Arielle Roth's Spirited Defense of Free Speech

 On February 25, in an address at the Media Institute, NTIA Administrator Arielle Roth delivered a spirited defense of free speech. Such a defense is always welcome at any time. But now, while America is in the midst of celebrating our 250^th birthday, and while, at the same time, there are threats to free speech around the globe, Administrator Roth's address is especially welcome.

 

To provide a framework for her remarks, Ms. Roth began this way:

"In the 250 years since our founding, technology has repeatedly transformed speech—from the printing press to radio, from the telegraph to the telephone, and from the television to the global internet. 

Every major advancement in communications technology has shifted who holds power over speech. In our current age, that increasingly means that whoever controls communications technology controls the boundaries of free expression. Today, that struggle plays out not only at the edge of the network but deep in the infrastructure layers—in spectrum policy, standards bodies, satellite governance, AI systems, and network architecture. 

That is also why communications policy—especially international communications policy—is now a central battleground for free speech."

And then this:

"The internet is the most powerful engine of free expression ever created. It amplifies individual voices, dismantles gatekeepers, enables journalists to expose corruption, and helps dissidents organize. 

That is no accident. The internet is what it is today because it was built in America under American legal traditions, powered by American ingenuity, and protected by the First Amendment. It rests on principles of openness, decentralization, and a private sector-led model that resists control by any single government or treaty regime."

Having set the stage, the remainder of Ms. Roth's address, with impressive clarity, details some of the threats to free speech from around the world – including from friendly nations that, at times, perversely, justify suppressing speech their governments disfavor in the name of promoting other values or supposed "truths." And she also explains why protection of free speech depends on freedom from government intervention in the various layers or "stacks" of the Internet's architecture.

There's a rich discussion of threats arising from some countries wishing to change the governance model of the ITU in ways that would give the international organization more authority to control speech in individual nations. And a look ahead at technological developments, and policy disputes, in the satellite and wireless areas that will be crucial to maintaining the U.S. global leadership.

I will say no more here, except that it's well worth your time to read Administrator Roth's address in its entirety.

Anna Gomez Is Wrong About Defunding Public Broadcasting

By Randolph May 

Unsurprisingly, FCC Commissioner Anna Gomez was quick to condemn Congress's decision to defund "public" [read: government-funded] media. After the Senate acted, she issued a statement claiming the action "is a key step in a coordinated campaign to silence public media, and the latest attempt by this Administration to censor and control speech."

She calls the defunding a "one-sided attack on free speech." 

Commissioner Gomez's condemnation perhaps would be more worthy of consideration if she had given even a mere nod in the direction of acknowledging the pronounced left-leaning bias in public broadcasting's programming, especially that of NPR. You won't find any such acknowledgement in her statement, or I suspect in any of her other declamations.

It would take much more than a short blog post to catalogue all the instances evidencing NPR's leftist bias. But for a short primer, please see long-time (25+ years) NPR senior editor Uri Berliner's piece in the Free Press highlighting some key examples, such as NPR's steadfast refusal to cover the Hunter Biden laptop story and insistence that the Wuhan lab leak theory regarding COVID was nonsense. And, as Mr. Berliner says, NPR's reporting on the contentious issues of climate change, the war in Gaza, and gender identity treatments for adolescents "leaned on moralizing and emotional certitude more than rigorous factual analysis."

So, while Ms. Gomez talks about "silencing those who report the news accurately," absent some acknowledgement – even a teensy, weensy one – that there have been legitimate issues of bias in public broadcasting's programming that needed to be addressed, her entreaties ring hollow. And this is especially so because we're talking about taxpayer-funded broadcasters, not private media outlets.

Ms. Gomez characterizes the defunding of public broadcasting as a "one-sided attack on free speech" by the Trump administration. Putting aside whether her accusation regarding one-sidedness squares with reality, she should acknowledge this truth: There are important differences between "public" media and private media when it comes to how the government should respond to claims of political bias.

It is not an attack on free speech for Congress and the president to decide that taxpayers should not be required to fund speech claimed to be politically biased. On the other hand, there may be – as Commissioner Gomez has suggested many times – threats to free speech protected by the First Amendment if the government, whether the Trump administration or any other, threatens private media outlets with adverse consequences based on the content of their programming.

That is the ground on which Commissioner Gomez should stand.  

