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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Bob Corn-Revere: In all of these executive orders it says, "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person." In other words, these executive orders aren't worth the paper they're written on.

Nico Perrino: Okay. Welcome back to So to Speak, the free speech podcast. We have a lot to discuss today, joined by my colleagues, Ronnie London and Bob Corn-Revere. Ronnie, of course, is FIRE's general counsel. Bob is our chief counsel. The last time you guys were in the studio, we were debating the exceptions to free speech in the first amendment.

Bob Corn-Revere: Yes, we were.

Ronnie London: And, low and behold, now we have so many more, apparently.

Nico Perrino: What are those, Ronnie?

Ronnie London: Well, they're the ones that the current administration is working in between the lines of their executive orders and their speeches in foreign countries.

Nico Perrino: We had a lot on the agenda before this past weekend, didn't we?

Ronnie London: We did.

Nico Perrino: And, then this past weekend, what happened? JD Vance gave a speech at the Munich Security Conference. Margaret Brennan told Secretary of State, Marco Rubio, that free speech was weaponized to conduct a genocide, and then 60 Minutes also did a segment on free speech in Germany where they followed along as German police raided the homes of people who posted allegedly hateful things on the internet.

Where should we start? Should we start with JD Vance's speech, the Munich Security Conference?

Bob Corn-Revere: Sure. Set the stage.

Nico Perrino: All right. I'll set the stage. So, JD Vance is at the Munich Security Conference, and he says –

Recording: The threat that I worry the most about vis a vis Europe is not Russia. It's not China. It's not any other external actor, and what I worry about is the threat from within, the retreat of Europe from some of its most fundamental values, values shared with the United States of America.

Nico Perrino: He goes on to focus on the freedom of speech. He says –

Recording: And, unfortunately when I look at Europe today, it's sometimes not so clear what happened to some of the Cold War's winters. I look to Brussels where EU commissars warn citizens that they intend to shut down social media during times of civil unrest the moment they spot what they've judged to be quote, "hateful content," or to this very country where police have carried out raids against citizens suspected of posting antifeminist comments online as part of quote, "combating misogyny on the internet, a day of action."

I look to Sweden where two weeks ago the government convicted a Christian activist for participating in Quran burnings that resulted in his friend's murder, and as the judge in his case chillingly noted, Sweden's laws to supposedly protect free expression do not, in fact, grant, and I'm quoting, 'a free pass to do or say anything without risking, offending the group that holds that belief.' And, perhaps most concerningly, I look to our very dear friends, the United Kingdom where the backslide away from conscience rights has placed the basic liberties of religious Britons in particular in the crosshairs.

Nico Perrino: He continues along that tract. Anything wrong with what he says there? I mean, these are things that we at ��ݮ��ƵAPP���� have been concerned about in Europe as well.

Bob Corn-Revere: Yeah. Well, he makes some very good points, except for the fact that I didn't know China was in Europe, but when he says that he doesn't worry about Russia or China, I think he really should worry about Russia or China, but he makes some good points about European law not protecting free speech, people being imprisoned for things they post online, and those are things that we need to both combat just worldwide, but also to make sure that we distinguish the American system from other systems that don't have the same high regard for freedom of speech.

Nico Perrino: Yeah. How do the Europeans look at freedom of speech? They don't have a First Amendment, right?

Bob Corn-Revere: Well, they don't have a First Amendment, but they have the European Convention on Human Rights, which is, let's just say, more malleable than the First Amendment. The way we approach free speech in the United States is that we assume that speech is presumptively protected and that there are a few well-defined and narrow exceptions, notwithstanding our previous debate on that issue of exceptions. The European Convention is different in that it purports to guarantee free speech but sort of in a squishy kind of way that balances it with other –

Nico Perrino: It balances harms.

Bob Corn-Revere: It balances harms.

Nico Perrino: That's not something we do in the United States?

Bob Corn-Revere: Well, we do in a much more structured and strict way. There, first you have to qualify for free speech that doesn't denigrate other rights guaranteed by the Convention, and you also have different provisions of the Convention that can remove those rights if they violate other interests as well.

Nico Perrino: So, is it safe to say the Europeans will say they have free speech; they just define it differently?

Bob Corn-Revere: Well, it's free up to a point as long as it doesn't violate either what the government has declared as beyond the pale or you have someone who can claim to be part of a protected class that is insulted by that speech.

Nico Perrino: Mm-hmm.

Ronnie London: Well, I think the Swedish court was quite clear on the point in the quote that you read, and so were the German censors – can I call them censors? – the German censors that were on 60 Minutes Sunday night who treated going and arresting people or giving them citations for thousands of pounds or thousands of marks of fines, as if –

Nico Perrino: I think it's Euros in Germany.

Ronnie London: Is it Euros now?

Nico Perrino: I believe it is.

Ronnie London: Okay. So –

Nico Perrino: There was a point at the end of that segment where one of the prosecutors is looking at one of the fines levied against someone.

Ronnie London: Right and –

Bob Corn-Revere: Not a parking ticket.

Nico Perrino: Not a parking ticket. I think I recall it being 3,500 euros and change.

Bob Corn-Revere: Yeah, it was –

Nico Perrino: Yeah. Definitely not a parking ticket.

Bob Corn-Revere: – it was a high fine, but what was disturbing to me in particular, two things, about the 60 Minutes reports on people being made criminals for insults online is that the prosecutors were actually chuckling about it saying, "Oh, this is just enforcing the law. We like this," and the idea of saying that it's all right to have pre-dawn raids with multiple police knocking on people's doors, taking their computers, taking their phones because the state has decided it doesn't like the tone of their conversation.

Ronnie London: And, it's not even a complaint-based system, right? They're just scouring social media to find people saying things that are hateful or insulting. I mean, they said that – so, if I say a politician is a jerk, or a dick as I understood it, that's actionable. And, then also, while we're at it, they take away your phone and your computer, too, so they seize the means of communication along with imposing a fine for communicating.

Nico Perrino: And, the prosecutors are chuckling about taking away the phones because they're like, people don't want their phones taken away, of course.

Ronnie London: That's right. That's right. And, the other thing that was disturbing about it is that CBS didn't have a single free speech advocate as part of the broadcast talking about why this might be a problem.

Nico Perrino: I want to turn to the segment now and quote or play some from it. So, this is the beginning of the segment.

Recording: It's 6:01 on a Tuesday morning, and we were with state police as they raided this apartment in northwest Germany. [Speaking German] Inside six armed officers searched a suspect's home and then seized his laptop and cell phone. Prosecutors say those electronics may have been used to commit a crime. The crime, posting a racist cartoon online. At the exact same time across Germany, [speaking German] more than 50 similar raids played out, part of what prosecutors say is a coordinated effort to curb online hate speech in Germany.

