Hearings to examine Big Tech and silencing Americans.

1[Senate Hearing 119-290]2[From the U.S. Government Publishing Office]34                                                        S. Hrg. 119-29056                 SHUT YOUR APP: HOW UNCLE SAM JAWBONED7                   BIG TECH INTO SILENCING AMERICANS8=======================================================================910                                HEARING1112                               BEFORE THE1314                         COMMITTEE ON COMMERCE,15                      SCIENCE, AND TRANSPORTATION16                          UNITED STATES SENATE1718                    ONE HUNDRED NINETEENTH CONGRESS1920                             FIRST SESSION2122                               __________2324                            OCTOBER 8, 20252526                               __________2728    Printed for the use of the Committee on Commerce, Science, and29                             Transportation3031[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]3233                Available online: http://www.govinfo.gov3435                                __________3637                   U.S. GOVERNMENT PUBLISHING OFFICE3862-821 PDF                  WASHINGTON : 202639-----------------------------------------------------------------------------------4041       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION4243                    ONE HUNDRED NINETEENTH CONGRESS4445                             FIRST SESSION4647                       TED CRUZ, Texas, Chairman48JOHN THUNE, South Dakota             MARIA CANTWELL, Washington,49ROGER WICKER, Mississippi                Ranking50DEB FISCHER, Nebraska                AMY KLOBUCHAR, Minnesota51JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii52DAN SULLIVAN, Alaska                 EDWARD MARKEY, Massachusetts53MARSHA BLACKBURN, Tennessee          GARY PETERS, Michigan54TODD YOUNG, Indiana                  TAMMY BALDWIN, Wisconsin55TED BUDD, North Carolina             TAMMY DUCKWORTH, Illinois56ERIC SCHMITT, Missouri               JACKY ROSEN, Nevada57JOHN CURTIS, Utah                    BEN RAY LUJAN, New Mexico58BERNIE MORENO, Ohio                  JOHN HICKENLOOPER, Colorado59TIM SHEEHY, Montana                  JOHN FETTERMAN, Pennsylvania60SHELLEY MOORE CAPITO, West Virginia  ANDY KIM, New Jersey61CYNTHIA LUMMIS, Wyoming              LISA BLUNT ROCHESTER, Delaware62                 Brad Grantz, Republican Staff Director63           Nicole Christus, Republican Deputy Staff Director64                   Lila Harper Helms, Staff Director65                 Melissa Porter, Deputy Staff Director6667                           C O N T E N T S6869                              ----------70                                                                   Page71Hearing held on October 8, 2025..................................     172Statement of Senator Schmitt.....................................     173    Prepared statement of Hon. Ted Cruz, U.S. Senator from Texas.     374Statement of Senator Cantwell....................................     475Statement of Senator Klobuchar...................................    3076Statement of Senator Fischer.....................................    3177Statement of Senator Moreno......................................    3578    Letter dated April 11, 2018 to Hon. Ajit Pai from Senators79      Cantwell, Udall, Murray, Warren, Wyden, Markey, Blumenthal,80      Smith, Sanders, Merkley, Baldwin and Booker................    3681Statement of Senator Rosen.......................................    4782Statement of Senator Blackburn...................................    4983Statement of Senator Markey......................................    5184Statement of Senator Peters......................................    5385Statement of Senator Lujan.......................................    5586Statement of Senator Blunt Rochester.............................    5787Statement of Senator Hickenlooper................................    608889                               Witnesses9091Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover92  Institution, Stanford University...............................     693    Prepared statement...........................................     894Alex Berenson, Independent Journalist and Author.................    1895    Prepared statement...........................................    2096Sean Davis, Chief Executive Officer, The Federalist..............    2197    Prepared statement...........................................    2398Gene Kimmelman, Senior Fellow, Tobin Economic Policy Center, Yale99  University.....................................................    26100    Prepared statement...........................................    27101102                                Appendix103104Letter dated October 8, 2025 to Hon. Ted Cruz and Hon. Maria105  Cantwell from The Leadership Conference on Civil and Human106  Rights.........................................................    65107Writers Guild of America West (WGAW) and Writers Guild of America108  East (WGAE), prepared statement................................    69109Letter dated October 3, 2024 to Hon. Jessica Rosenworcel, Hon.110  Anna Gomez and Hon. Geoffrey Starks from Senator Mike Lee......    22111Letter dated June 8, 2022 to Hon. Jessica Rosenworcel from112  Senator Marco Rubio, Senator Rick Scott, Senator Tom Cotton;113  and Members of Congress: Carlos Gimenez, Maria Elvira Salazar114  and Mario D!az-Balart..........................................    75115Response to written questions submitted to Eugene Volokh by:116    Hon. Ted Cruz................................................    77117    Hon. Maria Cantwell..........................................    78118Response to written questions submitted to Gene Kimmelman by:119    Hon. Maria Cantwell..........................................    79120    Hon. Amy Klobuchar...........................................    81121122                             SHUT YOUR APP:123        HOW UNCLE SAM JAWBONED BIG TECH INTO SILENCING AMERICANS124125                              ----------126127                       WEDNESDAY, OCTOBER 8, 2025128129                                       U.S. Senate,130        Committee on Commerce, Science, and Transportation,131                                                    Washington, DC.132    The Committee met, pursuant to notice, at 10:31 a.m., in133room SR-253, Russell Senate Office Building, Hon. Eric Schmitt,134presiding.135    Present: Senators Schmitt [presiding], Fischer, Blackburn,136Sullivan, Moreno, Sheehy, Cantwell, Klobuchar, Markey, Peters,137Rosen, Lujan, Hickenlooper, Fetterman, and Blunt Rochester.138139            OPENING STATEMENT OF HON. ERIC SCHMITT,140                   U.S. SENATOR FROM MISSOURI141142    Senator Schmitt [presiding]. We will call this Commerce,143Science, and Transportation Committee meeting to order.144    The author of the great book ``Dune'', Frank Herbert, set145the table for what techno-totalitarianism looked like. Once men146turned their thinking over to machines in the hope that this147would set them free, but that only permitted other men with148machines to enslave them.149    In the West, we are headed down this path toward thought150crime enslavement. In the United Kingdom, 30 Brits are arrested151per day for speech-related offenses. In the EU, the Digital152Services Act is creating a censorship regime that would make153Communist China blush. In the United States, before President154Trump's return to power, the American vast censorship155enterprise sought to control speech, to control how we think,156and to influence national discourse and elections.157    In 2022, as the Attorney General of Missouri, I filed a158landmark lawsuit, Missouri v. Biden, which Justice Alito called159one of the most important First Amendment cases in American160history. Through the lawsuit uncovered a vast censorship regime161perpetrated by the Biden administration, I saw all the