[Senate Hearing 119-290]
[From the U.S. Government Publishing Office]
S. Hrg. 119-290
SHUT YOUR APP: HOW UNCLE SAM JAWBONED
BIG TECH INTO SILENCING AMERICANS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 8, 2025
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
62-821 PDF WASHINGTON : 2026
-----------------------------------------------------------------------------------
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
TED CRUZ, Texas, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington,
ROGER WICKER, Mississippi Ranking
DEB FISCHER, Nebraska AMY KLOBUCHAR, Minnesota
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
MARSHA BLACKBURN, Tennessee GARY PETERS, Michigan
TODD YOUNG, Indiana TAMMY BALDWIN, Wisconsin
TED BUDD, North Carolina TAMMY DUCKWORTH, Illinois
ERIC SCHMITT, Missouri JACKY ROSEN, Nevada
JOHN CURTIS, Utah BEN RAY LUJAN, New Mexico
BERNIE MORENO, Ohio JOHN HICKENLOOPER, Colorado
TIM SHEEHY, Montana JOHN FETTERMAN, Pennsylvania
SHELLEY MOORE CAPITO, West Virginia ANDY KIM, New Jersey
CYNTHIA LUMMIS, Wyoming LISA BLUNT ROCHESTER, Delaware
Brad Grantz, Republican Staff Director
Nicole Christus, Republican Deputy Staff Director
Lila Harper Helms, Staff Director
Melissa Porter, Deputy Staff Director
C O N T E N T S
----------
Page
Hearing held on October 8, 2025.................................. 1
Statement of Senator Schmitt..................................... 1
Prepared statement of Hon. Ted Cruz, U.S. Senator from Texas. 3
Statement of Senator Cantwell.................................... 4
Statement of Senator Klobuchar................................... 30
Statement of Senator Fischer..................................... 31
Statement of Senator Moreno...................................... 35
Letter dated April 11, 2018 to Hon. Ajit Pai from Senators
Cantwell, Udall, Murray, Warren, Wyden, Markey, Blumenthal,
Smith, Sanders, Merkley, Baldwin and Booker................ 36
Statement of Senator Rosen....................................... 47
Statement of Senator Blackburn................................... 49
Statement of Senator Markey...................................... 51
Statement of Senator Peters...................................... 53
Statement of Senator Lujan....................................... 55
Statement of Senator Blunt Rochester............................. 57
Statement of Senator Hickenlooper................................ 60
Witnesses
Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover
Institution, Stanford University............................... 6
Prepared statement........................................... 8
Alex Berenson, Independent Journalist and Author................. 18
Prepared statement........................................... 20
Sean Davis, Chief Executive Officer, The Federalist.............. 21
Prepared statement........................................... 23
Gene Kimmelman, Senior Fellow, Tobin Economic Policy Center, Yale
University..................................................... 26
Prepared statement........................................... 27
Appendix
Letter dated October 8, 2025 to Hon. Ted Cruz and Hon. Maria
Cantwell from The Leadership Conference on Civil and Human
Rights......................................................... 65
Writers Guild of America West (WGAW) and Writers Guild of America
East (WGAE), prepared statement................................ 69
Letter dated October 3, 2024 to Hon. Jessica Rosenworcel, Hon.
Anna Gomez and Hon. Geoffrey Starks from Senator Mike Lee...... 22
Letter dated June 8, 2022 to Hon. Jessica Rosenworcel from
Senator Marco Rubio, Senator Rick Scott, Senator Tom Cotton;
and Members of Congress: Carlos Gimenez, Maria Elvira Salazar
and Mario D!az-Balart.......................................... 75
Response to written questions submitted to Eugene Volokh by:
Hon. Ted Cruz................................................ 77
Hon. Maria Cantwell.......................................... 78
Response to written questions submitted to Gene Kimmelman by:
Hon. Maria Cantwell.......................................... 79
Hon. Amy Klobuchar........................................... 81
SHUT YOUR APP:
HOW UNCLE SAM JAWBONED BIG TECH INTO SILENCING AMERICANS
----------
WEDNESDAY, OCTOBER 8, 2025
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:31 a.m., in
room SR-253, Russell Senate Office Building, Hon. Eric Schmitt,
presiding.
Present: Senators Schmitt [presiding], Fischer, Blackburn,
Sullivan, Moreno, Sheehy, Cantwell, Klobuchar, Markey, Peters,
Rosen, Lujan, Hickenlooper, Fetterman, and Blunt Rochester.
OPENING STATEMENT OF HON. ERIC SCHMITT,
U.S. SENATOR FROM MISSOURI
Senator Schmitt [presiding]. We will call this Commerce,
Science, and Transportation Committee meeting to order.
The author of the great book ``Dune'', Frank Herbert, set
the table for what techno-totalitarianism looked like. Once men
turned their thinking over to machines in the hope that this
would set them free, but that only permitted other men with
machines to enslave them.
In the West, we are headed down this path toward thought
crime enslavement. In the United Kingdom, 30 Brits are arrested
per day for speech-related offenses. In the EU, the Digital
Services Act is creating a censorship regime that would make
Communist China blush. In the United States, before President
Trump's return to power, the American vast censorship
enterprise sought to control speech, to control how we think,
and to influence national discourse and elections.
In 2022, as the Attorney General of Missouri, I filed a
landmark lawsuit, Missouri v. Biden, which Justice Alito called
one of the most important First Amendment cases in American
history. Through the lawsuit uncovered a vast censorship regime
perpetrated by the Biden administration, I saw all the e-mails,
I saw all the text messages. I deposed senior government
officials including Anthony Fauci.
Missouri v. Biden uncovered for the American people how the
Biden administration built one of the largest censorship
operations in American history by working in secret through
third parties, pressuring, bullying, threatening, jawboning big
tech into suppressing viewpoints that they disagreed with.
Jen Saki boasted about flagging disinformation with
Facebook. The Biden White House was revealed to have been
backchanneling with YouTube about suppressing disfavored
speech, suppressing things like the lab-leak theory. White
House Digital Director Rob Flaherty pressured platforms like
Facebook and YouTube to censor all kinds of COVID-related
speech. Joe Biden said Facebook was killing people.
Last week, Chairman Cruz and the Senate Commerce Committee
released a report that revealed more details about how the
Biden administration, as part of this larger censorship
operation, weaponized the Cybersecurity and Infrastructure
Security Agency, or CISA, into an agent of censorship,
pressuring big tech to police speech.
The Biden administration's collusion with big tech and non-
governmental organizations to censor speech, infringed on the
individual freedoms of millions of Americans to limit what they
could say, what they could hear, and what they could read.
Fortunately, President Trump won a historic victory and on
January 20, 2025, the first day of his second Presidential
term, President Trump signed an executive order titled
``Restoring Freedom of Speech and Ending Federal Censorship''.
But the story of censorship does not begin and end with the
Federal Government. Big tech was censored--was censoring long
before Presidential job owning and I imagine will continue to
censor long after.
Here are some instances of pre-Biden censorship. All of big
tech censored the Hunter Biden laptop story. Google banned
COVID skepticism. Twitter shadow banned and suspended
conservatives. Facebook throttled posts from pages like The
Federalist in the New York Post. Facebook flagged and removed
posts questioning voter ID laws and ballot harvesting.
Two of today's witnesses, Alex Berenson and Sean Davis were
direct targets of this censorship operation and were
deplatformed, shadow banned and silenced for their viewpoints.
Congress should address this problem with decisive legislative
action like my Collude Act or my Censorship Accountability Act,
both of which hold big tech and government sensors accountable.
I look forward to hearing from our witnesses about what
Congress and this Committee can do to make sure that no
American, regardless of their political leanings, ever learns
that the Federal Government, entrusted with protecting their
First Amendment Rights, is actually working to undermine them
behind closed doors.
Our Founding Fathers recognized that freedom of speech is
vital. Protecting it is first and foremost in the Bill of
Rights. While some argued that free speech was already
protected because the Constitution did not give the government
power to censor, the framers went further, affirmatively
restricting government intrusion.
The First Amendment is the beating heart of our
Constitution. Free speech is not just instrumental but an end
to itself in the digital age with all the peril and possibility
that accompanies it, the struggle for free speech is the
struggle for civilization itself.
I want to thank the witnesses for being here today and look
forward to their testimony.
And I will, before I turn it over the Ranking Member for
her opening remarks, request that Chairman Cruz's opening
statement be entered into the record.
Without objection.
[The prepared statement of Chairman Cruz follows:]
Prepared Statement of Hon. Ted Cruz, U.S. Senator from Texas
In a free society, the people govern--not by mob or might--but by
reasoned argument and the rule of law. Essential to keeping a society
free is the ability of a citizenry to speak freely and debate openly
without fear of government reprisal. That ability--to think and speak
one's mind--enables a society to hold its government to account. It's
so critical that our Founders made this natural right a
constitutionally protected one.
The First Amendment is a powerful weapon against the government's
ability to publicly censor its own citizens. But in recent years, we
have seen the government censor in secret through third parties,
``jawboning'' Big Tech into suppressing user content, often under the
guise of ``safety'' or ``national security.''
It starts subtly. Officials say they are combatting foreign
disinformation campaigns from the Russians or the Chinese. Next, they
clamp down on anyone re-posting such content. Then, government
officials curtail speech that undermines their own positions.
Tweeting about COVID-19 vaccine mandates or the efficacy of wearing
a mask? Sorry, that's a ``safety'' issue. Questioning mail-in voting?
That's a threat to critical election infrastructure.
And so, our government becomes the speech police--the arbiter of
truth--silencing those that disagree.
Last week, I released a report detailing how the Biden
administration weaponized the Cybersecurity and Infrastructure Security
Agency to pressure Big Tech into policing speech. Two of today's
witnesses--Alex Berenson and Sean Davis--were personally targeted by
our government. At the behest of government officials, Mr. Berenson was
completely deplatformed for having the temerity to challenge the Biden
COVID narrative. Mr. Davis was shadow-banned for questioning the
integrity of mail-in voting.
But the silencing didn't stop there. The Biden administration
sought to bring its censorship playbook into the Age of AI. It ``volun-
told'' AI developers to allow the National Institute of Standards and
Technology to test AI products for misinformation and ``harmful''
speech. The National Science Foundation funded propaganda tools.
By controlling AI inputs and outputs, the Biden administration was
deciding what information Americans could see and consume--an effort
that continues with laws in California, Colorado, and New York.
Now censorship is growing around the world. In the United Kingdom,
more than 12,000 Britons are arrested every year for speech-related
offenses, according to the Times of London. My CISA (siss-uh) report
shows why, in this context, the United States must remain a free speech
beacon, zealously guarding against censorship regardless of who is in
office.
A few weeks ago, I received a letter from nearly every Democrat on
this Committee calling for a hearing to stop an ``unprecedented attack
on the First Amendment.'' The letter rightly stated that ``government
officials cannot attempt to coerce private parties in order to punish
or suppress views that the government disfavors.''
But my colleagues weren't referring to the silencing of Messrs.
Berenson and Davis or any of the other countless Americans censored
during the previous administration. They were coming to the defense of
Jimmy Kimmel, whose unpopular show was suspended by ABC following
critical comments from the FCC Chairman.
I've been clear on my views about Chairman Carr's comments.
But I must ask my colleagues: Where were you when the Biden
administration was silencing the American people?
Maybe it's too much to ask Democrats to defend the First Amendment
regardless of who is in power, not just when it is politically
convenient.
No government official--regardless of party--should be engaged in
jawboning. The First Amendment is not about opinions you agree with.
It's not about opinions that are right and reasonable. The First
Amendment is about opinions that you passionately disagree with and the
right of others to express them. I am one who agrees with John Stuart
Mill: the best solution for bad ideas, for bad speech, is more speech
and better ideas. We don't need to use brute force to silence them
because truth is far more powerful than force.
In the coming weeks, I will be introducing legislation to prohibit
government jawboning and empower Americans to hold government officials
accountable.
As we'll hear today, Alex Berenson and Sean Davis face major
hurdles in seeking remedies after the government launched secret
censorship campaigns against them. My bill will fix that problem.
I'll give my Democrat colleagues a chance to redeem themselves:
Join me in standing up for free speech by working to advance this
legislation and stop censorship by government officials.
I thank the witnesses who are here with us today, and I look
forward to this critical discussion about how we can protect freedom of
thought in our country.
Senator Schmitt. Ranking Member Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you. Thank you, Mr. Chairman. And
welcome to our witnesses. Thank you for joining us this
morning. These issues of the media, and consumers, and free
speech, very important issues for us to discuss in an era where
consumers are paying more, where not enough competition exists,
where deals are getting done that lead to fewer choices, less
local news. I do have an important question. Where is Chairman
Carr?
Americans are paying and spending more money on content
that used to be free more than ever before. And just a few
weeks ago, we witnessed a deeply troubling episode. The FCC
Chairman demanding ABC take immediate action against Jimmy
Kimmel for tasteless remarks and saying, quote, ``We can do
this the easy way or the hard way'', end quote. A line that
Senator Cruz rightly criticized as something quote, ``Right out
of Goodfellows'', end quote.
Within hours, the Nation's largest ABC affiliate, NextStar
and Sinclair, announced they would preempt the show
indefinitely, and shortly thereafter, ABC suspended Jimmy
Kimmel Live altogether. While ABC, NextStar, and Sinclair have
since returned Mr. Kimmel to the air, that chain of events
should alarm every American, because the power of the FCC was
never meant to weaponize against a President or political
targets.
Let me be clear. Chairman Carr does not have the authority
to police speech, nor does he or the White--that he or the
White House finds offensive. He does not have the authority to
threaten licenses based on content decisions. And this is
especially true when those same companies have mergers and
licensings pending before the FCC.
That is exactly the kind of political interference,
chilling effect on free speech that the First Amendment was
designed to prevent. We need to hold Chairman Carr accountable
for these threats. And that is why I have called on us to have
a hearing and hopefully that will happen sometime in the near
future.
There is a need to have oversight on this, and I hope that
this hearing does happen without further delay. Professor
Volokh, am I saying that right, Volokh?
Mr. Volokh. Yes.
Senator Cantwell. Thank you--said in his testimony, quote,
``FCC Chairman Brendan Carr's statement about Jimmy Kimmel may
likewise have threatened retaliation in a way that would
violate the First Amendment'', end quote.
So the point on this there is broad agreement. Free
expression is not a partisan issue. It is the bedrock of our
democracy. So this is in a long list of issues about the First
Amendment, I think, the President is making pretty much a
standard issue.
Just last week, the Federal Court found that the
administration violated the First Amendment by arresting,
detaining, and deporting non-citizen students and faculty
members for their pro-Palestinian advocacy. This follows the
White House revocation of the Associated Press' credentials for
refusal to use the term, ``Gulf of Mexico'', clearly an attempt
to police the language and intimidate free speech.
Meanwhile, the administration continues to wield the full
power of the Federal Government to retaliate against law firms
the President does not like and threaten funding for
universities he disfavors.
It is alarming to see the administration use its regulatory
and informal authority to unlawfully and infringe on free
speech, the free press, and the First Amendment. And it is
important that we also understand the broader context here.
That is why Mr. Kimmelman, I am so glad to see you here today.
Local journalism in America is already under extraordinary
strain. The Commerce Committee has documented how online
platforms monopolize advertising, siphon revenue away from
local newspapers and broadcasters, and the result has been
newsroom closures, layoffs across the country, and even as the
public trust in local journalism remains at an all-time high.
At the same time, media consolidation has been concentrated
into fewer hands. Since 2005, the U.S. has lost almost one-
third of its newspapers. This year alone, 127 newspapers
closed. Nearly 55 million Americans have limited or no access
to local news, disproportionately affecting rural areas. That
leaves new outlets more vulnerable to political and corporate
pressures and leaves the public without further resources of
getting to true competition, which I believe gets us to the
truth.
If Chairman Carr can threaten one network over a single
late-night host and his message, what kind of message does that
send to local broadcasters in Seattle or Houston? Do they lose
their licenses if they are reporting or they are crossing the
White House? This kind of intimidation undermines the very
foundation of the free press.
I want to be clear, protecting a free press does not mean
ignoring the dangers of harmful hate speech. I have expressed
concerns about companies like Facebook, Google, and X on issues
that really did threaten the lives of individuals. And I know
that we will hear a lot about what the Biden administration did
in these areas. But let us not forget the Supreme Court
rejected allegations of the Biden administration censorship
because the record showed that social media companies,
``Continued to exercise their independent judgment'', and had,
quote, ``Independent incentives to moderate content'' end
quote. I am sure we will talk a lot about this.
Persuading companies to enforce their own content
moderation policies is not the same, is not the same as
threatening them with retaliation. And that is precisely what
Chairman Carr did when he publicly threatened ABC, an entity
over which the FCC holds direct regulatory power, to take
action over the speech the administration did not like.
Holding companies accountable for amplifying harm is not
the same as expressing Constitutional protected speech the
President finds politically inconvenient. That is what we
should be focusing on today. making sure the FCC, as a Federal
agency, cannot use its authority to threaten or intimidate the
media to ensure the licensed decisions are based on the law and
not on political coercion. I hope today we can speak clearly
about this and do what we can to make sure that we show that
free speech is something we all agree on.
Thank you, Mr. Chairman. And look forward to hearing from
the witnesses.
Senator Schmitt. Thank you, Ranking Member.
One point of clarification for the record, Murthy v.
Missouri was not decided that way. It was sent back to lower
court for additional arguments on standing, not on the merits.
I would like to introduce our witnesses for today. Our
first witness is Mr. Eugene Volokh, a Senior Fellow with the
Hoover Institution at Stanford University and a Professor of
Law Emeritus at UCLA School of Law. He is an expert in First
Amendment Law, and his writings have been cited in over 300
court opinions including ten Supreme Court cases. Welcome.
Our second witness is Mr. Alex Berenson, an author,
independent journalist, and victim of the Biden
administration's embargo on free speech. I look forward to
hearing from Mr. Berenson and his story, and what we can do to
preserve speech online.
Our third witness is Mr. Sean Davis, Chief Executive
Officer and Co-founder of The Federalist, a conservative news
outlet that was subject to censorship and demonetization
efforts for speaking out against the COVID-19 shutdowns.
And our final witness is Mr. Gene Kimmelman, a Senior
Policy Fellow at Yale's Tobin Economic Policy Center and a
Senior Research Fellow at the Harvard Kennedy School's Center
for Business and Government.
And at this point would recognize Mr. Volokh for your own
opening statement. Thank you for being here.
STATEMENT OF EUGENE VOLOKH, THOMAS M. SIEBEL SENIOR FELLOW,
HOOVER INSTITUTION, STANFORD UNIVERSITY
Mr. Volokh. Thank you. Thank you very much for having me.
This is a topic that is I think very important, and something
that I have been very interested in myself. I should also say
by sheer accident turns out that today is 50 years to the day
since my parents brought me to the United States from the then
Soviet Union. So thank you to the United States of America for
letting me in.
Very, very glad to be here. So I wanted to speak briefly
about the First Amendment Law on the subject both that which is
settled and that which is not entirely certain. So one thing
that I think is worth noting is that the word ``jawboning'' is
sometimes used in two different senses. One sense is coercion,
when the government is essentially threatening someone with
retaliation as a means of suppressing either that person's
speech or getting that person to suppress somebody else's
speech.
A second one is what might call persuasion and maybe
pressure, short of coercion. When the government is kind of
urging people, some people might say again pressuring people to
restrict, again, either their own speech or other people's
speech.
So the government coercion is generally unconstitutional. I
think, indeed, in the remarks of Chairman Carr seemed to be an
attempt at coercion. Whether or not they actually caused the
suspension of Jimmy Kimmel, I think they were an attempt to do
something that the Constitution does not allow.
Just last year the Supreme Court found in NRA v. Vullo,
that the National Rifle Association had adequately alleged
coercion on the part of New York government authorities aimed
at trying to get insurance companies to limit ties to the NRA
as a means of trying to interfere with the NRA's political
advocacy. So that is pretty well settled for that
constitutional problem.
Now, what about persuasion? Well, in some situations, the
government is entitled to urge entities to not speak. You can
imagine a situation where a police chief calls up a newspaper
and says: Look, I am not trying to coerce you. I know I cannot
coerce you. You can publish this article you are about to
publish, but it is going to interfere with us catching the
criminals, and you would not want that, right? So could I just
ask you please to do this?
You know, some amount of that has got to be permissible. Or
to take another example as to misinformation. Somebody calls up
a reporter and says: You are about to publish this article or
this op-ed and it is just false. It is just wrong. Don't you
want to be corrected on this?
Again, some amount of that, it seems to me, has to be
constitutionally permissible. At the same time, there is a
complication because the line between coercion and persuasion
is often very hard to draw. And that is particularly true when
the speaker has power over the listener.
The Supreme Court has most clearly recognized this in the
employment context. Employers are entitled to talk to their
employees, including about unionization. They are entitled to
explain why they think unionizing would be a mistake. But the
court has recognized that in looking at what the employer says
and seeing if the employer is speaking coercively, one has to
appreciate that the employee is dependent on the employer, and
may pick up coercive messages even in situations where it is
not expressed on the face of this statement.
And I think the same thing is true when the government,
which is a very powerful regulator, is talking to people in a
regulated industry. There are times when what might sound on
its face, or let us say just on the bare paper might look like
it is not coercive may in fact, in context, be quite coercive.
Another concern is the merger of government and private
power when it is not just kind of occasional conversations but
a systemic mechanism for trying to restrict speech. An analogy
might be a few amendments down in the Fourth Amendment. If you
have a roommate and you notice some evidence of crime and you
call up the police, the police can use that evidence, because
that is not a government search. The police did not search for
it. You did.
On the other hand, if the police called you up and say:
Hey, you know, not trying to coerce you, but could you please
rummage through your roommate's papers? That does become a
Fourth Amendment's--a search subject to the Fourth Amendment,
precisely because it is encouraged, substantially encouraged by
the police. The police become enmeshed with the private search.
So that suggests that there is something similar may apply to
the First Amendment.
So let me just close with suggesting that this is, in fact,
the right body to be dealing with a lot of these concerns. That
some of these problems can only be solved through statutory
action, through laws that maybe limit attempts at systemic
persuasion and systemic suppression of speech even if it is not
technically coercive.
At laws that facilitate finding information about that, and
at laws that actually provide a cause of action which the
Congress has for over a century provided against state
governments, but provided against the Federal Government, as
well.
[The prepared statement of Mr. Volokh follows:]
Prepared Statement Eugene Volokh, Thomas M. Siebel Senior Fellow,
Hoover Institution, Stanford University
Dear Chairman and Members of the Committee:
Thank you for asking me to testify on the important First Amendment
issues raised by government jawboning, a subject that I have been
studying for several years. I will try to offer a big picture view of
the matter, rather than focusing on the particular factual details
related to, for instance, the various interactions between CISA (the
Cybersecurity and Infrastructure Security Agency) and social media
platforms.
``To jawbone'' has been defined as ``to attempt to persuade or
pressure by the force of one's position of authority,'' \1\ especially
when done by the government. That in turn reflects two possible
meanings:
---------------------------------------------------------------------------
\1\ See, e.g., Collins Dictionary, https://
www.collinsdictionary.com/us/dictionary/english/jawboning (quoting
Irwin Stelzer, GM Has Riled the Jawboner-in-Chief, Times (London), Dec.
2, 2018).
(1) government officials trying to persuade through the force of
their reasoning, though strengthened by their authoritativeness
---------------------------------------------------------------------------
and resulting credibility and influence;
(2) government officials trying to coerce through the explicit or
implicit threat of retaliation stemming from their position of
authority, e.g., through the threat of enforcement or
regulation.
As a practical matter, the two meanings are closely intertwined,
especially since it may be hard to tell whether there is an implicit
``or else'' behind a request. As a legal matter, though, there may be a
substantial distinction, at least when it comes to the government
trying to pressure entities into shutting down third parties' speech.
I. Government Coercion: Generally Unconstitutional
Say the government doesn't like some speech, though the speech is
constitutionally protected against direct punishment (i.e., the speech
doesn't fit into one of the narrow First Amendment exceptions, for
example the exception for true threats of criminal conduct). The
government therefore demands that a private entity that has the private
power to control such speech--say, a social media platform, a
bookstore, a financial intermediary--suppress the speech, or else face
some coercive government action. That generally violates the First
Amendment. ``[A] government official cannot do indirectly what she is
barred from doing directly: A government official cannot coerce a
private party to punish or suppress disfavored speech on her behalf.''
\2\
---------------------------------------------------------------------------
\2\ NRA v. Vullo, 602 U.S. 175, 190 (2024).
---------------------------------------------------------------------------
The long-standing Supreme Court precedent addressing that issue is
Bantam Books, Inc. v. Sullivan (1963), in which a state commission
threatened to prosecute stores that sold books it deemed pornographic,
including books that were protected by the First Amendment.\3\
Likewise, in NRA v. Vullo (2024), the Court held that the NRA could sue
New York financial regulators under the First Amendment for allegedly
coercing banks and insurance companies ``to cut their ties with the NRA
in order to stifle the NRA's gun-promotion advocacy.'' \4\ Under these
precedents, FCC Chairman Brendan Carr's statements about Jimmy Kimmel
may likewise have threatened retaliation in a way that would violate
the First Amendment.\5\
---------------------------------------------------------------------------
\3\ 372 U.S. 58 (1963).