 

Jonathan Turley Announced as a Keynote Speaker! FSF's 17th Annual Policy Conference on March 25!

Registration Now Open! First Keynote Speaker Announced! Jonathan Turley

Shapiro Chair for Public Interest Law, George Washington University Law School, and Fox News Media Contributor

 

Professor Turley is the author of the important timely new book, "The Indispensable Right: Free Speech in an Age of Rage."

 

WHAT: FSF's Seventeenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: Tuesday, March 25, 2025

 

The Free State Foundation will hold its Seventeenth Annual Policy Conference on March 25, 2025, at the National Press Club in Washington, DC. This annual conference is acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC and Congress, and from other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day, as well as other topical law and policy issues involving free market competition, free speech, and the rule of law.

 

With a new Trump administration, a new Congress, and new leadership at the FCC, FTC, and other agencies, this promises to be one of the most impactful of FSF's annual conferences.

 

REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.

 

BUT YOU MUST REGISTER TO ATTEND.

REGISTER HERE!

 

#FSFConf17

Media Advisory: Supreme Court Wrongly Lets Stand the Government's Coercion of Social Media

Regarding the Supreme Court’s decision today in Murthy v. Missouri, Free State Foundation President Randolph May issued the following statement:

The majority opinion seems strained in holding that the states and individuals complaining about social media censorship lacked standing. And Justice Alito's dissenting opinion is convincing regarding the merits of the First Amendment claim. By virtue of its very detailed — and chilling — description of the government’s ongoing interactions with Facebook and other leading social media companies, Justice Alito shows that the Biden Administration crossed the line from offering its suggestions regarding the removal of speech it disfavored to threatening retribution if the disfavored speech was not removed. Private entities are free to carry or not carry whatever speech they choose, but when government actions rise to the level of entangled coercion of private entities that they did in this case, then the government violates the First Amendment by suppressing the free speech rights of those censored.

TMT with Mike O'Rielly - Ep 5: Madison Project & Pending SCOTUS First Amendment Cases

Episode 5 of TMT with Mike O'Rielly was released on June 19. The episode is entitled "The Madison Project & Pending SCOTUS First Amendment Cases," and it features a discussion with veteran constitutional litigator Floyd Abrams. Tune in to hear former FCC Commissioner and Free State Foundation Adjunct Senior Fellow Mike O'Rielly and Mr. Abrams talk about the mission of the Madison Project as well as recent and pending free speech decisions by the Supreme Court. 

The Gentle Art of Disagreeing

In my ongoing series of essays, "Thinking Clearly About Speaking Freely," now numbering nineteen, I've talked a lot about the need to recreate a Constitutional Culture as a way of combatting today's Cancel Culture.  For example, in the very last essay, I ended by declaring, "more than ever, Americans need to rekindle an appreciation of our Constitutional Culture, of which free speech has always been an integral part."

In that vein, I commend to you a wonderful essay - "The Gentle Art of Disagreeing " - published today in RealClear Politics.

In it, Richard Porter, a Republican and Christian, relates his long-standing friendship with Stephen, a Democrat and Jew. They both had Ivy League backgrounds and both were lawyers. But their politics and philosophical perspectives could not have been more different. Stephen passed away last month, and Mr. Porter doesn't reveal his last name.

As Mr. Porter says, they frequently debated vigorously, and then, proverbially, would just "agreed to disagree."

The essay is touching and instructive. What most interested me is the way that Mr. Porter casts his friendship with Stephen, and their ability to disagree agreeably, in the light of our nation's Constitutional Culture about which I have been writing.

Here are a few brief excerpts:

I embraced my admiration of him, instead of dwelling on our differences. We treated each other as we would each wish to be treated ourselves. We treated each other with the same brotherly love upon which the nation we love was founded.

Jefferson wrote the Declaration of Independence in the city of brotherly love: Philadelphia. Philos, the root of Philadelphia, is one of several Greek words for love. And Jefferson slyly built love into the Declaration.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

And then, this in closing:

And loving our neighbor is the premise upon which our Creator endowed us with unalienable rights, including liberty – because loving others as ourselves governs and empowers the exercise of liberty.

Our nation was the first and is still the only nation founded on the premise of the equalizing power of brotherly love. Brotherly love informs the structure of our Republic and is amplified in the Bill of Rights –  such as the First Amendment rights to free speech and religion.