e-mails,162I saw all the text messages. I deposed senior government163officials including Anthony Fauci.164    Missouri v. Biden uncovered for the American people how the165Biden administration built one of the largest censorship166operations in American history by working in secret through167third parties, pressuring, bullying, threatening, jawboning big168tech into suppressing viewpoints that they disagreed with.169    Jen Saki boasted about flagging disinformation with170Facebook. The Biden White House was revealed to have been171backchanneling with YouTube about suppressing disfavored172speech, suppressing things like the lab-leak theory. White173House Digital Director Rob Flaherty pressured platforms like174Facebook and YouTube to censor all kinds of COVID-related175speech. Joe Biden said Facebook was killing people.176    Last week, Chairman Cruz and the Senate Commerce Committee177released a report that revealed more details about how the178Biden administration, as part of this larger censorship179operation, weaponized the Cybersecurity and Infrastructure180Security Agency, or CISA, into an agent of censorship,181pressuring big tech to police speech.182    The Biden administration's collusion with big tech and non-183governmental organizations to censor speech, infringed on the184individual freedoms of millions of Americans to limit what they185could say, what they could hear, and what they could read.186    Fortunately, President Trump won a historic victory and on187January 20, 2025, the first day of his second Presidential188term, President Trump signed an executive order titled189``Restoring Freedom of Speech and Ending Federal Censorship''.190But the story of censorship does not begin and end with the191Federal Government. Big tech was censored--was censoring long192before Presidential job owning and I imagine will continue to193censor long after.194    Here are some instances of pre-Biden censorship. All of big195tech censored the Hunter Biden laptop story. Google banned196COVID skepticism. Twitter shadow banned and suspended197conservatives. Facebook throttled posts from pages like The198Federalist in the New York Post. Facebook flagged and removed199posts questioning voter ID laws and ballot harvesting.200    Two of today's witnesses, Alex Berenson and Sean Davis were201direct targets of this censorship operation and were202deplatformed, shadow banned and silenced for their viewpoints.203Congress should address this problem with decisive legislative204action like my Collude Act or my Censorship Accountability Act,205both of which hold big tech and government sensors accountable.206    I look forward to hearing from our witnesses about what207Congress and this Committee can do to make sure that no208American, regardless of their political leanings, ever learns209that the Federal Government, entrusted with protecting their210First Amendment Rights, is actually working to undermine them211behind closed doors.212    Our Founding Fathers recognized that freedom of speech is213vital. Protecting it is first and foremost in the Bill of214Rights. While some argued that free speech was already215protected because the Constitution did not give the government216power to censor, the framers went further, affirmatively217restricting government intrusion.218    The First Amendment is the beating heart of our219Constitution. Free speech is not just instrumental but an end220to itself in the digital age with all the peril and possibility221that accompanies it, the struggle for free speech is the222struggle for civilization itself.223    I want to thank the witnesses for being here today and look224forward to their testimony.225    And I will, before I turn it over the Ranking Member for226her opening remarks, request that Chairman Cruz's opening227statement be entered into the record.228    Without objection.229    [The prepared statement of Chairman Cruz follows:]230231      Prepared Statement of Hon. Ted Cruz, U.S. Senator from Texas232    In a free society, the people govern--not by mob or might--but by233reasoned argument and the rule of law. Essential to keeping a society234free is the ability of a citizenry to speak freely and debate openly235without fear of government reprisal. That ability--to think and speak236one's mind--enables a society to hold its government to account. It's237so critical that our Founders made this natural right a238constitutionally protected one.239    The First Amendment is a powerful weapon against the government's240ability to publicly censor its own citizens. But in recent years, we241have seen the government censor in secret through third parties,242``jawboning'' Big Tech into suppressing user content, often under the243guise of ``safety'' or ``national security.''244    It starts subtly. Officials say they are combatting foreign245disinformation campaigns from the Russians or the Chinese. Next, they246clamp down on anyone re-posting such content. Then, government247officials curtail speech that undermines their own positions.248    Tweeting about COVID-19 vaccine mandates or the efficacy of wearing249a mask? Sorry, that's a ``safety'' issue. Questioning mail-in voting?250That's a threat to critical election infrastructure.251    And so, our government becomes the speech police--the arbiter of252truth--silencing those that disagree.253    Last week, I released a report detailing how the Biden254administration weaponized the Cybersecurity and Infrastructure Security255Agency to pressure Big Tech into policing speech. Two of today's256witnesses--Alex Berenson and Sean Davis--were personally targeted by257our government. At the behest of government officials, Mr. Berenson was258completely deplatformed for having the temerity to challenge the Biden259COVID narrative. Mr. Davis was shadow-banned for questioning the260integrity of mail-in voting.261    But the silencing didn't stop there. The Biden administration262sought to bring its censorship playbook into the Age of AI. It ``volun-263told'' AI developers to allow the National Institute of Standards and264Technology to test AI products for misinformation and ``harmful''265speech. The National Science Foundation funded propaganda tools.266    By controlling AI inputs and outputs, the Biden administration was267deciding what information Americans could see and consume--an effort268that continues with laws in California, Colorado, and New York.269    Now censorship is growing around the world. In the United Kingdom,270more than 12,000 Britons are arrested every year for speech-related271offenses, according to the Times of London. My CISA (siss-uh) report272shows why, in this context, the United States must remain a free speech273beacon, zealously guarding against censorship regardless of who is in274office.275    A few weeks ago, I received a letter from nearly every Democrat on276this Committee calling for a hearing to stop an ``unprecedented attack277on the First Amendment.'' The letter rightly stated that ``government278officials cannot attempt to coerce private parties in order to punish279or suppress views that the government disfavors.''280    But my colleagues weren't referring to the silencing of Messrs.281Berenson and Davis or any of the other countless Americans censored282during the previous administration. They were coming to the defense of283Jimmy Kimmel, whose unpopular show was suspended by ABC following284critical comments from the FCC Chairman.285    I've been clear on my views about Chairman Carr's comments.286    But I must ask my colleagues: Where were you when the Biden287administration was silencing the American people?288    Maybe it's too much to ask Democrats to defend the First Amendment289regardless of who is in power, not just when it is politically290convenient.291    No government official--regardless of party--should be engaged in292jawboning. The First Amendment is not about opinions you agree with.293It's not about opinions that are right and reasonable. The First294Amendment is about opinions that you