\4\ 602 U.S. at 197. Note that I was one of the NRA's lawyers in
this case.
\5\ The statements on the Benny Johnson podcast, https://x.com/
bennyjohnson/status/1968359685045838041, were:
Broadcasters . . . have a license granted by us at the FCC, and
that comes with it an obligation to operate in the public interest. . .
We can do this the easy way or the hard way. These companies can
find ways to change conduct, to take action, frankly, on Kimmel or
there is going to be additional work for the FCC ahead. . . .
There's calls for Kimmel to be fired. I think you could certainly
see a path forward for suspension over this.
The FCC has a rule that prohibits ``broadcast news distortion,''
https://www.fcc.gov/broadcast-news-distortion, and it's possible that--
given the lower First Amendment protection given to broadcasting than
to, say, newspapers or the Internet--the FCC might be able to impose a
modest fine for Kimmel's statement or even just issue an admonition.
But there appears to be no justification for the government's demanding
outright suspension of the Kimmel show based on one false statement,
nor does there appear to be any precedent in the past four decades for
anything more than a token punishment in such a situation.
---------------------------------------------------------------------------
Lower court cases have found that there could be impermissible
coercion even absent express threat of prosecution or regulatory
action, so long as the threat is sufficiently implicit. Consider two
cases that were favorably cited by the Supreme Court in NRA v. Vullo:
1. The president of the Borough of Staten Island sent a letter to a
billboard company urging it to take down an antihomosexuality
billboard. The letter closed with:
Both you and the sponsor of this message should be aware that
many members of the Staten Island community, myself included,
find this message unnecessarily confrontational and offensive.
As Borough President of Staten Island, I want to inform you
that this message conveys an atmosphere of intolerance which is
not welcome in our Borough.
P.N.E. Media owns a number of billboards on Staten Island and
derives substantial economic benefits from them. I call on you
as a responsible member of the business community to please
contact Daniel L. Master, my legal counsel and Chair of my
Anti-Bias Task Force . . . to discuss further the issues I have
raised in this letter.
Potentially unconstitutional, the Second Circuit held in Okwedy v.
Molinari (2003):
[A] jury could find that Molinari's letter contained an
implicit threat of retaliation if PNE failed to accede to
Molinari's requests. In his letter, Molinari invoked his
official authority as ``Borough President of Staten Island''
and pointed out that he was aware that ``P.N.E. Media owns a
number of billboards on Staten Island and derives substantial
economic benefits from them.'' He then ``call[ed] on'' PNE to
contact Daniel L. Master, whom he identified as his ``legal
counsel and Chair of my Anti-Bias Task Force.''
Based on this letter, PNE could reasonably have believed that
Molinari intended to use his official power to retaliate
against it if it did not respond positively to his entreaties.
Even though Molinari lacked direct regulatory control over
billboards, PNE could reasonably have feared that Molinari
would use whatever authority he does have, as Borough
President, to interfere with the ``substantial economic
benefits'' PNE derived from its billboards in Staten Island.\6\
---------------------------------------------------------------------------
\6\ 333 F.3d 339, 341, 342, 344 (2d Cir. 2003).
2. The Sheriff of Cook County in Illinois sent letters to
Mastercard and Visa saying, ``As the Sheriff of Cook County, a father
and a caring citizen, I write to request that your institution
immediately cease and desist from allowing your credit cards to be used
to place ads on websites like Backpage.com [which hosted ads for sex-
related services].'' Potentially unconstitutional, the Seventh Circuit
held in Back-page.com, LLC v. Dart (2015). The court went through the
---------------------------------------------------------------------------
Sheriff's letter in detail and concluded:
And here's the kicker: ``Within the next week, please provide
me with contact information for an individual within your
organization that I can work with [harass, pester] on this
issue.'' The ``I'' is Sheriff Dart, not private citizen Dart--
the letter was signed by ``Thomas Dart, Cook County Sheriff.''
And the letter was not merely an expression of Sheriff Dart's
opinion. It was designed to compel the credit card companies to
act by inserting Dart into the discussion; he'll be chatting
them up.
Further insight into the purpose and likely effect of such a
letter is provided by a strategy memo written by a member of
the sheriff's staff in advance of the letter. The memo
suggested approaching the credit card companies (whether by
phone, mail, e-mail, or a visit in person) with threats in the
form of ``reminders'' of ``their own potential liability for
allowing suspected illegal transactions to continue to take
place'' and their potential susceptibility to ``money
laundering prosecutions . . . and/or hefty fines.'' Allusion to
that ``susceptibility'' was the culminating and most ominous
threat in the letter.\7\
---------------------------------------------------------------------------
\7\ 807 F.3d 229, 231-32 (7th Cir. 2015). The bracketed words,
``harass, pester,'' were added by the court, presumably as an
indication of how the court interpreted ``work with.'' See Complaint
Exh. B at 7, Backpage.com, LLC v. Dart, No. 1:15-cv-06340 (N.D. Ill.
July 21, 2015).
3. Finally, consider a third example: The Biden administration's
attempting to persuade social media platforms to block or remove posts
on various topics, including ``the COVID-19 lab-leak theory, pandemic
lockdowns, vaccine side-effects, election fraud, and the Hunter Biden
laptop story.'' The Fifth Circuit concluded in Missouri v. Biden (2023)
that some of the government's actions were likely unconstitutionally
---------------------------------------------------------------------------
coercive:
On multiple occasions, the officials coerced the platforms into
direct action via urgent, uncompromising demands to moderate
content And, more importantly, the officials threatened--both
expressly and implicitly--to retaliate against inaction.
Officials threw out the prospect of legal reforms and
enforcement actions while subtly insinuating it would be in the
platforms' best interests to comply. As one official put it,
``removing bad information'' is ``one of the easy, low-bar
things you guys [can] do to make people like me''--that is,
White House officials--``think you're taking action.'' When the
officials' demands were not met, the platforms received
promises of legal regime changes, enforcement actions, and
other unspoken threats. That was likely coercive. . . .
[M]any of the officials' asks were ``phrased virtually as
orders,'' like requests to remove content ``ASAP'' or
``immediately.'' The threatening ``tone'' of the officials'
commands, as well as of their ``overall interaction'' with the
platforms, is made all the more evident when we consider the
persistent nature of their messages. . . . [T]here is [also]
plenty of evidence--both direct and circumstantial, considering
the platforms' contemporaneous actions--that the platforms were
influenced by the officials' demands. . . .
[And] the speaker [had] ``authority over the recipient.'' [The
White House] enforces the laws of our country, and--as the head
of the executive branch--directs an army of Federal agencies
that create, modify, and enforce Federal regulations At the
very least, as agents of the executive branch, the officials'
powers track somewhere closer to those of the commission in
Bantam Books--they were legislatively given the power to
``investigate violations and recommend prosecutions.''
[T]he officials made express threats and, at the very least,
leaned into the inherent authority of the President's office. .
. . But, beyond express threats, there was always an ``unspoken
`or else.' '' [W]hen the platforms faltered, the officials
warned them that they were ``[i]nternally considering our
options on what to do,'' their ``concern[s] [were] shared at
the highest (and I mean highest) levels of the [White House],''
and the ``President has long been concerned about the power of
large social media platforms.'' \8\
---------------------------------------------------------------------------
\8\ 83 F.4th 350, 382 (5th Cir. 2023).
The Supreme Court reversed the Fifth Circuit's decision on
procedural grounds, so that decision is no longer binding precedent.\9\
The Court's opinion also cast doubt on the factual findings that the
Fifth Circuit relied on.\10\ Nonetheless, the Fifth Circuit's analysis
is a good illustration of how courts sometimes evaluate such
allegations of coercion.
---------------------------------------------------------------------------
\9\ 603 U.S. 43 (2024).
\10\ Id. at 60 n.4.
---------------------------------------------------------------------------
II. Government Persuasion
A. Often Constitutional
Now say the government simply tries to persuade various
intermediaries--whether today's social media platforms or, as was the
case in the recent past, bookstores, billboards, or payment
processors--to stop carrying certain speech, without an express or
implied threat of retaliation. Generally speaking, courts of appeals
have said that this does not violate the First Amendment. To offer a
few examples:
1. In 1980, a New York City official sent a letter urging
department stores not to carry ``a board game titled `Public
Assistance--Why Bother Working for a Living.' '' The letter said the
game ``does a grave injustice to taxpayers and welfare clients alike,''
and closes with, ``Your cooperation in keeping this game off the
shelves of your stores would be a genuine public service.'' Not
unconstitutional, said the Second Circuit in Hammerhead Enterprises,
Inc. v. Brezenoff (1983):
[T]he record indicates that Brezenoff's request to New York
department stores to refrain from carrying Public Assistance
was nothing more than a well-reasoned and sincere entreaty in
support of his own political perspective Where comments of a
government official can reasonably be interpreted as intimating
that some form of punishment or adverse regulatory action will
follow the failure to accede to the official's request, a valid
claim can be stated. . . . [But] appellants cannot establish
that this case involves either of these troubling
situations.\11\
---------------------------------------------------------------------------
\11\ 707 F.2d 33, 34, 37, 38-39 (2d Cir. 1983).
Note, though, that Brezenoff was the administrator of New York
City's Human Resources Administration, with no enforcement authority
against the department stores. How might the matter have looked had he
been the sheriff or the head of some civil enforcement agency?
2. Not long after, the U.S. Attorney General's Commission on
Pornography sent letters to various corporations (such as 7-Eleven)
urging them not to sell pornographic magazines:
The Attorney General's Commission on Pornography has held six
hearings across the United States during the past seven months
on issues related to pornography. During the hearing in Los
Angeles, in October 1985, the Commission received testimony
alleging that your company is involved in the sale or
distribution of pornography. The Commission has determined that
it would be appropriate to allow your company an opportunity to
respond to the allegations prior to drafting its final report
section on identified distributors.
You will find a copy of the relevant testimony enclosed
herewith. Please review the allegations and advise the
Commission on or before March 3, 1986, if you disagree with the
statements enclosed. Failure to respond will necessarily be
accepted as an indication of no objection.
Please call Ms. Genny McSweeney, Attorney, at (202) 724-7837 if
you have any questions. Thank you for your assistance.
Not unconstitutional, said the D.C. Circuit in Penthouse
International, Ltd. v. Meese (1991):
[T]he Advisory Commission had no tie to prosecutorial power nor
authority to censor publications. The letter it sent contained
no threat to prosecute, nor intimation of intent to proscribe
the distribution of the publications. . . .
We do not see why government officials may not vigorously
criticize a publication for any reason they wish. As part of
the duties of their office, these officials surely must be
expected to be free to speak out to criticize practices, even
in a condemnatory fashion, that they might not have the
statutory or even constitutional authority to regulate. If the
First Amendment were thought to be violated any time a private
citizen's speech or writings were criticized by a government
official, those officials might be virtually immobilized.\12\
---------------------------------------------------------------------------
\12\ 939 F.2d 1011, 1013, 1015-1016 (D.C. Cir. 1991).
3. In the late 1990s, a New York state legislator and a New York
congressman accused X-Men Security--a security organization connected
to the Nation of Islam--of various conspiracies, ``asked government
agencies to conduct investigations into its operations, questioned X-
Men's eligibility for an award of a contract supported by public funds,
and advocated that X-Men not be retained.'' X-Men lost certain security
contracts as a result. Also not unconstitutional, ruled the Second
---------------------------------------------------------------------------
Circuit in X-Men Security, Inc. v. Pataki (1999):
[J]ust as the First Amendment protects a legislator's right to
communicate with administrative officials to provide assistance
in securing a publicly funded contract, so too does it protect
the legislator's right to state publicly his criticism of the
granting of such a contract to a given entity and to urge to
the administrators that such an award would contravene public
policy. We see no basis on which X-Men could properly be found
to have a constitutional right to prevent the legislators from
exercising their own rights to speak.\13\
---------------------------------------------------------------------------
\13\ 196 F.3d 56, 68, 70 (2d Cir. 1999).
And it does appear that at least some such persuasion ought to be
constitutionally acceptable. After all, government officials have a
strong interest in conveying their views, including their views about
what speech is harmful and should not be published. It's not clear
whether they have a personal First Amendment right to do so in their
official capacities.\14\ But there may still be real value to public
discourse, and to their listeners, in their being able to do so--and
thus it might not be a First Amendment violation in their asking
intermediaries to sometimes choose to block certain speech.
---------------------------------------------------------------------------
\14\ Compare Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)
(concluding that government officials generally don't have First
Amendment rights when exercising their official duties); and David
Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev.
1637 (2006) (discussing uncertainty about when state officials may have
First Amendment rights vis-a-vis the Federal government).
---------------------------------------------------------------------------
For instance, national security officials might sometimes tell a
news outlet, ``Look, we can't force you to do anything, but if you run
this story it will lead to deaths of intelligence sources/damage to
national security. Could you not run the story, or fuzz over some
details, or delay it?'' The news outlet might find that to be valuable
information. Reporters and editors might want to avoid causing deaths
or harming national security, especially if the bulk of the story can
still be reported with a bit of delay or slight modification.
Likewise, law enforcement officials might reasonably and
permissibly tell a newspaper or broadcaster, ``If you run this story
right now, you'll tip off the criminals we're investigating/jeopardize
witnesses. Don't you want us to fight crime effectively?'' The
newspaper might say yes or no, assuming there's no context to make the
statement coercive. I doubt such a request would violate the First
Amendment.
Or say that a newspaper is about to run an op-ed that alleges
governmental misconduct. A government official learns of this--perhaps
the editors call him to get his side of the story--and says, ``That's
nonsense, and here's the evidence to prove that.'' Or he says, ``The
allegations are so slanted as to be deceptive or unfair; here's the
context that shows it.'' And then adds, ``Please don't run such an
unfair story; it would be bad for us if you did, but it would also be
bad for your reputation, when the truth comes out, and it would be bad
for your readers, who would be misled.''
That is a call for an intermediary (the newspaper) to block the
publication of a third-party item (the op-ed). However, it is unlikely
to be unconstitutional. Indeed, the newspaper may be quite pleased to
learn the full story and thereby avoid publishing an op-ed that would
make the newspaper look bad.
B. Potential Limits: Subtle Coercion
At the same time, there may be limits on such persuasion. The first
comes from the reality that the coercion/persuasion line is often hazy.
One concern about government persuasion of intermediaries is that when
the government asks, people who are subject to regulation by the
government may hear this as demanding. As it happens, this concern has
arisen in at least one other First Amendment context, and the reasoning
in that context might be applicable here as well.
That context is labor law. Since the 1940s--early in the Court's
modern First Amendment jurisprudence--the Court has recognized that
``employers' attempts to persuade to action with respect to joining or
not joining unions are within the First Amendment's guarantee'' but not
when ``to this persuasion other things are added which bring about
coercion, or give it that character.'' \15\ In NLRB v. Gissel Packing
Co. (1969), the Court made clear that the employer's power over
employees should be considered in deciding whether the speech is likely
to coerce:
---------------------------------------------------------------------------
\15\ Thomas v. Collins, 323 U.S. 516, 537 (1945) (treating the
matter as having been settled by NLRB v. Virginia Electric & Power Co.,
314 U.S. 469 (1941)); Virginia Electric & Power, 314 U.S. at 477 (``The
employer in this case is as free now as ever to take any side it may
choose on this controversial issue. But, certainly, conduct, though
evidenced in part by speech, may amount, in connection with other
circumstances, to coercion within the meaning of the Act'').
Any assessment of the precise scope of employer expression, of
course, must be made in the context of its labor relations
setting [A]ny balancing of [the employer's and employee's]
rights must take into account the economic dependence of the
employees on their employers, and the necessary tendency of the
former, because of that relationship, to pick up intended
implications of the latter that might be more readily dismissed
by a more disinterested ear.\16\
---------------------------------------------------------------------------
\16\ 395 U.S. 575, 617 (1969).
Similar logic, I think, may apply when high-level executive
officials, or those who speak for them, address intermediaries who are
---------------------------------------------------------------------------
regulated by those officials or the officials' appointees:
[A]ny balancing of [government speakers' and intermediaries']
rights must take into account the economic dependence of the
[intermediaries] on their [regulators], and the necessary
tendency of the former, because of that relationship, to pick
up intended implications of the latter that might be more
readily dismissed by a more disinterested ear.
This analogy would still leave government officials able to make
requests in certain ways, just as employers remain able to speak in
certain ways to employees about the possible consequences of
unionization. But the officials would have to be more careful to make
clear that the request carries no threat of retaliation.
What sort of statement by the government would make clear that
there is no such threat? That would doubtless turn on many factors.
Thus, for instance, with regard to the requests sent to the social
media platforms by CISA, the Fifth Circuit in Missouri v. Biden found
sufficient evidence only that CISA ``significantly encouraged the
platforms' content-moderation decisions''--the court didn't state that
there was sufficient evidence that CISA was coercing the platforms,
though the court did find sufficient evidence of coercion by some other
government agencies.\17\
---------------------------------------------------------------------------
\17\ See 83 F.4th at 391; cf. id. at 389 (stating, as to the FBI,
that ``the platforms' decisions were significantly encouraged and
coerced by the FBI'' (emphasis added)).
---------------------------------------------------------------------------
I think, though, that if there were some serious concern about
coercion, dispelling such concern would require considerably more than
the disclaimer that CISA included in its e-mails:
CISA affirms that it neither has nor seeks the ability to
remove or edit what information is made available on social
media platforms. CISA makes no recommendations about how the
information it is sharing should be handled or used by social
media companies. Additionally, CISA will not take any action,
favorable or unfavorable, toward social media companies based
on decisions about how or whether to use this information.\18\
---------------------------------------------------------------------------
\18\ See The Mechanics of Government Censorship 14 (2025).
Of course the social media companies' likely worry wouldn't have
been that ``CISA''--an agency that itself lacks regulatory power over
the companies--``will take . . . action . . . toward'' them. Rather,
the worry would have been that some other, much more powerful, Federal
government actors would take ``adverse government action,'' such as
``antitrust enforcement and legal reforms'' \19\ or possibly law
enforcement action of the sort that the FBI can engage in.\20\ In light
of this, a disclaimer pointedly limited to retaliation by CISA was
unlikely to do much good.
---------------------------------------------------------------------------
\19\ 83 F.4th at 373.
\20\ Id. at 388-89.
---------------------------------------------------------------------------
C. Potential Limits: Merger of Government and Private Power
There is also reason to think that at least sometimes the
Constitution does constrain the merging of government and private
power, at least when the government tries to use that merger to bypass
the usual constraints on its powers--even in the absence of coercion.
And even if the Constitution itself doesn't render such merging of
power unconstitutional, there may be good reason to try to constrain
such merging by statute.
To begin, let's consider an analogy, three Amendments down: the
Fourth Amendment. Say you rummage through a roommate's papers, find
evidence that he's committing a crime, and send it to the police.
Because you're a private actor, you haven't violated the Fourth
Amendment. (Whether you committed some tort or crime is a separate
question.)\21\ Because they didn't perform the search, the police
haven't violated the Fourth Amendment either, and the evidence from
this ``private search'' can be used against the roommate.
---------------------------------------------------------------------------
\21\ See United States v. Phillips, 32 F.4th 865, 867 (9th Cir.
2022); Burdeau v. McDowell, 256 U.S. 465, 475-476 (1921).
---------------------------------------------------------------------------
But if the police ask you to rummage through the roommate's papers,
that rummaging may constitute a search governed by the Fourth
Amendment. ``[I]f a state officer requests a private person to search a
particular place or thing, and if that private person acts because of
and within the scope of the state officer's request,'' then the search
would be subject to the constitutional constraints applicable to
government searches.\22\ ``Police officers may not avoid the
requirements of the Fourth Amendment by inducing, coercing, promoting,
or encouraging private parties to perform searches they would not
otherwise perform.'' \23\ Coercion is only one way a private search may
become subject to the Fourth Amendment; inducement, promotion, or
encouragement can also suffice.
---------------------------------------------------------------------------
\22\ State v. Tucker, 330 Or. 85, 90 (2000) (applying the Oregon
Constitution's Fourth Amendment analog; police request to tow truck
driver to search items in car being towed), followed by State v. Lien,
364 Or. 750, 778 (2019) (police request to trash company to pick up a
person's trash in a particular way that would facilitate its being
searched). See also United States v. Gregory, 497 F. Supp. 3d 243 (E.D.
Ky. 2020) (similar fact pattern to Lien).
\23\ George v. Edholm, 752 F.3d 1206, 1215 (9th Cir. 2014) (police
request to doctor to do a rectal search). See also United States v.
Ziegler, 474 F.3d 1184, 1190 (9th Cir. 2007) (police request to
employer to search employee's work computer); United States v. Rosenow,
50 F.4th 715, 733 (9th Cir. 2022) (recognizing that, even when a
private party's search would normally be entirely legal, the
government's ``encouragement'' of such a search may constitute ``state
action'').
---------------------------------------------------------------------------
Indeed, in Skinner v. Railway Labor Executives' Association (1989),
the Supreme Court held that drug tests of railway employees that were
authorized but not required by Federal regulations were subject to
Fourth Amendment scrutiny:
The Government has removed all legal barriers to the testing
authorized by Subpart D, and indeed has made plain not only its
strong preference for testing, but also its desire to share the
fruits of such intrusions. In addition, it has mandated that
the railroads not bargain away the authority to perform tests
granted by Subpart D. These are clear indices of the
Government's encouragement, endorsement, and participation, and
suffice to implicate the Fourth Amendment.\24\
---------------------------------------------------------------------------
\24\ Skinner v. Railway Labor Executives Assn', 489 U.S. 602, 615-
16 (1989).
Considering the extensive regulation of railroads by the
government, the railway companies might have felt special pressure to
view the government's ``encouragement'' and ``endorsement'' as a
command. Yet the Court did not rely on the theory that the government
had indeed coerced the railroads to perform the tests. It appeared to
be enough that it ``encourage[d], endorse[d], and participat[ed]'' in
the tests. The same may apply to social media platforms, especially
(but perhaps not only) in a political environment where there is talk
of possible regulation, such as through antitrust law or by modifying
Section 230 immunity.\25\
---------------------------------------------------------------------------
\25\ See Murthy, 603 U.S. at 80-81 (Alito, J., dissenting)
(reasoning that ``internet platforms, although rich and powerful, are
at the same time far more vulnerable to Government pressure than other
news sources'' because ``[t]hey are critically dependent on the
protection provided by Sec. 230 of the Communications Decency Act of
1996,'' which Congress might threaten to withdraw; ``[t]hey are
vulnerable to antitrust actions''; and, ``because their substantial
overseas operations may be subjected to tough regulation in the
European Union and other foreign jurisdictions, they rely on the
Federal Government's diplomatic efforts to protect their interests'').
---------------------------------------------------------------------------
Likewise, ``In the Fifth Amendment context, courts have held that
the government might violate a defendant's rights by coercing or
encouraging a private party to extract a confession from a criminal
defendant.'' \26\ More broadly, the Supreme Court held in Blum v.
Yaretsky (1982), a Due Process Clause case, that ``a State normally can
be held responsible for a private decision only when it has exercised
coercive power or has provided such significant encouragement, either
overt or covert, that the choice must in law be deemed to be that of
the State.'' \27\ And in Norwood v. Harrison (1973), an Equal
Protection Clause case, the Court viewed it as ``axiomatic that a state
may not induce, encourage or promote private persons to accomplish what
it is constitutionally forbidden to accomplish.'' \28\
---------------------------------------------------------------------------
\26\ United States v. Folad, 877 F.3d 250, 253 (6th Cir. 2017)
(emphasis added). See also United States v. Garlock, 19 F.3d 441, 443-
444 (8th Cir. 1994).
\27\ 457 U.S. 991, 1004 (1982). See also Fidelity Financial Corp.
v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th
Cir. 1986) (emphasis added).
\28\ 413 U.S. 455, 465 (1973) (emphasis added).
---------------------------------------------------------------------------
D. Potential Limits: Systemic Cooperation
Might there be a difference between occasional one-off
conversations and systematic programs? To be sure, when it comes to
coercive threats aimed at suppressing speech, both the ad hoc and
systematic demands are unconstitutional.\29\ Likewise, the cases
involving government encouragement of searches by private parties find
even ad hoc demands unconstitutional.\30\
---------------------------------------------------------------------------
\29\ See Fagundes, supra note 14, at Part II.B.
\30\ See id. at Part IV.A.
---------------------------------------------------------------------------
But if courts do conclude that ad hoc requests to remove or block
speech are constitutional, perhaps some line should still be drawn
between those requests and systematic encouragement of such removing or
blocking. This appears to be what the Fifth Circuit concluded in
Missouri v. Biden, when it found that the government's speech was
impermissible ``significant encouragement'' of speech restriction by
platforms, even apart from the coercion argument:
The officials had consistent and consequential interaction with
the platforms and constantly monitored their moderation
activities. In doing so, they repeatedly communicated their
concerns, thoughts, and desires to the platforms. The platforms
responded with cooperation--they invited the officials to
meetings, roundups, and policy discussions. And, more
importantly, they complied with the officials' requests,
including making changes to their policies. . . .
When the platforms' policies were not performing to the
officials' liking, they pressed for more, persistently asking
what ``interventions'' were being taken, ``how much content
[was] being demoted,'' and why certain posts were not being
removed. Eventually, the officials pressed for outright change
to the platforms' moderation policies Beyond that, they
relentlessly asked the platforms to remove content, even giving
reasons as to why such content should be taken down. They also
followed up to ensure compliance and, when met with a response,
asked how the internal decision was made. . . .