As hard as it may be in the face of deeply-held divisions and disagreements about politics and philosophical perspectives, "The Gentle Art of Disagreeing" is certainly worth reading. And thinking about. Now more than ever.

  

 

Justice Alito's NetChoice v. Paxton Dissent Shows Openness to Platform Common Carriage

Justice Alito penned an emergency docket dissent last week in NetChoice v. Paxton  that may shed light on whether the Supreme Court would uphold common carriage or must-carry obligations for social media platforms. Alito, joined by Justices Gorsuch and Thomas, argued that the Court should not have restored a district court's preliminary injunction of Texas's HB20, which prevented social media platforms with over 50 million users from banning users and removing user-generated content on the basis of viewpoint.

While defending the law in a federal district court, Texas Attorney General Ken Paxton described HB20 as a form of common carriage regulation. The District Court enjoined HB20 for infringing on platforms' First Amendment right to editorial discretion. A Fifth Circuit panel stayed that decision, but the Supreme Court has now vacated that stay, restoring the preliminary injunction.

However, it is unclear why because the Court's 5-4 majority, which included a unique breakdown of Chief Justice Roberts and Justices Barrett, Breyer, Kavanaugh, and Sotomayor, did not explain its reasoning. Justice Kagan voted against restoring the preliminary injunction, but she did not join Justice Alito's dissent.

Image credit: Wikipedia user JoshEllie1234. No alterations made.

Justice Alito, applying the requirement that applicants for preliminary injunctions must be likely to succeed on the merits under existing law, argued that common carriage of social media is a novel issue unaddressed by precedent. Alito further explained that "[i]t is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies . . ." because while some cases have recognized a First Amendment right to editorial discretion, others have denied it.

The law before us is novel, as are applicants' business models. Applicants claim that §7 of HB20 interferes with their exercise of "editorial discretion," and they maintain that this interference violates their right "not to disseminate speech generated by others." Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (parade organizer); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (newspaper). But we have rejected such claims in other circumstances. For example, in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), we rejected the argument that the owner of a shopping mall had "a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." And in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), we declined to apply strict scrutiny to rules that "interfere[d] with cable operators' editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations."

Alito also explained that Texas made arguments similar to those accepted by the Court in cases upholding common carriage or must-carry regulations.

First, Texas contends that §7 does not require social media platforms to host any particular message but only to refrain from discrimination against a user’s speech on the basis of "viewpoint," and in this respect the statute may be a permissible attempt to prevent "repression of [the freedom of speech] by private interests." Second, Texas argues that HB20 applies only to platforms that hold themselves out as "open to the public," and as neutral forums for the speech of others. These representations suggest that the covered social media platforms—like the cable operators in Turner—do not generally "'convey ideas or messages [that they have] endorsed.'" Third, since HB20 is limited to companies with "50 million active users in the United States,” Texas argues that the law applies to only those entities that possess some measure of common carrier-like market power and that this power gives them an "opportunity to shut out [disfavored] speakers."

Apart from the merits, Alito explained that the "procedural posture" of the case also warrants against granting a preliminary injunction.

In conclusion, Alito made clear that he has "not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the 'changing social and economic' conditions it perceives." But the perceived novelty of the legal issues presented in this case, to Justices Alito, Gorsuch, and Thomas, warranted against a preliminary injunction.

Alito's dissent indicates that at least three justices are willing to entertain the legality of common carriage or must-carry regulations on social media platforms. And Justice Kagan, though she did not join Alito's dissent or write for herself, may likewise be open to the prospect. This case will be important to watch as the lower courts, and possibly the Supreme Court itself, address the merits in later stages.

Thinking Clearly About Speaking Freely – Part 6 - Don't Miss Catholic Law's Inaugural Seigenthaler Debate

 

“If all of mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” John Stuart Mill

 

*     *     * 

 

If you are concerned about the impact of today's raging Cancel Culture on the ability of Americans to speak freely on a wide range of subjects, including politics, culture, education, religion, race, and public health, then there is a good chance you are aware of Justice Clarence Thomas's concurring opinion last year in Biden v. Knight First Amendment Institute of Columbia University.

 

In a case involving President Donald Trump's control of his Twitter account, and his subsequent suspension from Twitter, Justice Thomas said this:

"Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms."