passionately disagree with and the295right of others to express them. I am one who agrees with John Stuart296Mill: the best solution for bad ideas, for bad speech, is more speech297and better ideas. We don't need to use brute force to silence them298because truth is far more powerful than force.299    In the coming weeks, I will be introducing legislation to prohibit300government jawboning and empower Americans to hold government officials301accountable.302    As we'll hear today, Alex Berenson and Sean Davis face major303hurdles in seeking remedies after the government launched secret304censorship campaigns against them. My bill will fix that problem.305    I'll give my Democrat colleagues a chance to redeem themselves:306Join me in standing up for free speech by working to advance this307legislation and stop censorship by government officials.308    I thank the witnesses who are here with us today, and I look309forward to this critical discussion about how we can protect freedom of310thought in our country.311312    Senator Schmitt. Ranking Member Cantwell.313314               STATEMENT OF HON. MARIA CANTWELL,315                  U.S. SENATOR FROM WASHINGTON316317    Senator Cantwell. Thank you. Thank you, Mr. Chairman. And318welcome to our witnesses. Thank you for joining us this319morning. These issues of the media, and consumers, and free320speech, very important issues for us to discuss in an era where321consumers are paying more, where not enough competition exists,322where deals are getting done that lead to fewer choices, less323local news. I do have an important question. Where is Chairman324Carr?325    Americans are paying and spending more money on content326that used to be free more than ever before. And just a few327weeks ago, we witnessed a deeply troubling episode. The FCC328Chairman demanding ABC take immediate action against Jimmy329Kimmel for tasteless remarks and saying, quote, ``We can do330this the easy way or the hard way'', end quote. A line that331Senator Cruz rightly criticized as something quote, ``Right out332of Goodfellows'', end quote.333    Within hours, the Nation's largest ABC affiliate, NextStar334and Sinclair, announced they would preempt the show335indefinitely, and shortly thereafter, ABC suspended Jimmy336Kimmel Live altogether. While ABC, NextStar, and Sinclair have337since returned Mr. Kimmel to the air, that chain of events338should alarm every American, because the power of the FCC was339never meant to weaponize against a President or political340targets.341    Let me be clear. Chairman Carr does not have the authority342to police speech, nor does he or the White--that he or the343White House finds offensive. He does not have the authority to344threaten licenses based on content decisions. And this is345especially true when those same companies have mergers and346licensings pending before the FCC.347    That is exactly the kind of political interference,348chilling effect on free speech that the First Amendment was349designed to prevent. We need to hold Chairman Carr accountable350for these threats. And that is why I have called on us to have351a hearing and hopefully that will happen sometime in the near352future.353    There is a need to have oversight on this, and I hope that354this hearing does happen without further delay. Professor355Volokh, am I saying that right, Volokh?356    Mr. Volokh. Yes.357    Senator Cantwell. Thank you--said in his testimony, quote,358``FCC Chairman Brendan Carr's statement about Jimmy Kimmel may359likewise have threatened retaliation in a way that would360violate the First Amendment'', end quote.361    So the point on this there is broad agreement. Free362expression is not a partisan issue. It is the bedrock of our363democracy. So this is in a long list of issues about the First364Amendment, I think, the President is making pretty much a365standard issue.366    Just last week, the Federal Court found that the367administration violated the First Amendment by arresting,368detaining, and deporting non-citizen students and faculty369members for their pro-Palestinian advocacy. This follows the370White House revocation of the Associated Press' credentials for371refusal to use the term, ``Gulf of Mexico'', clearly an attempt372to police the language and intimidate free speech.373    Meanwhile, the administration continues to wield the full374power of the Federal Government to retaliate against law firms375the President does not like and threaten funding for376universities he disfavors.377    It is alarming to see the administration use its regulatory378and informal authority to unlawfully and infringe on free379speech, the free press, and the First Amendment. And it is380important that we also understand the broader context here.381That is why Mr. Kimmelman, I am so glad to see you here today.382    Local journalism in America is already under extraordinary383strain. The Commerce Committee has documented how online384platforms monopolize advertising, siphon revenue away from385local newspapers and broadcasters, and the result has been386newsroom closures, layoffs across the country, and even as the387public trust in local journalism remains at an all-time high.388    At the same time, media consolidation has been concentrated389into fewer hands. Since 2005, the U.S. has lost almost one-390third of its newspapers. This year alone, 127 newspapers391closed. Nearly 55 million Americans have limited or no access392to local news, disproportionately affecting rural areas. That393leaves new outlets more vulnerable to political and corporate394pressures and leaves the public without further resources of395getting to true competition, which I believe gets us to the396truth.397    If Chairman Carr can threaten one network over a single398late-night host and his message, what kind of message does that399send to local broadcasters in Seattle or Houston? Do they lose400their licenses if they are reporting or they are crossing the401White House? This kind of intimidation undermines the very402foundation of the free press.403    I want to be clear, protecting a free press does not mean404ignoring the dangers of harmful hate speech. I have expressed405concerns about companies like Facebook, Google, and X on issues406that really did threaten the lives of individuals. And I know407that we will hear a lot about what the Biden administration did408in these areas. But let us not forget the Supreme Court409rejected allegations of the Biden administration censorship410because the record showed that social media companies,411``Continued to exercise their independent judgment'', and had,412quote, ``Independent incentives to moderate content'' end413quote. I am sure we will talk a lot about this.414    Persuading companies to enforce their own content415moderation policies is not the same, is not the same as416threatening them with retaliation. And that is precisely what417Chairman Carr did when he publicly threatened ABC, an entity418over which the FCC holds direct regulatory power, to take419action over the speech the administration did not like.420    Holding companies accountable for amplifying harm is not421the same as expressing Constitutional protected speech the422President finds politically inconvenient. That is what we423should be focusing on today. making sure the FCC, as a Federal424agency, cannot use its authority to threaten or intimidate the425media to ensure the licensed decisions are based on the law and426not on political coercion. I hope today we can speak clearly427about this and do what we can to make sure that we show that428free speech is something we all agree on.429    Thank you, Mr. Chairman. And look forward to hearing from430the witnesses.431    Senator Schmitt. Thank you, Ranking Member.432    One point of clarification for the record, Murthy v.433Missouri was not decided that way. It was sent back to lower434court for additional arguments on standing, not on the merits.435    I would like to introduce our witnesses for today. Our436first witness is