0:01

Guess what day it is? Oh,

0:04

it's French Friday, it's French

0:06

Friday, so grab your fries

0:08

and say hooray. David French

0:10

is here to play on

0:12

French Friday. It's French Friday.

0:17

David French, welcome back. Well,

0:20

thanks for having you back, Skye. Always

0:22

enjoy talking to you. Somebody

0:24

had asked me if we were gonna talk

0:27

about Dune Part Two this week, and I

0:29

know you've talked about it with, I think,

0:31

Jonah on a Dispatch podcast, and we will

0:33

do another nerd fest, but it can't be

0:36

this time. We've

0:38

both seen it, we both loved it from what I've

0:40

seen you say on social media, so sorry

0:43

to disappoint those who really want a deep dive

0:45

on Dune Two. And plus, aren't we reserving that

0:48

for a nine-part special series? Yeah,

0:50

we really should, and you

0:52

just agreed to do a live event with us in Nashville

0:54

in May. I did. Maybe

0:57

we'll get some nerdy questions at that. If

0:59

people haven't seen it. I'd be disappointed if

1:01

we didn't, yeah. I know. Go to holypost.com/events,

1:03

and you can sign up for

1:05

that one, or we have some others going on with other

1:07

guests in other parts of the country. Okay, David,

1:11

you wrote a piece earlier this week in

1:13

the New York Times about TikTok, because TikTok

1:16

is making waves in Washington.

1:19

So the big controversy is that

1:21

the House of Representatives has passed

1:23

a surprisingly bipartisan bill that

1:26

would either ban TikTok in the

1:28

United States or mandate that the

1:31

Chinese owners of TikTok sell its

1:33

American version to American owners so

1:35

that it wouldn't be foreign-owned anymore.

1:39

That bill now goes to the Senate, but let's begin with this.

1:41

Why are people freaking

1:43

out or seeing TikTok as a

1:46

national security risk? What

1:48

is the threat of this social media

1:50

app? Right, so I'll give you

1:52

the case that

1:54

smart folks are making against TikTok, and then

1:56

there's a dumb case against TikTok. All right.

1:59

Yeah, so. The case that a

2:01

lot of smart folks are making against TikTok is they say,

2:03

okay, let's just

2:05

leave aside for the moment the

2:07

content of the app. Let's

2:10

not talk about the content of the

2:12

app. Let's not talk about whether having

2:14

a lot of dances or people dancing

2:18

and explaining geopolitics or

2:20

all of the various kinds of TikTok crazes and

2:22

trends are good for our youth. Let's

2:25

just put that to the side. We're more, much less

2:27

adults. Good for youth or adults. Let's put all of

2:29

the content stuff to one side and just look at

2:31

this. The People's

2:34

Republic of China has ultimate control

2:36

over an app that 170 million people

2:40

use that vacuums up an enormous

2:42

amount of our public, I mean

2:44

of our private information and

2:47

then has the ability to then use

2:49

that same app to broadcast straight back

2:51

out to us through push notifications, through

2:54

algorithmic changes that an actual

2:56

geopolitical enemy of the United States is

2:58

vacuuming up our personal information and has

3:00

the ability, if it so chooses, to

3:03

speak directly and immediately into the homes

3:05

of 170 million Americans. The

3:09

argument there is it doesn't matter what the content is.

3:11

This could be cute puppy

3:14

talk instead of TikTok. It

3:16

could be Bible versus the day talk.

3:19

It could be anything, but

3:21

by granting the People's Republic of

3:23

China that level of access to

3:25

our personal data and by granting

3:27

the People's Republic of China that

3:29

level of ability to immediately inject

3:32

itself into our public debate creates

3:34

a national security problem for the United

3:36

States. Therefore what this

3:38

bill says, it's not banning TikTok because

3:41

of its content. It's saying you can

3:43

have TikTok, you can have TikTok

3:46

exactly as it is just not

3:48

owned by a Chinese company, which

3:50

is ultimately subordinate to the Chinese

3:52

state. Just

3:55

if you think that that might be unusual To

3:57

ban an app because it's owned by a foreign. Then

4:00

treat well. That's why China does

4:02

to. I oversaw American social media,

4:04

right? And so I'm in. The

4:06

argument for banning Tic Toc or

4:09

for this legislation is it's not

4:11

about the dancing teenagers engines the

4:13

years. It's about who run, who

4:15

ultimately possesses the data, and who

4:17

ultimately controls the content. It's a

4:19

who, Not a what is that

4:22

Mcgrath? So or to stay on

4:24

the who Not what. Side

4:26

of this there have been some defenders of Tic

4:29

Toc who are say we'll wait a minute all

4:31

the content that we are seeing on there. Is.

4:34

Coming from, American users might listen

4:36

majority of it's so who cares? Like

4:38

if if Americans are Korean a concept

4:40

and Americans are consuming the contents,

4:42

then. Let. Americans have the

4:44

contents. There's been some arguments against

4:47

that, saying that Will the algorithm

4:49

that's actually control in China is

4:51

determining which content gets scene which

4:53

content gets most played. Some have

4:56

made the argument that people who

4:58

get their news content. Primarily.

5:01

Through Tic, Toc have a

5:03

disproportionate sympathy for Palestinians in

5:05

Gaza, rather than. Anti.

5:07

Semitic anti Semitism in the Us are

5:09

anti Israel like contests. So there's all

5:12

these concerns going back and forth about

5:14

the nature of the comments. Should we

5:16

be concerned about. The. Content at all

5:18

in this conversation? Or is it simply.

5:21

China. On this app and that's bad. So

5:25

yeah edition. Here are some content arguments is

5:27

so for example there's a Chinese version of

5:30

Tic Toc that just feeds Chinese kids and

5:32

like a bunch of is expressed. In

5:35

an American, Tic tac is inane by

5:37

comparison, And so there's a bummer to

5:39

say that China's using it to do

5:41

to basically. make make their

5:43

community listen stupid right yeah we we

5:45

do that perfectly well without china like

5:48

that that is are you know it's

5:50

it's it's not like instagram is like

5:52

a a constant lecture course it m

5:54

i t i mean come on here

5:56

you know so tic toc is not

5:58

materially different from american own social media.

6:00

There's no question about that. And so

6:02

that's why the content argument A,

6:05

doesn't really work based

6:08

on current content. And

6:10

B, would have a constitutional problem.

6:13

Because if you're saying we're banning

6:15

this because of the content that

6:17

Americans create in

6:19

America on a Chinese

6:21

app, well, then you're beginning to engage

6:25

in viewpoint discrimination against Americans

6:28

engaging in speech in America, but

6:30

on a Chinese owned app. And

6:32

so that's why that you have

6:34

to make this determination without regard

6:37

to the actual content on TikTok right now.

6:39

And you would have to argue

6:42

that there is a reason for

6:44

this action that is independent of

6:46

the content. Now that's not

6:48

to say that the content would never

6:51

matter. So for example, if you're talking

6:53

about a national security emergency, imagine

6:56

China launches an attack on Taiwan,

6:59

and then immediately is able to use a

7:01

lot of the location data and the information

7:03

data that people have given

7:06

to ByteDance through belonging

7:08

to TikTok to take

7:11

perhaps direct action against children

7:13

of American public officials, for

7:15

example, or immediately

7:18

use the algorithmic control to completely

7:20

flood the zone to 170 million

7:23

Americans of Chinese propaganda

7:25

about Taiwan. Now

7:28

that's not currently happening. So that's not

7:30

why this action is taking place because

7:32

of that content. But again, to put

7:35

it in another context,

7:38

imagine if on the onset of World War II,

7:40

170 million Americans

7:43

were then immediately available

7:46

for Hitler to provide

7:48

direct unmediated

7:51

propaganda access. Hitler

7:53

had direct unmediated propaganda access to 170 million

7:56

Americans. That

7:58

would be disastrous. that

8:00

would be terrible. It's terrible for national

8:02

security. So it's not about what TikTok,

8:05

the content on TikTok now,

8:08

although some people, when I said there's sort

8:11

of a not smart argument about TikTok, that's

8:13

the not smart argument about TikTok. Cause if

8:15

you're gonna single out TikTok,

8:17

well, what about Instagram reels?