Justice Thomas says there is a “fair argument” that Google, Facebook, Twitter, and perhaps other online platforms could be deemed common carriers. If so, they then would incur an obligation to carry, without discrimination, all lawful content posted to their sites. In other words, the platforms would be required to operate, for purposes of carrying or hosting content, in a nondiscriminatory fashion like the telephone and telegraph companies long deemed common carriers. 

 

 

In Part 3 of this "Thinking Clearly About Speaking Freely Series," I explored Justice Thomas's suggestion that Internet platforms, or at least the dominant ones, should be considered common carriers (or public forums, an alternative suggestion). I did not advocate – at least not then – adoption of his suggestion, and I remain skeptical for the reasons I have articulated. Nevertheless, given my ongoing concern that Internet platforms censor too much lawful content that ought to remain within the realm of legitimate debate and widely available to the public, I know that Justice Thomas's suggestion is worthy of discussion by serious scholars in a forum expressly dedicated to respectful debate. 

 

That's why the Free State Foundation is proud to co-sponsor, with Catholic University's Columbus School of Law, the inaugural Seigenthaler Debate, named in honor of the late John L. Seigenthaler. The virtual debate will be held on February 16 at 7:00 p.m. Mr. Seigenthaler, founder of the First Amendment Center and an editor of the Tennessean and USA Today newspapers, was widely acclaimed as a staunch advocate of free speech and freedom of the press.

 

The debate topic: "Resolved: “Should Internet Platforms Be Treated Like Common Carriers?” Eugene Volokh, Professor of Law at UCLA and a member of the Free State Foundation's Board of Academic Advisors, will argue in favor the resolution, and Ash Bhagwat, Professor of Law at University of California at Davis, will argue against.

 

I'm very much looking forward to the debate, and here I don't want to say more about the merits of the opposing positions than I have already – except these brief prompts. On the one hand, the Internet platforms, including Facebook, Twitter, and Google, which most often are accused of prohibiting or restricting legitimate debate, are private companies, generally protected by the First Amendment from government compulsion or interference relating to their content moderation decisions or practices.

 

On the other hand, consider this: Former Twitter CEO Jack Dorsey referred in congressional testimony to Twitter as a “public square” and “a global town square” while emphasizing the importance of a “free and open exchange” of ideas on the site. In a March 2019 post, Facebook CEO Mark Zuckerberg described Facebook as the “digital equivalent of a town square.” Google’s @TeamYouTube proudly claims on Twitter that “YouTube is a platform for free expression of all sorts.”

 

The purpose of the Seigenthaler Debate is to "provide a collegial forum that fosters debate, dialogue, and study of First Amendment issues from all sides." As I have often said, the free speech values at the heart of the Founders’ First Amendment are central to our country’s Constitutional Culture, and the health of our democracy. These values should be nourished in the private sphere by individuals, businesses, institutions – including, not the least of which, educational institutions. Whatever other laws or public policy actions, if any, might be deemed proper to remedy the Cancel Culture's adverse effects, nurturing a robust Constitutional Culture that supports the free exchange of ideas is a crucial antidote.

 

That's the job of all of us. With that in mind, I do hope you will join me for the debate, "Resolved: “Internet Platforms are Common Carriers,” on February 16 at 7:00 p.m. Pertinent information with the registration link is here.

Twitter's New Media Policy Risks More Speech Suppression

It's day three of Mr. Parag Agrawal's term as CEO of Twitter, following Jack Dorsey's surprise resignation on Monday, and we're already seeing that the leadership change could mean facilitating the arbitrary removal of user speech. Today, Twitter has now banned "media of private individuals without the permission of the person(s) depicted" in its private information policy, but will make exceptions to the ban when Twitter determines exceptions are in the "public interest."

The sweeping "public interest" discretion Twitter reserves for itself in its new policy could aggravate Twitter's selective enforcement in content moderation. Under the policy, users appearing in photographs or videos to which they did not consent to can report these photographs or videos to Twitter for removal. The policy does not apply to public figures, and critically, it also doesn't apply to "individuals when media and accompanying Tweet text are shared in the public interest or add value to public discourse." Twitter only gives two hints at what might constitute the "public interest" or added "value in public discourse"—media involving crisis situations (like violence) or media "being covered by mainstream/traditional media (newspapers, TV channels, online news sites)." The policy appears to apply even to videos and images of individuals in public spaces.