Consequently, it is apparent that the officials exercised
meaningful control--via changes to the platforms' independent
processes--over the platforms' moderation decisions. By pushing
changes to the platforms' policies through their expansive
relationship with and informal oversight over the platforms,
the officials imparted a lasting influence on the platforms'
moderation decisions without the need for any further input. In
doing so, the officials ensured that any moderation decisions
were not made in accordance with independent judgments guided
by independent standards. Instead, they were encouraged by the
officials' imposed standards.
In sum, we find that the White House officials, in conjunction
with the Surgeon General's office, coerced and significantly
encouraged the platforms to moderate content. As a result, the
platforms' actions ``must in law be deemed to be that of the
State.'' \31\
---------------------------------------------------------------------------
\31\ 83 F.4th 350, 387 (5th Cir. 2023).
Indeed, when it came to requests for removal made by the Centers
for Disease Control and Prevention, the Fifth Circuit concluded that
the requests were not coercive, but still constituted unconstitutional
---------------------------------------------------------------------------
significant encouragement:
[T]he CDC was entangled in the platforms' decision-making
processes. The CDC's relationship with the platforms began by
defining--in ``Be On the Lookout'' meetings--what was (and was
not) ``misinformation'' for the platforms. Specifically, CDC
officials issued ``advisories'' to the platforms warning them
about misinformation ``hot topics'' to be wary of. From there,
CDC officials instructed the platforms to label disfavored
posts with ``contextual information,'' and asked for
``amplification'' of approved content. That led to CDC
officials becoming intimately involved in the various
platforms' day-to-day moderation decisions. For example, they
communicated about how a platform's ``moderation team'' reached
a certain decision, how it was ``approach[ing] adding labels''
to particular content, and how it was deploying manpower.
Consequently, the CDC garnered an extensive relationship with
the platforms.
From that relationship, the CDC, through authoritative
guidance, directed changes to the platforms' moderation
policies. . . . [The platforms] adopted rule changes meant to
implement the CDC's guidance. . . . Thus, the resulting content
moderation, ``while not compelled by the state, was so
significantly encouraged, both overtly and covertly'' by CDC
officials that those decisions ``must in law be deemed to be
that of the state.'' \32\
---------------------------------------------------------------------------
\32\ Id. at 390.
And the court held the same as to CISA requests.\33\
---------------------------------------------------------------------------
\33\ Id. at 391.
---------------------------------------------------------------------------
As noted above, the Supreme Court reversed this Fifth Circuit
decision on procedural grounds and cast some doubt on the factual
findings on which the Fifth Circuit relied.\34\ But the Fifth Circuit's
legal analysis as to substantial encouragement and systematic
entanglement may still offer a persuasive precedent.
---------------------------------------------------------------------------
\34\ See 603 U.S. at 60 n.4.
---------------------------------------------------------------------------
Of course, distinguishing ``consistent and consequential
interaction'' from mere occasional interaction--such as the examples of
constitutionally permissible requests given above--can be difficult.
Still, constitutional law does sometimes draw such distinctions between
occasional action and systemic action. One analogy, though distant,
might be how the law sometimes treats administrative searches.
Courts have upheld various kinds of searches--even ones that lack a
warrant, probable cause, or both--on the grounds that they are targeted
at specific public safety concerns rather than at broad law
enforcement. Airport searches of luggage, aimed at detecting weapons,
are one example, as the Ninth Circuit discussed in detail in United
States v. $124,570 U.S. Currency (1989).\35\
---------------------------------------------------------------------------
\35\ 873 F.2d 1240, 1244-45 (9th Cir. 1989).
---------------------------------------------------------------------------
Now say that Transportation Security Administration agents, U.S.
government employees following their normal duty to search for weapons,
spot a suspicious amount of cash or drugs. They then alert the police
who use this information as part of the probable cause needed to
justify a search. That is constitutional.\36\ TSA agents are free to
``report information pertaining to criminal activity, as would any
citizen.'' \37\
---------------------------------------------------------------------------
\36\ See id. at 1247 n.7 (approvingly describing United States v.
Canada, 527 F.2d 1374, 1376, 1378-79 (9th Cir. 1975)).
\37\ Id.
---------------------------------------------------------------------------
So far, so good. But say that the Drug Enforcement Administration
comes up with a systematic program to encourage TSA agents to search
not just for weapons, the rationale that led airport searches to be
upheld in the first place, but also for drugs or cash. The Ninth
Circuit held that this would be going too far:
We see the matter as materially different where the
communication [about the drugs or money that the TSA agent
found] is undertaken pursuant to an established relationship,
fostered by official policy, even more so where the
communication is nurtured by payment of monetary rewards.\38\
---------------------------------------------------------------------------
\38\ Id.
Even if ad hoc reporting by TSA agents to the police of things
other than weapons is permissible under the Fourth Amendment, a system
set up to encourage such reporting is not. ``The line we draw is a fine
one but, we believe, one that has constitutional significance.'' \39\
---------------------------------------------------------------------------
\39\ Id.
---------------------------------------------------------------------------
Or consider sobriety checkpoints. The Court has upheld them as
permissible administrative seizures because they are aimed at
protecting safety on the very roads that are being temporarily
blocked.\40\ Yet the Court has held that the government may not set up
drug trafficking checkpoints aimed at finding drug dealers.\41\ The
difference in these cases, the Court held, stems from the ``difference
in the Fourth Amendment significance of highway safety interests and
the general interest in crime control.'' \42\
---------------------------------------------------------------------------
\40\ Michigan v. Sitz, 496 U.S. 444 (1990).
\41\ City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
\42\ Id. at 40.
---------------------------------------------------------------------------
Now, if officers conducting sobriety checkpoints happen to see
evidence of crime in plain sight--blood on the seat, an illegally
carried gun, or, for that matter, drugs--they are free to keep
detaining the driver and search further, based on this newly discovered
probable cause.\43\ But say that the checkpoint is deliberately set up
as a systematic way of searching for drugs or for other contraband.
That would trigger additional Fourth Amendment scrutiny: ad hoc
observation of evidence of crime, in the course of a valid
administrative seizure (valid because the seizure is part of a drunk
driving checkpoint, rather than a drug checkpoint or a general law
enforcement checkpoint), may become unconstitutional if it happens in
the course of a systematic program of search for evidence of crime.\44\
---------------------------------------------------------------------------
\43\ See Texas v. Brown, 460 U.S. 730, 744 (1983) (plurality
opinion); id. at 746 (Powell, J., concurring in the judgment); People
v. Edwards, 101 A.D.3d 1643, 1644 (2012).
\44\ I borrow this from United States v. Soyland, 3 F.3d 1312, 1317
(9th Cir. 1993).
---------------------------------------------------------------------------
I should stress again that these analogies are imperfect. Among
other differences, they involve the Fourth Amendment and not the First,
and concern attempts to systematically encourage certain action by
government employees and not by private parties.
But my point here is that they offer some support for the view that
even if some actions are not subject to constitutional scrutiny when
done on a one-off basis, they may become unconstitutional when done
systematically. In the Fourth Amendment context, systematizing
permissible ad hoc searches into ``an established relationship,
fostered by official policy'' increases the threat of undue government
intrusion on privacy, enough to change the Fourth Amendment analysis.
Perhaps systematizing permissible ad hoc requests not to publish
something (or to block or remove users' publications) into a similar
official established relationship may likewise increase the threat of
undue government interference with public debate to the point that
First Amendment scrutiny would be required.
III. Reason for Congressional Action
To be sure, courts may be reluctant to try to draw lines between
permissible persuasion and excessively systematized persuasion. They
might conclude that government attempts to persuade entities to
restrict speech just aren't First Amendment violations, so long as they
fall short of coercion.
At the same time, even if the merger of government and social media
platform power aimed at setting up a system for blocking, deleting, or
otherwise deplatforming user posts isn't unconstitutional, it may be
bad for democracy. At least, it may be the sort of thing that ought to
be done with public scrutiny, rather than behind closed doors.
And Congress may be able to draw lines that courts might be
reluctant to draw. Indeed, the Committee's proposals seem to be
promising ideas:
Create transparency around Federal agency communication with
private entities on issues that may affect American speech.
Produce guidelines that clearly restrict government
officials from influencing social media platforms' content
moderation decisions of constitutionally protected speech.
Establish a reporting mechanism to allow platforms to report
if they think they may be experiencing government jawboning
efforts of censorship or content moderation.
Before contemplating new Federal regulation, enact
guardrails that preclude existing Federal AI pro-grams, such as
the NAIRR and the Center for AI Standards and Innovation
(CAISI) (formerly known as the AI Safety Institute) from
curtailing speech in the name of addressing harms.\45\
---------------------------------------------------------------------------
\45\ See The Mechanics of Government Censorship 35 (2025).
Any such proposals would of course have to be carefully crafted,
and would need to be attentive to how, for instance, we may want to
expect different things from AI platforms than from social media
platforms. But it's good that the Committee is considering what
Congress can do here, rather than just relying entirely on courts.
Indeed, such new statutes would be like other Federal statutes in
which Congress has provided more protection for constitutional values
than the courts have expressly held is required. For instance, Congress
has chosen to provide extra protection for religious freedom through
the Religious Freedom Restoration Act and the Religious Land Use and
Institutionalized Persons Act. It has chosen to provide extra
protection for free press through the Privacy Protection Act of 1980,
which limits searches and seizures of journalists' notes and work
product. It has chosen to provide extra protection for Fourth Amendment
values through statutes such as the Stored Communications Act and the
Electronic Communications Privacy Act. Likewise, Congress may wisely
choose to provide extra protection against government jawboning for
ordinary citizens' free speech and free press interests as well.
The Internet has democratized speech, restricted the power of one
set of intermediaries (traditional media), and empowered a new set
(social media platforms). In the process, it has made the latter
tempting targets both for government coercion and government
persuasion. Congress should turn its attention to whether government
jawboning, even when constitutionally permissible, unduly risks
increasing government power and undermining public debate.
Sincerely,
Eugene Volokh,
Thomas M. Siebel Senior Fellow,
Hoover Institution, Stanford University.
Gary T. Schwartz Distinguished Professor of Law Emeritus,
UCLA School of Law.
Senator Schmitt. Thank you very much.
We will now recognize Mr. Alex Berenson to deliver his
opening statement.
STATEMENT OF ALEX BERENSON, INDEPENDENT JOURNALIST AND AUTHOR
Mr. Berenson. Senator Schmitt, Committee Members, thank you
for giving me the chance to speak on this crucial topic.
On October 28--on August 28, 2021, Twitter, as it was then
called, permanently suspended my account, supposedly for
violating its COVID-19 Misinformation Rules. The ban deprived
me of my largest and most vital platform for my journalism at a
time when many Americans were eager to hear what I had to say
about COVID and the mRNA vaccines and viewed what I wrote
millions of times a day.
Twitter's decision was no accident. It came after a
deliberate and relentless campaign by the Biden administration
as well as at least one senior Pfizer board member to violate
my First Amendment Rights.
Led by Andrew M. Slavitt, an official in the Biden White
House, the administration began pressuring Twitter to silence
me almost as soon as President Biden took office with both
public and private attacks on my reporting. Frontline and
senior Twitter employees viewed what was happening to me with
dismay.
Going back to 2020, the company had previously defended my
right to speak as third parties demanded I be censored because
Twitter believed that it should be a place where free speech
and debate were encouraged.
Ultimately, at the time of my suspension, Twitter's top
executives, including then Chief Executive Jack Dorsey,
secretly believed the company should not have suspended me. But
the Twitter lobbyist who faced the Biden administration's
pressure most directly went around them to orchestrate my ban.
In the words he wrote to another Twitter official just days
before he silenced me, this lobbyist hoped, ``To keep the
target off our back'', none of this is speculation.
Thanks to internal e-mails and other documents that Twitter
turned over to me before Elon Musk took over, and more
documents that Musk voluntarily and graciously turned over
after he bought the company, I have hard proof of everything I
have just told you.
In fact, after I sued Twitter in 2021, in December 2021,
over the ban, the company admitted I had not broken its rules
and that my tweets, quote, ``Should not have led to his
suspension''--``my suspension''. The company even reinstated me
in July 2022. Again, that is before Elon bought Twitter.
By then, though, I had already suffered and so had a lot of
people who were depending on my reporting to help them think
about COVID vaccines and COVID lockdowns. In losing my access
to Twitter, I lost my best chance to offer Americans my
dissenting views on the Biden administration's COVID vaccine
mandates, mandates that the Supreme Court would later strike
down.
Federal District Judge Jessica G.L. Clarke laid out all
these facts in two rulings she made this year on a 2023 lawsuit
I brought against the Biden administration and senior officials
at Pfizer for its censorship--for their censorship.
In fact, in a ruling just last week, Clarke noted that,
``On the merits, the Federal Government has now conceded my
claim that the Biden administration unconstitutionally violated
my First Amendment Rights in 2021''. Yet, in the same ruling,
Clarke still dismissed my lawsuit. That may sound impossible. A
Federal judge agreed my constitutional rights had apparently
been violated, yet said my lawsuit over the violation could not
move forward.
But it is true. The Supreme Court has made it essentially
impossible for me or anyone to win monetary damages for
violations of their First Amendment Rights by the Federal
Government. As the law now stands, Federal officials can run
censorship campaigns, like the Biden administration carried
out--like the one the Biden administration carried out against
me, with impunity. At worst, they may face an injunction, but
they will never have to pay for doing so for violating our most
basic right, the right to speak freely.
So it is open season for government censorship. This
loophole is even more expansive and dangerous when it comes to
Federal efforts to jawbone, pressure, or outright threaten
third parties like Twitter into silencing the speech of their
users, employees, or business partners. That is true whether
these third parties are legacy media companies, news social
media giants, or other types of businesses.
As a practical matter, users are generally not privy to the
communications between Federal officials and the companies, so
they have no way of proving the pressure existed, or that it
led to their censorship. My case is exceptional because of the
documents I have proving my rights were violated. Yet even so I
have been unable to obtain a remedy so far. And expecting
companies to resist censorship on behalf of their users or
business partners is unrealistic.
My case, as well as documents the House has unearthed in
its own censorship investigation shows social media companies
dislike the Biden administration's efforts to force them to
censor users, yet, they had many other interests before the
Federal Government. They viewed sacrificing speech as the price
they had to pay to stay in the administration's good graces.
Every company will face this calculus, whether it is a
Democrat or Republican, in the White House. And social media
companies are really the most important way that independent
Americans, that citizens can get their speech out into the
marketplace of debate. That is why there is so much pressure on
them.
The truth is that as the law now stands, Federal officials
have every reason to believe they can coerce private third
parties to suppress speech. This is a powerful loophole that is
no doubt enticing to politicians and officials of both parties.
But it is wrong. Whether it affects Republicans or Democrats,
journalists or comedians, conservatives, or liberals, or
independents, and whether it goes by jawboning, coercion,
pressure, or threats, this kind of censorship is wrong.
And this committee has the chance to begin the process of
fixing that wrong. I urge you to take it.
[The prepared statement of Mr. Berneson follows:]
Prepared Statement of Alex Berenson, Independent Journalist and Author
Chairman Cruz, committee members, thank you for giving me the
chance to speak on this crucial topic.
On Aug. 28, 2021, Twitter (as it was then called) permanently
suspended my account, supposedly for violating its ``COVID-19
misinformation rules.'' The ban deprived me of the largest and most
vital platform for my journalism--at a time when many Americans were
eager to hear what I had to say about COVID and the mRNA vaccines and
viewed what I wrote millions of times a day.
But Twitter's decision was no accident. It came after a deliberate
and relentless campaign by the Biden Administration (as well as at
least one senior Pfizer board member) to violate my First Amendment
rights. Led by Andrew M. Slavitt, an official in the Biden White House,
the administration began pressuring Twitter to silence me almost as
soon as President Biden took office, with both public and private
attacks on my reporting.
Both frontline and senior Twitter employees viewed what was
happening to me with dismay. Going back to 2020, the company previously
defended my right to speak as third parties demanded I be censored.
Ultimately, Twitter's top executives, including then-chief executive
Jack Dorsey, secretly believed the company should not have suspended
me. But the Twitter lobbyist who faced the Biden Administration's
pressure most directly went around them to orchestrate my ban. In the
words he wrote to another Twitter official just days before he silenced
me, the lobbyist hoped ``to keep the [White House] target off our
back.''
None of this is speculation. Thanks to internal e-mails and other
documents that Twitter provided to me before Elon Musk took over--and
more documents that Musk graciously and voluntarily turned over after
he bought the company--I have hard proof of everything I've just told
you. In fact, after I sued Twitter in December 2021 over the ban, the
company admitted I had not broken its rules and ``Mr. Berenson's Tweets
should not have led to his suspension.''
The company even reinstated me in July 2022--again, before Musk
bought Twitter. By then, though, the damage had already been done. In
losing my access to Twitter, I lost my best chance to offer Americans
my dissenting views on the Biden Administration's COVID vaccine
mandates, mandates the Supreme Court would strike down.
Federal District Judge Jessica G.L. Clarke laid out all these facts
in two rulings she made this year on a 2023 lawsuit I brought against
the Biden Administration and senior officials at Pfizer for its
censorship. In fact, in a ruling just last week, Clarke noted that ``on
the merits,'' the federal government has now conceded my claim the
Biden Administration unconstitutionally violated my First Amendment
rights in 2021.
Yet, in the same ruling, Clarke still dismissed my lawsuit.
This may sound impossible--a Federal judge agreed my Constitutional
rights had apparently been violated, yet said my lawsuit over the
violation could not move forward. Yet it's true.
Why?
Because the Supreme Court has made it impossible for me, or anyone,
to win monetary damages for violations of their First Amendment rights
by the Federal government. In fact, as the law now stands, Federal
officials can run censorship campaigns like the one the Biden
Administration carried out against me with near-impunity. At worst,
they may face a judicial injunction telling them to stop violating the
First Amendment. But neither the officials individually nor the
government as a whole face any risk that they may have to pay for doing
so--for violating Americans' most basic Constitutional right, the right
to speak freely.
It's open season for government censorship.
This loophole is even more expansive, and thus dangerous, when it
comes to Federal efforts to ``jawbone,'' pressure, or outright threaten
third parties like Twitter into silencing the speech of their users,
employees, or business partners. That's true whether those third-
parties are legacy media companies, new social media giants, or other
kinds of businesses.
Why? First, as a practical matter, users are generally not privy to
the communications between Federal officials and the companies, so they
have no way of proving the pressure existed or that it led to their
censorship. My case is exceptional because of the documents I have
found proving that my rights were violated--yet even so, I have been
unable to obtain a remedy so far.
Second, expecting the companies to resist censorship on behalf of
their users or business partners is unrealistic. My case, as well as
documents from Facebook/Meta and other social media companies that the
Select Subcommittee on the Weaponization of the Federal Government has
unearthed in its own censorship investigation, shows that social media
companies disliked the Biden Administration's efforts to force them to
censor users.
Yet they had many other interests before the Federal government.
They viewed having to sacrifice speech from some users as the price
they had to pay to stay in the administration's good graces. Every
company faces this calculus, whether a Democrat or Republican is in the
White House.
Yet jawboning of social media companies, in particular, is a more
successful censorship strategy than ever before. These outlets are now
the most important way for individuals to push their ideas into the
marketplace of debate. I saw this firsthand in 2020 and 2021 (and still
do). Twitter gave me a megaphone I would not otherwise have had, which
is why the Biden Administration was so desperate to take it from me.
In 2024, the Supreme Court found that ``a government official
cannot do indirectly what she is barred from doing directly: A
government official cannot coerce a private party to punish or suppress
disfavored speech on her behalf.'' But that case, NRA v Vullo, applied
to state government officials--New York state's insurance commissioner,
to be precise.
The truth is that as the law now stands, Federal officials have
every reason to believe they can coerce private third parties to
suppress speech without facing any sanction. And following the success
of the Biden Administration's efforts against me and other users, they
have every reason to believe those efforts will succeed.
This is a powerful loophole that is no doubt enticing to
politicians and officials of both parties. But it is wrong. Whether it
affects Republicans or Democrats, journalists or comedians,
conservatives or liberals or independents--and whether it goes by
``jawboning,'' ``coercion,'' ``pressure,'' or ``threats,'' this kind of
censorship is wrong. Only two institutions have the power to fix it--
Congress and the Supreme Court.
But the Supreme Court has until now declined to act, by extending
the right to money damages to First Amendment claims.
This committee has a chance to begin the process of doing so--to
take the first step helping Congress protect our vital Constitutional
rights from censorious Federal officials. I urge you to take it.
Again, thank you for giving me the chance to tell you about my case
and my censorship. I view the protection of free speech as a bipartisan
issue, and this issue as one that will hopefully have a bipartisan
solution. I am happy to take any questions.
Senator Schmitt. Thank you.
We will now recognize Sean Davis to deliver his opening
statement.
STATEMENT OF SEAN DAVIS, CHIEF EXECUTIVE OFFICER, THE
FEDERALIST
Mr. Davis. It begins with censorship, it moves to the
destruction of statues and monuments, and it ends with the
murder of people. It begins with censorship, it moves to the
destruction of statues and monuments, and it ends with the
murder of people.
The drive to silent speech does not end at a podium's edge
or at the four corners of a page, it always advances toward the
violent elimination of speakers. And that is because the
authoritarian impulse to silent speech is driven by a
totalitarian desire to seize total power by any means
necessary, up to and including the murder of one's political
opponents.
This dynamic was made clear on a Tuesday afternoon in Utah
last month when my friend, Charlie Kirk, was assassinated in
broad daylight by a left-wing transgender ideologue who is
enraged by Charlie's clear understanding and teaching that God
created us male and female. That boys cannot become girls and
girls cannot become boys. Charlie was murdered by this left-
wing assassin who had been radicalized by demonic transgender
ideology because he was one of the most bold and effective
speakers in the country opposed to this evil ideology.
Rather than see a nation unite against terroristic violence
designed to permanently silence speech, we actually saw the
opposite. We witnessed people praising the murder of Charlie.
We witnessed people thanking his assassin. We even witnessed
members of the U.S. Congress all but say that Charlie deserved
it.
That is not the only recent example. The Democratic
candidate for Attorney General in Virginia was revealed last
week to have called for the murder of one of his political
opponents. Even worse, he also said he wanted his opponent to
witness the murder of his own children, to watch them die in
their mother's arms. Why? To make him feel pain for having
different political opinions.
How many here today condemned that insanity or publicly
recognized that someone with such a broken moral compass is
simply unqualified to be a state's top law enforcement officer?
We have heard the tired cliche that riots are the language of
the unheard. But the reality is that violence is the language
of the unhinged and far too many people in this room are fluent
in it.
My name is Sean Davis and I am the CEO and Co-Founder of
The Federalist, a conservative digital media company that
focuses on politics, culture, and religion. I am also a victim
of illegal and unconstitutional censorship. My company, my
colleagues, and I have been the targets of a coordinated and
global multiyear censorship campaign.
In 2020, a foreign government connected outfit in the UK
colluded with Google to demonetize The Federalist, our crime,
we published an article in the summer of 2020 entitled, ``The
Media Are Lying to You About Everything, Including the Riots''.
Later that year, in the midst of a close and heated
Presidential election campaign, government-funded efforts in
the U.S. repeatedly censored Mollie Hemingway, The Federalist
Editor-in-Chief and a New York Times bestselling author who is
here behind me today, and me because of our election reporting
and commentary. I was censored for posting a screenshot of and
a link to a Pennsylvania Supreme Court decision requiring mail-
in ballots received after election day and lacking a postmark
to be counted and presumed as valid votes.
Mollie was censored for posting a link to an article The
Federalist published. The headline of that article, ``America
Won't Trust Elections Until the Voter Fraud Is Investigated.''
But the censorship did not stop there. We were also
targeted for bankruptcy and destruction by the U.S. State
Department and its Global Engagement Center, or GEC. Despite
the fact that GEC was explicitly prohibited by both the U.S.
Constitution via the First Amendment and its authorizing
statute from targeting domestic speech, it nonetheless sought
to drive us out of business by funding, developing, and
distributing technologies and tools to reduce our reach, by
bullying advertisers into blacklisting us, and many other
conservative outlets, and by coercing big tech companies like
Facebook, Google, and Twitter to throttle access to our
content.
In essence, our own government secretly and without any due
process, charged us with thought crimes, convicted us, and
sentenced The Federalist to death. The censorship efforts our
government funded with our money are still being wielded
against us today.
I am here today to testify about the unconstitutional and
illegal censorship of my company and my colleagues. But I am
also here to help you understand the real-world consequences in
flesh and in blood of the drive to silence your political
opposition.
It does not stop at the page's end. The effort to censor
and silence political opposition is not the final step in the
effort to usher in tyranny and authoritarianism. It begins with
censorship. It moves to the destruction of statues and
monuments, and it ends with the murder of people. And it has to
stop. Thank you.
[The prepared statement of Mr. Davis follows:]
Prepared Statement of Sean Davis, CEO and Co-Founder, The Federalist
Chairman Cruz, Ranking Member Cantwell, and members of the
committee, thank you for inviting me to testify on behalf of First
Amendment speech and press rights and against authoritarian censorship
designed to shut down the free speech rights of American citizens.