8:19

What about Snapchat? I mean, it just goes

8:21

on. Okay, the issue of either

8:24

the foreign governments or US government

8:26

utilizing social media platforms for propaganda

8:28

purposes. We're gonna come back to

8:30

that later in our conversation. But

8:34

going back to this legislation right now on TikTok,

8:36

a lot of people were surprised that it

8:38

got bipartisan support in the house, given how

8:40

divisive our politics is these days. And

8:43

it's really interesting who was against

8:45

this TikTok ban because

8:47

you had people

8:50

you would expect on the far right, those

8:54

representatives who leveraged social media

8:57

extensively like Marjorie Taylor Greene, Matt

8:59

Gaetz, some of the other real

9:01

distasteful figures on the far right.

9:03

But you also had figures on

9:05

the far left, like AOC, who

9:07

were against this bill. So your

9:09

thoughts on why

9:12

opposition to this bill seem

9:14

to find really odd support on the extremes of

9:17

both parties. Yeah, it's a

9:19

great question. But it makes

9:22

sense for both extremes and it makes sense

9:24

under their own terms. So

9:27

for example, the right edge extreme,

9:29

was soon as Trump came out against it, which I'm

9:32

sure we'll talk about that as soon as Trump came out

9:34

against it. Obviously there's gonna be

9:36

some members of the Republican Party are just

9:38

gonna fall in line immediately, even

9:41

though opposition to China is kind of

9:43

a cornerstone principle of MAGA. That

9:46

in fact, this is how MAGA defends

9:48

itself against arguments about isolationism. They say,

9:50

well, look, Europe can handle Russia.

9:54

Let Europe handle Russia, that's not our

9:56

job. Only we can handle China and

9:58

China is the real threat. So

10:01

for years, the MAGA line was, you

10:03

know, we're not isolationist. I mean, America

10:06

first isn't the synonym for isolationist, but

10:08

China's the real threat from trade to

10:10

military power to economic power, you name

10:12

it. And so that's

10:15

why when Trump reversed, not

10:17

everyone went along with him, but some

10:19

people definitely were. And

10:21

then also you have to realize that a

10:24

MAGA content does pretty well on TikTok.

10:27

So there are some Republicans who said,

10:29

look, this is against our interests. MAGA

10:31

content does well here. This

10:34

is TikTok doesn't censor MAGA the

10:36

way, say, American tech

10:38

companies might censor MAGA. So

10:40

it's very against our interest to

10:43

censor TikTok. Now, on

10:45

the far left, some of this is

10:47

a holdover from the idea that the

10:50

anti-China emphasis is racist and

10:52

not really ideological or

10:54

national security based. In other words, that

10:57

singling out a Chinese app

10:59

is anti-Chinese and an ethnic

11:01

or racial sense versus anti-Chinese

11:05

Communist Party. I

11:08

would assume if there was a TikTok app

11:10

that had access to 170 million Americans that

11:12

was being put

11:14

out by Putin's Russia, we would

11:17

probably be just as concerned about that, if not

11:19

more concerned. Well, that's the answer back

11:21

to, say, an AOC or that far left

11:23

argument is no, you're just wrong. You're

11:26

not a racist. Race

11:28

has nothing to do with this. This is about

11:30

a geopolitical foe owning a social media app. And

11:32

then the other thing is Gen

11:35

Z is all over TikTok.

11:38

And Gen Z is a big

11:40

Democratic voting base. And so some

11:43

of the Democratic reluctance to deal with

11:45

TikTok is just basically, hey,

11:47

look, we get it. We understand that

11:49

there are dangers here,

11:52

but this is really unpopular.

11:54

This is not something that

11:57

our core constituency wants. So

12:00

they're going to look for ways to sort

12:02

of deal with the national security issue while

12:04

not alienating a core constituency. I

12:07

wrote about this and I said, look, TikTok's

12:09

popular and Congress doesn't like to ban popular

12:11

things. And so there's real concern

12:13

that it's slowing down in the Senate. The ban

12:16

is slowing down in the Senate, both

12:18

because a key democratic

12:20

constituency is all over TikTok and

12:23

because on the Republican side, Donald

12:25

Trump doesn't want it banned. And

12:27

so, yeah, we'll see. We'll

12:30

talk about the Trump thing in a second.

12:32

I don't quite get though is, I mean,

12:34

obviously TikTok is an enormously valuable company just

12:36

because of its huge audience and its revenue

12:39

potential. And so with

12:42

the possibility that this bill might force

12:44

China to sell TikTok, there are already

12:46

suitors lining up to buy this. Yes.

12:49

Right. There are private equity firms

12:51

here in the US. The Saudis already said they want a

12:54

stab at buying this app. I

12:56

don't know if that would be better or worse. Again, they have

12:58

a different foreign power owning it. But someone's

13:00

going to buy it. Someone's going to relaunch

13:02

it. If it's

13:05

off of the US market for any amount of time,

13:07

it's going to be incredibly short. So

13:10

Gen Z is concerned that they're not going to

13:12

be able to do dance moves anymore or waste

13:14

hours scrolling on TikTok. At

13:16

the very worst, it's going to be a short-lived

13:19

disappearance of this app before it's relaunched. So it's

13:21

not going away. I can't see that being a

13:25

lasting concern of anyone in Congress who

13:27

says, well, we've got to just bypass

13:29

the national security fears because Gen Z

13:31

has to have this addiction-fed.

13:36

Gen Z needs its crack. Right. Okay.

13:41

And it's fascinating because back in 2020,

13:44

Trump tried to ban TikTok when

13:46

he was still in office. But

13:49

recently, he has completely done a 180

13:51

and now says we need

13:53

to not ban TikTok. Instead, we

13:56

should ban Facebook. Thanks

13:59

for the real... real enemy. Yeah.

14:02

Right. All right. So

14:04

let's analyze this. What

14:07

are the hypotheses as to why Trump

14:09

has done a 180, especially given his

14:11

anti-China rhetoric, which has been a cornerstone

14:13

of his MAGA platform since 2015? Why

14:17

is he now kind of

14:19

chief defender of TikTok and Chinese

14:21

ownership of TikTok? Yeah.

14:24

Yeah. Look, there's a

14:26

number of viable theories right now, but

14:28

all the viable theories depend on an

14:31

underlying reality about Trump. And that underlying

14:33

reality is there's no fixed principle here

14:36

other than what is it that helps Donald Trump? Right.

14:40

So even if you go back to 2020, I had a

14:42

very thoughtful reader wrote into me

14:44

and it said, even that

14:47

2020 Trump effort to ban

14:49

TikTok, that wasn't

14:51

necessarily motivated by national

14:53

security idealism because it's occurring after a

14:56

lot of Korean pop

14:58

fans, Korean K-pop

15:01

fans flooded TikTok with

15:03

this sort of idea to vacuum

15:05

up tickets. Remember this to a

15:08

Donald Trump political rally? Yeah. Yeah.

15:12

And there were all these empty seats because like

15:14

somehow, and I can't remember how there was a

15:16

grudge between K-pop fans and Trump. There's been so

15:18

many grudges over the years. And

15:20

so the argument was that, well, wait, that first initial

15:22

effort to ban was nothing more than a temper tantrum

15:25

itself. I'm not

15:27

as convinced by that because there

15:29

was a very consistent theme in

15:32

macro world for

15:34

all four years that while Trump would express

15:36

personal admiration for Xi, the Chinese

15:40

leader, there

15:42

was always an anti-China

15:46

strand through Trump foreign policy.

15:48

Right. Yeah. Yeah. Including

15:52

trade. Absolutely. And so

15:54

the Trump TikTok ban effort in 2020 was par

15:56

for the course for MAGA. I

15:58

did not see that as necessarily. just

16:00

purely motivated by Trump's own

16:02

personal quest for

16:04

vengeance. But 2024, TikTok

16:07

is more powerful than it was in 2020. TikTok

16:09

is more influential than it was in 2020. And

16:12

now Trump has flipped around

16:14

and there's multiple theories. One theory

16:16

is, hey, Trump has

16:18

about $500 million in debt right now

16:21

that he is strapped

16:24

for cash and

16:26

that he's then much more vulnerable to

16:28

people who have lots of cash coming

16:30

in and saying, hey,

16:32

I can help you with that New York

16:35

judgment, with those attorney's fees, with all of

16:37

this, but you know, you scratch, I scratch

16:39

your back, you scratch mine. And

16:42

there's been, you know, a major,

16:44

major mega donor who has, who

16:47

has absolutely, you know, been sort

16:49

of flirting with Trump and who

16:52

is a big time

16:54

investor in TikTok. And so

16:56

that's one, that's

16:58

one theory. I think the,

17:01

sorry, didn't even former vice president Mike

17:04

Pence open up and

17:06

talk about his theory that Trump has changed

17:08

his view on TikTok because of this donor

17:10

name you identify him as

17:12

Jeff Yass. Yes. Yes. Yes.