Nico Perrino: And, this is where the CBS reporter chimes in interviewing the German prosecutors. She asks, "What's the typical reaction when the police show up at somebody's door and they say, 'Hey, we believe you wrote this on the internet?'" One of the German prosecutors responds, "We are here with crimes of talking, posting on the internet, and the people are surprised that it is really illegal to post these kinds of words." She says, "They don't think it's illegal?" He says, "No, they don't think it was illegal, and they say, 'No, that's my free speech,' and we say, 'No, you have free speech as well, but it also has its limits.'"

And, then the CBS reporter says –

Recording: Is it a crime to insult somebody in public? Yes, it is.

Nico Perrino: And, they all say in unison.

Bob Corn-Revere: All three prosecutors. That's right. And, then you had an advocate.

Ronnie London: Hatade. Great name.

Bob Corn-Revere: Yeah. HateAid. Sounds like a concert for hate speech, but basically saying, well, you have free speech, but everything has to have its limits. You can't have all that freedom out there.

Nico Perrino: And, that's why I asked, is it safe to say, or can you credibly claim they have free speech in Germany if insulting someone is a criminal offense?

Bob Corn-Revere: No. And, part of the problem is that they say, "Well, you have free speech, except," and then they throw this very broad net about what the exceptions are, which, as I said, contrasts with the law in this country. But, nothing prevents the government from moving that line as it has over the past several decades. These kinds of examples of "hate speech" are being used as today's example, but they're not limited to that. It's whatever the state decides is sufficiently important to restrict because bad things would happen from bad speech.

Ronnie London: Oh, and by the way, not only does the original poster have the liability, the re-posters do as well.

Bob Corn-Revere: That's right. That's right. And, they stop short of saying that if you simply liked a comment online that they'll go after you for that, but if you re-post it, they will.

Nico Perrino: Yeah. And, this is what the CBS reporter asks. If somebody posts something that's not true, and then somebody else re-posts it or likes it, are they committing a crime? One of the German prosecutors says, "Yeah. In the case of re-posting it is a crime as well because the reader can't distinguish whether you just invented this or just re-posted it. It's the same for us. The punishment for breaking hate speech laws can include jail time for repeat offenders, but in most cases, a judge levies a stiff fine," not a parking ticket, "and sometimes they keep their devices."

So, JD Vance in his speech says that Europe is retreating from its fundamental values, free speech being the suggestion there, but has Europe ever been good on free speech?

Bob Corn-Revere: Well, it's been better than it is now.

Ronnie London: Compared to who?

Nico Perrino: Compared to the United States.

Ronnie London: Compared to Russia and China, it was better.

Nico Perrino: Yeah.

Bob Corn-Revere: Well, yes, but drawing comparisons is difficult because you have to ask at what point, and the United States hasn’t always been great on free speech. It has gotten better through the 20th century as First Amendment jurisprudence developed, and now into the 21st, so that issues like hate speech are not a legal concept here. And, we use that term as if it is a legal thing. In Europe it is. In Canada it is, but in the United States hate speech is not a category of speech that you can regulate under the First Amendment. It's not a thing legally.

Hate speech is like pornography, and pornography isn't a thing. Obscenity is the legal concept. The word pornography is just a disparaging term for sexual entertainment, but it isn't a crime to have pornography. Obscenity is the legal line, and it's a much narrower and stricter concept. Hate speech here is like that. It's like calling something pornography but for hateful words.

Nico Perrino: Well, you might have Europeans who say, "Well, you Americans have your free speech exceptions as well, obscenity being one of them." They might look at us as more prudish, for example, and say, "Well, okay. What about your exceptions? We draw lines differently."

Bob Corn-Revere: They may well do that, but the point is, as I said at the outset, we have a limited number of categories. The Supreme Court has repeatedly stopped short of saying you can create new categories or stretch the boundaries of those categories, whereas that stretchy boundary-pushing nature exists in European law. It is written into European law so that anything that the state decides violates some sort of other value they have decided to promote can be unprotected by their free speech guarantees.

Nico Perrino: In response to JD Vance's speech at the Munich Security Conference, you had Margaret Brennan, the host of CBS's Face the Nation, say to Marco Rubio who came on the show –

Recording: Well, he was standing in a country where free speech was weaponized to conduct a genocide.

Nico Perrino: This statement from Margaret Brennan was widely condemned, including by myself, but was she right?

Ronnie London: No. I think Rubio had the right response in pointing out the fact that it was a one-party state at the time. There was no free speech at the time, and when I was listening to that, to kind of bring things forward, I kind of got a feeling in the pit of my stomach because that's the first thing you always do is you seize the means of communication. The government takes over control, and then the government dictates what people get to hear. And, I don't think we're quite that far here yet over the last few weeks, but at the same time, there has been an attack on the media here.

But, to go back without jumping ahead to Marco Rubio's response, like I said, I think he had it right.

Recording: I have to disagree with you. Free speech was not used to conduct a genocide. The genocide was conducted by an authoritarian Nazi regime that happened all to be genocidal because they hated Jews, and they hated minorities, and they hated those that – they had a list of people they hated, but primarily the Jews. There was no free speech in Nazi, Germany. There was none.

Nico Perrino: Yeah. I think you would be hard pressed to argue that there was free speech in Nazi, Germany. They were banning, they were burning books. They were raiding news outlets. They were imprisoning their political opponents. Political violence was rife, but you might say, well, before the Nazis rose to power.

Bob Corn-Revere: That's right. And, in that point, Margaret Brennan was simply wrong as a matter of historical fact, and we posted a short video from Nadine Strossen, former president of the ACLU, who is a ��ݮ��ƵAPP���� senior fellow now, who explains that history. During the Weimar Republic there were robust hate speech laws, and it's often called the Weimar fallacy to suggest that it was hate speech that led to the Nazis. In fact, the Weimar Republic cracked down on Nazis, including Adolph Hitler, for routinely violating those hate speech laws.

What that did paradoxically was help bring those people to power because they were seen as martyrs for their cause because of the use of law, and it shows the utter ineffectiveness of trying to use the power of the state to suppress speech because all you do is bottle up the hatred they were trying to spew and give it more power.

Nico Perrino: And, you also had the critics of the Nazis who were subject to these hate speech laws as well, and it wasn't just the hate speech laws. It was the tepid reaction from Weimar, Germany, to political violence on behalf of the Nazis as well, the thuggery that was allowed to go on.

Bob Corn-Revere: That's right.

