Fairness Doctrine and the Telecommunications Act. I mean, it's not. That's a fair comment because a lot of these independent journalists, these new media companies claim to be independent, but actually they're being funded by very wealthy people and corporations and they really are just micro corporations claiming to be independent. Right. Claiming to just be funded from their following. What do you think of that? I mean, I. I worry about that a little bit because you do. See, you hear a lot of these stories about wealthy people, like Peter Thiel, for example. I believe he's behind the Free Press. Let me check that before I say that for. He's a. He's a backer, I believe. Yeah, I think he did. Let me see the Free Press invested, you know, like. No, he did not invest in the Free Press. Excuse me. Sorry about that. But there he. She does have a number of backers that are, you know, various wealthy individuals who may not want to be covered. You know, what do you think about this? The independent media sort of being owned. I mean, the traditional media is owned by very wealthy people like Rupert Murdoch owning News Corp. You know, the New York Post, Wall Street, Fox, Wall Street Journal, Sulzberger, the New York Times. I guess it's a thing that wealthy publishers have always owned magazines and newspapers throughout time. Throughout time. But now it's a lot cheaper and you can own smaller independent outlets that have a lot of reach now in the Internet era. I mean, is this concerning. Should we be worried about that? And they don't have to give the same sort of disclosures.
- [32:30]
B
Well, just getting back to Free Press. As I understand it, Free Press has been acquired by Paramount Global.
- [32:37]
A
Right. Yes.
- [32:38]
B
And so we do know who the ownership of Free Press is right now.
- [32:43]
A
Right, right, right. But when it started.
- [32:44]
B
That's relatively transparent. We may not have known who invested in Free Press before that.
- [32:50]
A
Yeah, I was wrong about that. He was not. He was not an investor. But I should find out who were the original investors. But keep going. Yeah.
- [32:58]
B
Well, what's interesting is we do have this. I think it's a sort of a wonderful world, and you're part of it now. The world of independent journalism today, which is the ability to sort of start your own news organization and to grow it rapidly and obviously to use social media and other things. And so to some extent, those media can compete with legacy media. So it's not quite an even balance at this point. Yeah, we see a lot more ability, and we even see people like Jim Acosta or Don Lemon, people who are coming off of legacy media who are starting their own enterprises. And I think that's all for the good. Obviously, obviously, we don't know who is funding all of them, but I'm not sure that the funding is as important as the notion that we're getting more voices out there and more people who can access those voices in a variety of different ways. So there's the expression of a thousand flowers blooming. And if you believe in this notion of free expression, you want to always try to promote as many voices as you can out there. So that's sort of where I come out, which is, let's see how we can get more flowers blooming.
- [34:20]
A
Yeah, I agree with you. I just want to know if those flowers have been planted by people who are wealthier than them and want influence through those writers who are influential. Okay. I said Peter Thiel, probably because I was thinking, because actually David Sachs, who is his partner at PayPal, is one of her investors, along with Marc Andreessen, Howard Schultz, and. But obviously, as you said, Paramount bought it, so they no longer. They were just the first round of investors. But, yeah, I agree with you. But I also, you know, I have concerns about people trying to pick off influential journalists and, and using them. But, you know, independent media, you have to. It's not, it's not the easiest way to go. It's not the easiest route. But I do think in these times, people want to feel like they trust the voices that are talking to them, and they don't feel like that increasingly because of all of the politics, the filters, the standards departments, the dealing with the White House, the bureaucracy. Brendan Carr, of it all, the FCC chairman. There are a lot of different reasons why I think at this point it is thriving.
- [35:30]
B
Absolutely. And, you know, kudos to you and your compatriots because you're doing a great service, and not just for individual journalism, but for this notion of creating a culture of freer expression. And that's great.
- [35:45]
A
Thanks, I appreciate it. Well, thank you so much for your time and thanks to everyone who tuned in 2 o' clock on a Monday for some talk about free speech. Everyone, go out and buy Stuart's new book. Give everyone the name one more time.
- [36:00]
B
The title of the book Free Expression Under Fire and the subtitle is Defending Free Speech and Free Press across the Political Spectrum.
- [36:11]
A
Thanks so much for your time everybody. Go out and buy the book and would love to hear what you think of the interview in the comment section. As always, if you're coming across my page for the first time, I'd appreciate if you would subscribe and keep me in business as an independent journalist. So thank you.
- [36:28]
B
Great being with you. Thanks so much. Tara.
- [36:30]
A
Bye bye. This is a Monday.com ad, the same Monday.com designed for every team. The same Monday.com with built in AI scaling your work from day one. The same Monday.comwith an easy and intuitive setup. Go to Monday.com and try it for free.