17:16

Yes, that's right. And so that

17:18

is a, that's a theory and it's

17:21

got a lot, there's

17:23

a lot to be said for it, but

17:25

there's also another theory that's got a lot

17:27

to be said for it that also matches

17:29

Trump's words. And that

17:31

is actually the real enemy

17:33

for Trump and Trumpism is

17:36

always the domestic enemy. That

17:39

in other words, they're much more concerned

17:41

and have, get much more anger at

17:44

their American opponents than their foreign

17:46

enemies. And how would

17:49

we think that Trump might have this motivation?

17:51

Well, this is what he said in truth

17:53

social in all caps.

17:56

TikTok is less of a danger to the

17:58

USA than meta Facebook. book, which is a

18:00

true enemy of the people. One

18:05

explanation is, has nothing to do with the

18:07

money and has everything to do with the

18:10

grievance that is

18:12

just steeped within Trumpism. And

18:15

that is, they just dislike Mark Zuckerberg more

18:17

than they dislike Xi and the People's Republic

18:20

of China. And if in this

18:22

zero-sum game, if tech talk loses, meta might

18:24

gain and we just can't have that. The

18:28

odds are it's actually some sort of

18:30

combination of these factors. And

18:32

for those who've forgotten back

18:34

in 2021 after the attack on the Capitol, meta,

18:38

Mark Zuckerberg and Facebook banned Trump

18:40

from posting, as did Twitter at

18:42

the time before it was owned

18:44

by Elon Musk. And so

18:46

Trump has had a grudge against these

18:48

American owned social media companies for kicking

18:51

him off the network for spreading misinformation

18:53

and lies that led to the January

18:55

6th attack. So

18:58

the enemy of my enemy is sort of

19:00

my friend, or maybe it's the other way

19:03

around, where Trump sees TikTok as a competitor

19:05

for Facebook. So why would he want

19:07

to do something that would be beneficial for Facebook when

19:09

he doesn't like them? It's

19:11

petty, it's small minded, it's self-interested,

19:13

and those are values that we have

19:15

seen time again and again motivate

19:19

Trump. So it makes sense. Where

19:23

do you think this is going? What's in

19:25

the Senate now? Does

19:27

the Senate have a bipartisan kind of

19:30

kumbaya moment like the House did

19:32

in rallying against TikTok for the

19:35

sake of national security? Or does

19:37

Trump kind of weasel

19:40

his way in there again like he did with the immigration

19:42

bill and convince enough senators

19:44

to side with him in China and

19:47

scuttles the whole thing? So

19:51

it's been pretty obvious from the conversation so

19:53

far that I support this bill. So

19:57

when I say there's a danger to this bill,

19:59

I'm coming from the stand. point of I'm supporting

20:01

this. And I think there's two dangers at once.

20:04

So danger number one is that a

20:06

lot of Democrats are just, as I said earlier,

20:09

worried about the popularity of the app with Gen

20:11

Z. And there's a lot of concern in the

20:13

Democratic world that we might lose

20:15

this election because we're losing support with Gen

20:17

Z. And so, you know,

20:20

there might be a subtle message that says, not

20:23

now. Not in election

20:25

year, not right now. Joe

20:27

Biden has said he would sign the bill. Biden

20:30

has said he'd sign it. Trump has said

20:32

he opposes it. So this is another example,

20:34

as with Russia and Ukraine, where you have

20:37

Biden saying, taking the

20:39

harder line against our foreign foes and

20:41

Trump is. But

20:43

it's the question, how much does Biden

20:45

really want to sign it? He's

20:48

willing to sign it. How much is he wanting

20:50

to sign it? So is there circumstance where Chuck

20:52

Schumer could kind of do him a political solid

20:55

and not exactly raise

20:58

too much of a ruckus and trying to

21:00

push this through, you know, using the procedural

21:02

maneuvers that can kind of cause

21:04

it to die out temporarily, like assign

21:06

it to committee, have the committee slow

21:09

roll it, those kinds of things. I

21:11

think that's one danger sort of from

21:13

the left side of the aisle. I

21:15

think the danger from the right side of the aisle is

21:17

that Trump's just drawn a line

21:19

in the sand here and he's got a lot of

21:22

reliable folks in the Senate who are just going to

21:24

do what he asks. It's not the

21:26

same as the House, but there are

21:28

some folks in the Senate. And my concern

21:30

for the bill is the combination of, okay,

21:34

in theory on the Democratic side, okay, in theory

21:36

we're for this, but it's politically difficult. With

21:39

on the Republican side, in reality we're really

21:41

for it, but Trump makes it difficult, could

21:45

combine to squelch

21:47

the bill, at least for now. That's

21:50

an interesting thought. I wonder if there

21:53

were a suitor or a buyer approved

21:55

in advance, would that

21:57

win more Democratic votes to know? All

21:59

right. It's not going to go away.

22:02

No one's going to lose their TikTok accounts or

22:04

service. It's just going to transfer ownership from China

22:06

to this US company and We're

22:10

not going to lose young voters over this. Would that be

22:12

enough to get them over the hump? I don't know But

22:16

it seems obvious that no one's in a hurry to

22:18

tackle this issue Maybe after the election if

22:20

things go a certain way, they'll solve it.

22:22

Before we leave this TikTok specific thing You

22:24

brought up the the interesting

22:26

dynamic that TikTok in a way proved

22:29

their critics worries

22:32

and concerns when when TikTok called

22:35

upon their most popular

22:37

influencers on their platform to

22:40

flood congressional leaders with phone

22:42

calls and letters and lobbying efforts to

22:44

get them not to pass this bill

22:46

and You

22:49

wrote the resulting flood of angry calls

22:51

demonstrated exactly how TikTok can trigger a

22:53

public response and gave the

22:55

lie to the idea that the app did not

22:57

have a clear and essentially I'm

23:01

I can't read it through my own highlighters.

23:03

It's so dark political influence. Anyway, TikTok

23:06

saying no, we don't have a disproportionate political influence and

23:08

then they just showed How

23:10

disproportionate their political influence was by trying to stop

23:12

this bill. Oh, yeah I mean

23:15

Tom Tillis today put up on Twitter

23:17

a tape recording of a death threat that

23:19

he got Obviously from a young lady a

23:22

young girl who and so, you

23:24

know It's not it wasn't a

23:26

true death threat in the sense that you hear it

23:28

and you think oh no Somebody's coming after him But

23:30

here's somebody who sounds like they're in middle school or

23:32

young high school Just laughing Lee

23:34

talking about how they're gonna shoot a senator,

23:36

right? And it's absurd and

23:38

there were people who would call in and saying they

23:40

were going to commit suicide Because

23:43

of the TikTok bill and

23:45

it infuriated a lot of members of

23:47

Congress It was the worst thing that

23:50

TikTok could have done and again for

23:52

somebody like me who's saying this is

23:54

the potential of the app I was

23:56

imagining you have a Chinese attack

23:58

on Taiwan and all of a sudden contact

24:00

your congressman to stop nuclear war

24:02

to prevent America from defending Taiwan.