Mr. Eugene Volokh, a Senior Fellow with the437Hoover Institution at Stanford University and a Professor of438Law Emeritus at UCLA School of Law. He is an expert in First439Amendment Law, and his writings have been cited in over 300440court opinions including ten Supreme Court cases. Welcome.441    Our second witness is Mr. Alex Berenson, an author,442independent journalist, and victim of the Biden443administration's embargo on free speech. I look forward to444hearing from Mr. Berenson and his story, and what we can do to445preserve speech online.446    Our third witness is Mr. Sean Davis, Chief Executive447Officer and Co-founder of The Federalist, a conservative news448outlet that was subject to censorship and demonetization449efforts for speaking out against the COVID-19 shutdowns.450    And our final witness is Mr. Gene Kimmelman, a Senior451Policy Fellow at Yale's Tobin Economic Policy Center and a452Senior Research Fellow at the Harvard Kennedy School's Center453for Business and Government.454    And at this point would recognize Mr. Volokh for your own455opening statement. Thank you for being here.456457  STATEMENT OF EUGENE VOLOKH, THOMAS M. SIEBEL SENIOR FELLOW,458            HOOVER INSTITUTION, STANFORD UNIVERSITY459460    Mr. Volokh. Thank you. Thank you very much for having me.461This is a topic that is I think very important, and something462that I have been very interested in myself. I should also say463by sheer accident turns out that today is 50 years to the day464since my parents brought me to the United States from the then465Soviet Union. So thank you to the United States of America for466letting me in.467    Very, very glad to be here. So I wanted to speak briefly468about the First Amendment Law on the subject both that which is469settled and that which is not entirely certain. So one thing470that I think is worth noting is that the word ``jawboning'' is471sometimes used in two different senses. One sense is coercion,472when the government is essentially threatening someone with473retaliation as a means of suppressing either that person's474speech or getting that person to suppress somebody else's475speech.476    A second one is what might call persuasion and maybe477pressure, short of coercion. When the government is kind of478urging people, some people might say again pressuring people to479restrict, again, either their own speech or other people's480speech.481    So the government coercion is generally unconstitutional. I482think, indeed, in the remarks of Chairman Carr seemed to be an483attempt at coercion. Whether or not they actually caused the484suspension of Jimmy Kimmel, I think they were an attempt to do485something that the Constitution does not allow.486    Just last year the Supreme Court found in NRA v. Vullo,487that the National Rifle Association had adequately alleged488coercion on the part of New York government authorities aimed489at trying to get insurance companies to limit ties to the NRA490as a means of trying to interfere with the NRA's political491advocacy. So that is pretty well settled for that492constitutional problem.493    Now, what about persuasion? Well, in some situations, the494government is entitled to urge entities to not speak. You can495imagine a situation where a police chief calls up a newspaper496and says: Look, I am not trying to coerce you. I know I cannot497coerce you. You can publish this article you are about to498publish, but it is going to interfere with us catching the499criminals, and you would not want that, right? So could I just500ask you please to do this?501    You know, some amount of that has got to be permissible. Or502to take another example as to misinformation. Somebody calls up503a reporter and says: You are about to publish this article or504this op-ed and it is just false. It is just wrong. Don't you505want to be corrected on this?506    Again, some amount of that, it seems to me, has to be507constitutionally permissible. At the same time, there is a508complication because the line between coercion and persuasion509is often very hard to draw. And that is particularly true when510the speaker has power over the listener.511    The Supreme Court has most clearly recognized this in the512employment context. Employers are entitled to talk to their513employees, including about unionization. They are entitled to514explain why they think unionizing would be a mistake. But the515court has recognized that in looking at what the employer says516and seeing if the employer is speaking coercively, one has to517appreciate that the employee is dependent on the employer, and518may pick up coercive messages even in situations where it is519not expressed on the face of this statement.520    And I think the same thing is true when the government,521which is a very powerful regulator, is talking to people in a522regulated industry. There are times when what might sound on523its face, or let us say just on the bare paper might look like524it is not coercive may in fact, in context, be quite coercive.525    Another concern is the merger of government and private526power when it is not just kind of occasional conversations but527a systemic mechanism for trying to restrict speech. An analogy528might be a few amendments down in the Fourth Amendment. If you529have a roommate and you notice some evidence of crime and you530call up the police, the police can use that evidence, because531that is not a government search. The police did not search for532it. You did.533    On the other hand, if the police called you up and say:534Hey, you know, not trying to coerce you, but could you please535rummage through your roommate's papers? That does become a536Fourth Amendment's--a search subject to the Fourth Amendment,537precisely because it is encouraged, substantially encouraged by538the police. The police become enmeshed with the private search.539So that suggests that there is something similar may apply to540the First Amendment.541    So let me just close with suggesting that this is, in fact,542the right body to be dealing with a lot of these concerns. That543some of these problems can only be solved through statutory544action, through laws that maybe limit attempts at systemic545persuasion and systemic suppression of speech even if it is not546technically coercive.547    At laws that facilitate finding information about that, and548at laws that actually provide a cause of action which the549Congress has for over a century provided against state550governments, but provided against the Federal Government, as551well.552    [The prepared statement of Mr. Volokh follows:]553554   Prepared Statement Eugene Volokh, Thomas M. Siebel Senior Fellow,555                Hoover Institution, Stanford University556    Dear Chairman and Members of the Committee:557558    Thank you for asking me to testify on the important First Amendment559issues raised by government jawboning, a subject that I have been560studying for several years. I will try to offer a big picture view of561the matter, rather than focusing on the particular factual details562related to, for instance, the various interactions between CISA (the563Cybersecurity and Infrastructure Security Agency) and social media564platforms.565    ``To jawbone'' has been defined as ``to attempt to persuade or566pressure by the force of one's position of authority,'' \1\ especially567when done by the government. That in turn reflects two possible568meanings:569---------------------------------------------------------------------------570    \1\ See, e.g., Collins Dictionary, https://571www.collinsdictionary.com/us/dictionary/english/jawboning (quoting572Irwin Stelzer, GM Has Riled the Jawboner-in-Chief, Times (London), Dec.5732, 2018).574575  (1)  government officials trying to persuade through the force of576        their reasoning, though strengthened by their authoritativeness577---------------------------------------------------------------------------578        and resulting credibility and influence;579580  (2)  government officials