Nico Perrino: So, to say that you had free speech in Weimar, Germany, or Nazi, Germany, you had speech, but it wasn't free. It was just subject to who had the most political force, and to the extent that any hate speech codes were enforced, they just served to make martyrs out of their targets. There was a campaign when Adolf Hitler – I forget the exact years. It was something like two or three years, he was banned from speaking in Bavaria, and the Nazi party put together this big campaign that said alone among two billion people, one man is prevented from speaking. It was like gold for Joseph Goebbels and his propaganda campaign.

Bob Corn-Revere: Absolutely. And, it's a prime example of how these kinds of laws always backfire.

Nico Perrino: Going back to JD's speech now, he says, "I come here today not just with an observation but with an offer, and just as the Biden administration seemed desperate to silence people for speaking their minds, so the Trump administration will do precisely the opposite, and I hope that we can work together on that."

In Washington, he continues, "There is a new sheriff in town, and under Donald Trump's leadership, we may disagree with your views, but we will fight to defend your right to offer them in the public square. The Associated Press wants to call the Gulf of America the Gulf of Mexico, which is how it's internationally recognized. It has been barred from attending press events in the oval office and on Air Force One." Looks like they're going after the Associated Press' views, right? What am I missing here?

Bob Corn-Revere: Yeah.

Ronnie London: At least they're in good company.

Bob Corn-Revere: JD can offer up some nice words when he wants to, can't he? But, the question is whether or not the actions of the Trump administration match the rhetoric, and I have to say, I do appreciate JD Vance going to Europe and calling out that kind of problem with free speech, but the issue here is whether or not the Trump administration is going to be a new sheriff in town to promote free speech. The episode with the Associated Press is a prime example of where the Trump administration's attitude so far seems so far seems to be do as I say, not as I do, or free speech for me but not for thee.

The issue of whether or not AP has a quote "right" to be at White House press conferences is really a bit of a misnomer. The question is whether or not the government can discriminate against a news organization because it dislikes its editorial policies, and as you point out, Nico, they are in international news organizations. Other countries have not yet jumped on the Gulf of America bandwagon, and what the White House is trying to do is simply to bully the Associated Press into following what it thinks its editorial policy should be.

Nico Perrino: And, the Associated Press' rationale here is that this is an international body of water. It borders multiple countries, not just the United States.

Bob Corn-Revere: Including Mexico.

Nico Perrino: Including Mexico, yes. But, the Associated Press did change its editorial standards for Denali, which is the mountain in, I believe, Alaska. I hope I get that right.

Bob Corn-Revere: Alaska, yes. McKinley.

Nico Perrino: Which was changed by Obama from Mount McKinley to Denali, and Trump is changing it back to Mount McKinley.

Bob Corn-Revere: That's right.

Nico Perrino: And, the Associated Press' rationale is, well, this is entirely within the United States jurisdiction. There's no controversy over what its legal name is, whereas the Gulf of Mexico is a different, international body of water. The Trump administration doesn't like that. It calls the Associated Press' editorial standard here misinformation. They say this is its legal name, but people will say there's a difference between denying the Associated Press access to the Oval Office and Air Force One events. It still has its press credentials in the briefing room, and, for example, jailing people who say hateful things on the internet.

Bob Corn-Revere: That's true. But still, it is imposing a penalty because you don't like the editorial standards. It's one thing if you are excluding a news organization for some sort of neutral purpose. You've run out of room or it isn't actually a credentialed news organization. This is different. This is saying we're going to tell you what your policies must be, and if you don't adhere to them, you lose your spot. So, the reasons –

Ronnie London: And, it's only a difference of degree, not principle, right? Whether it's throwing them in jail or throwing them off Air Force One, hopefully metaphorically, at the end of the day, the underlying principle is that if you don't conform to what the, for lack of a better word, new orthodoxy is on speech – and it just happens to be something particularly petty, like the Gulf of American, Gulf of Mexico. It could be anything. It could be anything. It could be terms around DEI. It could be what we call –

Bob Corn-Revere: It could be who won the election in 2020.

Ronnie London: Right. It could be who won the election. It's this monopoly on truth, and if you don't tow the line, then you'll suffer the consequences. And, if you wanna start comparing consequences and saying which are worse and which are less worse, go right ahead, but that doesn't really change the argument. One of the executive orders, and it's not really mostly on point on free speech issues, but nonetheless, it does have its elements, is the defending women from gender ideology extremism and restoring biological truth to the federal government.

And, the reason I pick on this one is it talks about policy and definitions, the policy of the United States to recognize two sexes, male and female, it talks about it being a fundamental and incontrovertible reality. When people in government start telling me what is a fundamental and incontrovertible reality, that's when I start getting real freaking nervous because what that does is you then balance over to restoring freedom of speech and ending censorship. You have all this nice language about government censorship of speech being intolerable in a free society. How that sits comfortably alongside excluding someone from briefings and from Air Force One for not saying Gulf of America is a mystery to me.

No office of the federal government employee or agent engages or facilitates in any conduct that would unconstitutionally abridge the free speech of any American. That's great. That's easy to say, but you can't have that sitting alongside incontrovertible reality. If you can't debate the reality of your circumstances, then what good is free speech to you? I mean, you can promise it, but toward what end?

Nico Perrino: So, you would still have a problem if under the Biden administration, for example, they denied the New York Post access to White House events because they referred to a transgender White House official by the wrong pronoun.

Bob Corn-Revere: Absolutely.

Ronnie London: Of course. Right. And, the problem with the Biden administration leaning on the social media platforms about where COVID originated or what its effective treatments are or whatever else. I mean, they've decided that the CDC had the right answer, and by God, everyone's gonna tow that line. It's not any different. It's just as problematic.

Bob Corn-Revere: Well, that's right, and it's why ��ݮ��ƵAPP���� filed a friend of the court brief in the Supreme Court challenging the Biden administration policies of leaning on social media companies. The government doesn't get to put its thumb on the scale when it comes to free speech, and while I appreciate the Trump administration saying they're going to be a new sheriff in town and JD Vance's speech in Europe, and I appreciate some of the free speech rhetoric that I've heard elsewhere, including the executive order on restoring freedom of speech and ending federal censorship, the question is what actions are they going to take?

And, if you read this executive order, and it's one of the first that he issued on his first day in office, what it says is over the past four years the previous administration trampled free speech rights by censoring American speech in online platforms, and it's like, okay, fine. Why are we looking backwards? If I'm concerned –

Nico Perrino: Even there, some of the censorship started happening under his administration during COVID.

Bob Corn-Revere: Of course it did, and that was made clear in the court record in the case challenging the Biden administration. This is a time-tested thing that has been done by administrations through the years, and this was just a continuation of it. And, if your concern is that the federal government is pressuring social media companies, the answer is simple. Stop fucking doing it, right? You don't need to –

Ronnie London: And, while you're at it, stop doing it to the traditional media companies, too.