24:06

That kind of actual push

24:08

into American politics by an act

24:10

of hostile power is really, really

24:13

dangerous and they proved it. They proved that

24:16

it was dangerous. So

24:18

I'm going to be fascinated to see

24:21

what happens. I'm actually encouraged that it

24:23

made it out of the house with

24:25

a bipartisan majority because it does show

24:27

there are still some limited circumstances where

24:29

obvious foreign problems can unite us. But

24:32

with everything in the Senate going on in

24:35

the emerging Trump opposition and worries about

24:37

the 24 election, I'm

24:40

really afraid we're not going to do the

24:42

right thing from a national security perspective because

24:44

of short-term political considerations. This

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27:07

right, let's transition from that social media

27:10

story to an even broader social media

27:12

story. And that is, in the last

27:14

number of weeks, the Supreme Court has

27:16

been addressing or hearing oral arguments on

27:19

a number of different attempts

27:21

to regulate US

27:23

social media platforms. There's

27:27

a lot to unpack here, but let's start

27:29

with the Florida

27:32

and Texas bills. So these

27:34

were laws that were passed

27:36

in Florida and Texas that were intended to

27:39

stop social media platforms from

27:43

censoring or regulating the content on

27:45

their own platforms. My

27:47

understanding was conservatives in Texas and Florida

27:49

were saying that places like Facebook

27:53

or Twitter, maybe

27:55

before Elon Musk, other platforms were

27:59

inappropriate. appropriately removing or

28:01

censoring content that was conservative

28:05

in its outlook and They

28:07

passed bill saying you can't do this That

28:10

is now before the Supreme Court, but

28:12

there's also these bills coming out of

28:14

Missouri and Louisiana. Is it? Cases

28:17

coming out of yeah cases multiple cases and

28:19

they're coming out a little bit differently. They're

28:21

upset that the

28:23

Biden administration Has voiced

28:26

concern to social media companies about

28:28

certain content that's on their platforms

28:30

urging them to remove it saying

28:33

that that kind of Influence

28:36

coming from the White House or the administration

28:38

is also a problem

28:41

so the Supreme Court is

28:43

now finding itself at the cross section of

28:46

Fairly new at least new is the

28:48

Supreme Court would argue new digital platforms and

28:52

having to uphold freedom of speech So

28:55

there's a lot of different layers to these to

28:57

these cases But however the the court

28:59

rules on it could have a massive

29:01

influence on the way we communicate

29:03

as a society and who has access To what

29:06

platforms? Yeah, so I'm gonna throw all this at

29:08

you David and you tell me what piece you

29:10

want to tackle first In

29:12

trying to peel this onion. Well, you kind

29:15

of have to tackle them together because they're two

29:17

sides of the same coin. So moving

29:20

through 2020 There

29:23

are a lot of Republicans Who

29:25

sort of reached peak fury against

29:27

big tech on multiple

29:29

grounds? So ground number one

29:31

was they believed that big tech was

29:33

on Biden's

29:36

side not Trump's side and

29:38

that big tech was You

29:41

know whether it was through donations

29:43

that you know big tech that

29:45

Facebook etc were making regarding Ballot

29:48

access to try to improve ballot access around

29:50

the country or the way in which they

29:52

moderated for example when

29:54

the Story from the

29:56

New York Post broke about the hunter Biden

29:59

laptop that how Twitter later, immediately

30:01

throttled discussions of the

30:03

Hunter Biden laptop, lifted the

30:05

throttle later, but in the short term,

30:07

throttled discussions, or

30:09

Big Tech banned from the platform. So

30:12

there was this real sense, and then especially,

30:15

and all this got, was

30:17

massively amplified by concerns over

30:19

COVID and how Big Tech was

30:21

taking aim at what it perceived to be COVID

30:24

disinformation. Even when sometimes

30:26

it wasn't

30:28

disinformation at all. Such as the lab

30:30

leak theory for COVID, Big

30:33

Tech took some steps to try to restrict the

30:35

spread of the lab leak theory. And

30:38

now the lab leak theory may well be the

30:40

best available theory we have for COVID's origins. So

30:43

there were some legitimate beefs that

30:45

people had. I mean, suppressing the

30:47

laptop story was wrong. Suppressing

30:51

lab leak discussion was wrong. Both

30:54

were suppressed under the rubric of

30:56

so-called misinformation, and they just were

30:58

wrong. So there was a

31:00

legitimate beef that a lot of Republicans had

31:03

against Big Tech. So yeah. To

31:05

pause for a second though, the lab leak story,

31:07

my understanding was it got

31:10

suppressed on social media because at

31:12

the time it was seen as

31:14

a reason for inflaming anti-Asian rhetoric

31:17

and racism. And

31:19

so the concern wasn't strictly lab

31:22

leak is misinformation, therefore we're going to remove

31:24

it. It's lab leak is

31:26

a dog whistle for anti-Asian racism.

31:28

That's why we're going to remove it. Regardless,

31:31

these social media platforms have their own

31:33

set of values that they then use

31:35

to filter what content they want on

31:39

their platform. And Texas and

31:41

Florida are saying, no, no, that's not fair.

31:43

You need to treat these as open forums

31:45

for free speech. And just because

31:47

you don't like someone's speech doesn't mean simply

31:50

owning the platform means you get to remove

31:52

it. Right. Yeah. And

31:55

so there were two responses to this 2020

31:57

spasm of anger. That's number one

31:59

is Florida. and Texas saying, hey,

32:01

we're going to control how you moderate your platform.

32:04

So Texas's control took the form

32:07

of essentially saying, look, here's the criteria

32:09

that you have to use. It's

32:11

got to be viewpoint neutral. And there's a specific way you

32:13

can moderate. Florida was different in

32:15

that one of the things it was saying was

32:18

gave privileged access to candidates for

32:20

office. For example, you can't remove

32:23

these candidates for office. And

32:25

the bills are detailed and have their own

32:27

distinctions. But that was step number one. And

32:29

then step number two was

32:31

to confront the social media

32:33

companies over their censorship in 2020, 2021.

32:38

And that's where the Twitter

32:41

files come in. So the Twitter files is

32:43

a series of files

32:45

after Elon Musk bought Twitter.

32:47

He gave some selected journalists

32:49

access to internal documents. And

32:52

so these internal documents

32:54

showed that members of the

32:56

Biden campaign, members of the

32:58

Trump administration, members of the

33:01

federal government were constantly jawboning

33:03

the social media companies saying,

33:05

hey, you should take this down or hey,

33:07

you should take that down or this is

33:10

misinformation and that is misinformation or that violates

33:12

the terms of your service. And

33:14

so what a lot of MAGA

33:16

thought when they Twitter files came through is

33:18

they thought, aha, we have the smoking gun

33:21

of federal and tech

33:24

of big deep state and

33:26

big tech collusion. And

33:29

so lawsuits were filed

33:31

to try to stop that. So

33:34

Texas and Florida passed laws trying

33:36

to regulate moderation. And

33:38

then the lawsuits are filed to try

33:41

to stop government officials from interacting with

33:43

social media. Okay. And just

33:45

from an outsider layperson point of view,

33:47

forget the law for a minute, forget

33:49

constitutional rights. It

33:51

just seems contradictory that

33:53

on the one hand, Texas and Florida are saying

33:56

we want to control what you put on your

33:58

platform and make sure that you do. what we

34:00

want you to do. But then these other lawsuits are saying,

34:03

social media companies, you can't be influenced

34:05

by what the government tells you you

34:07

should and shouldn't put on your platforms.

34:09

That seems contradictory. It's a

34:11

problem. The two lawsuits are in tension with

34:13

each other in an interesting way because the

34:16

argument in the Missouri case that

34:19

was argued was that the interstate

34:21

interference was a

34:23

constitutional violation. Right. Okay.

34:26

But then the net choice cases involving

34:28

Florida and Texas, they're trying to argue

34:31

that state interference isn't a constitutional violation.

34:33

Right. And these are

34:35

all coming from red conservative states

34:37

trying to say that social media

34:40

is biased towards progressivism. So

34:42

you have conservative actors here contradicting

34:44

their own arguments. One saying, don't be influenced by

34:46

what the state wants you to do. And the

34:48

other saying, yes, the state should have

34:51

control over what you do if it's a red state. Well,

34:53

yeah, but this goes to the new rights for you

34:56

of free speech, which is free speech for me and

34:58

not for thee. So

35:00

the Texas and Florida, they're

35:02

stepping into control. Yay,

35:04

because it's more free speech for me. The

35:09

federal government is stepping in in

35:12

a way that we don't like. Well, now the

35:15

constitution applies. Right, because

35:17

it's a democratic administration that they're

35:19

upset with. Right, right. And

35:21

so I suspect they're

35:23

gonna lose both cases. Okay.

35:27

Yeah, so if you go again with

35:29

the danger, there's always a danger in

35:31

judging the outcome of a case from

35:33

the oral argument alone, but

35:37

you can usually judge the

35:39

outcome. You can't always judge the outcome is

35:41

the way I would put it. And

35:44

if you looked at the oral argument in the Texas

35:46

and Florida case and the argument in the Missouri case,

35:49

both of them, the justices

35:51

seemed extremely skeptical to

35:54

the right wing position. Extremely

35:56

skeptical. A number of things I've read

35:58

or heard about this. From what

36:00

I understand, some of the justices themselves

36:03

during the oral arguments were able

36:05

to acknowledge that they may not be the

36:07

best people to understand and

36:09

analyze social media given

36:12

their ages. Is

36:14

that a fair critique here? Is

36:17

technology moving at such a speed that

36:20

an older generation occupying the seats

36:23

that will regulate it may

36:25

not fully understand the implications of their own rulings?