My name is Sean Davis, and I am the CEO and co-founder of The
Federalist, a conservative digital media company focused on politics,
culture, and religion. I am a Christian, a conservative, and a
political commentator and reporter. I am also the victim of illegal and
unconstitutional censorship by my government which was targeted at my
publication, my publication, and me personally.
The First Amendment affirms and protects five God-given rights:
free speech, religion, press, assembly, and petition. In my capacity as
the publisher of a major national media outlet which produces news and
opinion, an infringement on or abridgement of any one of those five
rights can be cataclysmic.
Unfortunately, my publication, our writers, and I were all directly
targeted for destruction by my own government, using my tax dollars.
Even worse, much of the targeting was done in secret, by individuals
and institutions who were desperate to hide their illegal and
unconstitutional actions against us. This long-running conspiracy to
deprive us of our God-given First Amendment rights is illegal,
unconstitutional, and unconscionable. Sadly, many senators who sit on
this committee either refused to condemn and fight these censorship
efforts, or outright supported them.
In the summer of 2020, at the behest of foreign government-
connected organizations, Google attempted to demonetize The Federalist
for the apparent crime of criticizing American government response to
and media coverage of COVID-19 and the violent Black Lives Matter (BLM)
riots that raged throughout the country. The apparent article that
triggered this outrageous attack on us and our First Amendment rights
was entitled, ``The Media Are Lying To You About Everything, Including
The Riots.''
This was all orchestrated secretly behind closed doors between a
foreign NBC News cell and corrupt Google executives, despite the fact
that we had broken zero rules. But that was only the beginning.
Unbeknownst to us at the time, a government department called the
Cybersecurity and Infrastructure Security Agency (CISA) was also
directing and funding censorship efforts against my colleagues and me
because of our reporting on unprecedented new election laws rammed
through ahead of the 2020 election. This agency is supposed to prevent
attacks on American infrastructure, but at some point its leaders
apparently decided that its real objective was to censor American
citizens and journalists for criticizing their own government.
My colleagues and I were deliberately singled out for censorship
because our own government decided our rights as citizens and members
of the news media needed to be crushed. The agency and its partners
used a ticketing system to flag and report social media posts that it
wanted to be eliminated and funded efforts to badger and threaten tech
companies, many of which had effective monopolies over online content,
to delete social posts that the government and its partners found
inconvenient.
For those who know me or follow me on social media, I can be
opinionated and provocative. But in this particular case, it wasn't
even one of my spicier tweets that attracted the ire of Orwellian
government censors. In a tweet targeted for censorship, I posted a
screenshot of and a link to a Pennsylvania Supreme Court decision which
stated that mail-in ballots received after the election and containing
no postmark still had to be presumed as cast on-time, and counted.
Anyone who understands basic logic can see the problems with such a
declaration: ballots cast and mailed long after the election,
potentially even after preliminary results were known, would still have
to be counted, creating huge incentives to flood the system with late,
invalid ballots.
My tweet with the link to and screenshot of that Pennsylvania
Supreme Court decision was censored by Twitter, and it was done so at
the direct demand of a U.S. Federal government-sponsored censorship
consortium. Another one of my tweets, in which I alleged that the best
evidence that the 2020 election was being rigged was the fact that
tweets stating the election was being rigged were being censored, was
censored. Another ticket demanding censorship of me stated, ``[S]ame
guy (sean davis) continues to post about this. has spread to thousands
on [Facebook] because of Federalist article[.]''
According to JIRA ticket data obtained and release by the House
Judiciary Committee, at least 21 separate tickets were submitted to
censor Twitter posts from me. Several of those tickets also demanded
censorship by Facebook.
Kafka-esque doesn't even begin to describe this madness.
My colleague Mollie Hemingway, who wrote a national best-selling
and rigorously researched and fact-checked book about 2020 election
shenanigans, was also censored by Twitter at the demand of the Federal
government and its partners. Multiple censorship tickets were submitted
to shut down her social media presence. The most ridiculous example was
a demand to censor a tweet from Mollie which contained a link to an
article published by The Federalist. The headline of that article?
``America won't trust elections until the voter fraud is
investigated.''
Imagine how deranged and authoritarian you must be to want to
censor a post about how addressing voter fraud is key to ensuring
election integrity.
Though we noticed and wrote about that censorship at the time, we
had no idea that it was our own government which funded and targeted
our speech for censorship, nor did we understand how often we had been
targeted, both personally and institutionally. It was only through
dogged investigation and oversight from people like Rep. Jim Jordan and
then-Missouri Attorney General and now-Sen. Eric Schmitt that the
depths of the government scheming against us even began to be plumbed.
Again, the censorship didn't stop there, and it didn't remain
contained within CISA. We were also targeted for outright bankruptcy
and destruction by the U.S. State Department and its Global Engagement
Center (GEC). Despite the fact that GEC was explicitly prohibited by
both the U.S. Constitution via the First Amendment and by the very
statute which created and authorized the agency from targeting domestic
speech, it nonetheless sought to drive us out of business by funding,
developing, and distributing technologies and tools to reduce our
reach, by bullying advertisers into blacklisting us and many other
conservative outlets, and by coercing Big Tech companies like Facebook,
Twitter, and Google to throttle access to our content. In essence, our
own government secretly and without any due process charged us with
thoughtcrimes, convicted us, and sentenced The Federalist to death.
We survived, but just barely.
Once the censorship-industrial complex injected its lies into the
bloodstream of the body politic, the effects became endemic and
permanent. To this day, we are still dealing with the effects of their
blatantly illegal and unconstitutional censorship efforts. Although we
sued in Federal court nearly two years ago, we are still awaiting
relief. Although the President and Vice President of the United States
admitted that these illegal censorships efforts were undertaken, we are
still awaiting relief. And although the U.S. Secretary of State
himself, whose agency targeted The Federalist, plainly admitted in our
very pages that the State Department did exactly what we alleged, we
are still awaiting relief. Some members of this committee have
supported our efforts to vindicate our rights. Many, however, haven't
said a word in our defense, a fact which suggests that defenses of
media millionaires like Jimmy Kimmel are based more on partisanship
than any sort of actual belief in free speech.
And it is worth noting that unlike Mr. Kimmel, who is employed and
distributed by a broadcaster who is required to abide by well-known
rules as a condition of operating a monopoly on publicly owned
airwaves--rules that were drafted and enacted by this very legislative
body--my colleagues and I are independent journalists who operate
online, far outside the regulatory purview of the Federal
Communications Commission (FCC). FCC rules and regulations, which radio
and television broadcasters like Mr. Kimmel are required to obey, do
not apply to us. It also takes real chutzpah, in the aftermath of the
assassination of Charlie Kirk--who was brutally murdered while
peacefully debating a college student about transgender ideology--to
try and make Jimmy Kimmel a free speech martyr just to cynically change
the subject from yet another example of left-wing violence designed to
permanently silence not just speech, but its speakers.
As we noted in our complaint against the State Department, we are
the victims of one of the most audacious, manipulative, secretive, and
gravest abuses of First Amendment rights by the Federal government in
American history.
I have no doubt today that we will hear words like
``disinformation,'' ``misinformation,'' and ``malinformation'' thrown
around by politicians desperate to create a pretext for censoring
speech and speakers they don't like. Make no mistake: these types of
labels exist entirely to justify illegal and unconstitutional
violations of the First Amendment rights of every American.
Americans are allowed to say ridiculous things on the Internet.
They are allowed to post things you don't think are true. They are
allowed to publish things that are mean. They are allowed to be
hateful. Politicians and government officials do not have the authority
to bootstrap their way to censorship by baselessly throwing a ``Russian
disinformation'' label on every post or news article they don't like.
In fact, the more a particular politician dislikes a particular
political statement, the more it is protected by the First Amendment.
We don't really need laws to protect popular speech. It is the
unpopular speech, the speech that criticizes government, that is most
desperately in need of protection.
It also is imperative that everyone lives under the exact same
speech regime. A legal regime in which one party or one side of the
political spectrum has free speech, while another is subjected to
speech controls, is an abomination, and one that should not be
tolerated. It is absurd to watch the government crack down on accurate
reporting, like that of the New York Post, which was censored for
reporting on Hunter Biden's laptop, and then watch publications that
repeatedly published falsehood after falsehood not just escape
scrutiny, but receive lucrative journalism prizes and rewards for their
nonsense.
I would prefer that everyone live under a legal regime that
treasures and protects free speech and freedom of the press. In fact, I
have fought for that for years. But I will not abide a system that
illegally cracks down on conservative media while doing nothing to stem
left-wing lies. Everyone should live under the same set of rules.
The best antidote to speech you don't like is more speech. That is
why the Founding Fathers drafted the Constitution and the Bill of
Rights. They understood that a government could not purport to
represent its people if it prohibited their rights to speech, assembly,
religion, press, and petition. It is time to return to a world where we
can say what we wish without fear of being censored, or deplatformed,
or shot dead.
If you woke up two weeks ago and suddenly decided you care about
free speech, I invite you to prove it. I invite you to demonstrate to
the world that your commitment to free speech is principled, rather
than an attempt to change the subject because one of your famous
millionaire friends on television received 1/1,000,000,000th of the
treatment that conservatives have been subjected to for years. I invite
you to condemn the nakedly illegal and unconstitutional censorship
efforts of the last 5 years. I invite you to apologize for any past
support of censorship. I invite you to finally stand up for speech you
don't like from people you don't like. And I invite you to condemn any
and all violence meant to permanently silence speech, and speakers,
even if you hate them.
Prove your commitment to the First Amendment is real by finally
admitting to the censorship schemes many of you cheered, and working to
make sure nothing like that ever happens again.
Senator Schmitt. Thank you. We will now recognize Mr. Gene
Kimmelman for his opening remarks.
STATEMENT OF GENE KIMMELMAN, SENIOR FELLOW, TOBIN ECONOMIC
POLICY CENTER, YALE UNIVERSITY
Mr. Kimmelman. Thank you, Mr. Chairman, Senator Cantwell,
Members of the Committee. It is an honor to appear before you
today.
So as we have experienced this explosion in digital
technology which fundamentally is transforming our media
landscape and information ecosystem, I think the fundamental
principles that our democracy has always relied upon remain the
same. First, we must prevent government from censoring
protected speech as Mr. Volokh said. Second, we must also
prevent media and information distribution platforms from
concentrating enough power to block the competition and
diversity that fuels open debate in our society.
I am worried that the current FCC is heading down a
dangerous path on both of these principles. Recent statements
from Chairman Carr echoing the President threatening to revoke
broadcast licenses for presenting content unfavorable to the
administration has chilled protected speech, and the FCC's push
to eliminate or relax broadcast ownership rules and to welcome
consolidation in media threatened the independence and
diversity of local media that are critical to an informed
citizenry.
Just consider we have pending before us the NextStar merger
with TEGNA, combining broadcast--national broadcast companies
with more than 250 broadcast stations. combining multiple
broadcast licenses in the top markets that are the most popular
broadcast television stations, and having ownership in two-
thirds of all markets, covering almost 80 percent of all
households in the country, even though this appears to violate
the limit Congress set at half that level Chairman Carr seems
to be moving forward.
And this is on the heels of Skye Dance backed by Oracle's
owner, Mr. Larry Ellison, buying Paramount Global, CBS, now
seeking to buy Warner Brothers, Discovery, more studios, more
networks, cable channels, and Mr. Ellison appearing to pick up
about a 20 percent stake in TikTok. And the FCC is also
considering allowing companies to own multiple national
networks.
These deals, and certainly more to follow, likely threaten
to build a form of private censorship through outsized media
power. It is time to update the law and establish new
guardrails to promote local, diverse, and independent media.
The threat to democracy also comes from the dominant
information distribution systems controlled by Google, Meta
with Facebook, Instagram, WhatsApp, and Apple with its App
Store.
Here, the Trump administration has done an excellent job
challenging these companies monopolistic behavior, continuing
the antitrust enforcement from the Biden administration.
However, antitrust is not enough to eliminate the enormous
power of these text platforms. More needs to be done.
Congress must give antitrust enforcers more tools to truly
open up the tech information distribution platforms and modern
media markets to robust competition. We need to reduce
concentration of control in these markets. Private control that
can censor just as the government can censor.
In conclusion, I want to say it is really time for Congress
to update the Communications Act, to jump in and put an end to
the threat of the bullying that we are seeing from the FCC,
which chills speech and eliminates open debate and information
flow in our media. And it is time to stop media consolidation
and monopolization that puts too much control over the
marketplace of ideas into few hands.
Thank you, Mr. Chair.
[The prepared statement of Mr. Kimmelman follows:]
Prepared Statement of Gene Kimmelman, Senior Fellow, Tobin Economic
Policy Center, Yale University; Senior Fellow, Mossavar-Rahmani Center
for Business and Government, Harvard Kennedy School
Democracy in the United States is built upon a foundation of
constitutional speech protections plus a process of open debate and
elections, fueled by independent and diverse media. I believe our
democracy cannot survive unless we prevent government from coercing or
suppressing protected speech. Nor can it survive without strong
competition along independent and diversely owned information and media
distribution platforms.
A robust marketplace of ideas requires strong protection against
both public interference in open debate and the exercise of private
market power that distorts or blocks public discourse. I am concerned
that recent statements and actions from government officials, like the
Chairman of the Federal Communications Commission (FCC), appear
designed to unduly pressure tech platforms and media distribution
companies to favor certain speech and suppress the views of others. I
am equally concerned that a wave of media consolidation driven by the
current FCC's efforts to relax or eliminate ownership rules will
concentrate local media power in the hands of a few national companies,
reduce the diversity of national media players, and thereby empower a
few media tycoons to distort the most popular sources of information in
our society.
While strong antitrust enforcement can play a critical role to
prevent media monopolization or excessive concentration of ownership,
it is not enough to ensure open debate through local and diverse
players in the media ecosystem. The Trump Administration's antitrust
enforcement cases (which build upon the work of the Biden
Administration) against Google's, Meta's, and Apple's monopolization
practices are precisely what is needed to break up or restrain tech
platform practices that harm competition and impede the free flow of
information.
Although many of these cases are still pending, the recent Google
search remedy decision illustrates how cautious courts are when
confronted with a legitimate request to require asset divestitures or
ban on payments that have been found by the courts to be illegal in
nature. Courts seem reticent to upend business models, even in the face
of blatantly illegal behavior. Furthermore, antitrust was never
designed to directly promote democracy by maximizing diverse
marketplace voices. Antitrust is a necessary but often insufficient
tool to sustain local, diverse media.
That is why Congress's decision to promote local and diverse media
through communications policy has always been so important to our
democracy. Obviously, the explosion of digital technology has
dramatically changed the media landscape. However, a substantial
portion of the public still relies upon local broadcast content,
regardless of how the content is distributed, for their daily news and
information. More importantly, these local media play a critical role
in promoting open public debate at the key moments when we select our
public representatives.
I am therefore concerned that the FCC is heading down a very
dangerous path by suggesting that diverse and locally controlled
broadcast media may not matter anymore. It is also disconcerting to see
a data gathering giant (Oracle) become financially intertwined with a
national television network (Paramount/CBS) which is seeking to
purchase a major studio and cable channels through Warner Bros
Discovery while picking up a substantial ownership stake in TikTok.
Such conglomeration involving major media companies threatens media
diversity and will likely lead to further consolidation among other
tech and media players.
Now is the time for Congress to step in and update the
Communications Act and expand antitrust tools that can pry open tech
platforms and the emerging Artificial Intelligence (AI) market to
increase competition. I believe technological changes have blurred the
lines between broadcast, cable, streaming, website content, and user
generated media like YouTube. Therefore, Congress needs to delineate
and update public duties across all media. Congress should treat all
forms of media power equally, and establish new standards for
independent ownership and control that promote a robust marketplace of
ideas. In addition dominant tech platforms must be prevented from
discriminating against those dependent on information and services
distributed over those platforms.
Given that Google was not constrained by the Federal District Court
from making unlimited payments to Apple, Samsung, Motorola, or the
wireless phone carriers to promote their search and AI services, it is
now imperative that Congress also established guardrails to ensure that
neither Google nor anyone else can dominate the exploding AI
marketplace.
It is critical that we prevent both government and private players
from impeding the free flow of ideas in our society. Our democracy
cannot survive without robust media competition and open debate,
especially involving public discourse about how we govern ourselves.
Senator Schmitt. Thank you. Thank you for testimony.
And I guess I will just start there with just a quick
question. So Mr. Kimmelman, you are the CEO of a group called
Public Knowledge; is that correct?
Mr. Kimmelman. I was at one point, sir.
Senator Schmitt. OK. When what years were you the CEO of
Public Knowledge?
Mr. Kimmelman. 2014 to 2019.
Senator Schmitt. OK. Let us just take a DeLorean back in
time to COVID era. Do you think it is appropriate for these,
sort of, NGOs or non-profits to work hand-in-hand with
government agencies to flag misinformation, or disinformation,
or malinformation?
Mr. Kimmelman. Mr. Chairman, I have worked with NGOs for
many, many years, and I think it is appropriate on the left and
the right for them to present ideas to the government, to the
major players in the marketplace about their views, that
certainly, that is what I was involved with.
Senator Schmitt. Well, let me get more specific then. Do
you think it is appropriate that the White House was working
directly through a number of different agencies to work with
the University of Washington and Stanford information to sort
of outsource their censorship enterprise to find out what the
posts that they did not like, and then work with--and then
collude with at least, or coerce social media companies to
punish those folks?
Mr. Kimmelman. Well, Senator, I think it is--I have seen
the government in many instances work with private
contractors----
Senator Schmitt. But I am asking--I am asking about this
instance because it was not like a you know a galaxy far, far
away, it was like a few years ago. Do you think that is
appropriate?
Mr. Kimmelman. Yes, I am not familiar with the details of
what might or might not happen there.
Senator Schmitt. But what about the scenario I just gave
you though?
Mr. Kimmelman. Working with a university to----
Senator Schmitt. To flag misinformation so that the
government then can coerce social media companies to throttle
or to----
Mr. Kimmelman. I never think government should coerce
social media companies, so I cannot imagine----
Senator Schmitt. OK.
Mr. Kimmelman [continuing]. That that part of it as----
Senator Schmitt. OK. Thank you.
Mr. Davis, your testimony described how in the summer of
2020 Google attempted to demonetize The Federalist following
your critiques of violent Black Lives Matter riots. it is
documented that the Center for Countering Digital Hate, the
CCDH, specifically worked to demonetize The Federalists for
these critiques. Could you just describe what tactics,
specifically, were employed to do that?
Mr. Davis. Yes, sir. Thank you for bringing that up. So I
believe it was in July 2020, we started receiving e-mails from
a NBC News reporter based out of the UK, I do not remember her
name exactly, and they were almost taunting asking for comment:
Hey, Federalist, how does it feel knowing Google is going to--
is about to demonetize you for hate speech, or something like
that. I am paraphrasing.
And this was news to us. We had not broken any rules. We
had gotten no notifications of breaking rules that we had
violated Google's terms and conditions, or AdSense's, or
whatever. And so we started calling around to contacts at
Google and learned that: Oh, yes, you are about to be
demonetized because of hate speech was what we were told. We
had, you know, racist, violent hate speech which was not true
at all.
And it was the CCDH who was working with this NBC News, I
think it was called the Verification Unit at the time, they
were working together and colluding with executives at Google,
to this day I do not know who, to come in and secretly
demonetize us. And what I found most offensive about it was
they were all in on it. They had news articles ready to be
written kind of crowing about how we got demonetized.
We were able to fight back. We had a pretty robust response
to that, and they ended up relenting. Largely, what was
interesting was in that initial news article targeting us they
had cited that news article, how the media are lying to you
about literally everything including the riots. The NBC News
ended up stealth editing that out, and they worked with Google
to come up with a new rationale for demonetizing us, which was
our comments were mean.
We had an unmoderated comment section. So we ended up
having to delete our comment section to avoid being demonetized
by Google because a bunch of foreign-connected government
outfits decided that they did not like what we were publishing.
Senator Schmitt. OK. In limited time, I want to--Mr.
Berenson, it is clear now that during the Biden administration,
CISA, which is mentioned a lot in this report obviously,
operated kind of a switch-boarding mechanism during this period
flagging disfavored content from domestic sources for social
media platforms. Based on what you have seen, how was CISA
specifically doing this? What was the abuse really all about?
Mr. Berenson. Well, again, I think you laid it out. You
know, they redefined infrastructure so it was not actual
physical infrastructure or software infrastructure it was
things people were saying. And you know, there was a period
very early in 2022 when they actually tried to redefine
terrorism as quote/unquote ``misinformation'', there is a
bulletin from February 2022 which I think DHS put out and then
retracted under pressure.
So you know, once you start saying that people's speech is
terrorism, you are going down a bad path and I think--I do not
think that is something that either party should do, honestly.
Senator Schmitt. Thanks. Ranking Member Cantwell.
Senator Cantwell. Thank you, Mr. Chairman. I am going to
yield to my colleague for a second to make a statement, then I
will finish with my questions.
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you. I will do my questions on the
record because I have to leave, but I was not going to speak
and I appreciate Senator Cantwell's willingness to let me say a
few words here, given what happened in my state this summer.
First of all, I think Mr. Kimmelman knows that I have been
out front on monopoly issues, and antitrust, and making sure
that we have true competition in the marketplace, working with
Senator Cruz, and Senator Lee, and Senator Kennedy, and many
others on that issue, and I continue to believe that it is a
legitimate solution.
Second, I think what happened with the Chair of the FCC was
wrong in the last month. I appreciated Senator Cruz being out
front on it. I truly do. And calling it out. And I am looking
forward to that hearing to try to get some sense into what is
going on there, with not just the Jimmy Kimmel moment, but many
others.
Third, I think that the AI piece of this, and I will ask
some questions about this, but to me, it should not be that
radical that we say number one that if speech is violent or it
incites violence, that that is different than other kinds of
speech, but that with these AI videos where you cannot even
tell it is yourself or not, I had this experience at a hearing,
that they could at least be labeled.
It is always going to be litigation over whether something
is the violent side, and the heat side, or whether it is the
legally, constitutionally allowed speech like parody. But at
the very least these videos should say something about prepared
for by AI, or digitally created.
I just happened to be late on CNN last night and Robin
Williams' family was on one of the shows talking about how he
is dead, and they have created AI videos that do not say
digitally altered, that people think are real. So people should
have the right over their own identity.
And the last thing, when it comes to these horrific mass
shootings and acts of violence, I have come to see them as all-
purpose haters, which is something that the FBI actually said,
after the enunciation, church shooting in Minnesota, because
that shooter actually hated President Trump in the manifesto,
hated wokeness, hated Jews, hated Muslims, hated Hispanics,
hated Blacks, and shot these two little kids, Fletcher and
Harper, through stained-glass windows in a Catholic church.
Then you go to the shooting of my dear friend, and I had a
good discussion with FBI Director Patel about this in
judiciary. He lost his friend Charlie Kirk and we mourn that.
And we lost our friend Melissa Hortman.
Now, that shooter literally had a manifesto or ramblings
that targeted mostly, and in fact all Democratic office holders
and he went to the houses of the people that he knew--that he
knew the addresses, and the ones that he did not he was not
able to go to.
He went after law firms, businesses, went after planned
parenthood, and then left a actual letter saying that he did it
because he was supposed to assassinate me, which is on X about
every 5 minutes with my name with ``assassination'', which I
think is completely not a good idea for public safety, but I
cannot get it off.
So the point of all this is that to say it is one side or
the another when you look at the Cato Institute Report that
came out this year of this extremism and what is triggering
these, basically, mad murderers to commit these acts, whether
it is in the Michigan temple, or whether it is Charlie Kirk in
Utah. I just do not think it is the right approach to be like
it is one side or the other.
These people have been targeted, in their heads, and they
go out and create these mass crimes and it is on us to figure
out what is triggering them and actually do something about it
instead of playing the blame game.
One of my answers is an assault weapon ban or at least 21
years and under that would have helped in Uvalde, Buffalo,
Parkland, doing something about this instead of just blaming
each other. Thank you.
Senator Schmitt. Thank you. Senator Fischer.
STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Thank you, Senator Schmitt.
Mr. Davis, government censorship in the name of fact-
checking is an unacceptable trampling on our democratic values.
Knowing what we know now, how should social media companies
respond if the government comes to them to deplatform users
based on their political opinions? What is your suggestion?
Mr. Davis. That is a great question. Thank you for raising
it. If I could wave a magic wand and create a solution or a
response there, what I would say is anytime a government goes
to a social media platform, Google, YouTube, Twitter, whatever,
and they tell someone, you need to take this down because it is
hate speech, or misinformation, or whatever fancy label they
want to throw on speech they do not like, first off, those tech
companies should tell them to take a hike. We do not censor
anyone. We are a platform. we are not a content company.
And then number two, I think they should have to disclose
it to the public and the people who were targeted. I would love
to have known in 2020 who was actually behind the censorship of
me and my colleagues. We knew we were being censored because we
watched it happen. We saw our posts disappear. We saw ourselves
being shadow-banned. We did not actually know why.
I would say to this day, we do not actually understand the
full extent of the government effort to censor us. So I think
there should be full disclosure following an absolute denial of
any sort of censorship demands from government. it is totally
inappropriate.