trying to coerce through the explicit or581        implicit threat of retaliation stemming from their position of582        authority, e.g., through the threat of enforcement or583        regulation.584585    As a practical matter, the two meanings are closely intertwined,586especially since it may be hard to tell whether there is an implicit587``or else'' behind a request. As a legal matter, though, there may be a588substantial distinction, at least when it comes to the government589trying to pressure entities into shutting down third parties' speech.590           I. Government Coercion: Generally Unconstitutional591    Say the government doesn't like some speech, though the speech is592constitutionally protected against direct punishment (i.e., the speech593doesn't fit into one of the narrow First Amendment exceptions, for594example the exception for true threats of criminal conduct). The595government therefore demands that a private entity that has the private596power to control such speech--say, a social media platform, a597bookstore, a financial intermediary--suppress the speech, or else face598some coercive government action. That generally violates the First599Amendment. ``[A] government official cannot do indirectly what she is600barred from doing directly: A government official cannot coerce a601private party to punish or suppress disfavored speech on her behalf.''602\2\603---------------------------------------------------------------------------604    \2\ NRA v. Vullo, 602 U.S. 175, 190 (2024).605---------------------------------------------------------------------------606    The long-standing Supreme Court precedent addressing that issue is607Bantam Books, Inc. v. Sullivan (1963), in which a state commission608threatened to prosecute stores that sold books it deemed pornographic,609including books that were protected by the First Amendment.\3\610Likewise, in NRA v. Vullo (2024), the Court held that the NRA could sue611New York financial regulators under the First Amendment for allegedly612coercing banks and insurance companies ``to cut their ties with the NRA613in order to stifle the NRA's gun-promotion advocacy.'' \4\ Under these614precedents, FCC Chairman Brendan Carr's statements about Jimmy Kimmel615may likewise have threatened retaliation in a way that would violate616the First Amendment.\5\617---------------------------------------------------------------------------618    \3\ 372 U.S. 58 (1963).619    \4\ 602 U.S. at 197. Note that I was one of the NRA's lawyers in620this case.621    \5\ The statements on the Benny Johnson podcast, https://x.com/622bennyjohnson/status/1968359685045838041, were:623624    Broadcasters . . . have a license granted by us at the FCC, and625that comes with it an obligation to operate in the public interest. . .626627    We can do this the easy way or the hard way. These companies can628find ways to change conduct, to take action, frankly, on Kimmel or629there is going to be additional work for the FCC ahead. . . .630631    There's calls for Kimmel to be fired. I think you could certainly632see a path forward for suspension over this.633634    The FCC has a rule that prohibits ``broadcast news distortion,''635https://www.fcc.gov/broadcast-news-distortion, and it's possible that--636given the lower First Amendment protection given to broadcasting than637to, say, newspapers or the Internet--the FCC might be able to impose a638modest fine for Kimmel's statement or even just issue an admonition.639But there appears to be no justification for the government's demanding640outright suspension of the Kimmel show based on one false statement,641nor does there appear to be any precedent in the past four decades for642anything more than a token punishment in such a situation.643---------------------------------------------------------------------------644    Lower court cases have found that there could be impermissible645coercion even absent express threat of prosecution or regulatory646action, so long as the threat is sufficiently implicit. Consider two647cases that were favorably cited by the Supreme Court in NRA v. Vullo:648649    1. The president of the Borough of Staten Island sent a letter to a650billboard company urging it to take down an antihomosexuality651billboard. The letter closed with:652653        Both you and the sponsor of this message should be aware that654        many members of the Staten Island community, myself included,655        find this message unnecessarily confrontational and offensive.656        As Borough President of Staten Island, I want to inform you657        that this message conveys an atmosphere of intolerance which is658        not welcome in our Borough.659660        P.N.E. Media owns a number of billboards on Staten Island and661        derives substantial economic benefits from them. I call on you662        as a responsible member of the business community to please663        contact Daniel L. Master, my legal counsel and Chair of my664        Anti-Bias Task Force . . . to discuss further the issues I have665        raised in this letter.666667    Potentially unconstitutional, the Second Circuit held in Okwedy v.668Molinari (2003):669670        [A] jury could find that Molinari's letter contained an671        implicit threat of retaliation if PNE failed to accede to672        Molinari's requests. In his letter, Molinari invoked his673        official authority as ``Borough President of Staten Island''674        and pointed out that he was aware that ``P.N.E. Media owns a675        number of billboards on Staten Island and derives substantial676        economic benefits from them.'' He then ``call[ed] on'' PNE to677        contact Daniel L. Master, whom he identified as his ``legal678        counsel and Chair of my Anti-Bias Task Force.''679680        Based on this letter, PNE could reasonably have believed that681        Molinari intended to use his official power to retaliate682        against it if it did not respond positively to his entreaties.683        Even though Molinari lacked direct regulatory control over684        billboards, PNE could reasonably have feared that Molinari685        would use whatever authority he does have, as Borough686        President, to interfere with the ``substantial economic687        benefits'' PNE derived from its billboards in Staten Island.\6\688---------------------------------------------------------------------------689    \6\ 333 F.3d 339, 341, 342, 344 (2d Cir. 2003).690691    2. The Sheriff of Cook County in Illinois sent letters to692Mastercard and Visa saying, ``As the Sheriff of Cook County, a father693and a caring citizen, I write to request that your institution694immediately cease and desist from allowing your credit cards to be used695to place ads on websites like Backpage.com [which hosted ads for sex-696related services].'' Potentially unconstitutional, the Seventh Circuit697held in Back-page.com, LLC v. Dart (2015). The court went through the698---------------------------------------------------------------------------699Sheriff's letter in detail and concluded:700701        And here's the kicker: ``Within the next week, please provide702        me with contact information for an individual within your703        organization that I can work with [harass, pester] on this704        issue.'' The ``I'' is Sheriff Dart, not private citizen Dart--705        the letter was signed by ``Thomas Dart, Cook County Sheriff.''706707        And the letter was not merely an expression of Sheriff Dart's708        opinion. It was designed to compel the credit card companies to709        act by inserting Dart into the discussion; he'll be chatting710        them up.711712        Further insight into the purpose and likely effect of such a713        letter is provided by a strategy memo written by a member of714        the sheriff's staff in advance of the letter. The memo715        suggested approaching the credit card companies (whether by716        phone, mail, e-mail, or a visit in person) with threats in the717        form of ``reminders'' of ``their own potential liability for718        allowing suspected illegal transactions to continue to take719        place'' and their potential susceptibility to ``money720        laundering prosecutions . . . and/or hefty fines.'' Allusion to721        that ``susceptibility'' was the culminating and most ominous722        threat in the letter.