36:30

Okay, there are areas

36:32

in which technical expertise

36:34

is in some degree of

36:36

technical expertise is indispensable to rendering

36:38

a sensible judgment. There

36:41

are limited areas like that.

36:44

Limited. As a general matter,

36:47

that is the free speech

36:49

issues on tech platforms are not super

36:51

novel at all.

36:53

There are offline analogies again

36:55

and again and again and

36:57

again for online speech controversies.

37:01

A lot of times, and this is something that the

37:04

new right also happens to be the

37:06

young right often, and

37:09

they have zero historical perspective on

37:11

these kinds of disputes and debates.

37:15

They think that stuff that happens that

37:17

they've seen online is new

37:19

and novel and remarkable when

37:22

there are offline analogs to all

37:24

of this that have existed forever.

37:27

For example, let's look at

37:30

the jaw boning issue. The jaw boning issue

37:32

is the issue that says, hey,

37:34

you can't tell Facebook we

37:36

would prefer you to take X, Y, or Z posts

37:39

down. You just can't do that. You

37:41

mean the federal government? Yeah, you federal

37:43

government, you can't reach out to Facebook and

37:45

say, take this post down.

37:48

Oh, really? For generations,

37:54

government officials have been calling reporters,

37:56

screaming at them, cursing at them,

37:59

telling them, demanding that they not

38:01

publish something. And we just

38:03

recorded an episode of Advisory Opinions where

38:05

Sarah gives this great anecdote about dropping

38:08

liberally carpet bombing a conversation

38:10

with F-bombs with some

38:13

reporters to try to tell

38:15

them they're wrong and they shouldn't publish what

38:17

they were expected

38:19

to publish. It's

38:21

a great story, you need to listen to the podcast.

38:24

It's very funny because Jeff Sessions who walks

38:26

in at the tail end of her carpet

38:28

bombing of F-bombs and it's a very funny

38:30

story. But this

38:33

has happened, I mean how many times in

38:35

American history have government officials sat down with

38:38

say editors from the New York Times and

38:40

said don't publish that story that contains classified

38:42

information. Right. And they're asking,

38:45

they're not telling, okay. Because

38:47

the difference would be if the government official

38:49

says if you publish this, we

38:52

will audit your taxes. You're

38:54

prosecuted, right. You're gonna be prosecuted or

38:57

we're gonna take away some, you

38:59

know your freedom of the press, whatever. If

39:02

there's some coercion, then

39:04

the government's in trouble. But to simply

39:06

ask is

39:09

not a problem. It's normal. It's very

39:11

normal. Yeah and so there's a

39:13

difference between convincing and coercing. And if you

39:15

think well, government officials shouldn't be in the

39:17

business of convincing, in

39:19

actuality we do even elect people

39:22

to make arguments and public. So

39:24

my understanding is from the so-called Twitter

39:26

files, the Biden administration had gone

39:29

to Twitter and other social media actors and

39:31

said, you need to take

39:33

down content on your platform that is

39:35

misinformation about the vaccines or it's misinformation

39:37

about COVID or misinformation

39:40

about the stolen 2020 election because

39:42

these pose a public health risk

39:44

or a public security risk. Right.

39:47

And so, but they were

39:49

ultimately powerless. The Biden administration was ultimately

39:51

powerless to force

39:53

any of the media companies to do that. But

39:55

they asked. And they had no

39:57

immediate, so not only they were

39:59

powerless. powerless, and they didn't even

40:02

really have the ability to say, if you

40:05

don't do what we say, then we

40:07

will change the law to come after

40:09

you. Because they could say, if

40:11

you don't do what we say, we can try

40:13

to change the law. Didn't

40:16

have that ability to actually change the

40:18

law. And also, you're dealing with, if

40:21

anyone's saying, oh, these poor social media

40:23

companies just being browbeaten by the government.

40:26

These are the most powerful, some of the most

40:28

powerful corporate entities in the world who have unlimited

40:31

resources to hire the very best legal

40:33

team money can buy to take

40:36

on the federal government. These are

40:38

not easily-intimidatable corporate entities. Just like

40:40

my employer, the New York Times,

40:42

is not an easily-intimidatable by the

40:44

government corporate entity. We

40:47

have an enormous amount of power

40:50

and autonomy under our American

40:52

constitutional system. And so does

40:55

Facebook, so does all the others.

40:57

It's not the deep state picking on some

41:00

dude in his basement. I'd

41:02

like to believe that's true of the Holy Post, too.

41:06

If we are an authority. That's right.

41:08

If we got a call from the deep

41:10

state representative threatening us, we would stand our

41:13

ground. Let's

41:19

talk about the other side of this, the Texas

41:21

and Florida attempts. What

41:24

about the Supreme Court stance

41:26

on state

41:29

actors wanting to guarantee certain

41:31

content is allowed on platforms

41:33

that those platforms don't want

41:35

to publish? Does

41:37

that have a snowball's chance before the Supreme

41:39

Court? Based

41:42

on the oral

41:44

argument, highly unlikely.

41:49

Unlawdly. So let

41:51

me put it this way. If

41:53

you're a listener and you're familiar with the

41:55

303 Creative Case or the Masterpiece Cake Shop

41:58

Case, these are cases where where

42:00

a state government,

42:02

in those cases, Colorado, was telling

42:05

a private corporation, a bakery, and

42:07

a graphic design company, there

42:10

is speech or expression you

42:12

have to engage in. In

42:15

other words, for Masterpiece Cake Shop is

42:17

you have to custom design a

42:20

cake for a gay wedding. For

42:22

303 Creative, it was you have to design

42:25

websites for gay weddings. The

42:28

Supreme Court in 303 Creative, in no

42:31

uncertain terms, says you cannot coerce a

42:34

private corporation to engage

42:36

in speech. You

42:39

can't coerce a private corporation

42:41

necessarily to host speech. And

42:44

so this is a classic

42:46

compelled speech argument or

42:49

case that, hey, a private

42:51

corporation does not have to advance

42:53

an idea that it disagrees

42:55

with. What

42:57

has cheered the outcome of 303 Creative? How

42:59

dare the government try to tell a

43:01

graphic designer or a

43:04

bakery shop owner

43:06

what expression they should advance?

43:09

Similarly, to take a big

43:11

company, Hobby Lobby, multi-billion dollar

43:15

craft store, they

43:17

said we have a religious

43:19

liberty interest and not

43:22

complying with the Obamacare contraception

43:24

mandate. Here again,

43:26

a private corporation cannot be

43:28

compelled in that circumstance to

43:30

engage in conduct

43:33

that violated its religious conduct. Conscious.

43:36

Conscience. We're both having

43:39

pronunciation issues. And

43:41

so in that circumstance, the private company

43:44

was in charge of its own

43:46

speech and expression. And

43:49

conservatives cheered. Here's

43:52

Facebook, here's Twitter, private companies engaging in

43:54

their own speech and expression as to

43:57

which voices they're going to highlight or

43:59

record. platform, they made a

44:01

different choice from Hobby Lobby or 303 Creative or

44:03

Masterpiece Cake

44:05

Shop. They chose their own

44:08

policies and their own procedures and conservatives

44:10

didn't like it. And

44:12

so then a lot of the new right decided,

44:14

well, the state,

44:17

actually the state can compel private citizens

44:19

to host. Okay.

44:22

So let me push that analogy

44:24

maybe too far. I

44:27

understand that the government cannot force

44:30

Jack Smith, what was his name? The baker. Jack

44:33

Smith, yeah. You cannot force Jack Smith to

44:35

bake a cake that communicates a message

44:37

he does not want to communicate. What

44:41

if Masterpiece Cake Shop was a

44:44

business that invited the public

44:46

in where they could

44:48

learn how to make cakes themselves and

44:50

they can make cakes using

44:53

their ingredients, using their ovens,

44:55

using their stuff and Jack

44:58

Smith wants to be able

45:00

to tell a patron in his shop,

45:03

hey, you can't make that cake that

45:05

celebrates same-sex marriages. Is

45:07

that still the same? Because that seems more

45:10

like what Facebook and Twitter are doing is

45:12

they're inviting the public onto their platform to

45:14

communicate messages and then telling

45:16

them but you can't communicate that message.