Senator Fischer. Thank you. Mr. Berenson, I thank you for
sharing your experience of being deplatformed by Twitter. it is
a valuable story for us to hear. You spoke of a huge influence
that you witnessed between Twitter and the White House at the
time back in 2020. And you described your understanding that
the company's lobbyist hoped to keep the White House target off
their back. Can you explain, specifically, what your
understanding of that target was? And are you aware of any
specific threats that were made?
Mr. Berenson. Sure. So in July 2021, as the Biden
administration was preparing vaccine mandates, and that is sort
of what you have to understand about the backdrop here, and
they knew that those might be politically unpopular, they
started pressuring the companies to deplatform people like me--
I mean, they have been doing this, but they upped the pressure.
And that is when President Biden said that Facebook was quote/
unquote, ``Killing people'' by allowing people like me or RFK
Jr. to speak.
And you know, the biggest legal protection that social
media companies have is what is called the Section 230, as I am
sure you know, where they are essentially immune from lawsuits,
from users over the decisions they make for content. So they
have all the immunity of a traditional publisher to make
decisions over what speech they want to carry, and so----
Senator Fischer. Yes. But did the White House--do you have
any of any kind of information or records? Did the White House
specifically say what they would do to Twitter?
Mr. Berenson. Well, so they specifically--well, they
publicly said that they were going to reconsider Section 230.
That was again in July. And they had privately said to Twitter
in April, they had, based on Twitter's own records said a
really--quote/unquote, ``A really hard question about why I was
still being allowed to speak'', which in my--from my point of
view, and my lawyer's point of view, that all by itself was a
First Amendment violation, because it forced Twitter to start
looking at me in a way that Twitter had not previously done.
And that was in secret. And you know and I will say this I----
Senator Fischer. And again, there was no transparency
that----
Mr. Berenson. No transparency----
Senator Fischer.--as Mr. Davis spoke on.
Mr. Berenson. Yes. So I mean, look, what I do not like what
Brendan Carr did but he did it publicly and we can have a
debate about it. What is really problematic is when the
government goes in secret to these companies and targets
individual users or individual categories of speech. And I
think that that should not be allowed. I think that both
parties should agree that that targeting an individual user, or
an individual post, as you know, if it is legal, it is wrong.
And nobody has ever said that I had said anything illegal,
and actually I think most people now would agree that a lot of
what I said was--has been confirmed. So I think that that is a
pretty basic place to start.
Senator Fischer. Thank you. Mr. Volokh, you mentioned a
reporting mechanism that might be a promising idea for
companies that think the government is coercing them. Can you
describe to the Committee how such a mechanism might have
prevented a situation that Mr. Berenson just described, and how
would you structure that mechanism?
Mr. Volokh. Sure. So this is a familiar line [no mic]--is
the best disinfectant. There may in fact be certain kinds of
requests to remove something that might be justifiable in
certain situations, if they are not coercive, but they are
just, kind of appealed to somebody's better instinct. Maybe,
maybe not.
But presumably it is something that members of this
committee, that other Members of Congress might be interested
in, that reporters for newspapers might say: Well, here is a
list of all of these things that the government has been asking
that people remove. Is it justifiable or not? Is it excessive?
Does it show political bias? That is impossible to do if it is
all essentially corporate secrets and government secrets.
Senator Fischer. Is there, I am picking up on Senator
Klobuchar's--I am over time. Can I finish? Thank you.
Senator Klobuchar was saying, is you know, she is worried,
as I think many of us are with AI and things that are happening
there, and at least to get a label, at least to get a label. Do
any of you know, are these social media companies, any of these
companies capable of doing that to be able to identify when
something has been tampered with, with AI, or if it is to
totally false, to be able to do that?
Mr. Volokh. So I think that that is a separate question but
a very important question, there is a--what you are asking I
think is the technical question, which is even if they were
just to do it on their own, can they do it?
Senator Fischer. And in that case----
Mr. Volokh. So my understanding is that there are ways of
determining that, they are hard to do at scale. So perhaps a
forensic examiner might look at a video, but it does not mean
that you can have an algorithm that will reliably do it, and
there is going to be false positives and false negatives. There
is also always going to be an arms race, right.
If there is a better fake technology, better detector
technology, better fake technology that evades the detector
technology. I am not up on all the details, but my
understanding is right now there is no guaranteed reliable
mechanism of determining it all.
Senator Fischer. Then maybe you get into the whole question
also on, what is comedy, what is satire.
Mr. Volokh. Yes.
Senator Fischer. It opens up a whole, another avenue then.
Mr. Volokh. That is absolutely right. There certainly is no
software you can write that says, oh, this is obvious parody
and therefore it should not be taken down or labeled.
Senator Fischer. Thank you, sir. Thank you, Mr. Chairman.
Senator Schmitt. Thank you, Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman.
And thank you Professor Volokh for both the, you know,
statement you made about Brendan Carr's coercive tactics and
that that would not be appropriate, and for your
recommendations on transparency, and rules that I think would
be a concept of just making sure that things were clear.
And to my colleague's comment, Senator Klobuchar.
Definitely, one of the reasons I appreciate many things she
said, but one of the reasons I support the Blackburn
Legislation and joined her as a co-sponsor on the COPIED Act is
because it gives the content holders some rights, and it shows
who the content holders are, and even in the case of
compensation, which is an important issue to keeping
competition and perfect information.
I will just note that during this debate, this Committee
and this Body passed a public health emergency language--
related to deceptive practice language. It was unlawful to
engage in deceptive practices related to the treatment, cure,
prevention, mitigation, or diagnosis related to COVID.
Why did we do that? Why did we give that extra power?
Because there were a lot of crazy things online, like take
bleach, or what have you, and we wanted to make sure that we
were being--protecting consumers against deceptive practices,
as it related to that. That was passed with a very, very big
bipartisan support by this this--by the Senate, and became law.
OK. So now to this, Mr. Kimmelman, this larger issue. Even
my colleague from the House who was Chairman of the China
Committee, I see does not like the TikTok decision because he
does not think it goes far enough, and banning you know the
actual algorithm. We have this attempt by Carr to kind of
realign the deck chairs at this moment that we have competition
shrinking. And so that is why it is so concerning to me.
And the unevenness. We had a hearing here, a Facebook
whistleblower who literally said the company knew that it was
putting--elevating hate speech as a way to increase the revenue
for advertisers. And you know, I feel like that is--you know,
if a newspaper or a broadcaster puts false information in the
paper, the community will respond and that person will no
longer be able to continue their business. But online, you do
not even know that that is happening.
And so making sure that we do not have, you know, these
challenges, what do we need to do to really get people to
understand that right now you could in a very--I mean, in a
very vertical way have such an alignment that that influence
that we are talking about now, of not being coercive, is
actually done in major ways? Even as my Republican colleague in
the House is saying he is concerned about this as it relates to
what TikTok might be doing.
Mr. Kimmelman. Well, um, Senator Cantwell, I think it is a
critical issue because as the technology has changed, the
entire media landscape has changed. So I think we have to
update our understanding of: Where is the excess power being
used, how is it being used? These examples you have heard today
all relate to a gatekeeper in the media landscape that is a
tech company. We have not always thought of them as being part
of the same ecosystem, and I think we need to do that.
Because if you have such enormous power over the major ways
in which the public gets news, information, can keep up about
whether it is their community, or matters of public health, or
national affairs, we have got to make sure that they are
playing by some reasonable rules, or that there is full
competition in the marketplace to give people the checks and
balances in the media. And that is all----
Senator Cantwell. You do not think Professor Volokh's
statement about transparency is a bad idea? It is a good idea.
Mr. Kimmelman. No, it is a great idea. I think transparency
is one element of this, but it is not enough to prevent the
kinds of concerns about coercion and suppression if too few
people have the megaphone, have the ability to turn on the
microphone for the voices that need to be part of our public
debate.
Senator Cantwell. And are you worried about too much
content being behind paywalls? Because I am. I am worried that
the more of this vertical integration, and that is why, again,
I was so concerned about Chairman Carr's comments, in addition
to the free speech, that if you start using this power as the
FCC Chairman, and you just allow for all of this vertical
integration, and the next thing you know, it is kind of like on
the sports issue you put so much of it behind a paywall, you
know, how is the consumer just kind of constantly being short-
changed by this whole change in the landscape?
Mr. Kimmelman. It is a huge problem, and that is why we
need to make sure there is adequate ways for the companies that
really invest in news and information, and gathering the
information that the public wants, engaging people in public
debate, can finance that and present it, so it is not all
dumbed down, and kind of diluted in an Internet where there is
just such massive information flow that you cannot tell fact
from fiction.
Senator Cantwell. And you are talking about localism now,
and that we make sure that we----
Mr. Kimmelman. Absolutely. It is localism, and it is
preventing the few companies that seem to have amassed quite a
bit of power already from getting any larger and acting as
gatekeepers to our public debate.
Senator Cantwell. Thank you. Thank you, Mr. Chairman.
STATEMENT OF HON. BERNIE MORENO,
U.S. SENATOR FROM OHIO
Senator Moreno. Thank you to all the witnesses for being
here. If there is no objection, I would like to put into the
record a letter sent from this committee back in 2018 to the
Chairman of the FCC requesting that Sinclair Broadcasting
licenses be reviewed because in the minds of the 12 Democrats,
including two on this committee, felt that Sinclair was
perpetuating misinformation.
We will put that into the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Moreno. Which I find given the conversations around
Commissioner Carr, I find that decently ironic.
Mr. Volokh, I am just----
Senator Cantwell. Can I just make a----
Senator Moreno. We can do it then. You had your time. So
Mr. Volokh, you mentioned that you came to the U.S. 50 years
ago. We, to this day, congratulations. I came to America a
little bit more than 50 years ago, which I hate to actually say
in public testimony, because it makes me feel old. How many TV
stations you--you are probably like me, had to learn English
watching TV--how many TV stations and news information sources
were there by then?
Mr. Volokh. I do think that----
Senator Moreno. The button.
Mr. Volokh. I am sorry.
Senator Moreno. You have to hit the button so we can hear
you.
Mr. Volokh. The button. Sorry. When we came to LA, I think
there were maybe six or seven VHF. And then if I twiddled the
antenna around, you get like four or five UHF.
Senator Moreno. Did you listen to a lot of podcasts?
Mr. Volokh. I believe that I was not allowed to listen to
podcasts in 1975, if that----
Senator Moreno. Well, there was not--it did not exist. It
did not exist.
Mr. Volokh. Exactly.
Senator Moreno. Did you go online and get sources from
online sources?
Mr. Volokh. No.
Senator Moreno. Did you go on X, or Facebook, or Twitter?
Did you open TikTok?
Mr. Volokh. I did not.
Senator Moreno. Did you go on Facebook, Instagram? None of
that existed? Because I just find it----
Mr. Volokh. None of that, no.
Senator Moreno.--I just find it interesting that my
colleagues are talking about how broadcast TV and monopolism,
and Mr. Kimmelman, you talked about that which I thought was
just fascinating that there is all of a sudden, this lack of
resources to find information when there has never been more
ways to get information than there is today.
But Mr. Kimmelman, I have a question for you. You are over
at the Harvard School; is that correct?
Mr. Kimmelman. At the Kennedy School, yes, sir.
Senator Moreno. The Kennedy School? So you would agree with
all of us, I think, that free speech is important. You would
agree with George Washington's comment that if freedom of
speech is taken away, then dumb and silent, we may be led like
sheep to the slaughter. You would agree with that, right?
Mr. Kimmelman. Certainly.
Senator Moreno. What are you doing about Harvard's F rating
for free speech?
Mr. Kimmelman. I am a fellow at the Kennedy School, I have
a very----
Senator Moreno. No. I mean, have you spoken to your
colleagues? Have you made a protest? Have you rallied the
students to say: How do we get rid of this F rating? I mean, I
cannot imagine Harvard students would find it objectionable to
have an F in anything. What are you doing about fixing Harvard?
Mr. Kimmelman. There is a lot of discussion I know around
me about trying to make sure there is an open environment for
learning and----
Senator Moreno. But they have an F rating, just to be
clear. They have an F rating. Harvard University has an F
rating in free speech. And you are here giving us lectures on
free speech. Does not exactly--ring very hollow.
Mr. Berenson, a quick question for you. We need to put on
the record. What was the outrageous things that you said in
2021 that got you thrown off Twitter? I mean, were you planning
to overthrow the United States government? Were you creating a
militia? Like, give me an example. Give me a flavor of the
outrageous things that you must have said?
Mr. Berenson. The tweet that got me banned from Twitter on
August 28, 2021, begin, ``It does not stop infection or
transmission''.
Senator Moreno. What?
Mr. Berenson. Yes.
Senator Moreno. Are you saying that a mask--a cloth mask
does not stop the spread of COVID, how dare you say those kinds
of outrageous comments?
Mr. Berenson. I said that the mRNA vaccine did not stop
infection or transmission.
Senator Moreno. And did it?
Mr. Berenson. I mean, I think I might be the only person in
this room who was not vaccinated with the mRNA vaccine. And we
all got COVID.
Senator Moreno. Did the vaccine stop the spread?
Mr. Berenson. No. No, of course not.
Senator Moreno. So you were allowed to be wrong, but you
were right. Does that make it--now, what accountability has
been in place for that? Like who has been held accountable for
this?
Mr. Berenson. Well, Twitter actually admitted that they
should not have done that.
Senator Moreno. Yes, you know they admitted it, but what
accountability? Because that cost you money, that cost you
direct----
Mr. Berenson. Oh, yes.
Senator Moreno.--money in your pocketbook. What
accountability has been put in place?
Mr. Berenson. There has been no--I mean, more important
than accountability, I did not get to tell people what I
thought and there were--I mean, I was getting hundreds of
millions of views a month. People wanted to hear what I
thought, and the Biden administration did not like it and they
forced Twitter to ban me. And I will also say it is a way----
Senator Moreno. So you are saying--you are saying the U.S.
Government, elected officials, who swore an oath to the
Constitution told private media companies to terminate your
account which cost you your money? I assume you are not
naturally wealthy from five generations of wealth, and that you
actually have to work for a living, and that ability to earn an
income was taken away from you because you dared to have an
opinion on a vaccine?
Mr. Berenson. I regard it as more important that I was not
able to say what I thought. The money matters less to me. And I
also have to say this, Pfizer made $100 billion selling that
vaccine, and Pfizer officials cooperated or collaborated with
the Biden administration. It is a scandal.
Senator Moreno. Yes.
Mr. Berenson. Let me just say one thing. If I had been
reporting on plane crashes and Boeing had colluded with the
Biden administration or the Trump administration, it would be a
national scandal that a Boeing official had leaned on a social
media company.
Senator Moreno. Yes.
Mr. Berenson. But Pfizer somehow got away with this.
Senator Moreno. Yes. And in the--her opening statement, the
Ranking Member talked extensively about protecting free speech,
but then stated she was not referring to hate speech. I think
what maybe my colleagues mean to say is speech that they hate.
Mr. Berenson. That is right.
Senator Moreno. Because it is--hate speech is in the eye of
the beholder. Would you agree, Mr. Davis?
Mr. Davis. I completely agree. Hate speech, misinformation,
disinformation, they are just fancy words that people use to
shut down speech they do not like.
Senator Moreno. Right. So if I say that there is only--such
thing as a man and woman, that maybe when I got to the U.S. 50-
plus years ago, somebody would have said, why did you say that,
like obviously there is only men and women. I come from a
culture where our entire language is male or female, but that
could be considered hate speech, right, if I say that?
Mr. Davis. It was for a long time, if you said that on
Twitter for several years you ran the risk of being censored,
shadow-banned, or permanently suspended.
Senator Moreno. Well, obviously we will talk more about
this topic. I do find it interesting that my colleagues who
were totally and completely complicit during the Biden era,
that were absolutely applauding people being thrown off social
media, that were saying that any commentary about a Hunter
Biden laptop story being misinformation was considered an
insurrectionist.
That now all of a sudden clutch their pearls because a
moronic, second-rate comedian who makes $16 million a year got
fired from his job for having atrocious ratings, is somehow now
an attack on free speech. I do not know that they have the
moral high ground here, but thank you for your testimony.
And I recognize the Senator from Nevada.
STATEMENT OF HON. JACKY ROSEN,
U.S. SENATOR FROM NEVADA
Senator Rosen. Thank you. Thank you for being here today
and speaking your mind. It is about the First Amendment.
Appreciate that because the freedom to express yourself and
speak your mind is the cornerstone of America. It is one of the
main ways we distinguish ourselves from other nations. In the
United States, you are free to criticize whomever you want,
including government leaders, without government censorship.
And so it is wholly appropriate and indeed necessary for
this committee to hold oversight hearings that focus on
protecting this critical right from being eroded by anyone. But
that is not the focus of today's hearing. Rather than providing
us with a forum that will evaluate truly harmful government
censorship.
This has become increasingly commonplace under the Trump
administration, are undertaking an effort to settle old
political scores against an administration that is no longer in
power. There are issues that we have to deal with, and we do
want to support and we must support free speech, but this
hearing is not the place.
Two weeks ago, I sent a letter to Chairman Cruz calling for
the FCC Chairman to testify before this Committee after he
threatened to revoke broadcast licenses over Jimmy Kimmel's
comments criticizing President Trump. I was particularly
concerned as I know the Chair was from his statements calling
the threat mafia-like. Chairman Cruz called the threats mafia-
like, with his clear attempt to suppress speech, a comedian.
However, I am disappointed that that is not what is the
focus of today's hearing. Chairman Carr's later backtracking,
claiming there is some sort of local community exception to the
First Amendment. There is no exception. You have free speech or
you do not. We know those limits. There is precedent for that.
His comments, Chairman Carr's, were reprehensible and this
demands a full accountability, and we demand full
accountability.
Indeed, his weak excuses have been repeatedly contradicted
by the President's own statements. President Trump has said
outright that the reason the FCC should revoke broadcast
licenses is because of negative coverage of his administration.
I want there to be journalist that looks at things. This is the
clearest possible violation of the First Amendment.
The President of the United States directing an agency to
revoke a license of networks that run a critical story of him.
There never would have been press, or print, or TV, or radio.
You could go back 250 years if all presidents did this.
This is a government--this is government censorship by our
President. Plain and simple. It is what they do in Russia. It
is what they do in North Korea. It is what they do in China. It
is not what we do in a democracy that has a First Amendment.
Those attacks on free speech. They harm not only our
democracy but our economy. Last month it was Brendan Carr's
interference in the private business decisions of large media
companies. But tomorrow could be tech, energy, tourism, any
other industry could be impacted.
In Las Vegas, we are seeing fewer international tourists
because people are afraid to come to the U.S. under this
administration. People planning to travel to the U.S. see this
administration detaining people for posting something online
that is critical of the President in another country where they
live, and they cancel their trips to America out of fear of
U.S. Government retaliation. And the consequences for our
economy are substantial.
So Mr. Kimmelman, can you discuss the direct impacts of
infringement on speech rights, and can you tell us what you see
as the biggest threat to the First Amendment, writ large,
please?
Mr. Kimmelman. Sure. Well, the threats, coercion, chill
speech. Either they suppress directly or create an environment
in which everyone is afraid to speak his or her mind, to engage
in debate, to have the kind of open discussion that our
democracy requires. So it is extremely dangerous. Obviously, as
you point out, when the government does it directly, it is
horrible. It is a First Amendment violation. It needs to be
stopped.
But it also can happen when tech platforms become too
powerful, when they do not face competition, when they play a
gatekeeper role. This could be the same if there is too much
roll up of media, and it is the most popular media. Senator
Moreno made a good point. There is a lot of--there is so much
more out there than before. But it is not just availability. It
is what do people rely upon? What is most popular? What do they
need to get news and information?
And so anywhere there is a chokehold, I think there is an
appropriate question of: Is it too much concentration? Is it
too much power? Does it work for our democracy? And that is
where Congress has a role to set guardrails.
Senator Rosen. Thank you. I see my time is up. Appreciate
this hearing and wish that we would be having Chairman Carr
here to discuss some of free speech and the open platforms. And
I look forward to Chairman Cruz working with us to get that on
the docket. Thank you.
Senator Schmitt. Thank you, Senator. I am told that we will
do that. We need to open the Government up first, right? That
is the first priority.
I will also note that I asked the Chairwoman to have Lina
Khan come before this Committee. Never came in my two years. I
asked for Pete Buttigieg to appear, the Secretary of
Transportation, never appeared in my two years, but I know the
Chairman is committed to having the FCC and the FTC here.
Senator Blackburn.
STATEMENT OF HON. MARSHA BLACKBURN,
U.S. SENATOR FROM TENNESSEE
Senator Blackburn. Thank you, Mr. Chairman. That is exactly
right. we are looking forward to being able to return to
regular order and to do oversight.
Just one item I want to mention. There was a comment:
Tourists are not coming because they are fearful of words.
Tourists are not coming because they are fearful of crime. And
there are so many stories that bear this out. When you look at
New York City, when you look at Chicago, when you look at the
effect that violent crime is having in some of these cities, I
am very grateful that President Trump has made it a priority to
address this.
We are seeing fantastic results in Memphis from the
increased presence that is there from the Memphis Safe Task
Force, which is 13 Federal agencies. The Tennessee Bureau of
Investigation, the Tennessee Highway Patrol, the National Guard
will be going in there this week to assist the Memphis PD. They
have arrested nearly a thousand gang members, and they have
already started the process with indictments, and moving these
criminals into court.
And indeed, we are very grateful for that, and we know the
crime level needs to come down in these big cities so people do
want to go to these cities.
Mr. Davis, always good to see you. Grateful that you are
here, and for the good work that you all do. I am pleased that
Ms. Hemingway is here today also.
I want to talk with you a little bit because I know The
Federalist and your team at The Federalist was constantly on
the receiving end of some of these attacks and actions from the
Biden administration. And I would like to hear you talk about
why you all were on the receiving end, why you felt like you
were on that, and why you were accused of misinformation, and
why their goal was to always shut you up?
And we know that the left made great sport out of shutting
up conservatives, and attacking conservatives. And as we
learned this week, surveilling conservatives. And of course,
seven of my Senate colleagues and I found out that the FBI was
surveilling us, and pulling our phone records. And I think it
would be helpful if our colleagues across the dais wanted to
join us in calling the FBI--the Biden-led FBI out about those
actions.
But lay out for me what you all experienced and why you
felt like it was such a repeated attack on you and The
Federalist?
Mr. Davis. Well, thank you, Senator. It is an honor to be
here in front of you. And wonderful to see you as always. You
pose a great question. Why were we targeted? I am reminded of
the quote, I think it was the baseball player Reggie Jackson:
They do not boo nobodies. Well, they do not censor nobodies
either. In fact, that it is the most effective voices which
tend to be targeted for censorship.
And at The Federalist we are extremely effective at tearing
down false narratives and reporting the facts. We have a team
of absolutely fearless, courageous journalists who get up every
day to tell the truth and report the facts, especially when
they might be facts the government does not want people to
hear. And so they targeted us because we were effective,
because we were exposing the lies about the Russia collusion
hoax, about the Kavanaugh hoax, about COVID-19 lies that it
came out of a wet market in China.
We were exposing ridiculous new election laws that ignored
existing laws in the Constitution in 2020. We exposed the whole
Hunter Biden laptop thing, which was 100 percent real. It was
not a hoax. Somebody remarked earlier that: Oh well, you have
the market to take care of if a newspaper or a network says
something that is not true, why people will not follow them.
Well, we know that is not true because MSNBC and CNN, they are
all still around. They lied repeatedly. They were not targeted
for censorship.
And I have to say, it is nice to be here to hear a
bipartisan support for free speech. Man, I wish a lot of you
all were helping us as the Biden administration was censoring
us. We have been in Federal court for two years trying to
vindicate our free speech rights. And I have got to tell you,
it is pretty aggravating being an American citizen whose family
has been here for hundreds and hundreds of years, to see
illegal immigrants get faster action in Federal district courts
than we have gotten.
We are still awaiting vindication and relief. And we were
not targeted because what we were saying was false. We were
targeted because what we were saying was true.
Senator Blackburn. And how much, talk to me about the
expense of having to be tied up with trying to get your day in
court for that period of time?
Mr. Davis. You know, it is extensive. Thankfully we have
lawyers who are representing us out of the goodness of their
own hearts. But if you look at the effect of censorship over
years, Alex made the great point that you cannot compensate
someone for the crime of having shut them up, by unjustified
means for years. That speech that he should have been able to
give for years, he can never give. That that opportunity is
gone.
But there is also a real cost in terms of money. I cannot
even begin to think about how many millions or tens of millions
of dollars we lost out on because our advertisers were
targeted, because our readers were targeted, because Facebook,
and Google, and Twitter, and YouTube were told to throttle us.
It has to be in the millions or tens of millions of dollars.
Quite frankly, we are owed restitution.
Senator Blackburn. Thank you. Thank you, Mr. Chairman.
Senator Schmitt. Thank you. Well, I am sure you will
support my legislation which would give a private right of
action to a citizen to sue an individual government bureaucrat
for suppression of speech. I think that turns the tables on the
incentive structure that currently exists.
Senator Markey.
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Mr. Chairman.
We have heard a lot today about the Biden administration
supposedly censoring of conservatives by talking to social
media companies about misinformation. Republicans have wasted
an enormous amount of time and resources over the past few
years attempting to prove this theory correct, only for it to
be repeatedly proven false.