\7\723---------------------------------------------------------------------------724    \7\ 807 F.3d 229, 231-32 (7th Cir. 2015). The bracketed words,725``harass, pester,'' were added by the court, presumably as an726indication of how the court interpreted ``work with.'' See Complaint727Exh. B at 7, Backpage.com, LLC v. Dart, No. 1:15-cv-06340 (N.D. Ill.728July 21, 2015).729730    3. Finally, consider a third example: The Biden administration's731attempting to persuade social media platforms to block or remove posts732on various topics, including ``the COVID-19 lab-leak theory, pandemic733lockdowns, vaccine side-effects, election fraud, and the Hunter Biden734laptop story.'' The Fifth Circuit concluded in Missouri v. Biden (2023)735that some of the government's actions were likely unconstitutionally736---------------------------------------------------------------------------737coercive:738739        On multiple occasions, the officials coerced the platforms into740        direct action via urgent, uncompromising demands to moderate741        content And, more importantly, the officials threatened--both742        expressly and implicitly--to retaliate against inaction.743        Officials threw out the prospect of legal reforms and744        enforcement actions while subtly insinuating it would be in the745        platforms' best interests to comply. As one official put it,746        ``removing bad information'' is ``one of the easy, low-bar747        things you guys [can] do to make people like me''--that is,748        White House officials--``think you're taking action.'' When the749        officials' demands were not met, the platforms received750        promises of legal regime changes, enforcement actions, and751        other unspoken threats. That was likely coercive. . . .752753        [M]any of the officials' asks were ``phrased virtually as754        orders,'' like requests to remove content ``ASAP'' or755        ``immediately.'' The threatening ``tone'' of the officials'756        commands, as well as of their ``overall interaction'' with the757        platforms, is made all the more evident when we consider the758        persistent nature of their messages. . . . [T]here is [also]759        plenty of evidence--both direct and circumstantial, considering760        the platforms' contemporaneous actions--that the platforms were761        influenced by the officials' demands. . . .762763        [And] the speaker [had] ``authority over the recipient.'' [The764        White House] enforces the laws of our country, and--as the head765        of the executive branch--directs an army of Federal agencies766        that create, modify, and enforce Federal regulations At the767        very least, as agents of the executive branch, the officials'768        powers track somewhere closer to those of the commission in769        Bantam Books--they were legislatively given the power to770        ``investigate violations and recommend prosecutions.''771772        [T]he officials made express threats and, at the very least,773        leaned into the inherent authority of the President's office. .774        . . But, beyond express threats, there was always an ``unspoken775        `or else.' '' [W]hen the platforms faltered, the officials776        warned them that they were ``[i]nternally considering our777        options on what to do,'' their ``concern[s] [were] shared at778        the highest (and I mean highest) levels of the [White House],''779        and the ``President has long been concerned about the power of780        large social media platforms.'' \8\781---------------------------------------------------------------------------782    \8\ 83 F.4th 350, 382 (5th Cir. 2023).783784    The Supreme Court reversed the Fifth Circuit's decision on785procedural grounds, so that decision is no longer binding precedent.\9\786The Court's opinion also cast doubt on the factual findings that the787Fifth Circuit relied on.\10\ Nonetheless, the Fifth Circuit's analysis788is a good illustration of how courts sometimes evaluate such789allegations of coercion.790---------------------------------------------------------------------------791    \9\ 603 U.S. 43 (2024).792    \10\ Id. at 60 n.4.793---------------------------------------------------------------------------794                       II. Government Persuasion795                        A. Often Constitutional796    Now say the government simply tries to persuade various797intermediaries--whether today's social media platforms or, as was the798case in the recent past, bookstores, billboards, or payment799processors--to stop carrying certain speech, without an express or800implied threat of retaliation. Generally speaking, courts of appeals801have said that this does not violate the First Amendment. To offer a802few examples:803    1. In 1980, a New York City official sent a letter urging804department stores not to carry ``a board game titled `Public805Assistance--Why Bother Working for a Living.' '' The letter said the806game ``does a grave injustice to taxpayers and welfare clients alike,''807and closes with, ``Your cooperation in keeping this game off the808shelves of your stores would be a genuine public service.'' Not809unconstitutional, said the Second Circuit in Hammerhead Enterprises,810Inc. v. Brezenoff (1983):811812        [T]he record indicates that Brezenoff's request to New York813        department stores to refrain from carrying Public Assistance814        was nothing more than a well-reasoned and sincere entreaty in815        support of his own political perspective Where comments of a816        government official can reasonably be interpreted as intimating817        that some form of punishment or adverse regulatory action will818        follow the failure to accede to the official's request, a valid819        claim can be stated. . . . [But] appellants cannot establish820        that this case involves either of these troubling821        situations.\11\822---------------------------------------------------------------------------823    \11\ 707 F.2d 33, 34, 37, 38-39 (2d Cir. 1983).824825    Note, though, that Brezenoff was the administrator of New York826City's Human Resources Administration, with no enforcement authority827against the department stores. How might the matter have looked had he828been the sheriff or the head of some civil enforcement agency?829    2. Not long after, the U.S. Attorney General's Commission on830Pornography sent letters to various corporations (such as 7-Eleven)831urging them not to sell pornographic magazines:832833        The Attorney General's Commission on Pornography has held six834        hearings across the United States during the past seven months835        on issues related to pornography. During the hearing in Los836        Angeles, in October 1985, the Commission received testimony837        alleging that your company is involved in the sale or838        distribution of pornography. The Commission has determined that839        it would be appropriate to allow your company an opportunity to840        respond to the allegations prior to drafting its final report841        section on identified distributors.842843        You will find a copy of the relevant testimony enclosed844        herewith. Please review the allegations and advise the845        Commission on or before March 3, 1986, if you disagree with the846        statements enclosed. Failure to respond will necessarily be847        accepted as an indication of no objection.848849        Please call Ms. Genny McSweeney, Attorney, at (202) 724-7837 if850        you have any questions. Thank you for your assistance.851852    Not unconstitutional, said the D.C. Circuit in Penthouse853International, Ltd. v. Meese (1991):854855        [T]he Advisory Commission had no tie to prosecutorial power nor856        authority to censor publications. The letter it sent contained857        no threat to prosecute, nor intimation of intent to proscribe858        the distribution of the publications. . . .859860        We do not see why government officials may not vigorously861        criticize a publication for any reason they wish. As part of862        the duties of their office, these officials surely must be863        expected to be free to speak out to criticize practices, even864        in a condemnatory fashion, that they might not have the865        statutory or even constitutional authority to regulate. If the866        First Amendment were thought to be violated any time a private867        citizen's speech or writings were criticized by a government868        official, those officials might be virtually immobilized.