45:19

So it's not Twitter or Facebook communicating

45:21

the message, it's just their platform being

45:23

used to communicate someone else's message. Well

45:25

they would say no, it's actually both

45:27

of us. So you're

45:30

communicating a message that is on

45:32

the Facebook website, it is

45:34

a Facebook branded site is the Facebook and

45:36

if you look at the terms of service

45:38

of these places, what you're realizing when you

45:40

create a Twitter post and

45:42

this I haven't looked at the most recent Twitter terms

45:44

of service but there was a time when you created

45:46

Twitter post, it was no longer

45:49

your post, it was its Twitter's

45:51

post. Twitter owns that post, it can

45:53

do with it what it wants and

45:55

so what you are, you

45:57

are being given an opportunity. Unlike

46:00

any opportunity we've had in world history, which

46:02

is essentially instant theoretical access

46:05

to the general public, we've

46:07

never really had that before. But

46:10

within boundaries, and those boundaries are set by

46:12

the owner of the space. So

46:15

for example, Gab, which claims to

46:17

be free speech absolutist, says, anything

46:20

you post that's not illegal, you can keep

46:22

up. Well, Facebook has

46:24

a different philosophy of how it wants

46:26

its space to be used. So it

46:30

will sometimes privilege pictures

46:32

about your food over

46:35

your posts about politics. Why? Because

46:38

they found that Facebook as a community thrives when it's

46:40

more about connection between

46:42

people and less about fights over

46:44

issues. So they choose to orient

46:46

it in that way. Where Twitter chose for

46:48

a time to orient its algorithm in one way

46:50

that amplified a certain kind of content. Elon

46:53

Musk comes in, changes it. Now

46:56

Twitter amplifies a bunch of white nationalists. So

47:00

these platforms are participating

47:03

with the consumer. It's

47:06

not just like a blank

47:08

bulletin board that I post whatever I

47:10

want to post. So the question seems

47:12

to be, when do these companies that

47:15

give people unprecedented

47:17

access to the public square, when

47:19

do they become common

47:21

carriers? In other words, you

47:23

can't just broadcast whatever you want on television

47:26

because the government regulates what is obscene

47:29

speech and what's allowed and what is

47:31

not allowed because it's seen as a

47:33

public carrier to the

47:36

broadcast networks can't just put

47:38

anything they want up. So

47:40

the government steps in and regulates how those platforms

47:43

are allowed to be used. When

47:45

does a Facebook or Twitter essentially become a

47:47

common carrier where the government can step in

47:50

and regulate their content rather

47:52

than if they regulate themselves? Well

47:54

when it comes to public posting of thoughts or

47:56

ideas, never. When it comes

47:59

to private delivery of messages? Maybe.

48:01

So the difference is, so

48:04

when it comes to broadcast, we have to

48:06

put that in its own category because broadcast,

48:08

all broadcast airwaves are owned by the government.

48:11

Okay. So when you're talking about

48:14

ABC, NBC, CBS, when you're talking about AM

48:16

or FM radio, they are broadcasting their signal

48:19

on a signal that the government owns.

48:21

So the government, because it owns the

48:24

signal, has a lot more

48:26

authority. So for example, the decency rules

48:28

around the FCC and all of this,

48:30

there's more authority that exists because these

48:32

are government airwaves. But

48:35

a common carrier is something more like, say,

48:37

an AT&T or like

48:39

a FedEx. And usually what that means is you

48:42

have had companies, private companies

48:45

that create, in essence, what you might, services

48:48

that have an analog to

48:50

government services and often have

48:52

utilized government resources to create

48:54

their services. And

48:56

so for example, AT&T, back

48:59

before we were all on cell

49:01

phones, the amount of public-private

49:03

participation to create the national

49:06

network of AT&T landlines was

49:09

off the charts, just

49:11

off the charts. And so in

49:13

that circumstance with the common carrier, you're

49:15

talking about, in many cases, with common

49:17

carriers, public-private partnerships,

49:19

where a private entity

49:21

delivers a service that

49:24

has analogs to government services.

49:27

Delivery of the mail, for example, what's

49:30

the analog? FedEx is analogous

49:32

to. And

49:34

so in those circumstances, the

49:37

government essentially is saying, look, you just

49:39

transmit the package. You don't open the

49:41

package, read it, find out if it

49:44

says something you like, and

49:46

then send it. Or you don't look at who sent it

49:48

and say, well, I don't like that person. I'm not going

49:50

to mail that package. That's what a

49:52

common carrier is talking about.

49:55

When we're talking about Facebook, and

49:57

we're talking about Twitter, what we're talking about are, little

50:00

bitty op-eds. So we're

50:03

not talking about point-to-point communication, that's Facebook

50:06

messenger, you know, that's a direct message,

50:08

maybe the direct messages might be sort

50:10

of more common carrier-like. But

50:12

what we're talking about is essentially like little bitty

50:14

letters to the editor, little bitty op-eds. And

50:17

there's no such thing as a common carrier

50:19

of American op-eds. There never

50:22

was. There's no analogy to a

50:24

government service, you know, what,

50:26

you know, before Facebook, it's not like

50:29

I could write my letter to the editor and

50:31

get it published in the New York Times or

50:33

the Lexington Herald Leader where

50:35

I grew up. There's no such thing

50:37

as a common carrier of political commentary.

50:40

So let's go back to the

50:42

TikTok conversation we had earlier and the national

50:44

security risk of having

50:46

the Chinese

50:48

government having control over messaging

50:51

that could instantaneously go out to 170 million Americans

50:53

or data on 170 million Americans that could be

50:55

weaponized in

50:58

some way. We all understand

51:00

that that's probably not a good idea for an

51:02

adversary, a foreign adversary to have that kind of

51:04

power. But a

51:06

very similar power exists in

51:08

the hands of Mark Zuckerberg

51:10

or Elon Musk. Now they're

51:12

American companies, but they could

51:14

still do enormous damage to

51:17

American health, American stability,

51:20

all kinds of infrastructure in America

51:22

if their platforms, if they choose

51:25

to use their platforms to spread

51:27

lies, misinformation or to get highly

51:29

partisan in their outlooks.

51:33

So at what point

51:35

can the government ever step in and

51:37

say, you know what, yeah, this is

51:39

a private company, but you

51:41

have so much power and so much

51:43

influence that

51:47

we have to regulate you in some

51:49

way even

51:51

though it appears to be an infringement

51:53

on First Amendment rights, the

51:55

risk is just too great. Is

51:58

that ever possible? If

52:00

you're talking about monopoly power,

52:02

the remedy to that is antitrust

52:04

law, not government

52:07

coercion of speech. The

52:11

way that we have traditionally dealt with

52:13

the negative effects of monopoly power. Monopoly

52:16

power in the public square looks different than

52:18

monopoly power when it comes to say provision

52:20

of telephone services. The

52:22

antitrust case against Bell

52:25

back in the day, or

52:27

antitrust actions brought against Microsoft and Microsoft

52:29

was king of the world. There's

52:32

antitrust actions right now against Google. When

52:36

you have monopoly power, monopoly

52:38

power has negative consequences that

52:41

are addressed by breaking the

52:43

monopoly. That's

52:45

the traditional way that we deal with the

52:47

negative effects of monopoly power is by breaking

52:49

the monopoly. That's

52:53

the way if you have a

52:56

private corporation gets monopoly level

52:58

power over public

53:00

discourse, you

53:03

break the monopoly. That's

53:06

the question at issue, for example,

53:08

in lawsuits currently against

53:10

Google. The issue there

53:12

on monopoly is not, is Google saying things we

53:14

don't like? Or

53:16

any other company, Facebook, is it saying things we don't

53:18

like? Facebook sort of

53:21

cleared the field of all

53:24

competition. In other words,

53:26

nobody has any opportunity really to meaningfully

53:28

disagree with or present and create options.

53:31

That's how we deal with it. We deal with it not

53:33

by saying to a private entity that we're

53:36

going to now dictate how you use your

53:38

space. We do it to a private entity

53:40

by saying we're going to break

53:42

up the monopoly. Now, amongst a lot of,

53:44

some libertarians don't even like

53:46

antitrust law. There's

53:48

too much of a state interference. I

53:51

think antitrust law is a

53:53

solid concept. I

53:56

endorse and appreciate antitrust law properly applied, but

53:58

that's how we deal with it. deal

54:00

with a monopolies guide that respects the

54:02

first that still respects the First Amendment,

54:04

we don't override the human conscience and

54:07

say, speak things you don't want to

54:09

speak. What we do is we say,

54:12

we're going to split apart aspects of this

54:14

business, so that you now don't control

54:16

all aspects of it. Now the part that you control,

54:20

you still control. But we

54:22

break monopolies rather than commandeer

54:24

monopolies, if that makes sense.