The Supreme Court shot down their big lawsuit against the
Biden administration in a 6 to 3 vote. Their big House
Judiciary Committee investigation came up empty. And in the
Chairman's Report last week, the supposedly incriminating e-
mails from Biden administration officials pressuring the big
tech platforms to censor conservatives, including--included
explicit disclaimers that the officials were not threatening
any action against any platform. Strike one, strike two, strike
three, you are out, Republican theory of censorship.
Since my Republican colleagues seem confused about what
actual government censorship looks like, I thought I could show
a few of them to you. It is not just the mafia boss threats
from Brendan Carr at the FCC to Disney and ABC, on six
different occasions Donald Trump took office and he now has
posted on Truth Social explicitly calling for the Federal
Communications Commission to revoke broadcast station licenses
owned by major networks over their editorial decisions.
On February 6, Trump said CBS should, quote, ``Lose its
licenses'' over its interview of Vice President Kamala Harris
in the fall of 2024. Just over TWO months later, on April 13,
Trump again said ``CBS should lose its license for its Harris
interview''. On July 26, Trump wrote: ``Networks are not
allowed to be political pawns for the Democratic Party''.
It has become so outrageous that in my opinion, their
licenses could and should be revoked. On August 24, that was a
big day for unconstitutional threats. Twice in under an hour,
Trump said that ``ABC and NBC should lose their licenses''. And
then just last Sunday, Trump said the FCC should quote, ``Look
into the license of NBC''.
Mr. Kimmelman, do you agree that the explicit threats from
the President of the United States against broadcasters are far
more dangerous than e-mails from the Biden administration
officials identifying online misinformation?
Mr. Kimmelman. Yes.
Senator Markey. Mr. Kimmelman, how many times did President
Biden threaten to revoke a broadcast license in our country?
Mr. Kimmelman. None to my knowledge.
Senator Markey. Mr. Kimmelman, how many times did President
Biden publicly direct his FCC Chairman to look into a
broadcaster's license?
Mr. Kimmelman. None to my knowledge.
Senator Markey. Again, zero. This hearing is a farce. We
are not focusing upon the imminent threat to the First
Amendment. The beating heart of democracy, freedom of speech,
freedom of press. That is what this hearing should be about.
What is going on at the FCC right now.
We are relitigating an issue that the Supreme Court has
already decided, that in fact independent analysts have
debunked even as President Trump and Federal Communications
Chairman Brendan Carr and other Trump officials wage a war on
free speech that this country has not seen since the McCarthy
Era in the 1950s. Like during that Red Scare, if you are a
voice of dissent in this country, you have a target on your
back. And they let you know you have a target on your back if
you speak up.
Law firms, universities, protesters, news media, all have
faced this administration's wrath for their political speech.
These threats are real. They are scary and they undermine our
democracy. The President is threatening the free speech of the
broadcasters in our country every time they dare to run some
news story that questions their judgment as an administration.
Yet, we are wasting time here trying to distract the
American people with old e-mails from the Biden administration,
while Chairman Carr turns the FCC into the Federal Censorship
Commission, threatening free speech, censoring free speech in
our country, allowing Donald Trump to continue with his direct
attacks on the First Amendment in our country.
This is an urgent crisis for our country. Our democracy is
at risk when the First Amendment is being challenged so
fundamentally by the President out of the White House and
instructing his Chairman of the Federal Communications
Commission to revoke the licenses of anyone who dares run any
program that runs contrary to his views. That is what we should
be focusing upon right now. That is the threat to our
democracy.
Thank you, Mr. Chairman.
Senator Schmitt. Thank you, Senator. And a mixed
sportsman----
Senator Moreno. Mr. Chairman? Mr. Chairman, just a quick
question to my colleague, just 5 seconds. Did you sign on to
that letter asking the FCC to revoke the license of Sinclair
Broadcasting in 2018?
Senator Markey. I will have to go in to review that, but
from my perspective, what Trump is doing right now at a
Presidential level, ordering the FCC to act is absolutely an
imminent threat to our democracy.
Senator Schmitt. OK. And I also mixing sports metaphors on
your strikes. I am going to throw the red flag because the
Federal District Court, I know something about this, said that
the Biden administration had engaged in the worst example of
violation of the First Amendment in American history. That
decision was upheld by the Fifth Circuit. The Supreme Court did
not rule against it. It sent it down. It did not rule on the
merits. It sent it down for a standing issue.
So Senator Peters.
STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN
Senator Peters. Thank you, Mr. Chairman. I had first just
like to start by making a very clear statement. Government
censorship is wrong. Full stop. Never should be should be
tolerated. That should be no matter what side of the aisle that
you are on. I think we can agree that the government takes when
it--when government takes adverse action against speech that it
dislikes, that is bad for all Americans, and it is counter to
the fundamental values that this country stands for.
As Ranking Member of Homeland Security and Governmental
Affairs Committee, I have reviewed thousands of pages of
documents, including testimony from the cybersecurity and
infrastructure agency employees. And I will say that I simply
do not agree that CISA, the agency, has worked in a coordinated
effort to censor American speech. And the Supreme Court has
basically agreed with that finding.
However, if there is evidence, if there is evidence of
wrongdoing on the part of anyone in previous administrations, I
want to address it and I will work with folks on this panel to
do that. Protecting free speech should not be--should not be a
partisan issue. And that is why I am disappointed that instead
of having the FCC here today to discuss what are urgent and I
believe a flagrant violation of America's First Amendment
rights, as my colleague just mentioned before me, instead we
are rehashing debunked claims regarding activities at CISA from
2018 to 2022.
Since it was created in 2018, CISA has protected our Nation
against cyber criminals and foreign adversaries who are
constantly, constantly seeking to breach critical networks and
steal America's most sensitive personal information. And
unfortunately, today we are hearing claims that have been
debunked about the Agency's mission and its vital work.
The Supreme Court decision in Murthy v. Missouri found with
regard to CISA, quote, ``The evidence does not support the
conclusions that the relevant plaintiff made that CISA had
violated the First Amendment Rights.'' So it is a Supreme Court
decision.
None of the documents I reviewed included instructions for
the social media platforms to respond to CISA's questions on
flagged content, nor did they attempt to cover up their
interaction in some way with these companies.
So it is concerning to me that the Committee would choose
to focus on a backward-looking claim at a time when today,
currently, we are seeing unprecedented efforts to wield
government power as a tool to suppress free speech and stifle
legitimate criticism, and legitimate political discourse.
In recent months, the Trump administration has revoked
media access, revoked media access, got to say it again, over
news coverage that did not flatter the President. Oh, my gosh,
horrible. You did not flatter the President. You cannot have
media access. That is a high crime and misdemeanor, apparently.
He also sued media outlets who publish content that the
President does not agree with. And he has launched baseless
investigations into the President's perceived political
enemies.
In one instance, the President's FCC Chair, Brendan Carr,
threatened to revoke the broadcast licenses of ABA [sic]
affiliates over comments made by a comedian. Oh, my, gosh,
horrible, comedian comments. Revoke that license. President did
not like the comedy.
Let us be clear, these acts are unprecedented.
Unprecedented in American history, and they rightfully raise
alarms, I think, for every American. Thousands of Michiganders
have reached out to my office saying that we must hold the
Trump administration accountable to ensure that these abuses of
power are not left unchecked.
And I certainly hope that the Chairman of this Committee,
and members of the Committee will devote their efforts to
examining these abuses that I mentioned, regardless of who
commits them because we must all stand up for First Amendment
rights in the face of unprecedented overreach. And it is right
to call out wherever we see it, no matter who is saying it, no
matter what administration, but let us not ignore what we are
seeing in front of us right now, constantly, in the media.
So Mr. Kimmelman, a quick question. After threatening
regulatory action against ABC affiliates if it did not suspend
Jimmy Kimmel, FCC Chair Brendan Carr said, quote, ``If you are
going to have a license from the FCC, we expect you to broadly
serve the public interest''; end of quote.
So my question for you, sir, is there precedent for the FCC
using the public interest convenience and necessity standard in
the Communications Act to stifle First Amendment protected
speech? And how has the FCC historically interpreted the public
interest? How is this different?
Mr. Kimmelman. Not to my knowledge, Senator. The FCC has
used--it is a public interest standard--the FCC has used it
very carefully. There is specific direction in the
Communications Act beyond the Constitution itself of Congress
reminding the FCC not to stifle speech, not to impede First
Amendment rights. And the FCC has been very careful in that
regard.
Senator Peters. So the comments made by the current FCC
Chair is simply unprecedented, in all of your knowledge of past
actions?
Mr. Kimmelman. In my experience, Senator, I have been doing
this for more than 45 years. I have never seen anything like
that.
Senator Peters. That is perhaps why it was so shocking to
Americans all over this country, but apparently not to some
individuals serving in the U.S. Senate.
Thank you. Thank you, Mr. Chairman.
Senator Schmitt. Thank you, Senator. Senator Lujan.
STATEMENT OF HON. BEN RAY LUJAN,
U.S. SENATOR FROM NEW MEXICO
Senator Lujan. Thank you, Mr. Chairman. Mr. Chairman,
before I begin, one of my colleagues raised a letter that was
sent to the FCC back in 2018, that was signed by Democrats. I
do not know how many of you know who the Chair of the FCC was
in 2018. Do any of you know? Does the name Ajit Pai sound
familiar?
You know who was president in 2018? Donald Trump. I am
sorry if I stumped you all. It was Chairman Pai that denied
this thing. And Chairman Pai in his order, he said something
along the lines of: What was submitted to the FCC lacked
candor.
It is funny to me how there are so many legal ways to call
a lie a lie. When the FCC says a submission lacks candor, it
means that it intentionally provided false or misleading
information omitting crucial facts. Just so that the record is
straight.
Mr. Volokh, just a few weeks ago, the Federal
Communications Commission Chairman, Brendan Carr, made several
statements. You heard a lot of them today with regulatory
action over remarks made by Jimmy Kimmel if they, quote, ``Did
not take action''. In his own words, Chairman Carr said, quote,
``We can do this the easy way or the hard way.''
Now, to be clear, ABC can suspend Jimmy Kimmel's show for
whatever reason they want. However, the fact pattern that led
ABC to suspend Jimmy Kimmel's show involved a government
official, in this case FCC Chair Carr, making direct threats.
As you have written, quote, ``But if the Government coerced
ABC into suspending the show through threats or of retaliation,
that would have likely violated the First Amendment.''
Yes, or no, if ABC acted to remove Jimmy Kimmel because of
FCC Chairman Carr's threats, would Carr's actions violate the
First Amendment?
Mr. Volokh. Yes, I think so.
Senator Lujan. Unfortunately, the events from a few weeks
ago related to Kimmel's show was not the first time that
Chairman Carr has weaponized the FCC against broadcasters since
he took office.
Mr. Kimmelman, I would like for you to help get some facts
on the record. I think you answered these to Chairman Markey,
but questions sometimes need to be heard twice, and as the
responses. Did President Biden ever direct Chair Rosenworcel to
investigate a media company, pull their license, and: Impose
the maximum fines and punishment, by the way that is a quote
for from Donald Trump, for their unlawful and illegal behavior
immediately after threatening to sue that company?
Mr. Kimmelman. No, Senator.
Senator Lujan. Did President Biden suggest Chair
Rosenworcel should revoke broadcaster licenses for giving him,
quote, ``Bad publicity''?
Mr. Kimmelman. No, sir.
Senator Lujan. Did Chairman Carr reinstate complaints
against NBC, ABC, and CBS for election coverage that were
dismissed by the prior FCC?
Mr. Kimmelman. Yes, Senator.
Senator Lujan. Did Chairman Carr launch investigations into
local NPR, PBS stations alleging that they could be violating
Federal Law by airing commercials?
Mr. Kimmelman. Yes, Senator.
Senator Lujan. Has Chairman Carr openly threatened to
remove Comcast broadcast license over a news coverage?
Mr. Kimmelman. Yes, Senator.
Senator Lujan. Now look, what is disappointing is that is
just a sample of what is recently happened. And I appreciate
this hearing. I think this was a good hearing. There are a few
of us that actually authored legislation to say FCC, keep your
hands off of these media companies. Protect the First
Amendment. Follow the law. I hope that is something that you
all will take a look at and see if maybe there is
bipartisanship. And if anyone is worried about doing it under
this president, let us say the next president, let us just say
let us take this off the table. So I certainly hope that is
something that we can all do together.
Now, Mr. Kimmelman, President Trump has developed a habit
of suing media companies if they report or publish content he
does not like. He sued CNN, ABC, CBS, Washington Post, Wall
Street Journal. I mean, it goes on and on. Trump even sued the
Pulitzer Prize winner to the New York Times and Washington Post
for their reporting about Russian interference in the 2016
election.
Now, some of the media companies such as ABC and CBS chose
to settle, others are still fighting. Even if a lawsuit is
baseless, what effect does it have on the opposing part party,
Mr. Kimmelman?
Mr. Kimmelman. Senator, it has an enormous chilling effect.
Even as you have heard from these, my colleagues on this panel
here in a different context, it is overwhelming to take on the
government even if you think you can vindicate your rights. It
is a daunting task, and it tends to pull people away from
presenting the views, or actually trying to vindicate their
rights because it is such an overwhelmingly costly endeavor.
Senator Lujan. Look, I think it is fact that Meta paid $22
million to President Trump to settle a lawsuit. Did Paramount
pay, yes, $16 million to President Trump as well? after
Skydance settled, there was a merger approved within days as
well.
As a matter of fact, my team looked into the last time that
a president sued one of these media companies. They had to go
back to Teddy Roosevelt to find it. And do you know how much
the settlement was for? Six cents.
Anyhow, there is a little trivia for you all as well. Look,
as my time concludes. Mr. Davis, I do not know if you have ever
been asked this. I cannot find anywhere on the record where you
have answered it. Who won the 2024 election in the United
States of America?
Mr. Davis. Who won the 2024 election?
Senator Lujan. Yes, for President?
Mr. Davis. Joe Biden was elected President.
Senator Lujan. In 2024?
Mr. Davis. Oh. Excuse me. sorry, had 2020----
Senator Lujan. Now, misinformation right there. So let us
set the record straight. Who won the 2024 election?
Mr. Davis. I was in government censorship mode. Donald
Trump won the 2024 election.
Senator Lujan. Who won the 2020 election?
Mr. Davis. Joe Biden was elected President in 2020.
Senator Lujan. I appreciate that very much.
Mr. Chairman, I yield back.
Senator Schmitt. Thank you. Well, since we are doing some
Presidential history, Mr. Davis, could you name the last
president that was a prosecutor attempted to throw in jail for
the rest of his life and impoverish his family, has that ever
happened?
Mr. Davis. Yes, I recall Donald Trump being threatened,
right----
Senator Schmitt. The only one, not even Teddy Roosevelt.
Since we are going back in time. I do want to ask you, you Mr.
Kimmelman, because just as a follow up for, and I am going to
get to you just very quickly. The question was a president
suing a news organization and you said that the government
taking that on would have a chilling effect. You are not
arguing that an individual citizen as President Trump suing a
media company for lies is a threat to the First Amendment,
right?
Mr. Kimmelman. No. No, I am not.
Senator Schmitt. OK. Thank you.
Senator Blunt Rochester.
STATEMENT OF HON. LISA BLUNT ROCHESTER,
U.S. SENATOR FROM DELAWARE
Senator Blunt Rochester. Thank you Mr. Chairman. To my
colleagues, yesterday there was a split screen on the news.
Coverage of committee hearings and a shutdown clock. It was a
tale of two realities. Republicans continue to call for
hearings like it is business as usual, while Americans are
literally living in the midst of a shutdown that jeopardizes
their health, that jeopardizes their jobs, and the services
that Americans rely on.
So the issues before us are vitally important, but our
number one priority in this moment should be reopening the
government and restoring people's healthcare.
So today, I want to use my time to remind all of us what is
at stake. We are in a pivotal moment. Energy costs are up. Food
prices are up. The rent has gone up for many. And millions of
Americans in red states and blue states alike are on the brink
of their health care costs doubling or losing it altogether.
From small businesses, to farmers, to ranchers, to moms and
dads, at this very moment, Americans across our Nation are
making some very difficult decisions about how to make ends
meet.
We can fix this. But it requires negotiations. It requires
us all to do our jobs, and to find a path forward together. We
can reopen the Government. We can restore health care for the
millions of Americans who are counting on us. But it requires
urgency, and it requires trust, and it requires willingness to
come to the table now.
My Republican colleagues control the White House, the
House, and the Senate. The ball is in your court. Let us make a
deal.
Thank you. And I yield back, Mr. Chairman.
Senator Schmitt. Thank you, Senator. I want to ask just a
couple of questions before we close out here, because this is a
topic of great interest to me.
Mr. Davis, obviously this agenda that was at work cost you
a lot, critical resources, for your publication, your family.
Given organizations like, I mean, there are so many of these
that I just do not have time to go into them. I mean, the truth
of the matter is what was uncovered was that, you know, we took
their deposition.
The CDC had approved words and phrases that social media
companies could use in this secret portal that was established
between the government and these social media companies
conveyed this, and if people utter this phrase, I mean, this is
sort of like--this is prior restraint, sort of like this is
what you will take down ahead of time.
CISA was very much involved in this. You have an alphabet
soup of agencies most people have never heard of that were
weaponized against millions of voices in this country. We talk
about President Trump a lot but there is just a lot of just
people who were online who had questions about forced masking
of kids, or the vaccine mandate all those sorts of things and
they were throttled or taken down.
So given what you knew about organizations like--the
Election Integrity Project, that is another one, in
collaboration with CISA and received taxpayer funding, how are
these NGOs still working currently to harm individuals from
speaking their mind, particularly conservatives?
Mr. Davis. Yes, it is a great question. The thing about
these censorship tools, and technologies, and efforts is they
are a little bit like injecting something into the body's
bloodstream. They inject it in, it is in there, it is working
its thing. And just because you pull the needle out does not
mean the effects are gone. A lot of these organizations are
still out there using technologies, and tools, that were
deliberately funded and distributed by the Federal Government
for the purpose of censoring people like me, people like Alex
Berenson, people like my colleague Mollie Hemingway.
I do not know if we will ever actually be free of the
effects of this censorship industrial complex that the previous
administration created. I do not know if we will ever be free
of the horrible effect that it created. The horrible dampening
and abridgement of our speech that we were forced to endure,
secretly, for years and the extent of which we still do not
fully know.
Senator Schmitt. Mr. Berenson, I want to ask you. What is
the most--in your kind of review of all this stuff after the
fact, what is the single--it is hard to probably pick one--what
is the most shocking thing that sort of you uncovered or found
out about this whole thing, your experience?
Mr. Berenson. That the White House would directly target me
as an individual, you know, and again RFK. I think the White
House, the Federal Government has tremendous power it is more
than it should go out there and say what it thinks, and if it
wants to promote mask, or whatever it wants to promote,
obviously it has every right to do that, but to target
individuals or target entire classes of speech I just do not
understand how anybody thought that was OK.
And clearly, I will tell you actually what the most
stunning thing was. The companies did not like it. OK. You had
private companies saying: Hey, we are worried about the First
Amendment. You had you had a British politician, the former
deputy prime minister of Britain saying to the White House: I
think there is a problem here. And the White House said: Oh.
No, do not worry about it.
Senator Schmitt. And then last, then I will get to Senator
Hickenlooper.
Mr. Volokh, I want to ask you. The NIST, AI Risk Management
Framework Guidance advises developers, this is a government
agency, advises developers to mitigate risks related to quote,
``Harmful bias'' and content that may not, quote, ``distinguish
fact from opinion or fiction''. From a First Amendment
perspective, what is the danger of the government suggesting
that these AI companies or other platforms should filter out
quote/unquote ``harm'', or quote/unquote, ``bias''?
Mr. Volokh. Well, if the government--I am sorry--if the
government were to mandate that AI companies restrict their
outputs in particular ways, I think that would violate the
First Amendment partly because of the rights of the companies,
but partly because of the rights of users, users as listeners,
users as people who would want to use the AI to create their
own speech.
At the same time, when it comes to government procurement
decisions, government needs to get AI for its own purposes, it
has to insist that the AIs provide accurate information. I am
still----
Senator Schmitt. You understand the danger of that though,
right?
Mr. Volokh. There is definitely a danger, but at the same
time, again, the government as buyer, the purpose of AI is to
provide accurate information. Social media, I think the main
purpose is to provide information that users supply. It is to
provide, I think, should be a largely unfiltered channel----
Senator Schmitt. A passthrough platform----
Mr. Volokh. Right.
Senator Schmitt.--which is why they are given the Section
230 protections in the first place, correct?
Mr. Volokh. Well, I do think that that is the--that that is
a good model as a passthrough platform. But AI cannot be to be
effective a passthrough platform. It has to make decisions that
we hope are decisions in favor of more accurate information.
Otherwise, the government, as a user of AI, will be constantly
deceived by it.
So I think as in its procurement capacity the government
needs to be able to insist that the AI companies do what it
takes to provide more accurate information, and to fight indeed
misinformation in their own output. That is something that is
required. And indeed, AI companies do not have Section 230
immunity in that context, that we----
Senator Schmitt. Correct. And I suppose--I think this is
going to be a big issue, whether you call it Woke AI, whatever.
Mr. Volokh. Um-hum.
Senator Schmitt. The previous administration, one of the
untold stories to lock in, and I actually agree with Mr.
Kimmelman on this point, to lock in the incumbents and the
monopolies in exchange for that was to have algorithms that
locked in this bias. And that is a very, very dangerous road to
go down. So I do not think this is the last we are going to--is
not really the purpose of this hearing, but since we are having
the discussion, I think it is really kind of an interesting and
important thing.
So, Senator Hickenlooper.
STATEMENT OF HON. JOHN HICKENLOOPER,
U.S. SENATOR FROM COLORADO
Senator Hickenlooper. Thank you, Mr. Chair, and I agree
completely that what we should be looking at is the algorithms
as much as the speech because those algorithms are going to
control what we get. And in a funny way that is an abrasive and
intrusive form of speech that has almost nothing to do with
your freedoms.
Let me just start just by saying that the First Amendment
to most of us is a bedrock of our country, it is a bedrock of a
healthy democracy. It protects people from government
censorship at every level. It provides free speech, but it is
not unlimited. And we know that speech encourages violence,
spreads lies from foreign enemies, or defrauds people, a fire
in a crowded theatre, that that is not protected.
But this freedom should be nonpartisan. It is, you know,
whether you are Republicans or Democrats are in power, we
should all remain united in stopping these genuine threats to
the fundamental civil rights of our society. People in this
country should be free to speak their minds without pressure,
without censorship. Not from government, not from government
agencies or policies, not from companies acting under political
influence.
What worries me is that some claim to defend free speech
only when it helps their political party and ignore it when it
silences others. And I think it is worth reiterating that we
are not here to pick sides, it is to make sure that we protect
everyone's right to speak freely no matter who they are, what
they believe, or what they are saying.
Let me start just by talking a little bit about campus. You
know, I went to a small liberal arts college in Middletown,
Connecticut, the famous Wesleyan University, and they, like
every school had to navigate a lot of this in the last couple
years. We have seen an increase in people calling for imposing
bans on peaceful organizing related to issues such as the war
in Gaza, or Black Lives Matter.
I think we also need to recognize our duty to protect the
rights of conservative views that are expressed on college
campuses. I know that Wesleyans worked very hard to make sure
that they get both sides. But not everyone has. And whether we
agree or disagree with each other, our right to that freedom of
speech should be defended loudly and consistently. I think as
long as we all feel that our safety is protected from threats
of violence, of unconscionable violence.
So let me start, Mr. Berenson, regardless of ideology, as
long as individuals or groups are not inciting violence with
the intent to harm others, should they not have the same rights
to free speech?
Mr. Berenson. Yes.
Senator Hickenlooper. Not a very complicated question, but
it is one of those ones that I feel like the more times you can
ask it on the record, each time you do that, it builds a little
bit of a better foundation.
Mr. Davis, you have defended conservative speech online.
Would you extend that same defense to college students
expressing their views about the U.S. foreign policy, or
calling for racial justice, if their speech was censored by a
state government?
Mr. Davis. Yes, I do not think American citizens should be
subjected to censorship by their government anywhere for any
reason.
Senator Hickenlooper. I just want to make sure that is on
the record. I was pretty sure what that answer would be. You
know, we have seen some disinformation campaigns from foreign
governments. U.S. Government under both Republicans and
Democrats have worked hard to limit, counter foreign
propaganda--and counter foreign propaganda, they are especially
important. These efforts are especially important when it comes
to stopping these disinformation campaigns that, oftentimes,
are trying to interfere in our elections.
Under the first Trump administration, the FCC even proposed
to require the mandatory disclosure of all foreign sponsored
content broadcast over TV or radio. Again, there are some that
argue that that disclosure would in fact be a form of
limitation. I am not saying that myself.
Now, Mr. Berenson, again, would you support the government
having zero communication with companies about foreign
disinformation campaigns that could affect U.S. elections or
public safety?
Mr. Berenson. I mean, I have not really thought about that.
Zero? I do not know. There might be a time when it would be
reasonable. But I mean, you said foreign, right?
Senator Hickenlooper. Yes.
Mr. Berenson. So the First Amendment does not--is not
implicated. The problem as we have seen in the last 10 years,
it is very easy to go down a slippery slope and you start
interfering in American speech. So I think you have to be very
careful.