\12\869---------------------------------------------------------------------------870    \12\ 939 F.2d 1011, 1013, 1015-1016 (D.C. Cir. 1991).871872    3. In the late 1990s, a New York state legislator and a New York873congressman accused X-Men Security--a security organization connected874to the Nation of Islam--of various conspiracies, ``asked government875agencies to conduct investigations into its operations, questioned X-876Men's eligibility for an award of a contract supported by public funds,877and advocated that X-Men not be retained.'' X-Men lost certain security878contracts as a result. Also not unconstitutional, ruled the Second879---------------------------------------------------------------------------880Circuit in X-Men Security, Inc. v. Pataki (1999):881882        [J]ust as the First Amendment protects a legislator's right to883        communicate with administrative officials to provide assistance884        in securing a publicly funded contract, so too does it protect885        the legislator's right to state publicly his criticism of the886        granting of such a contract to a given entity and to urge to887        the administrators that such an award would contravene public888        policy. We see no basis on which X-Men could properly be found889        to have a constitutional right to prevent the legislators from890        exercising their own rights to speak.\13\891---------------------------------------------------------------------------892    \13\ 196 F.3d 56, 68, 70 (2d Cir. 1999).893894    And it does appear that at least some such persuasion ought to be895constitutionally acceptable. After all, government officials have a896strong interest in conveying their views, including their views about897what speech is harmful and should not be published. It's not clear898whether they have a personal First Amendment right to do so in their899official capacities.\14\ But there may still be real value to public900discourse, and to their listeners, in their being able to do so--and901thus it might not be a First Amendment violation in their asking902intermediaries to sometimes choose to block certain speech.903---------------------------------------------------------------------------904    \14\ Compare Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)905(concluding that government officials generally don't have First906Amendment rights when exercising their official duties); and David907Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev.9081637 (2006) (discussing uncertainty about when state officials may have909First Amendment rights vis-a-vis the Federal government).910---------------------------------------------------------------------------911    For instance, national security officials might sometimes tell a912news outlet, ``Look, we can't force you to do anything, but if you run913this story it will lead to deaths of intelligence sources/damage to914national security. Could you not run the story, or fuzz over some915details, or delay it?'' The news outlet might find that to be valuable916information. Reporters and editors might want to avoid causing deaths917or harming national security, especially if the bulk of the story can918still be reported with a bit of delay or slight modification.919    Likewise, law enforcement officials might reasonably and920permissibly tell a newspaper or broadcaster, ``If you run this story921right now, you'll tip off the criminals we're investigating/jeopardize922witnesses. Don't you want us to fight crime effectively?'' The923newspaper might say yes or no, assuming there's no context to make the924statement coercive. I doubt such a request would violate the First925Amendment.926    Or say that a newspaper is about to run an op-ed that alleges927governmental misconduct. A government official learns of this--perhaps928the editors call him to get his side of the story--and says, ``That's929nonsense, and here's the evidence to prove that.'' Or he says, ``The930allegations are so slanted as to be deceptive or unfair; here's the931context that shows it.'' And then adds, ``Please don't run such an932unfair story; it would be bad for us if you did, but it would also be933bad for your reputation, when the truth comes out, and it would be bad934for your readers, who would be misled.''935    That is a call for an intermediary (the newspaper) to block the936publication of a third-party item (the op-ed). However, it is unlikely937to be unconstitutional. Indeed, the newspaper may be quite pleased to938learn the full story and thereby avoid publishing an op-ed that would939make the newspaper look bad.940                  B. Potential Limits: Subtle Coercion941    At the same time, there may be limits on such persuasion. The first942comes from the reality that the coercion/persuasion line is often hazy.943One concern about government persuasion of intermediaries is that when944the government asks, people who are subject to regulation by the945government may hear this as demanding. As it happens, this concern has946arisen in at least one other First Amendment context, and the reasoning947in that context might be applicable here as well.948    That context is labor law. Since the 1940s--early in the Court's949modern First Amendment jurisprudence--the Court has recognized that950``employers' attempts to persuade to action with respect to joining or951not joining unions are within the First Amendment's guarantee'' but not952when ``to this persuasion other things are added which bring about953coercion, or give it that character.'' \15\ In NLRB v. Gissel Packing954Co. (1969), the Court made clear that the employer's power over955employees should be considered in deciding whether the speech is likely956to coerce:957---------------------------------------------------------------------------958    \15\ Thomas v. Collins, 323 U.S. 516, 537 (1945) (treating the959matter as having been settled by NLRB v. Virginia Electric & Power Co.,960314 U.S. 469 (1941)); Virginia Electric & Power, 314 U.S. at 477 (``The961employer in this case is as free now as ever to take any side it may962choose on this controversial issue. But, certainly, conduct, though963evidenced in part by speech, may amount, in connection with other964circumstances, to coercion within the meaning of the Act'').965966        Any assessment of the precise scope of employer expression, of967        course, must be made in the context of its labor relations968        setting [A]ny balancing of [the employer's and employee's]969        rights must take into account the economic dependence of the970        employees on their employers, and the necessary tendency of the971        former, because of that relationship, to pick up intended972        implications of the latter that might be more readily dismissed973        by a more disinterested ear.