54:27

Yeah, obviously I

54:29

agree with that. I just wonder

54:31

if it

54:34

still works as effectively in the

54:36

digital reality we are in. So

54:38

I don't know how large, for

54:40

example, metas accesses to

54:42

the American population. But

54:45

let's say Mark Zuckerberg decides to just

54:47

go rogue with AI and floods

54:50

the zone with a

54:52

conspiracy theory that, I

54:55

don't know, come up with something

54:57

ridiculous. Like, you know, Joe

54:59

Biden is actually a cyborg

55:02

who's being controlled by, you

55:04

know, the New World Order, something like

55:07

that. And it absolutely takes over, or

55:09

something even worse, like that

55:11

would trigger violence. And like you

55:13

could just do an enormous amount of damage. And

55:16

I don't think anybody's making the case right now

55:18

that meta has monopoly control over

55:20

social media. It doesn't. There are competitors.

55:22

But it still has such a massive

55:24

influence that it could do incredible

55:27

damage very quickly, all under

55:30

the guise of the First Amendment, freedom

55:32

of speech. We can regulate what we want on

55:34

here, what we don't. And to just

55:37

think that we are powerless to do anything about

55:39

it, and I get it, it could be weaponized

55:41

the other way. Because the last thing you want

55:43

is somebody in government who's

55:45

controlling the other side of it. So all

55:48

this just raises the question, are

55:51

there limits on our constitutional law

55:54

and our freedoms that just are not prepared

55:57

to deal with the tools we now have

55:59

at our disposal? for communication. Again,

56:01

I think this is really a product.

56:04

That argument is

56:06

also a product of sort of a

56:08

lot of, I've heard that argument a lot, but it also

56:11

has a history problem as

56:13

well. If you

56:15

look at the list

56:17

of top social media

56:20

sites, from Facebook down to

56:22

Pinterest, there is

56:24

more market competition in social

56:26

media sites than there was back when the news

56:28

was the big three. Yeah, I

56:30

agree. That's what I'm saying. I don't think any

56:33

of these have a monopoly. Right, right. But even

56:35

at the size they are at, they could do

56:38

massive damage if they chose to. As

56:40

has been the case for every powerful

56:42

entity in American history throughout all of

56:44

American history. We have had

56:46

lots of different periods

56:49

of time in American history where different groups,

56:51

different corporate entities, different individuals have

56:54

a lot more power than

56:56

the average individual. It's interesting,

56:58

that was actually the argument that Herbert Marcuse used

57:00

in the 1960s to begin to

57:03

argue for the speech code

57:05

and for dramatic interventions into

57:07

the marketplace of ideas was

57:09

the disparity of power. It

57:12

is very funny to hear a lot of folks

57:14

in the New Right make Marcusean arguments that

57:18

free speech can only be a marketplace of

57:20

ideas if the government comes in and decreases

57:22

the power of the powerful and increases the

57:25

power of the powerless. That's

57:27

sort of the Marcusean solution. This

57:29

is the 1960s, okay? And

57:32

so here we are in the

57:35

2020s and a lot of our discourse is

57:37

taking place in different spaces than it did in the 1960s.

57:40

But the power imbalances, there

57:43

were dramatic power imbalances in the 1960s and

57:45

in many ways

57:47

much worse, Skye, much worse. Because

57:49

if I'm just a dude who

57:51

thinks the earth is flat in

57:54

1965, you know, how do I get

57:57

my message out? Right. You

58:00

know, I had very little opportunity. Exactly.

58:03

In the year 2024, I have a

58:05

lot of opportunity to get my message

58:07

out. Right. And yet people are

58:09

saying at the same time that we are now living

58:11

under deep state censorship or and

58:13

it just doesn't add up. I'm not, I

58:16

mean, obviously I'm a very strong proponent of

58:18

the First Amendment. I just, it's

58:21

hard for me to imagine January 6, 2021

58:24

happening in a world without social media. I

58:28

don't know. I

58:33

think the level

58:35

of QAnon influenced conspiracy theorists

58:37

that were there that carried

58:39

all this rhetoric forward. The,

58:41

yes, of course, President Trump

58:43

and his minions spread this

58:46

through old model media, whether it was

58:48

Fox News or other places, but the

58:50

speed with which it took off and the number of

58:53

the momentum and voices that were added to

58:55

it through social media. I mean,

58:58

that's exactly why he got banned

59:00

from Facebook and Twitter, right? He

59:02

leveraged those platforms better

59:04

than anyone to spread this and within

59:06

the matter of days, had

59:08

thousands of people at the Capitol

59:10

ready to murder people. So

59:13

that's the difference. I

59:15

agree with you on speed. I do not

59:17

agree with you on existence of the attack.

59:19

Obviously, we had a rebellion in this country

59:22

prior to social media. It was called the

59:24

Civil War. Many. We

59:27

had Shays' Rebellion. We had Whiskey Rebellion. We

59:29

had an effort to do a January 6

59:31

style blockage of Lincoln ascending

59:33

to the presidency in 1860 and 1861. It

59:38

just was overshadowed in its prominence

59:40

by the candidate against Fort Sumter

59:42

months later. But we've

59:44

been through this. Heck,

59:46

when you talk about conspiracy theories, Sky, the

59:50

Texas Secession Declaration in 1861 contains

59:53

a ludicrous conspiracy theory about

59:55

anti-slavery Northerners poisoning people in

59:57

the South. And,

1:00:00

yeah, it's just all over

1:00:02

our country. Yeah, it's an

1:00:04

argument from silence, I suppose, but how

1:00:06

much worse would those things have been

1:00:08

had they had a tool like social

1:00:11

media to spread and

1:00:13

amplify their conspiracy? And

1:00:15

it's a little bit like this is a completely

1:00:18

different can of worms, but there's been a number

1:00:20

of reports talking about the war in Ukraine and

1:00:23

how dependent the Ukrainians are on

1:00:25

Starlink for their military resistance against

1:00:28

Russia, right? And Starlink is the

1:00:31

network of satellites that are run by

1:00:33

Elon Musk. And he could single-handedly just turn

1:00:35

off those satellites and completely cripple the

1:00:37

Ukrainian army. And a lot of people are

1:00:40

saying, this is an unsafe

1:00:42

amount of power to be wielded by

1:00:44

one man whose loyalties

1:00:46

could shift, right? And

1:00:48

we recognize the danger of a

1:00:51

non-state actor having that kind

1:00:53

of control over state security.

1:00:56

And similarly, we

1:00:59

are relying on the benevolence or the

1:01:02

relative patriotism of a Mark Zuckerberg

1:01:04

and an Elon Musk and a

1:01:06

handful of other individuals that run

1:01:08

these large companies that if

1:01:11

that trust deteriorates, if their loyalty is

1:01:13

gone, they would be just

1:01:15

as dangerous as the Communist Party of

1:01:17

China running TikTok. But

1:01:20

we have no way of regulating that because

1:01:22

they're seen as private entities with free speech

1:01:24

over hundreds of millions of people and what

1:01:27

they see through their algorithms. That just kind

1:01:29

of weirds me out. And

1:01:31

I get it. I mean, I don't know the solution here. I'm

1:01:34

just saying I think that's messed up.

1:01:36

I mean, I get it. The

1:01:38

first thing you have to understand about a free speech

1:01:41

society is it's not utopian. Oh,

1:01:43

absolutely. Yeah. I mean, we have to

1:01:45

be willing to defend ideas and speech that we hate. I

1:01:47

agree. And also, we're going to be

1:01:49

in a situation where very powerful people we don't

1:01:52

like have the exact same free speech

1:01:54

rights as you and I do and utilize

1:01:57

their power and their platform. In

1:02:00

many ways, you know, the interesting thing

1:02:02

to me is I look at the present tech

1:02:04

environment and it still think it's better from

1:02:07

that standpoint than it was 30 to 40 years ago when

1:02:11

it was the CEOs of ABC, NBC,

1:02:13

CBS who had giant

1:02:16

amounts of control over

1:02:19

what we can see, just immense

1:02:21

amounts of control. And in many

1:02:23

ways, a cabal of a

1:02:25

few, the cabal that has control is,

1:02:28

it's a larger number and

1:02:30

the access to the marketplace even to

1:02:32

get around the cabal is

1:02:34

a lot, the marketplace of ideas is a lot

1:02:36

more open and there's a lot more ways to

1:02:38

go around the cabal than there used to be.