Bob Corn-Revere: Exactly. Which is a real problem here, and again, there's an entire subsection that talks about past misconduct by the federal government. But, here's the kicker, and this is the boilerplate language that exists in all of these executive orders, which says they don't mean what they're saying. And, that is the final line in all of these executive orders. It says, "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. In other words, these executive orders aren't worth the paper they're written on.

Nico Perrino: So, if the government –

Ronnie London: Yeah. I'm glad it said that because otherwise I was gonna rely on it.

Nico Perrino: Well, no. Let's translate that for our non-lawyer listeners. It means you can't sue. This isn't creating a right for you.

Bob Corn-Revere: Well, exactly. I mean, the language sounds great when it sounds like no federal officer – I wanna find the exact language. "We ensure that no federal government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen." It's a great statement. I'd like to see it made real, but the problem is the last line of this very same order says you can't enforce that.

Ronnie London: Yeah. Well, not only does it not provide any enforceable rights, more importantly, it doesn't provide any limits on the government, right?

Bob Corn-Revere: That's right.

Ronnie London: You know, you said that you appreciate that it says some nice things about free speech. We appreciate that JD Vance said some nice things about free speech. I'm not as appreciative as you are, and that's true as a general rule, but in this particular context, I think you get to a point where what you're really modeling is the free speech for me but not thee. But, more importantly, what you're modeling is that you can somehow in some ways be good on free speech despite the other ways in which you're horrible on free speech, and frankly, I don't buy that. If you're horrible on free speech in any way, you're horrible on free speech full stop.

And, what President Trump in particular has done with his lawsuits, both before the current election and his becoming president again and currently, is just bad for free speech. He's picking on traditional media, and the AP example is a perfect example of over a particularly small point. But, he has sued traditional media for millions of dollars, billions of dollars if you add it all up. His appointed head of the FCC is falling into line and calling out the broadcast networks that Trump has a problem with and using the leverage of FCC licenses to basically try and secure settlements on lawsuits that I think were pretty universally viewed as having very little chance of actually prevailing.

Ronnie London: Have zero merit.

Nico Perrino: So, some of the settlements you're talking about, Meta agrees to pay $25 million to settle a 2021 Trump lawsuit. This is a lawsuit stemming from Meta's de-platforming of President Trump after the January 6th riot.

Ronnie London: That's right. And, that is after the Supreme Court has said that when social media platforms make these decisions they are protected by the First Amendment.

Nico Perrino: And, then you also had most recently X reaching a $10 million settlement with Trump over their suspension of his Twitter account, post January 6th, and then you had ABC famously settling for $16 million over comments – who was it? – George Stephanopoulos made during a broadcast, and the list goes on. And, Bob, you are in court right now representing pollster Ann Selzer, stemming from a poll she conducted leading up to the most recent election, right?

Bob Corn-Revere: That's right. The Iowa poll, the famed Iowa poll conducted by Ann Selzer found days before the November election that Kamala Harris was leading Trump by three points when, in fact, when the votes were tallied, Trump won Iowa by 13 points, as he had in the previous two elections. So, what this lawsuit is trying to do on behalf of Trump and two other congressional candidates in Iowa is to make an inaccurate poll somehow actionable in law, which is just silly and contrary to all of our First Amendment precepts as we understand them.

Nico Perrino: And, they're alleging that it's a form of consumer fraud, is that right?

Bob Corn-Revere: Well, that's the other thing. What they're trying to do is create a cause of action for "fake news" or false news, which if you trace it back to the Sedition Act of 1798, we have a strong constitutional tradition against that kind of thing, but they are trying to convert political commentary and political news as a consumer product, like it's turning back the odometer on a car. And, it's simply pounding a square peg into a round hole, or attempting to, and that's what the courts are going to take a look at.

Nico Perrino: Didn't progressives try and do this during the COVID era as well with Fox News in the State of Washington?

Bob Corn-Revere: Oh, sure. Yeah. There was a case that was dismissed in the State of Washington where an activist group sued Fox News for what it called false reporting in violation of the state consumer protection law over COVID-19 and other issues that they claimed were false news. And, again, these kinds of claims have been occasionally brought, but they're so outlandish that very few plaintiffs have ever attempted to bring these kinds of claims, and when they have, they have been promptly dismissed.

Nico Perrino: Well, you see all these news organizations folding. They all happened to fold after Trump got elected. It's almost as if they're engaging in anticipatory obedience, right? It's this weird dynamic where now you have a new sheriff in town, to use JD Vance's words, and all these news outlets that have a First Amendment leg to stand on, in some cases a very, very strong one, are just folding and saying let's pay the money. You can call it protection money. I've called it protection money before.

Bob Corn-Revere: Yeah. Nice little network you've got there.

Ronnie London: Well, and that's why the AP giving Trump the gift of Gulf of Mexico rather than Gulf of America works so much in his favor because he can take as relatively inconsequential low stakes thing, at least as to the underlying substance of whether it's the Gulf of Mexico or the Gulf of America – honestly, who gives a shit? – and say, okay, and it becomes –

Nico Perrino: Apparently, the White House does.

Ronnie London: Well, no. I don't think that – maybe they do, but the cynic in me says they don't really. What they care about is now I can show all of the media what happens if you don't tow the line. You're not gonna be able to do your job and cover. You know, you talked about ABC and CBS and the other companies falling into line. Funny, they're the ones who have FCC licenses that are absolutely necessary to conducting their businesses. They're the ones who have news bureaus who need to be here on Capitol Hill and the White House to cover the news, and they have skin in the game unrelated to whether they've published anything that is actionable because they haven't.

Nico Perrino: So, Bob, you published a 3,000-word essay in the Columbia Journalism Review that got a lot of attention. It's titled, A Plea for Institutional Modesty, Unsolicited Advice from a Former FCC Chief Counsel. FCC is the Federal Communications Commission, correct? You were the chief counsel for the FCC for years?

Bob Corn-Revere: In 1990 – well, I was a legal advisor to a commissioner from 1990 to 1994. It was in the end of '93 and into '94 that I was chief counsel to James Quello who was elevated from a commissioner to chairman, so I was his chief counsel during that time.

Nico Perrino: And, now Brendan Carr is gonna be the new chairman of the FCC. He has long been a commissioner.

Bob Corn-Revere: He's been a commissioner since 2017.

Nico Perrino: And, early in your essay, you say, "With all due respect, Chairman Carr, it is not enough to hear what a government official may say about his or her commitment to freedom of expression. What matters is how that person acts once entrusted with the power of the office." What are you concerned Brendan Carr is doing?

Bob Corn-Revere: Wow. How long do we have?