(Logo of Twitter, Inc.)

Much could go wrong here. The policy change is effectively a "two-party consent" rule for media shared on Twitter, and it could be abused to erase useful information. Empowering Twitter employees to determine the "public interest" and "value" added to public discourse by videos and images heightens the risk of injecting political bias, wrong-headed notions of "misinformation," and other value-laden influences creeping into enforcement decisions.

To reduce these influences that limit speech online, Twitter should take a minimalist approach to enforcing this policy that sticks to newsworthiness. If media content reviewed under this policy displays any information that could be relevant to the public discourse, Twitter should err on the side of not removing the media. Content that lacks any such information could be considered harassment and removed for the harm-reduction purposes that Twitter espouses. This approach would be similar to the "newsworthiness" test used by some courts for privacy torts. In other words, Twitter would ask whether the media content contains any information relevant to an issue in the public discourse, not whether the distribution of that media would benefit some indeterminate "public interest," which, to be sure, is in the eye of the beholder.

Twitter may be within its First Amendment rights in adopting the new policy. But if Twitter begins deciding, for example, that media that discredits a person, narrative, or movement favored by Twitter doesn't comply with its selective notions of what constitutes the "public interest," @Jack's departure would mark more arbitrary suppression of online speech.

Colin Powell on Speaking Freely and Faith in America

 

It is not necessary to agree with everything that Colin Powell ever said or did to acknowledge that this soldier, statesman, and trailblazer was a true American hero. While mourning his passing, I celebrate his life, which has much to teach us about America and the never-ending task of realizing the ideals expressed in our founding guideposts, the Declaration of Independence and the Constitution.

 

Last week at the celebration of the Free State Foundation's Fifteenth Anniversary, I said that our think tank's mission "is to promote, through research and educational activities, understanding of free market, free speech, limited government, and rule of law principles and to advocate laws and policies true to these principles."

 

While much will be said and written in the coming days regarding General Powell's various contributions to our country, here I want to focus on one that is particularly relevant to our present moment, when "Cancel Culture" runs rampant throughout much of American society, chilling the ability to think clearly and speak freely.

 

In May 1994, Colin Powell delivered the Commencement Address at Howard University, and I commend it to you in its entirety. At the time of his speech, Howard was embroiled in a controversy regarding its decision to allow a Black writer and member of Nation of Islam to deliver a speech containing racist and anti-Semitic statements. Here is part of what General Powell said:

 

"I believe with all my heart that Howard must continue to serve as an institution of learning excellence where freedom of speech is strongly encouraged and rigorously protected.

 

That is at the very essence and heart of a great university and there is no doubt that Howard is a great university.

 

And freedom of speech means permitting the widest range of views to be presented, however controversial those views may be.

 

The First Amendment right of free speech is intended to protect the controversial and even the outrageous word, and not just comforting platitudes, too mundane to need protection.

 

Some say that by hosting controversial speakers who shock our sensibilities, Howard is in some way promoting or endorsing that message – not at all. Howard has helped put that message in perspective while protecting their right to be heard, so the message can be exposed to the full light of day for comment and criticism."

 

Isn't it a shame that now, more than a quarter century later, so many of those in our government, businesses, media, educational institutions, and elsewhere throughout society don't understand – or have the courage to stand up for – Colin Powell's ringing endorsement of freedom of speech, and why it matters if we are to remain a free society?

 

In recent months, I've written four pieces in a series called "Thinking Clearly and Speaking Freely," to consider the impact of the Cancel Culture and what can be done about it. Consistent with that part of the Free State Foundation's mission devoted to promoting free speech, we will continue to address this subject. But, today, you need go no further than studying – and taking to heart – Colin Powell's words from his Howard University commencement address.

 

Finally, in closing, General Powell also said this to the graduating students on that day in May 1994:

 

"Above all, never lose faith in America. Its faults are yours to fix, not to curse. America is a family: There may be differences and disputes within the family, but we must not allow the family to be broken into warring factions. From the diversity of our people, let us draw strength and not seek weakness.

 

Believe in America with all your heart and soul, with all of your mind. Remember, that it remains the "last, best hope of Earth." You are its inheritors and its future is today placed in your hands."

 

Like his call to protect free speech, General Powell's call to never lose faith in America –and the American family writ large – could not be timelier today.

 

Colin Powell, RIP.