Senator Hickenlooper. That is where that question comes
from, especially when sometimes that disinformation is our
foreign rivals or adversaries of Iran, Russia, China.
Last question, Mr. Volokh, is there not a difference
between coercive threats and agencies actually sharing factual
information about foreign disinformation campaigns? And I think
one example of this would be Russia's 2016 interference
efforts. And would you recommend the U.S. Government simply
stop investigating foreign interference on our elections
altogether, or you know, if we were to do that, what would that
do? Would that help or harm our democracy?
Mr. Volokh. So there is a difference between coercion and
kind of other non-coercive communication. The coercion would be
a First Amendment violation. The others may or may not be,
depending I think on how systemic they are. I do think that
indeed we have seen lots of situations throughout American
history where attempts to try to suppress foreign influence
have turned into attempts to suppress domestic dissent.
Including in the examples you gave of some people who are
trying to suppress, I think wrongly trying to suppress anti-
Israel speech on campuses are arguing: Oh, these people are the
cats' paws of Hamas and such.
So I do think that, even to the extent it is permissible
for the government to communicate with the platforms, I think
it is important that there be as much transparency as is
possible consistently with national security, and that it is
especially dangerous when they are trying to--where the
government is trying to do that and then nobody finds out about
it for years or until somebody manages to break the log jam in
a lawsuit using discovery.
Senator Hickenlooper. Thank you. Mr. Chair, if I can ask
one more question?
Senator Schmitt. Sure.
Senator Hickenlooper. It will just be a yes/no, because
this is one that I was--never really followed I had--until I
was partners with a woman, remarkable woman named Joyce Meskis,
had a bookstore in Denver called the Tattered Cover, and she
was a great defender of free speech, and she looked at it in
the--in that sense of: Your speech is part of what you read,
and you should be able to read whatever you want without
government interference or knowing about it.
And there was a domestic terrorist who had blown up--had a
bomb. They were pretty sure that he had purchased the book on
how to make this bomb at her bookstore. And she refused to give
the information over what her customers had purchased. And I
just wanted to see with each of you whether you think that is--
in that situation whether that is appropriate or not? And that
is it is pretty much what it was. They wanted to get--find out
whether this guy had bought that book from the bookstore as
part of the case. And she said: You do not need that case. You
got them on a million other things. This is a freedom of
information issue.
Yes, so I will start with you, Mr. Volokh.
Mr. Volokh. Yes, so as I recall, I think she prevailed in
that particular case. I am not sure that the court got it right
there. As a general matter if--especially if there is probable
cause and a warrant, all sorts of information may need to be
turned over, and I am not sure there should be a categorical
prohibition on disclosure of that information, especially when
there is probable cause in a warrant.
Mr. Berenson. I think that is a very smart answer, and I
will just go with it.
[Laughter.]
Mr. Davis. Yes, I am not familiar with the facts of that
case obviously as you are. I think that is a pretty complicated
one. So I am going to have to decline on that one because I
just do not have enough information. But that that is a, that
is a tricky one.
Senator Hickenlooper. You guys would not make very good
senators. You know, all of our cases are pretty tricky.
Mr. Kimmelman. Senator, I can understand the sentiment that
she expressed and why she did it. I think I agree with Mr.
Volokh, if there is a real legal cause for that information be
handed over, the government has a right to it.
Senator Hickenlooper. Well, I guess----
Senator Schmitt. I think they dodged pretty well, Senator.
They would make good senators.
Senator Hickenlooper. Yes. I am pretty sure. You are
exactly right--that means they would be excellent material for
senators.
Senator Schmitt. Yes. They pivoted.
Senator Hickenlooper. I think that the Supreme Court
obviously did support her and that this was part of the free
speech that should be protected. And I guess you can, those
most of you disagreed with that. So you can feel some comfort
that precedence does not seem to be that all powerful in the
present court. So there is a--certainly a chance in a similar
situation we might get a different ruling.
Senator Schmitt. Thank you. Thank you, Senator.
Senator Hickenlooper. I yield back
Senator Schmitt. Thank you, all. I want to thank all the
witnesses for their testimony here today.
Senators will have until the close of business on October
15 to submit questions for the record. The witnesses will have
until the close of business on October 29 to respond to those
questions.
And with that, that concludes today's hearing. The
Committee stands adjourned.
[Whereupon, at 12:33 p.m., the hearing was adjourned.]
A P P E N D I X
The Leadership Conference on Civil and Human Rights
October 8, 2025
Hon. Ted Cruz,
Chair,
Committee on Commerce, Science, and Transportation,
U.S. Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee on Commerce, Science, and Transportation,
U.S. Senate,
Washington, DC.
Dear Chair Cruz and Ranking Member Cantwell,
On behalf of The Leadership Conference on Civil and Human Rights, a
coalition charged by its diverse membership of more than 240 national
organizations to promote and protect the rights of all persons in the
United States, and the undersigned co-chairs of our Media/
Telecommunications Task Force, we appreciate the committee's attention
to the critical issue of government overreach and threats to free
expression guaranteed by the Constitution. The First Amendment serves
as the bedrock of American democracy, and vigilance against government
overreach is essential to preserving our constitutional freedoms. For
these reasons, we respectfully request that you follow this hearing
with one conducting oversight of the current Federal Communications
Commission (FCC) and its commissioners. We also ask for this letter to
be entered into the record of the Senate Committee on Commerce,
Science, and Transportation hearing titled ``Shut Your App: How Uncle
Sam Jawboned Big Tech Into Silencing Americans.''
The Supreme Court Recently Rejected Claims of Unconstitutional
``Jawboning'' by the Prior Administration, Including
Allegations Against CISA.
This hearing claims to examine a ``censorship campaign conducted in
secret by the Biden administration's Cybersecurity and Infrastructure
Security Agency (CISA).'' Just last year, the Supreme Court examined
similar allegations in Murthy v. Missouri (2024) and rejected them.
In Murthy, plaintiffs--including two states and five social media
users--alleged that Biden administration officials, including CISA, the
White House, the Surgeon General, and the Center for Disease Control
(CDC), pressured social media platforms to censor speech about COVID-19
and election-related topics in violation of the First Amendment. The
District Court issued a preliminary injunction against multiple
agencies including CISA, and the Fifth Circuit affirmed.
The Supreme Court reversed 6-3, holding that plaintiffs lacked
standing because they failed to establish that their injuries were
fairly traceable to government conduct or that an injunction would
redress their harms. Writing for the majority, Justice Coney Barrett
emphasized that the extensive factual record--spanning over 26,000
pages--did not support the conclusion that government communications
actually coerced platforms into content moderation decisions.
The Court made several critical factual findings that undermined
plaintiffs'' claims of coercion. First, ``the platforms had independent
incentives to moderate content and often exercised their own
judgment.'' Second, and most significantly, ``the platforms began to
suppress the plaintiffs' COVID-19 content before the defendants'
challenged communications started.'' The Court found that this is
timeline undermined any inference that government pressure, rather than
platforms' independent editorial policies, drove moderation decisions.
As Justice Coney Barrett explained, this ``complicates the plaintiffs'
effort to demonstrate that each platform acted due to `government-
coerced enforcement' of its policies, rather than in its own
judgment.''
The Court further found that by the time plaintiffs filed suit in
August 2022, ``the frequent, intense communications that took place in
2021 between the Government defendants and the platforms had
considerably subsided.'' Without evidence of ongoing pressure, the
Court concluded that there was no basis to conclude that future content
moderation would be traceable to government action rather than
platforms' independent editorial choices. The Court noted that ``the
available evidence indicates that the platforms have continued to
enforce their policies against COVID-19 misinformation even as the
Federal Government has wound down its own pandemic response measures.''
Critically, the Murthy decision distinguished between government
communications--even strong or critical ones--and unconstitutional
coercion. The Court recognized that government officials may express
views about misinformation and even ``speak with the platforms about
COVID-19 and election-related misinformation,'' without violating the
First Amendment. The core of this analysis is whether such
communications cross the line into coercion that transforms private
editorial decisions into state action. The Court held that the
extensive factual record before it did not meet this standard.
In Murthy, the Supreme Court examined claims similar to those at
the heart of this hearing. After exhaustive fact-finding, the Court
concluded that the evidence did not establish the causal link required
to show unconstitutional coercion, finding instead that platforms acted
on independent incentives, began content moderation before most
government communications occurred, and continued their policies after
government engagement ceased.
The Court's framework makes clear that strong government criticism
of platform policies, or even requests for policy changes, do not
constitute ``jawboning'' absent concrete evidence that government
pressure, rather than platforms' own editorial judgment, drove specific
moderation decisions.
The First Amendment Protects Content Moderation Decisions by Platforms
and Prevents Government Intrusions that Suppress Individual
Freedom of Expression.
This hearing's framing inverts the actual threat of jawboning and
the continued undermining of First Amendment rights that people in the
U.S. face today. While the committee examines the actions of a previous
administration no longer able to jawbone, the current administration is
waging an unprecedented campaign of government coercion against private
actors' constitutionally protected rights to engage in content
moderation and editorial judgement.
Since inauguration day, the President has used private lawsuits to
extract nearly $60 million in settlements from social media platforms
and over $30 million from major broadcast media outlets; the
administration has simultaneously been attempting to criminalize
otherwise protected speech by threatening prosecutions and political
retaliation.\1\ These actions fall squarely within this Committee's
jurisdiction and demand immediate oversight, investigation, and
accountability for these ongoing abuses.
---------------------------------------------------------------------------
\1\ Charlie Warzel, ``YouTube Bends the Knee,'' The Atlantic (Oct.
1, 2025), https://www.theatlantic.com/technology/2025/10/youtube-trump-
settlement/684431/?gift=YyWH8Vk
lYl_6f2ICNsEnCaezGBz2MZZ0fzSx_iY8nfE; Meg James, ``After CBS and ABC's
Trump Settlements, Democrats Want to Curb Presidential Library Gifts,''
Los Angeles Times (July 16, 2025), https://www.latimes.com/
entertainment-arts/business/story/2025-07-16/cbs-abc-trump-payouts-
qatar-jet-proposed-curbs-library-gifts.
---------------------------------------------------------------------------
Private companies--including social media platforms, broadcasters,
and publishers--possess their own First Amendment rights to establish
and enforce community standards, moderate content, and make editorial
decisions about what speech to host or amplify on their platforms. The
Supreme Court has repeatedly and recently affirmed these principles.
In Moody v. NetChoice (2024), the Court held that platforms engage
in constitutionally protected speech activity when they exercise
editorial discretion, and that the government cannot require platforms
to ``carry and promote [] speech they would rather discard or
downplay.'' The Court explicitly rejected arguments that government can
dictate platforms' content moderation to achieve ideological balance,
noting that ``it is no job for government to decide what counts as the
right balance of private expression.''
Similarly, in National Rifle Association v. Vullo (2024), the Court
unanimously held that government officials cannot use regulatory
authority to coerce private entities into suppressing speech, warning
that officials cross into impermissible coercion when their conduct
``could be reasonably understood to convey a threat of adverse
government action in order to punish or suppress speech.''
Recent Activity and Statements by the Trump Administration Constitute a
Campaign of Coercive Intrusion and Control that Violate the
First Amendment.
The Trump administration's ongoing campaign against companies'
content moderation and editorial decisionmaking runs afoul of the
standard for impermissible government coercion set out in NRA v. Vullo.
In September 2025, YouTube settled with President Trump for $24.5
million over its decision to suspend his account following January 6,
2021--joining Meta ($25 million) and X ($10 million) in paying nearly
$60 million collectively for enforcing their own community standards
during a national crisis.\2\
---------------------------------------------------------------------------
\2\ Charlie Warzel, ``YouTube Bends the Knee,'' The Atlantic (Oct.
1, 2025), https://www
.theatlantic.com/technology/2025/10/youtube-trump-settlement/684431/
?gift=YyWH8VklYl_6f2
ICNsEnCaezGBz2MZZ0fzSx_iY8nfE.
---------------------------------------------------------------------------
These settlements represent precisely the chilling effect the First
Amendment forbids: private companies' forced acquiescence in response
to a ``threat of'' (or actual) ``adverse government action'' that
interferes with and punishes private actors for exercising their
editorial judgment as permitted by the First Amendment. This chilling
effect extends across the entire media ecosystem, from social media
platforms to broadcast networks to publishers, creating an environment
of threat or undue government pressure in which companies make
editorial decisions based on government pressures rather than their own
standards, business model, users' safety, or the public interest.
Recent statements by top U.S. Department of Justice (DOJ) officials
further showcase how this administration is perpetuating unlawful
overreach, violating principles of freedom of expression. After the
murder of Charlie Kirk, Attorney General Pam Bondi has threatened to
prosecute individuals and even businesses for ``hate speech''--speech
that is constitutionally protected from government sanction--while
simultaneously pressuring companies to abandon their own voluntary
efforts to moderate such content.\3\ This incoherent approach punishes
the exercise of free speech by individuals and companies alike,
undermining constitutional protections and boundaries while expanding
government control and suppressing free expression.
---------------------------------------------------------------------------
\3\ Giselle Ruhiyyih Ewing, `` `That is Not the Law': Bondi
Promised to Target `Hate Speech.' She's Facing Backlash From All
Corners.,'' Politico (Sept. 16, 2025), https://www.politico.com/news/
2025/09/16/pam-bondi-first-amendment-hate-speech-prosecution-00566424.
---------------------------------------------------------------------------
Social media platforms have substantial legitimate interests--
indeed, even responsibilities--in moderating hate speech, preventing
the organization of violent extremist groups, and limiting the
amplification of content that harms users and degrades the quality of
discourse. Unlike government actors that are constrained by the First
Amendment's prohibition on censoring hate speech, private platforms may
permissibly decide not to host or amplify hate speech, inauthentic or
misleading content, or extremist organizing. These editorial decisions
serve multiple critical purposes: they maintain a platform's
information ecosystem, protect users from harm, and prevent platforms
from becoming vectors for radicalization and real-world violence.
Coerced Demoderation Extracts Measurable Real-World Costs from
Communities, the Marketplace of Ideas, and American Democracy.
The consequences of abandoning content moderation fall
disproportionately on communities of color and other marginalized
groups. When platforms have reduced appropriate content moderation,
unmoderated spaces have become vehicles for real-world voter
suppression, orchestrated harassment campaigns, and targeted
disinformation that functionally silences already marginalized voices.
As civil rights enforcement offices across Federal agencies are
eliminated, and nondiscrimination standards are corroded, the absence
of platform moderation exacerbates these threats. To be clear,
harassment and disinformation do not function as mere expressions of
viewpoints: they systematically silence communities that have
historically faced discrimination and continue to face barriers to full
participation in democratic discourse.
Moreover, content moderation protects consumers from fraud and
scams that disproportionately target communities of color. The Federal
Trade Commission's data shows that between January 2021 and June 2023,
losses from social media-related fraud reached $2.7 billion, with Black
and Latino consumers more than twice as likely as white consumers to
lose money to digital scams.\4\ Platform policies that reduce fraud and
disinformation serve essential consumer protection functions that align
with--rather than contradict--regulatory objectives and First Amendment
protections.
---------------------------------------------------------------------------
\4\ Emma Fletcher, ``Social Media: A Golden Goose for Scammers,''
Federal Trade Commission (Oct. 6, 2023), https://www.ftc.gov/news-
events/data-visualizations/data-spotlight/2023/10/social-media-golden-
goose-scammers.
---------------------------------------------------------------------------
The consequences of demoderation have become evident. Users of X
(formerly Twitter), following the platform's adoption of minimal
content moderation policies and elimination of fact-checking, have
experienced widely reported increases in hate speech, harassment, and
extremist content. The platform has seen significant advertiser
departures and user migration to alternative platforms.\5\ This
degradation demonstrates why platforms historically invested in content
moderation--not because the government forced them to, but because
maintaining quality standards is essential to user safety and to
product quality and viability.
---------------------------------------------------------------------------
\5\ Michael Jensen, ``Hate Speech on X Surged for at Least 8 Months
After Elon Musk Takeover--New Research,'' The Conversation (Feb. 12,
2025), https://theconversation.com/hate-speech-on-x-surged-for-at-
least-8-months-after-elon-musk-takeover-new-research-249603
---------------------------------------------------------------------------
Government jawboning in its most pernicious form is the current
distortion and unlawful weaponization of legal precedent and
established constitutional norms to pressure private actors to abandon
editorial standards altogether while also attempting to criminalize
otherwise protected speech. If this Committee is concerned about
government threats to free speech and editorial independence, this
administration's ongoing campaign of corporate and individual
intimidation and capitulation-seeking behavior demands immediate
oversight and investigation.
FCC Chair Brendan Carr's Actions Warrant Scrutiny by the Full Commerce
Committee.
Much has already been said about FCC Chair Brendan Carr's comments
to American Broadcasting Company (ABC) affiliates urging them to inform
ABC that they would not carry Jimmy Kimmel Live and highlighting the
power the FCC has over the broadcasting licenses of the affiliates.\6\
First amendment experts pointed to Carr's rhetoric and the subsequent
(temporary) removal of Kimmel's show as a textbook example of an undue
and violative form of pressure,\7\ and highlighted the many ways in
which the FCC has attempted to police speech in the name of the public
interest (both in the issuance of broadcast licenses and the approval
of mergers).\8\
---------------------------------------------------------------------------
\6\ Press Release, ACLU, ACLU Responds to Trump Administration Move
Censoring Jimmy Kimmel (Sept. 17, 2025), https://www.aclu.org/press-
releases/aclu-responds-to-trump-administration-move-censoring-jimmy-
kimmel.
\7\ Anna Branigin, ``How Cancel Culture Came for Everyone,''
Washington Post (Oct. 1, 2025), https://www.washingtonpost.com/style/
power/2025/10/01/cancel-culture-kimmel/.
\8\ Ted Johnson, ``Brendan Carr's Threats On Networks May Be
``Jawboning,'' And Courts Don't Like It, Legal Experts Say'' Deadline
(Sept. 19, 2025), https://deadline.com/2025/09/fcc-brendan-carr-
jawboning-jimmy-kimmel-1236549243/; Tom Wheeler, ``Trump's CBS Lawsuit
Ties Media Freedom to FCC's Regulatory Power,'' Brookings (Feb. 19,
2025), https://www.brook
ings.edu/articles/trumps-cbs-lawsuit-ties-media-freedom-to-fccs-
regulatory-power/.
---------------------------------------------------------------------------
Underlying all of this is also Nexstar's pending merger before the
FCC and the upcoming changes to its existing media ownership rules,
necessary for the merger to be permitted under current law.\9\ This
recent behavior by the Chair was so egregious that many members of
Congress on both sides expressed deep concern,\10\ and some even called
for Carr's removal as Chair.\11\
---------------------------------------------------------------------------
\9\ Keith Collins and Raj Saha, ``How a TV Merger Raised the
Pressure on ABC to Suspend Kimmel,'' New York Times (Sept. 19, 2025),
https://www.nytimes.com/interactive/2025/09/19/business/media/abc-
nexstar-kimmel.html.
\10\ Anthony Adragna, John Hendel, and Gabby Miller, `` `Be Very
Careful:' Some in the GOP Balk at Kicking Kimmel Off TV,'' Politico
(Sept. 18, 2025), https://www.politico.com/news/2025/09/18/gop-
lawmakers-come-out-against-the-fccs-role-in-kimmel-axing-00572140.
\11\ Press Release, Democratic Leader Hakeem Jeffries, Whip
Katherine Clark, Caucus Chair Pete Aguilar, Caucus Vice Chair Ted Lieu,
Assistant Leader Joe Neguse and DCCC Chair Suzan DelBene, Joint
Leadership Statement on the Suspension of Jimmy Kimmel (Sept. 18,
2025), https://democraticleader.house.gov/media/press-releases/joint-
leadership-statement-suspension-jimmy-kimmel.
---------------------------------------------------------------------------
We also have serious concerns about the way in which
telecommunications companies have been pressured by FCC leadership into
dropping their diversity, equity, and inclusion programs to ensure
their mergers are approved.\12\ Both T-Mobile and Verizon had pending
mergers before the FCC that were approved within days of sending
letters to Chair Carr announcing the end of the programs. Despite plain
civil rights mandates and an abject failure to meet them, the FCC
required many companies to eliminate their programs that aimed to
ensure fair treatment of and equal opportunity for women, people of
color, people with disabilities, and the LGBTQ community in order for
their mergers to be approved.
---------------------------------------------------------------------------
\12\ Brit Morse, ``The FCC Takes on a New Role: DEI Regulator,''
Fortune (July 17, 2025), https://fortune.com/2025/07/17/federal-
communications-commission-new-role-dei-regulator/.
---------------------------------------------------------------------------
Chair Carr has shown a pattern of complete disregard for the First
Amendment and a willingness to abuse the FCC's authority to further
this administration's authoritarian agenda. All of the above actions
are part of a larger pattern of behavior at the FCC: disregard for the
law and the will of Congress. This warrants further investigation by
the Commerce Committee, and we strongly urge you to follow-up this
hearing with one conducting oversight of the current FCC and its three
commissioners.
We stand ready to work with Congress on policies that will protect
civil rights, prevent unlawful discrimination, and advance equal
opportunity. Should you require further information or have any
questions regarding this issue, please feel free to contact Jonathan
Walter, senior policy counsel, at [email protected].
Sincerely,
The Leadership Conference on Civil and Human Rights
UnidosUS
United Church of Christ Media Justice Ministry
______
Prepared Statement of Writers Guild of America West and Writers Guild
of America East
Media Consolidation Enables Censorship and is a Threat to Workers,
Consumers, and American Culture
The Writers Guild of America West (WGAW) and Writers Guild of
America East (WGAE) appreciate the opportunity to submit this statement
for the record concerning the hearing entitled ``Shut Your App: How
Uncle Sam Jawboned Big Tech into Silencing Americans'' on behalf of our
membership. WGAW is a labor organization representing more than 11,000
professional writers of films, television and streaming series, and
news programming. WGAE is a labor union of more than 7,500 members
working in film, television, news, podcasts and online media.
For decades, the Guilds have called attention to the threat that
concentrated market power in media poses to diversity of content and
variety of viewpoints, in the context of mergers, antitrust policy, and
broadcast and Internet regulations. Our members are directly affected
by the lack of competition in media--a consolidated handful of
employers have tremendous power to pressure writer compensation and
working conditions and to gatekeep what stories can be seen in
theaters, on television and on streaming services.
Recent events have illustrated how easily this concentration of
power transforms into direct censorship. ABC's decision to stop airing
Jimmy Kimmel Live! after pressure from the Trump Administration and
Nexstar Media Group followed Paramount's cancellation of The Late Show
with Stephen Colbert during the Federal government's review of the
Paramount-Skydance merger.\1\ Still more consolidation looms on the
horizon. Powerful and consolidated gatekeepers already exercise
considerable control over free speech by deciding what programming
reaches Americans and unless consolidation in this industry is
addressed, censorship of Americans by large conglomerates and the
Federal government will remain unchecked.
---------------------------------------------------------------------------
\1\ Press Release, WGA Statement on ABC's Decision to Pull Jimmy
Kimmel Live! WGAW (Sept. 17, 2025), https://www.wga.org/news-events/
news/press/2025/wga-statement-on-abc-decision-to-pull-jimmy-kimmel-
live.
---------------------------------------------------------------------------
Mergers have Consolidated Control over Media
Deregulation and antitrust underenforcement over the last few
decades have allowed for waves of consolidation in the media industry,
leaving just a handful of major studios with control over the
marketplace. Over the last two decades, more than $435 billion worth of
mergers and acquisitions have been completed in media production or
distribution.\2\ These mergers have increased the power of corporations
to the detriment of writers, viewers, and competition.
---------------------------------------------------------------------------
\2\ WGAW, Broker Promises: Media Mega-Mergers and the Case for
Antitrust Reform (2021), https://www.wga.org/uploadedfiles/
news_and_events/public_policy/broken-promises-merger-report.pdf.
---------------------------------------------------------------------------
After the Disney-Fox merger, for example, Disney closed the
competing Fox animation studio, pulled back content it had licensed to
Netflix, banned Netflix from advertising on its television
entertainment networks, and pressed creators and other workers to
forego sharing in future licensing revenue on Disney shows. Disney's
serial acquisitions of Pixar, Marvel, Lucasfilm, and Fox have reduced
innovative development in favor of focusing on franchise films,
reducing variety and choice at the theater. The company now owns two of
the four largest streaming services in the U.S., Disney+ and Hulu, and
has announced plans to combine them. After the Warner-Discovery merger,
the company canceled, pulled, or wrote off $2 billion in content,
including numerous projects created by or about people of color, and
laid off hundreds of workers. WarnerMedia and Discovery are now
essentially up for sale as the pre-merger companies; yet another in a
series of mergers that purported to create better competitors, but
instead result in merged entities burdened by debt and focused on
rationalizing their disastrous business decisions by cutting costs.
Streaming is Accelerating the Problems of a Consolidated Media
Landscape
In recent years, streaming video has become the dominant
distribution platform for content while also becoming increasingly
vertically integrated. In the 2024-2025 television season, 78 percent
of original scripted streaming series were distributed by four
companies, Netflix, Disney, Amazon and Apple.\3\ The entertainment
industry's major employers also combine content production and
distribution arms in order to self-supply their own content globally on
their affiliated streaming services. In the 2024-2025 television
season, nearly three-quarters of online scripted content on the major
streaming platforms was self-supplied.\4\ This market structure
forecloses competition from independent producers and distributors,
enables monopsony power over writers and other industry workers, and
gives conglomerates outsized control over what content reaches
audiences.