Ronnie London: I was just thinking the same thing. How much time we got?

Nico Perrino: I knew this was kind of a softball. You can hit it in whatever direction you want. You do it for 3,000 words here. Where should we start, I guess?

Bob Corn-Revere: I started with Brendan Carr's words themselves because he had said in 2024, "When someone tells you where they stand on free speech, they've told you just about everything you need to know about their position on government power," and my point in that opening paragraph of the essay is no, that doesn't tell you what you need to know.

What you really need to know is what that person does with the power they're given, and with the FCC it's a particularly critical thing because it is an agency that has been described as being one in the shadow of the First Amendment because it regulates broadcasting and to a certain extent cable. It has a lot of power in that regard and, as Ronnie pointed out, one of the ways in which government officials can lean on large seemingly powerful industries and make it too painful for them to stand up for their rights.

And so, what people actually do in that position is important, and Brendan Carr as a commissioner had a great track record of saying good things about the First Amendment. So, for example, when members of the House Commerce Committee would lean on broadcasters because they didn't like their reporting on COVID, he said he would remind them that the government has no business in dictating editorial standards and in telling people how to report the news.

Nico Perrino: This is his direct quote. "A newsroom's decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them."

Bob Corn-Revere: And, I couldn't have said it better myself.

Ronnie London: Except, you forgot to read the part where it says, "Excepting myself."

Bob Corn-Revere: Well, exactly.

Nico Perrino: Well, yeah. How is he “excepting himself” at the current moment? What is he doing?

Bob Corn-Revere: Well, he's done a number of things. On his second day in office, he reversed three decisions that had been made the previous week by the FCC to dismiss complaints against ABC, CBS, and NBC. Those were patently vacuous and substance-less complaints about quote "the news distortion policy." One complaint didn't like the way in which 60 Minutes edited its interview with Kamala Harris. That's not news distortion. That's editing. Another one felt that having Kamala Harris on Saturday Night Live in a guest spot violated the quote "equal time rule" when in fact NBC had provided equal time to Trump that very same weekend.

Nico Perrino: During the NASCAR and NFL coverage.

Bob Corn-Revere: Right. And, there was a complaint about ABC and the way it moderated the presidential debates. All of those are classic examples of news judgment, and the FCC staff got it exactly right when they dismissed those complaints the week before the inauguration.

Nico Perrino: What was the Fox one about?

Bob Corn-Revere: That was the fourth one, and that was a challenge to the renewal of Fox's Philadelphia affiliate over the way it had reported the 2020 presidential election and the complaints about dominion voting and the fact that it settled its libel claim. There were some, including a former executive at Fox, who were claiming that Fox should not just pay a settlement in that case but also lose their licenses. That case was also dismissed during the previous administration in its last week, and yet that was the one complaint that Carr did not reinstate once he became chairman.

Ronnie London: Well, come on, Bob. That one's completely different. It was a cable network, not a broadcaster. I mean, you read the part from Bob's comment about starting with Chairman Carr's own words. Even as recently as this fall when the FCC was proposing to make broadcasters disclose when AI was used in political advertising, he wrote a very, I thought, well-reasoned descent from that proposed rule, making a separate statement, saying that it was a problem constitutionally to impose these obligations and to impose compelled speech.

And, in my mind, this in some ways makes it even worse, and this is what I was talking about before. You can't be good on free speech in some ways and horrible on free speech in other ways and have it net out, especially when you demonstrate that you know better, and then the moment you're handed the keys to the kingdom, as Bob said, on your second day in office, you're reopening cases that were closed for very obvious constitutional reasons, you're not good on free speech. I'm sorry.

Nico Perrino: Former FCC chairwoman, Jessica Rosenworcel, said the facts and legal circumstances in each of these cases are different, but what they share is that they seek to weaponize the licensing authority of the FCC in a way that is fundamentally at odds with the First Amendment. Bob, I was reading something online. I wanna get your gut check on this. It was an attorney who works in the broadcast communications space. He said that there has been no licensed case involving programming since the 1970s. The Telecommunications Act of 1996 limited the criteria for revoking a license, he said, and he also said it was essentially impossible before 1996, and it is totally impossible now. Does that seem right to you?

Bob Corn-Revere: It does, and I would have to go back and see if the statement about no cases involving the content since the 70s. I think that's probably an exaggeration, but the fact is in the mid-1980s, the FCC itself concluded that its rationale for why it could regulate broadcasting more robust than other media had expired. The scarcity doctrine that the FCC's authority was based on was no longer valid. Congress said the same thing when it adopted the Telecommunications Act of 1996. It's all right there in US History.

Nico Perrino: The scarcity, that's the broadcast spectrum that's limited.

Bob Corn-Revere: The theory is that the broadcast spectrum is limited, and because of that, we have to license it, and because we have to license it, we can also regulate, to a certain degree, what content is carried on those frequencies. It has always been a very limited authority and even more so now that the FCC has basically given up the game that that rationale is no longer valid.

Ronnie London: Or so we thought.

Bob Corn-Revere: But during the 1980s and into the '90s, there was a robust debate over that, and that's why the former policy known as the Fairness Doctrine was abandoned because the FCC had said, "We no longer have this authority," and that's why there have been no cases during that period or since that period in which the FCC has tried to use the public interest standard as a cudgel to get broadcasters to fall in line behind the editorial preferences of a given administration, but now we hear the new chairman of the FCC, Brendan Carr, actively saying, "We have this club, and we're gonna use it."

Nico Perrino: So, is it fair to say that prior to Brendan Carr's FCC chairmanship, it was widely held that all the FCC could do was regulate the means of broadcast distribution, not the content in programming.

Bob Corn-Revere: Well, there are some vestigial rules that still exist, and by the way, there is a policy, not a rule, about news distortion, but it is one that was born in the 1960s when the FCC's authority was considered to be at its peak. It has not been used, and even when it has, it relates to things like totally made up stories, like Orson Wells' War of the Worlds, rather than simply not liking the way a news program has done its editing. It has nothing to do with that, and so it is a completely vacuous complaint, even under the news distortion policy as it existed in its heyday.

And, the point is that the regulatory atmosphere that surrounds the FCC now would never permit that, and that's the other thing, too. By the way, the Supreme Court made clear that regulatory agencies, as we're trying to get rid of the administrative state, don't have the authority to apply the law to the maximum extent that they want to where Congress has defined what the limits of their authority are.

Nico Perrino: This is the Loper Bright case that overturned the Chevron Doctrine.

Bob Corn-Revere: The Loper Bright case that overturned the Chevron Doctrine that basically said it is up to the courts, not to administrative agencies, to apply the law, something that Chairman Carr has cited frequently, including in the rule-making that Ronnie was talking about earlier. He cited the Loper Bright case and said the FCC doesn't have this kind of authority. He seems to have forgotten that in the intervening months.