1:02:41

And so it's funny because again,

1:02:43

I just think a lot of this is

1:02:46

a matter of historical perspective. If I am

1:02:48

a dissenter from the present political moment or

1:02:50

I'm a dissenter from the even

1:02:52

the big tech zeitgeist, I

1:02:54

have lots of ways to get my message out,

1:02:56

lots of ways. But here's the

1:02:58

thing, Sky, here's the thing, Sky,

1:03:00

that is distorting the debate a little bit. And

1:03:03

I wrote about this. One

1:03:05

of the reasons why the right is so

1:03:07

focused on big tech is

1:03:10

because it's one of the last places

1:03:12

people are actually reading them. So if

1:03:15

you look at right wing websites around

1:03:17

the United States, they have by and

1:03:19

large collapsed in readership, collapsed.

1:03:23

All new sites have been down to some

1:03:25

extent. It's a lot of

1:03:27

exhaustion, a lot of fatigue, but a

1:03:29

lot of these right wing sites are in a total

1:03:31

state of audience freefall. So

1:03:34

they can no longer attract readers to

1:03:36

the platforms they built. So

1:03:39

the last way they can access the public is

1:03:41

through the platforms they did not build, Twitter,

1:03:44

Facebook, etc. And

1:03:46

so it's the market failure

1:03:49

of their own products that

1:03:52

is making them more focused on making

1:03:54

sure that they have a avenue through

1:03:57

these other products that they do. did

1:04:00

not create. And that

1:04:02

is distorting the debate. That's one of the

1:04:04

reasons why the right is so focused on

1:04:06

social media because any given

1:04:09

say personality at the Daily Wire

1:04:11

or at you name it, some

1:04:15

of these other sites, Gateway

1:04:18

Pundit, that

1:04:20

their actual audience is in a state of collapse

1:04:22

of people who go to their site to read

1:04:25

it. So how do they reach

1:04:27

eyeballs through these other sites? And it's

1:04:29

really fascinating and that does make a difference.

1:04:31

I mean, I know in my own work,

1:04:34

it's exactly the reverse. 95 to

1:04:36

98 to 99% of my readers do

1:04:41

not come through social media. Hmm,

1:04:43

they don't. The average piece that

1:04:45

I write has about a 2% link

1:04:48

click-through rate on social media. So I

1:04:50

mean, 2% of the readers come through

1:04:52

social media. 98% do not.

1:04:55

So for me, social

1:04:57

media is a side show. My

1:04:59

main show are the columns that

1:05:02

I write or the podcasts that I produce. It

1:05:04

is not the social media posts. But if you're

1:05:07

in a position where far

1:05:09

more people read you on social media than

1:05:11

ever read your work on your own site,

1:05:13

then all of a sudden social media becomes

1:05:16

that much more important to you and then

1:05:18

you're going to really agitate to maintain your

1:05:20

place in it because that's your last link

1:05:22

to the public. Okay, so as

1:05:24

we wrap up, when should we

1:05:26

expect rulings from the Supreme Court on these cases? And

1:05:29

like you said, you think they're both going to get

1:05:31

shot down. What are

1:05:33

you looking for in those rulings that might – sometimes

1:05:36

they're not just a clear up or down. They're

1:05:38

nuanced and they're ruined. Is there anything you're looking for

1:05:40

in particular that we should pay attention to? So

1:05:43

I think with NetChoice, that's the case

1:05:45

with Florida and Texas, you're likely to

1:05:47

see the Supreme Court just basically reaffirm

1:05:49

existing precedent, which is, look,

1:05:52

you just can't make a private company host speech it

1:05:55

doesn't want to host. See 303

1:05:57

Creative, see

1:05:59

Miami which is a case about, you

1:06:02

know, publishing competing op-eds and things like that.

1:06:04

So there's a long line of cases that

1:06:06

say, you know, you don't have to publish

1:06:09

work you don't agree with. Also

1:06:13

with the Missouri

1:06:15

case, you cannot consider the Missouri

1:06:17

case without the New York National

1:06:19

Rifle Association case, which

1:06:22

is very similar in that it is

1:06:24

a case where the NRA

1:06:26

is claiming that state officials were

1:06:29

trying to convince people not to do

1:06:31

business with the NRA to punish

1:06:33

the NRA for its viewpoint. And

1:06:36

I think what you're going to see between the Missouri

1:06:38

case and the NRA

1:06:40

case, the Supreme Court is going to say

1:06:42

in the Missouri situation, that's what convincing looks

1:06:44

like. In other words, that

1:06:46

is maybe not all of

1:06:48

this elements, but the vast majority that people

1:06:51

are objecting to in the Missouri case are

1:06:53

just government officials trying to make

1:06:56

a case. But if

1:06:58

you go to the NRA case, that's what coercion looks

1:07:00

like because there was

1:07:02

a regulator who issued guidance

1:07:04

letters urging companies not

1:07:06

to do business with the NRA. That's

1:07:09

going too far. So I

1:07:11

think they're going to set up these two cases

1:07:13

to say if you want to know the difference

1:07:16

between convincing and coercing, the

1:07:18

convincing one is this big tech one, the

1:07:20

coercing one is the NRA case. That

1:07:23

take may not age well, Skye, because we got

1:07:25

to see, but by the end

1:07:28

of June or beginning of July, we'll get all this.

1:07:30

We'll know what that answer is. Well, maybe we'll revisit

1:07:32

these if we need to when the ruling comes out.

1:07:34

But David, thank you for your expertise on this and

1:07:36

your analysis. We just

1:07:38

live in this interesting time. Social media really

1:07:40

emerged in the late aughts. And

1:07:43

we're now 15 plus years into

1:07:45

this experiment. We're seeing early on

1:07:47

there was this utopian expectation

1:07:49

that social media was going to democratize the

1:07:51

world. And it was leading the revolutions in

1:07:53

Middle Eastern countries with autocracies and on and on.

1:07:57

And since 2015-16, we've kind of seen the dark side of it.

1:08:00

it with the way it can be abused.

1:08:02

There's a whole other article that we didn't get

1:08:04

to by Jonathan Haidt in the Atlantic called End

1:08:07

the Phone-Based Childhood Now, looking at all

1:08:09

the skyrocketing rates of mental health

1:08:12

problems and the horrors that

1:08:14

social media is causing in other realms. We're just beginning

1:08:16

to come to terms, I think, as a society

1:08:18

with the good and bad implications of the attack. And

1:08:21

the law has to catch up with some of it. But

1:08:24

how do we do that without losing some core

1:08:27

American values around free speech and

1:08:30

independence and limited government

1:08:33

without completely surrendering

1:08:35

to the malformation of these platforms

1:08:37

for individual health or social cohesion?

1:08:40

So there's a lot to discuss, and I'm sure

1:08:42

it's not over. Yeah. But

1:08:45

gosh, there's a lot here. We

1:08:47

could do a whole podcast easily on

1:08:49

social media and kids and smartphones and

1:08:51

kids. To what extent

1:08:53

does the state have the authority to just

1:08:56

flat out ban smartphones? To

1:08:58

what extent, I mean, or ban social media

1:09:00

for children? To what extent does the state

1:09:02

have the ability to ban smartphones in school?

1:09:05

Lots. Yeah. Lots.

1:09:08

Should it? What about access

1:09:11

to adult content on private

1:09:15

platforms? How much can the government make

1:09:17

sure that that's age restricted? And

1:09:20

that's a whole different discussion. And

1:09:24

yeah, it's all fascinating. Yeah.

1:09:27

Well, anyway, thank you for the legal analysis

1:09:29

on all this and some of the political

1:09:31

analysis. And look forward

1:09:33

to talking to you again soon and being

1:09:35

together in May for the Holy Post Live

1:09:37

event. So again, all of you who

1:09:39

want to be a part of that, go to holypost.com/events

1:09:41

and check it out. David, until next time, have

1:09:44

a good one. Yeah. Thanks,

1:09:46

Guy. This was fun.

1:09:48

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