---------------------------------------------------------------------------
\3\ Writers Guild of America West Internal Data, 2025 (on file with
WGAW) (based on WGA-covered scripted series).
\4\ The major streaming platforms are Amazon Prime Video, Apple
TV+, Disney+, HBO Max, Hulu (folding into Disney+), Netflix, Paramount+
and Peacock. Writers Guild of America West Internal Data, 2025 (on file
with WGAW) (based on WGA-covered scripted series).
---------------------------------------------------------------------------
In the current streaming landscape, independent producers must
compete with affiliated studios to sell content to the studios'
streaming services, leaving them with few opportunities for accessing
consumers. Meanwhile, a new competitor in streaming distribution would
have difficulty licensing the third-party premium content it needs to
offer a competitive service. The Disney-Fox and AT&T-Time Warner
mergers, for instance, were both immediately followed by those
companies withdrawing their content from competing services like
Netflix and Amazon in favor of launching Disney+ and HBO Max.\5\ And in
order to reach the end consumer, new streaming distribution entrants
must strike deals with platform gatekeepers Amazon Fire TV, Roku, or
Apple TV--which together control two-thirds of the U.S. connected TV
market\6\--to have their apps available on the services, a barrier that
reportedly inhibited the launches of HBO Max and Peacock.\7\ This
market structure and the mergers that created it raise substantial
barriers to entry, reduce innovation in content production, and
increase the ability of gatekeepers to impose their own restrictions on
what content gets made--while making further consolidation more likely.
---------------------------------------------------------------------------
\5\ See, e.g., Michelle Castillo, Disney Will Pull Its Movies From
Netflix and Start Its Own Streaming Services, CNBC (Aug. 8, 2017),
https://www.cnbc.com/2017/08/08/disney-will-pull-its-movies-from-
netflix-and-start-its-own-streaming-services.html; Sarah Perez, Disney+
Gains the Marvel Series From Netflix and New Parental Controls,
TechCrunch (Mar. 1, 2022), https://techcrunch.com/2022/03/01/disney-
gains-the-marvel-series-from-netflix-and-new-parental-controls/; Ben
Munson, HBO Max Expects Subscriber Impact From Amazon Channels Exit,
Fierce Video (Aug. 11, 2021), https://www.fiercevideo.com/video/hbo-
max-expects-subscriber-impact-from-amazon-channels-exit.
\6\ Press Release, Pixalate's Q2 2025 Global Connected TV Device
Market Share Reports: Roku Leads in North America (37 percent) and
LATAM (45 percent), Samsung No. 1 in EMEA (33 percent), Xiaomi Leads in
APAC (24 percent) (2025), https://finance.yahoo.com/news/pixalate-q2-
2025-global-connected-143100935.html.
\7\ HBO Max and Peacock customers were unable to access the new
streaming services through Amazon devices when they launched in 2020
because the companies had not reached agreement. Peacock and HBO's
disputes reportedly stemmed from executives' desires to keep their
streaming services outside of Amazon Channels to retain control of the
user experience and viewership data. News commentary suggested that the
lack of Amazon Fire carriage notably slowed subscriber growth at these
services, and when HBO Max finally reached a deal with Amazon months
later, the terms included an extension of WarnerMedia's contract with
Amazon Web Services, its cloud computing platform.
---------------------------------------------------------------------------
Streaming's dominant employers have also used their leverage to
push down writers' pay. In 2023, writers went on strike for nearly five
months to improve compensation and employment terms as practices such
as short-term, more precarious employment and caps on experienced
writer compensation had spread between employers to become
``standard.'' The lack of competition and vertical integration has also
led to disputes among the bargaining parties in the period between
contract negotiations. For example, the WGAW has collected millions in
underpayment from Paramount\8\ and Netflix\9\ for undervaluing
``imputed'' license fees to vertically-integrated streaming services,
and has filed related claims against Disney and NBCUniversal. Each of
these disputes stems directly from the increasing consolidation of the
media companies.
---------------------------------------------------------------------------
\8\ Cynthia Littleton, WGA Sets $3.4 Million Settlement With CBS
for All Access Streaming Residuals, Variety (Apr. 15, 2021), https://
variety.com/2021/tv/news/wga-cbs-streaming-settlement-all-access-
1234952956/.
\9\ Katie Kilkenny, Writers Guild Arbitration With Netflix Yields
$42M in New Residuals for Members, The Hollywood Reporter (Aug. 4,
2022), https://www.hollywoodreporter.com/business/business-news/wga-
netflix-residuals-42-million-writers-1235192877/.
---------------------------------------------------------------------------
In the streaming market, instead of dynamic competition, we also
see all the major firms raising prices and reducing content spending in
parallel, leaving consumers to pay more for less, hallmarks of a
concentrated market. And despite these already anticompetitive
conditions, Wall Street continues to call for further consolidation.
More mergers will leave even fewer firms in control of what content can
reach audiences, and diminished variety in media's marketplace of
ideas. And as the suspension of Jimmy Kimmel Live! and cancellation of
The Late Show of Stephen Colbert illustrate, the lack of competition
can easily facilitate explicit censorship.
Congress Must Act
Over the past few months, both Comcast-NBCUniversal and Warner
Bros. Discovery have announced plans to spin off their linear networks
to better position themselves for future M&A transactions. The newly
combined Paramount-Skydance, immediately after that merger's
conclusion, is exploring a bid for all of the assets of Warner Bros.
Discovery, which would combine two major streaming services, movie and
television studios, and a suite of television networks under a single
owner. Absent government intervention, more harmful mergers are on the
horizon as each merger spurs reactive consolidation among the remaining
firms. But even the existing level of consolidation and vertical
integration in the media industry is unacceptable and demands scrutiny,
as we have recently seen it put free speech at risk. Congress must
explore creative solutions that address the current level of
consolidation, including limits on the ability of streaming services to
own the content on their platforms, which was a condition of the
Financial Interest and Syndication rules imposed on the broadcast
networks when they held similar levels of control over content
distribution. Failing to act will allow streaming services to dictate
what stories are told, and permit media conglomerates to exercise their
economic power as political power.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Response to Written Questions Submitted by Hon. Ted Cruz to
Eugene Volokh
Question 1. Does the First Amendment apply to the information
Americans are permitted to receive and not just the content they can
express?
Answer. Yes. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 756 (1976) (concluding that
commercial speech is protected because ``protection afforded is to the
communication, to its source and to its recipients both''); id. at 757
(``[I]n Procunier v. Martinez, 416 U.S. 396, 408-409 (1974), where
censorship of prison inmates' mail was under examination, we thought it
unnecessary to assess the First Amendment rights of the inmates
themselves, for it was reasoned that such censorship equally infringed
the rights of noninmates to whom the correspondence was addressed.'');
First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76, 783
(1978) (concluding that corporate speech is protected ``based not only
on the role of the First Amendment in fostering individual self-
expression but also on its role in affording the public access to
discussion, debate, and the dissemination of information and ideas'');
Lamont v. Postmaster Gen., 381 U.S. 301, 305, 307 (1965) (relying on
``the addressee's First Amendment rights'' rather than the sender's,
where the sender was a foreign government); see also id. at 307-08
(Brennan, J., concurring) (stressing that it's not clear whether the
First Amendment protects ``political propaganda prepared and printed
abroad by or on behalf of a foreign government,'' but concluding that
the law was unconstitutional because it violated the recipients'
``right to receive'' information, regardless of the senders' rights to
speak).
Question 2. Does the First Amendment apply to artificial
intelligence?
Answer. I think the First Amendment precludes the government from
restricting the output of AI programs, because that would unduly
interfere with Americans' right to receive information (and Americans'
right to use the AI to help craft their own messages). See Eugene
Volokh, Mark A. Lemley & Peter Henderson, Freedom of Speech and AI
Output, 3 J. Free Speech L. 651 (2023).
Question 3. What are the First Amendment and free speech
implications of government attempts to alter content generated by
artificial intelligence to address alleged ``bias'' or to pressure
artificial intelligence companies to set up processes to moderate or
eliminate alleged ``disinformation,'' as well as ``offensive'' or
``objectionable'' content?
Answer. I think this would violate the First Amendment, just as it
would be unconstitutional for the government to restrict ``bias,''
``disinformation,'' or ``offensive'' or ``objectionable'' content in
newspapers. See, e.g., Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241 (1974) (bias); New York Times Co. v. Sullivan, 376 U.S. 254,
288 (1964) (disinformation about the government); United States v.
Alvarez, 567 U.S. 709 (2012) (plurality opin.) (disinformation
generally); id. at 731-32 (Breyer, J., concurring in the judgment)
(disinformation about ``philosophy, religion, history, the social
sciences, the arts, and the like''); id. at 751 (Alito, J., dissenting)
(disinformation ``about philosophy, religion, history, the social
sciences, the arts, and other matters of public concern''); Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (offensive or
objectionable content).
Question 4. What should I keep in mind as I craft legislation to
ensure that Americans are fully protected against government efforts to
decide or limit what they can read?
Answer. That substantive rules require procedural enforcement
mechanisms, such as allowing people to sue the Federal government and
officials for violating the First Amendment, just as Congress has let
people sue state and local governments and officials.
Question 5. What are some of the key challenges Americans face in
court to hold the Federal government accountable for improper and
unlawful jawboning?
Answer. The lack of a private right of action against Federal
officials for violating First Amendment rights under color of Federal
law, parallel to the private right of action provided as to violations
by state and local officials under 42 U.S.C. Sec. 1983.
Question 6. Can Congress help solve any of the challenges
identified in the preceding question with new legislation?
Answer. Yes, by providing a private right of action against Federal
officials for violating First Amendment rights under color of Federal
law, parallel to the private right of action provided as to violations
by state and local officials under 42 U.S.C. Sec. 1983.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Eugene Volokh
First Amendment. Brendan Carr, the Chairman of the FCC, recently
went on a podcast to criticize Jimmy Kimmel's comments on his late-
night talk show on ABC. He told Disney, the parent of ABC, that ``we
can do this the easy way or the hard way.''
And he told the licensed broadcasters that carry ABC programming
that ``it's time for them to step up'' and stop this ``garbage.'' Just
hours later, the biggest affiliate groups said they would preempt
Kimmel's show, including one with a major pending merger that requires
FCC approval. Minutes later, ABC said it would suspend Kimmel. Kimmel
is back on the air, but the chilling effect of Brendan Carr's words
lingers.
As I wrote to Chairman Cruz weeks ago, we need Brendan Carr to
answer for this attack on the free press.
Question 1. Professor Volokh, you are a noted First Amendment
scholar. Do you think that Carr's threats to ABC and its affiliates
violated the First Amendment?
Answer. Yes.
AP and Gulf of America. President Trump tried to rename the Gulf of
Mexico to the Gulf of America. Polls show that more than 70 percent of
Americans oppose the idea.
What's actually dangerous, though, is how the White House used this
juvenile stunt to intimidate the free press. The Associated Press
refused to go along with Trump's Orwellian attempt to make Americans
change the name of the Gulf of Mexico.
In retaliation, the AP was kicked out of the White House press pool
and not allowed into the Oval Office.
Question 1. Professor Volokh, setting aside whether the White
House's actions technically violated the First Amendment, do you think
that in a free society, it is appropriate for the White House to punish
news organizations that refuse to go along with its attempts to police
language?
Answer. I don't believe it is appropriate, especially when the AP's
decision went along with a long-established and broadly accepted name.
At some point, the actions of a news outlet may become so bizarre
or ideologically skewed that they may lead the outlet to lose
credibility, and reasonably lead the Administration to no longer want
to give the outlet special access to the press pool: Say, for instance,
that the AP decided to rename the Gulf of Mexico ``the Stolen
Indigenous People's Sea,'' or to start calling Washington, D.C. ``the
Capital of the Great Satan.'' But of course, the AP's retaining the
longstanding name ``Gulf of Mexico'' is very far removed from such
hypotheticals.
Universities. In addition to the media and law firms, President
Trump has also targeted universities and nonprofit organizations that
express views that he disagrees with. The administration has threatened
to revoke non-profit status; restricted universities' ability to enroll
international students; and canceled or paused billions of dollars in
grant funding.
Courts have consistently held that government officials cannot
retaliate against individuals or entities because they disagree with
their speech.
Question 1. Prof. Volokh, you are a scholar of the First Amendment.
Is it consistent with the First Amendment for the administration to
strip the tax-exempt status or otherwise punish universities or other
entities that have political disagreements with the administration?
Answer. No, if the stripping or punishment were to happen because
the universities or other entities express viewpoints that the
administration disagrees with.
Law Firms. Since he took office earlier this year, President Trump
has attacked institutions that he perceives to be opposed to him.
President Trump signed a series of executive orders targeting law firms
that hired perceived political opponents or represented clients who
opposed him.
These executive orders suspend the security clearances for firm
lawyers; deny them entrance to Federal buildings; and seek to force
Federal contractors to end a relationship with them.
Question 1. You are an expert on the First Amendment. Do these
executive orders violate the First Amendment?
Answer. Yes, considerable portions of the orders do. I signed a
brief so arguing, Brief of Amici Curiae 353 Law Professors in Support
of Plaintiff's Motion for Summary Judgment and for Declaratory and
Permanent Injunctive Relief, Perkins Coie LLP v. U.S. Department of
Justice, No. 1:25-cv-00716 (D.D.C. Apr. 2, 2025), https://
storage.courtlistener.com/recap/gov.uscourts.dcd.278290/
gov.uscourts.dcd.278290.
45.1.pdf.
Question 2. Does the First Amendment prevent government officials
from retaliating against political opponents for their views?
Answer. That is complicated, because it depends on the nature of
the retaliation. Government officials can't deny people or
organizations generally available benefits (such as tax exemptions or
broadly available grants aimed at promoting a diversity of private
views) based on their viewpoints. Nor can they generally cut off
contracts or other grants to people or organizations because of those
people's or organizations' other speech (speech that isn't funded by
those contracts or grants).
But they can, for instance, refuse to appoint a political opponent
to high office based on the opponent's views. Likewise, they can choose
to give discretionary grants for speech that endorses certain views but
not other views. To offer one famous example, ``When Congress
established a National Endowment for Democracy to encourage other
countries to adopt democratic principles, it was not constitutionally
required to fund a program to encourage competing lines of political
philosophy such as communism and fascism.'' Rust v. Sullivan, 500 U.S.
173, 194 (1991).
There are of course other possible scenarios; in some, government
officials' viewpoint-based judgments may be unconstitutional while in
others they may be constitutionally permissible.
App Stores. Recently, after Attorney General Pam Bondi demanded
that Apple remove a lawful app crowdsourcing location information from
the App Store, Apple agreed to do so.
Question 1. Do you think citizens sharing location information with
each other, such as the locations of police speed checks, through an
app, is protected speech under the First Amendment?
Answer. It depends. At some point, it may become essentially aiding
and abetting crime or a civil violation--basically, acting as a lookout
for someone else--or obstruction of justice, and thus constitute
constitutionally unprotected ``speech integral to criminal conduct.''
The exact boundaries of that First Amendment exception are not clearly
settled. I wrote about this in detail at Eugene Volokh, Crime-
Facilitating Speech, 57 Stan. L. Rev. 1095 (2005), but the law has
become still more complex since then, see Eugene Volokh, The ``Speech
Integral to Criminal Conduct'' Exception, 101 Cornell L. Rev. 981
(2016); United States v. Hansen, 143 S. Ct. 1932 (2023).
Question 2. Did the Attorney General violate the First Amendment
when she demanded that Apple remove a legal app with crowdsourced
location data from its app store?
Answer. If the AG threatened Apple with prosecution for removing
such an app, then she might have violated the First Amendment,
depending on the precise facts about just what information the app
conveyed and under what circumstances (I'm not certain). But if the AG
argued to Apple that the app violated Apple's own guidelines, and asked
it to enforce those guidelines, without threatening Apple with
prosecution or other government retaliation, then that likely didn't
violate the First Amendment.
Question 3. Are you aware of any instances during the Biden
administration when the Federal government demanded that Apple or
Google remove a legal app?
Answer. Yes; the Protecting Americans from Foreign Adversary
Controlled Applications Act, the statute targeting TikTok enacted
during the Biden Administration, essentially required Apple and Google
to remove from their app stores the TikTok app, which had hitherto been
legal.
Question 4. Are you aware of any instances where foreign
governments have demanded that Apple and Google remove legal apps?
Answer. No, but I haven't closely studied the actions of foreign
governments.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Gene Kimmelman
First Amendment. Brendan Carr, the Chairman of the FCC, recently
went on a podcast to criticize Jimmy Kimmel's comments on his late-
night talk show on ABC. He told Disney, the parent of ABC, that ``we
can do this the easy way or the hard way.''
And he told the licensed broadcasters that carry ABC programming
that ``it's time for them to step up'' and stop this ``garbage.'' Just
hours later, the biggest affiliate groups said they would preempt
Kimmel's show, including one with a major pending merger that requires
FCC approval. Minutes later, ABC said it would suspend Kimmel. Kimmel
is back on the air, but the chilling effect of Brendan Carr's words
lingers.
As I wrote to Chairman Cruz weeks ago, we need Brendan Carr to
answer for this attack on the free press.
Question 1. Mr. Kimmelman, you have observed the media for decades.
Have you ever seen quite so blatant an attempt at censorship by the
Chair of the FCC?
Answer. I have never seen such blatant interference in the content
of media companies from any previous FCC Chair.
Question 2. At the hearing, some claimed that legislators
expressing their views about a licensed media company to the FCC, as I
did in 2018, Senators Rubio, Scott, and Cotton did in 2022, and Senator
Lee did in 2024, raises the same First Amendment concerns as the FCC
Chair threatening action against a regulatee. Do you think that
legislators expressing their views to the FCC about a licensee raises
the same concerns as the regulator itself threatening a licensee?
Answer. No, I believe that legislators have a right to express
their views and propose legislation as they see fit. It is a very
different, direct threat to the First Amendment, for the FCC to
threaten to take action against a licensee based on the content they
distribute.
During the same podcast where Carr criticized Jimmy Kimmel, Carr
also stated: ``It's the licensed TV stations that have the public
interest standard, including those TV stations that Comcast and Disney
own. So FCC regulatory action focuses on those individual stations.''
He also claimed: ``The public interest means you can't be running a
narrow partisan circus and still meet your public interest obligations.
It means you can't be engaging in a pattern of news distortion.''
Question 3. Is Carr's statement that the FCC's public interest
obligation means broadcast stations ``can't be running a narrow
partisan circus'' correct? Why or why not?
Answer. I don't really know what Chairman Carr was referring to,
but the public interest test has previously been viewed as a way to
evaluate whether a broadcaster is meeting community needs. It is hard
to imagine that presentation of a set of views of interest in a
community is somehow outside the scope of the public interest. The FCC
has previously refrained from cataloging ideas as ``partisan'' just for
presenting a particular point of view, to protect the First Amendment
rights of their licensees.
Question 4. Other than Carr, has an FCC chair ever threatened a
network or local affiliate with regulatory action based on the content
of a late-night comedian's monologue?
Answer. Not to my knowledge.
Question 5. Have the FCC's actions since the Nixon administration
to revoke broadcast licenses been limited to concerns over the
licensee's character, such as being a convicted criminal, and not based
on the content of the licensee's speech?
Answer. Yes
The Communications Act of 1934 requires broadcast licensees to
serve the ``public interest, convenience, and necessity,'' and grants
the FCC authority to consider those interests when granting or renewing
licenses. The FCC has long held that ``the public interest is best
served by permitting free expression of views,'' and Section 326 of the
Communications Act specifically prohibits the Commission from
``censorship.''
Question 6. Does the ``public interest'' standard legally permit
the FCC Chair to suppress speech by revoking the licenses of
broadcasters for airing content the Administration does not like?
Please explain.
Answer. No
Question 7. Should an FCC Chair repeatedly mislead the American
public that the FCC's longstanding public interest standard should be
used to suppress speech? Please explain.
Answer. I fear that repeated statements from the FCC Chair
describing a power to suppress speech, which clearly exceeds his
authority, has a chilling effect on public discourse and harms open,
democratic debate in our society.
Media Consolidation. Americans rely on local news to understand
what's going on in their communities. According to the Pew Research
Center, nearly three-quarters of Americans trust their local newspapers
and broadcasters. But local news faces serious headwinds. The
advertising-supported model of local newspapers and local broadcast has
declined, with an increasing share of revenue going to tech platforms
rather than news organizations.
There has been a wave of consolidation in the media, ranging from
broadcast affiliates to newspapers. And for many Americans, most of
their news comes through social media algorithms, giving the owners of
these platforms inescapable influence over what we see and read.
Question 1. What are the effects of media consolidation on the
diverse voices and viewpoints that we need for a vibrant democracy?
Answer. Excessive media consolidation is likely to reduce open,
diverse debate in our society, undermining the marketplace of ideas
that is essential for a vibrant democracy.
Question 2. Does the increasing consolidation of media make it more
vulnerable to pressure from politicians?
Answer. Politicians can always try to pressure the media, however
the fewer the owners the easier it is to make that pressure succeed.
The more media is diversely owned by independent companies, the more
difficult it is for politicians to steer public debate to serve their
self interest.
Social Media and Antitrust. Social media platforms are increasingly
the most important town square in our democracy. The algorithms decide
the topics that are debated and the views that are represented. Because
of the power of these platforms in our society, there has been a
bipartisan recognition of the need to hold them to account. To date,
the most prominent efforts have been through antitrust law.
Major antitrust cases were brought against several platforms by the
first Trump administration and the Biden administration and have been
continued through transitions.
Question 1. Is antitrust the right tool to bring platforms to heel?
Answer. Antitrust is an essential tool to address market abuses by
tech platforms, however it is not sufficient to address all the
impediments to robust competition in digital markets.
Question 2. What other policies should we consider to ensure these
platforms serve individuals and support a democratic society, rather
than undermine it?
Answer. Congress should consider making it easier to bring
antitrust cases against dominant digital platforms, and it should also
create some regulatory guardrails to prevent discriminatory practices.
Public Media and Local Journalism. Grants from CPB support nearly
400 public radio stations across the country, which employ nearly 9,800
people, including 3,000 local journalists, editors, and producers. With
their signal reach, particularly in rural areas, public radio stations
can help to slow the spread of ``news deserts,'' or areas that have no
source of local news.
Of the 204 ``news desert'' counties identified by the State of
Local News Project, 67 are served by local public radio signals.
Newsrooms have lost over 60 percent of their newsroom employees over
the last two decades. Meanwhile, public radio has added 900 local
newsroom employees since 2012.
Despite this, Republicans zeroed out Federal funding for public
broadcasting earlier this year, costing more than 400 jobs in public
media, putting dozens of stations at risk of closure, and causing the
Corporation for Public Broadcasting to close down.
Question 1. How does public media enhance local journalism?
Answer. Public media has served a critical role in local markets,
filling in information gaps left by the disappearance of private media
players. Without public media, and with the shuttering of numerous
local newspapers, many communities will be deprived of the information
flow we rely upon to fuel a robust democracy.
Question 2. What will be the effect of Republicans defunding public
broadcasting?
Answer. Given the enormous loss of local information flowing
through local newspapers, any reduction in public media threatens to
harm the marketplace of ideas that is critical to an informed
citizenry.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Gene Kimmelman
Question Topic: Antitrust and the First Amendment
Competitive markets can help ensure that no one entity controls
what we see or hear. But when markets become consolidated, access to
diverse viewpoints is put at risk. In your testimony, you said that
antitrust is a necessary but often insufficient tool to sustain diverse
local media.
How have Big Tech platforms used their position as content
gatekeepers to siphon away resources from local media,
including by misappropriating content?
Answer. As more and more people rely upon the Internet as a gateway
for their information needs, the dominant tech platforms (e.g., Google,
Apple, Meta) have enormous power over how news and media content are
disseminated. Control of these gateways to the public is synonymous
with control over the advertising and related revenue necessary to
produce content and report on local, societal and even global events.
It is critical to prevent tech platforms from expropriating revenue
necessary to fund high quality content.
Question Topic: AI and Local Media
A free press is a crucial part of our democracy, but local news is
facing an existential crisis. Since 2005, the U.S. has lost about 3,300
local newspapers, roughly one-third of newspapers nationally. The pace
of these newspaper closures is accelerating at a time when tech
companies are using local news content to train AI models without
compensating journalists and papers for their critical contributions.
What role should companies that profit from AI models that
use news content play in ensuring journalists and newspapers
are fairly compensated?
Answer. Companies that build AI models with content created by
others should pay license fees or royalties to content creators. We
have done this for music and broadcasting in the past, and now is the
time to do something similar for AI models.
Question Topic: Political Violence
Our country has endured a troubling wave of political violence that
threatens public safety and our democracy. Elected officials from both
parties must bring down the temperature of our political discourse,
especially online, where a lot of this hate is spread.
How would transparency from platforms regarding their
ranking algorithms help address the algorithmic amplification
of violent political rhetoric?
Answer. Transparency should put pressure on the tech platforms to
address the dangers they create or contribute to by amplifying violent
content. Transparency should enable the public to reject engaging with
platforms that promote violence, creating financial benefits for
platforms that seek to limit algorithmic amplification of violence.
[all]