Ronnie London: And, he seems to have forgotten it also in his references to Section 230 in the FCC having any role whatsoever in interpreting it and applying it. There is nothing whatsoever in the Communications Act that would suggest that's the case, even though that's where Section 230 lives, and I don't know how in the wake of Loper Bright there would be any claim without some kind of congressional act that the FCC has a role.

Bob Corn-Revere: Well, and it's not just in the extension of administrative power through applying rules and so on. Here, looking at the CBS case in particular where the news distortion complaint was over the way in which CBS edited Kamala Harris' answer during 60 Minutes, and so this was brought to the FCC by an activist political group, dismissed by Jessice Rosenworcel in her last days as chairman, and then reinstated by Brendan Carr. But, he didn't just reinstate the complaint. He put it out on a public notice seeking public comment.

Now, what's wrong with that? The FCC routinely asks for public comment when it comes to making rules in notice and comment rule-making proceedings, but I can't think of any FCC case where in an enforcement action the FCC is inviting people to provide public comments for whether or not they think someone violated a rule or a policy. It's –

Ronnie London: Well, you've got to find the one where the boss has a lawsuit pending against that very broadcast, right?

Bob Corn-Revere: Yeah. I mean, essentially it is conducting a show trial about whether or not those people who file comments with the FCC like CBS editorial policies.

Nico Perrino: The 60 Minutes segment that you're referencing with Kamala Harris, they turned over the raw footage from that interview.

Bob Corn-Revere: That's right.

Ronnie London: And the transcript.

Nico Perrino: Has that ever been done before? Did the FCC force them to do that or did they –

Bob Corn-Revere: Well, there have been cases where outtakes and footage have been provided. I'll give you one example, the 2004 Superbowl indecency investigation where Ronnie and I, when we were in private practice, defended CBS in the indecency complaints against the network for the Superbowl broadcast and the wardrobe malfunction.

Nico Perrino: Janet Jackson, yeah, and Justin Timberlake.

Bob Corn-Revere: Exactly. And, there, as part of the investigation, the FCC demanded the shooting scripts and all kinds of information, including tapes of dress rehearsals, and we all provided that to the FCC as part of that investigation because it basically showed that this isn't something that was planned by CBS. But, typically, particularly when it comes to news programming, CBS has a history of resisting that kind of demand for outtakes, and that goes back to documentaries like the selling of the Pentagon in the 1970s when Congress demanded outtakes and other editorial information. CBS resisted that, and Congress backed down.

Here, because CBS has a merger pending, Paramount and Skydance, there wasn't much pushback, but nonetheless, if you get the full transcripts, and they are now available publicly, they really indicate that this was simply a standard case of editing where you take a politician's rambling answer and make it more concise because you can only have so much time in a broadcast.

Nico Perrino: Yeah. That's something Fox News has done with Trump.

Bob Corn-Revere: Well, yeah. Exactly. And, their wide coverage of the Fox News barbershop interview with candidate Trump in which he was asked multiple times what he would do about taxes, and it took him a long time to get to an answer. But, what you finally saw on the Fox broadcast was a question and an answer. Now, some people would call that deceptive. Again, I would call that editing because we don't hold politicians to very high standards when it comes to how articulate they are. That went out with Obama.

Nico Perrino: So, we've talked about broadcast networks, but Ronnie brought up Section 230 as well, which applies to the internet. It's a liability shield that's applied to internet service providers, and there Carr seems to be flexing his muscles in a way the FCC hasn’t as well.

Bob Corn-Revere: He has taken a position that was floated by the first Trump administration and that is that the FCC has some role in interpreting what he calls the ambiguous provisions of Section 230.

Nico Perrino: The Good Faith Provision, right?

Bob Corn-Revere: The Good Faith Provision of Section 230(c)(2), but the point is that's the exact issue that the Supreme Court in Loper Bright addressed, saying that under the Chevron Doctrine, which allowed agencies to have deference when they interpreted "ambiguous provisions." That doctrine is no more. The Supreme Court put an end to it, and so the kind of flexibility and the home court advantage that administrative agencies counted on simply doesn't exist. And, the theory that the FCC has some role in interpreting what Section 230 means is simply wrong.

Ronnie London: Yeah. I mean, that 230 lever is one that always gets, if not pulled, somebody's got their hand on it looking expectantly toward you, and it's not just this administration. It was the last administration. It's always, if you don't fix what we don't like, and you can fill in the blank. We don't like misinformation, harming youth, whatever it is. If you don't fix it, we're gonna yank your Section 230 immunity. That's always the threat, or alternatively, we're gonna interpret it a way through an administrative agency or reinterpret it narrowly, which is the opposite of what courts have done. Courts have found that the 230 immunity is quite broad and protects against a great deal of liability for user-generated content.

And, that's the whole idea, right? We wouldn't have social media. We wouldn't have the internet we have today if every online entity who allows third-party content onto their service or site had to be potentially liable for it because it means they'd have to look at every single thing, which is just impossible, given the volume that we're talking about. And, they would have to be far more little C conservative with what they allow for fear of assuming liability, and when you start threatening, oh, we'll just take that away or we'll overrule the courts administratively, that's another way to try and get social media companies to come to the table.

Nico Perrino: Ironically, it'll mean that more content gets taken off the internet.

Bob Corn-Revere: That's right.

Ronnie London: Exactly.

Nico Perrino: Which is the exact thing that conservatives don't want to happen.

Ronnie London: They say.

Bob Corn-Revere: Exactly. But, the threats to Section 230 are completely bipartisan. Both administrations, the Biden administration and the Trump administration, have done it, and they do it simply because it's a power play. It's a lever that they know they can use to threaten big tech.

Nico Perrino: Well, the thing that Brendan Carr doesn't like, and the reason that he sent the letter to the CEOs of Google, Apple, and Meta, was the use of this thing called NewsGuard, which is a fact-checking tool. This is part of the administration's frustrations with mis- and disinformation. It's what they're also alleging that the AP is engaged in. They said that using NewsGuard might open them up to the Good Faith exception in Section 230 because using NewsGuard isn't an exercise of good faith. I don't quite understand the argument.

Ronnie London: Well, it's funny because of the Good Faith exception, people seem to think that it applies to all of Section 230, but 230 has two parts to it. There's one part of Section 230, which is (c)(1), if anyone cares about the statutory designation that says essentially, and I'm paraphrasing here, that an interactive computer service shall not be liable for the content of another service provider.

Bob Corn-Revere: They won't be treated as the publisher.

Ronnie London: Right. They won't be treated as the publisher, which means they won't take on liability for the content of another content provider, and by the way, that applies also to users of the service, not just the provider of the service. Section (c)(2) is the other side of that coin, which says they can't be held liable for not putting something up, not publishing something as an exercise of their editorial discretion, and that's where it says in good faith –

Nico Perrino: Yeah. I've got the text here. It says, "Any action voluntarily taken in good faith to restrict access to, or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected," yada, yada, yada. It continues, so the suggestion here is that using a fact-checking tool like NewsGuard to inform how you take down the content is not an exercise of editorial discretion that's in good faith.

Ronnie London: Well, no. The interesting part is that what you just read talks about taking down content, and arguably there's some kind of good faith requirement there, although the courts have varied on what it means, if anything, but using NewsGuard does not result in anything being taken down. It results in getting a checkmark or another designator as to whether it's sufficiently factual, so it has nothing to do with Section (c)(2).

Bob Corn-Revere: Yeah. NewsGuard is a private entity. It uses journalistic standards, and it's transparent about them for why it gives different news organizations the ratings that it does, and so for Brendan Carr in his letter to the big tech companies to complain about NewsGuard is really missing the point. And, whether or not someone relies on NewsGuard, or some other source, that is entirely up to them, and they can decide whatever standards, journalistic or otherwise, they want to use in their moderation practices.

And, that's the other thing about the letter. It included a letter to the chairman of Apple, which doesn't run a social media network, has nothing to do with it, so I don't understand.

Nico Perrino: Maybe they host a NewsGuard app. I don't know.

Bob Corn-Revere: Whatever the reason was, it was this indiscriminate broadside saying that we don't want you using these private actors and private businesses for rating content, which everyone has the right to do.

Nico Perrino: Closing out the FCC discussion, the title is A Plea for Institutional Modesty, Bob, what you're saying there to Brendan Carr is you don't have as much power as you think you do.

Bob Corn-Revere: Right. It's almost like a paraphrase of the Princess Bride line. That word doesn't mean what you think it means. And, that's part of the problem, both in terms of the statutory mandate that the FCC has. The ability to regulate content has always been more modest than many chairmen think that it is, and the courts have brushed them back from the plate numerous times on that. There are constitutional limits that have been broadly recognized, and that extends not just to actual actions, rule makings and enforcement actions by the FCC, but also to threats of actions.

And, that's something that has been called by the courts as regulation by raised eyebrows. The DC Circuit on numerous occasions has told the FCC that it can't engage in that practice, and just this last term the Supreme Court in NRA versus Vullo said that that kind of government jawboning can violate the First Amendment. If you're trying to flex regulatory power to get someone to behave or to censor themselves over something that the government doesn't like, that crosses a First Amendment line.

And so, with not just established precedent, but this recent precedent, it makes it all the more astonishing that you would have the head of the Federal Communications Commission issuing threats and trying to flex those kinds of regulatory muscles.

Nico Perrino: Closing out the FCC, I wanna turn to Elon Musk. He's been Tweeting a lot lately as he's engaged in this Department of Government Efficiency, DOGE, project. There was reporting done in the Wallstreet Journal by a reporter, Katherine Long, who I guess was a former US Aid employee prior to becoming a journalist with the Wallstreet Journal. He didn't like that she was reporting on the activities of DOGE within US Aid and naming some of the DOGE personnel who were involved in the project, and he said that she should be fired immediately. There were suggestions all over X that reporting the names of these government officials was doxing. Is it doxing?

Bob Corn-Revere: No.

Nico Perrino: What does doxing mean? What does it mean now?

Bob Corn-Revere: Well, it seems like it's a very broad definition, according to Elon Musk.

Ronnie London: It means whatever you need it to mean.

Nico Perrino: Well, historically, it's come to mean the distribution often with the intent to intimidate personal information.

Bob Corn-Revere: Of personal information.

Nico Perrino: Like social security numbers.

Bob Corn-Revere: Addresses, phone numbers, things like that.

Ronnie London: Addresses, phone numbers, those kinds of things so that people can bring pressure to that person, but simply naming people rather than allowing them to be a shadow behind the curtain government employees who are dismantling the government, that's not doxing. That's reporting, and so it's convenient for –

Nico Perrino: And, doxing itself is First Amendment protected activity.

Ronnie London: It is.

Nico Perrino: To the extent the information is lawfully obtained.

Bob Corn-Revere: That's right. And so, to hear that is disconcerting, but also there's a lot of loose talk from Elon Musk about jailing people, like this person, but also editors of 60 Minutes.

Nico Perrino: Yeah. He said they deserve a long prison sentence for that Harris interview that we've been talking about.

Bob Corn-Revere: Well, that's right. Now, this would all come across a little bit better if Musk himself didn't look like a bond villain, but he, in addition to claiming to be a free speech absolutist and a free speech warrior – and I give him credit in certain areas for that. Again, as Ronnie said, if you're bad in some areas on free speech, you're bad on free speech as a general proposition, and in this country we don't talk about jailing people for their reporting and for their words.

Ronnie London: Yeah. I think I'll tell you – I mean, you know where I stand on even the categories of unprotected speech, but when someone calls themselves a free speech absolutist, I always kind of raise an eyebrow and wonder if they know what they're talking about.

Bob Corn-Revere: Well, that's right, because I've never met a free speech absolutist.

Ronnie London: Yeah.

Nico Perrino: Who's the closest that's come to it for you, Bob, and for you, Ronnie, as a brief aside? You go black in some senses?

Bob Corn-Revere: But, you see, that's the thing. I don't think the word absolutist carries much meaning because there is always going to be – for everyone, there will be a line. There will be a limit, whether you're talking about, in the words of the Supreme Court in the University of Minnesota, publishing the locations of troops or the sailing that they schedule for sailing troop ships. There will always be some kind of limit, and what we do in this country is, as I mentioned earlier, you keep them very carefully defined to certain exclusive categories.

Nico Perrino: Musk has called himself a free speech absolutist. At the same time, he is calling for the jailing of journalists.

Ronnie London: Once he acquired Twitter, and it became X, he did release what were called the Twitter files that provided a window into this behind-the-scenes manipulation by the Biden administration and starting with the Trump administration leaning on social media platforms.

Nico Perrino: Was this a form of jawboning?

Bob Corn-Revere: Well, there are a lot of really complicated law school exam-type questions that come out of this where you have someone who is sort of a government employee and sort of not – they call him a special government employee – who happens to own a huge social media platform, and he's conducting government business over that platform. The question is whether or not he has turned himself and his platform into a public forum subject to constitutional rules. There are many questions that arise out of this, but the first of them is how seemingly is it for having someone in that position talking about jailing people for their speech?

Nico Perrino: Do you have any thoughts on that Ronnie? Is it jawboning to have a government official like Elon Musk saying that certain journalists should be jailed for their –

Ronnie London: Oh, absolutely. I mean, again, if you accept the premise that he's a government official, and that's kind of nebulous and remains to be tested. I think he's a –

Nico Perrino: But you have de facto and de jure, right?

Ronnie London: Exactly.

Nico Perrino: For all intents and purposes, he's a government official. He's telling all his teams to go into these different –

Ronnie London: Right. No, no. I would tend to agree with that, but I mean –

Bob Corn-Revere: I think you could bring a constitutional claim against Musk for performing this role and threatening people's speech.

Ronnie London: Yeah. And, when you threaten people's speech with apparent authority to do something about it, as Bob said in the Vullo case, the court reminded us that that's unconstitutional.

Bob Corn-Revere: Particularly by someone who aspires to have access to your tax returns.

Ronnie London: And, even if you don't have the authority, but you come across as having the authority or threaten to be able to bring the authority to bear, that's sufficient. And, even if you ultimately fold up your tent and go home, as they put it in the Backpage case where Sheriff Dart came after them, the threat itself is still actionable. The fact that you levied the threat, even if you never follow through on it, is a constitutional violation.

Nico Perrino: I wanna close out here. There was another executive order issued on Trump's first day in office protecting the United States from foreign terrorists and other national security and public safety threats. This was their effort to go at pro-Palestinian protestors on college campuses, particularly those who are here on student visas or aren't naturalized United States citizens. There was a fact sheet associated with this that made it very clear that this is what they are trying to do. The order itself comes across as more cabined, but it's raised this larger question of what are the First Amendment rights of foreigners when they are in the United States and subject to the United States' jurisdiction?

Bob Corn-Revere: Well, if you're in the United States, the First Amendment does protect you, and it is the law that we have to obey in this country. And, while I understand some objectives that you can say are praiseworthy, when you have something that is drafted this broadly and this indiscriminately – for example, this executive order says that we're going to prevent people from espousing hateful ideology. We're going to make sure the people do not bear hostile attitudes towards United States citizens, culture, government institutions, or founding principles. Now –

Ronnie London: Right. Don't you dare say that counting someone as three-fifths of a person was a bad idea. Don't you dare or you're out of here.

Bob Corn-Revere: Exactly. And so, essentially what they have done is define the First Amendment into what they want to prohibit.

Nico Perrino: But, Bob, you say that to the extent these foreigners are in the United States, they get full First Amendment freedoms?

Bob Corn-Revere: Well, yes, unless they're violating some other law. If you're just simply going to say that we're going to exclude you because we don't like your attitudes, then that is a constitutional line you can't cross.

Nico Perrino: Can they exclude you prior to your arriving here for viewpoint-based reasons?

Bob Corn-Revere: There is more authority for the government to keep people out of the United States than to deport them once they're here.

Nico Perrino: Okay. Ronnie, anything else to add on this? I mean, this is sending the wrong message to students studying here in the United States. Yeah, you can come here, but you can't really enjoy the full freedom to speak your mind, question the unquestionable, challenge the unchallengeable, as Yale puts it, when you're in a university classroom because you might violate this executive order and get the boot.

Ronnie London: Yeah. Well, and by the way, it's not just the executive order that's a problem because you've got these lingering, if not speech codes on campus, certainly an orthodoxy on campus, and if the administration thinks that you've said something, I don't know, just pick something, I don't know, antisemitic, and they suspend you or expel you, well, your Visa requires you to be actively in school as an enrolled student. Next thing you know, you've said the wrong thing. You're not just kicked out of school. You're kicked out of the country.

Nico Perrino: And, this is one of the reasons that colleges and universities haven't been applying punishment, even to students who engage in acts of violence on campuses because the consequence for these students is greater than a suspension, for example. You have to leave the country, and you're probably not getting back in at that point, right?

Ronnie London: Yes, but they have sanctions at their disposal where you have broken rules by doing something violent or vandalizing or destroying parts of a building or whatever. There are disciplinary things that a school can do short of suspension or expulsion that would subject you to losing your Visa, and they're not doing that either.

And, that's a bit of a problem because you can't protect free speech adequately or fully on campus if when you transcend speech into unlawful conduct you don't punish because either you're protecting a body of activity, both expressive and non-expressive, which renders the idea of free speech and engaging in ideas somewhat meaningless, or you're doing it the other way and you're punishing everything, both the unlawful conduct and the speech that you might've simply been engaging in while someone else was doing something unlawful nearby to you that you had nothing to do with, had no idea it was gonna happen. And, next thing you know, you're in the administration's office.

Nico Perrino: Yeah. I don't remember if it was a fact sheet or some other statement, but the suggestion seemed to be that if you are participating in a protest and something somewhere within the protests transgresses First Amendment protected activity, maybe someone's violent, maybe I don't know – was it the Louisiana protest where someone threw a rock at police officers and DeRay McKesson was held accountable for something that happened elsewhere in the protest.

Bob Corn-Revere: That's right.

Nico Perrino: You could be held liable for it.

Bob Corn-Revere: Right. And, that is a problem, and the Supreme Court, when that case came to it for the second time basically sent it back to the lower court saying it basically got real.

Nico Perrino: But, colleges do have a duty to prohibit and punish violent unprotected conduct, right? That's what Nazi, Germany didn't do. You had brooding gangs in the streets targeting political dissenters, went unpunished, and so they felt like they had license at that point.

Bob Corn-Revere: That's right. Violence and property destruction are not examples of free speech.

Nico Perrino: It's the antithesis.

Bob Corn-Revere: Political assassination sends a message, but it's not protected expression.

Ronnie London: Right. We have free speech so you don't have to do those things.

Bob Corn-Revere: Exactly.

Nico Perrino: All right, guys. I think we've covered as much as I think we need to in the course of this hour and 15 minutes or so. I thank you both for joining again. It's Ronnie London, FIRE's general counsel, and Bob Corn-Revere, FIRE's chief counsel. Hope to have you guys back on the show sometime soon.

Bob Corn-Revere: Thanks, Nico. It's always fun to be here.

Nico Perrino: I have my outro. This podcast is hosted and recorded by me, Nico Perrino, edited by Aaron Reese, and produced by Sam Li. You can find us on the major social media networks. We're on X. We're on Substack. We're on – what else are we on, Sam? We're not on Instagram anymore. We stopped doing some of the platforms, but you can email us at sotospeak@thefire.org with any comments or questions that you might have. Please leave us a review on Spotify or Apple Podcasts, wherever you get your podcasts. It does help us attract new listeners to the show, and until next time, I thank you all again for listening.