\16\974---------------------------------------------------------------------------975    \16\ 395 U.S. 575, 617 (1969).976977    Similar logic, I think, may apply when high-level executive978officials, or those who speak for them, address intermediaries who are979---------------------------------------------------------------------------980regulated by those officials or the officials' appointees:981982        [A]ny balancing of [government speakers' and intermediaries']983        rights must take into account the economic dependence of the984        [intermediaries] on their [regulators], and the necessary985        tendency of the former, because of that relationship, to pick986        up intended implications of the latter that might be more987        readily dismissed by a more disinterested ear.988989    This analogy would still leave government officials able to make990requests in certain ways, just as employers remain able to speak in991certain ways to employees about the possible consequences of992unionization. But the officials would have to be more careful to make993clear that the request carries no threat of retaliation.994    What sort of statement by the government would make clear that995there is no such threat? That would doubtless turn on many factors.996Thus, for instance, with regard to the requests sent to the social997media platforms by CISA, the Fifth Circuit in Missouri v. Biden found998sufficient evidence only that CISA ``significantly encouraged the999platforms' content-moderation decisions''--the court didn't state that1000there was sufficient evidence that CISA was coercing the platforms,1001though the court did find sufficient evidence of coercion by some other1002government agencies.\17\1003---------------------------------------------------------------------------1004    \17\ See 83 F.4th at 391; cf. id. at 389 (stating, as to the FBI,1005that ``the platforms' decisions were significantly encouraged and1006coerced by the FBI'' (emphasis added)).1007---------------------------------------------------------------------------1008    I think, though, that if there were some serious concern about1009coercion, dispelling such concern would require considerably more than1010the disclaimer that CISA included in its e-mails:10111012        CISA affirms that it neither has nor seeks the ability to1013        remove or edit what information is made available on social1014        media platforms. CISA makes no recommendations about how the1015        information it is sharing should be handled or used by social1016        media companies. Additionally, CISA will not take any action,1017        favorable or unfavorable, toward social media companies based1018        on decisions about how or whether to use this information.\18\1019---------------------------------------------------------------------------1020    \18\ See The Mechanics of Government Censorship 14 (2025).10211022    Of course the social media companies' likely worry wouldn't have1023been that ``CISA''--an agency that itself lacks regulatory power over1024the companies--``will take . . . action . . . toward'' them. Rather,1025the worry would have been that some other, much more powerful, Federal1026government actors would take ``adverse government action,'' such as1027``antitrust enforcement and legal reforms'' \19\ or possibly law1028enforcement action of the sort that the FBI can engage in.\20\ In light1029of this, a disclaimer pointedly limited to retaliation by CISA was1030unlikely to do much good.1031---------------------------------------------------------------------------1032    \19\ 83 F.4th at 373.1033    \20\ Id. at 388-89.1034---------------------------------------------------------------------------1035      C. Potential Limits: Merger of Government and Private Power1036    There is also reason to think that at least sometimes the1037Constitution does constrain the merging of government and private1038power, at least when the government tries to use that merger to bypass1039the usual constraints on its powers--even in the absence of coercion.1040And even if the Constitution itself doesn't render such merging of1041power unconstitutional, there may be good reason to try to constrain1042such merging by statute.1043    To begin, let's consider an analogy, three Amendments down: the1044Fourth Amendment. Say you rummage through a roommate's papers, find1045evidence that he's committing a crime, and send it to the police.1046Because you're a private actor, you haven't violated the Fourth1047Amendment. (Whether you committed some tort or crime is a separate1048question.)\21\ Because they didn't perform the search, the police1049haven't violated the Fourth Amendment either, and the evidence from1050this ``private search'' can be used against the roommate.1051---------------------------------------------------------------------------1052    \21\ See United States v. Phillips, 32 F.4th 865, 867 (9th Cir.10532022); Burdeau v. McDowell, 256 U.S. 465, 475-476 (1921).1054---------------------------------------------------------------------------1055    But if the police ask you to rummage through the roommate's papers,1056that rummaging may constitute a search governed by the Fourth1057Amendment. ``[I]f a state officer requests a private person to search a1058particular place or thing, and if that private person acts because of1059and within the scope of the state officer's request,'' then the search1060would be subject to the constitutional constraints applicable to1061government searches.\22\ ``Police officers may not avoid the1062requirements of the Fourth Amendment by inducing, coercing, promoting,1063or encouraging private parties to perform searches they would not1064otherwise perform.'' \23\ Coercion is only one way a private search may1065become subject to the Fourth Amendment; inducement, promotion, or1066encouragement can also suffice.1067---------------------------------------------------------------------------1068    \22\ State v. Tucker, 330 Or. 85, 90 (2000) (applying the Oregon1069Constitution's Fourth Amendment analog; police request to tow truck1070driver to search items in car being towed), followed by State v. Lien,1071364 Or. 750, 778 (2019) (police request to trash company to pick up a1072person's trash in a particular way that would facilitate its being1073searched). See also United States v. Gregory, 497 F. Supp. 3d 243 (E.D.1074Ky. 2020) (similar fact pattern to Lien).1075    \23\ George v. Edholm, 752 F.3d 1206, 1215 (9th Cir. 2014) (police1076request to doctor to do a rectal search). See also United States v.1077Ziegler, 474 F.3d 1184, 1190 (9th Cir. 2007) (police request to1078employer to search employee's work computer); United States v. Rosenow,107950 F.4th 715, 733 (9th Cir. 2022) (recognizing that, even when a1080private party's search would normally be entirely legal, the1081government's ``encouragement'' of such a search may constitute ``state1082action'').1083---------------------------------------------------------------------------1084    Indeed, in Skinner v. Railway Labor Executives' Association (1989),1085the Supreme Court held that drug tests of railway employees that were1086authorized but not required by Federal regulations were subject to1087Fourth Amendment scrutiny:10881089        The Government has removed all legal barriers to the testing1090        authorized by Subpart D, and indeed has made plain not only its1091        strong preference for testing, but also its desire to share the1092        fruits of such intrusions. In addition, it has mandated that1093        the railroads not bargain away the authority to perform tests1094        granted by Subpart D. These are clear indices of the1095        Government's encouragement, endorsement, and participation, and1096        suffice to implicate the Fourth Amendment.\24\1097---------------------------------------------------------------------------1098    \24\ Skinner v. Railway Labor Executives Assn', 489 U.S. 602, 615-109916 (1989).11001101    Considering the extensive regulation of railroads by the1102government, the railway companies might have felt special pressure to1103view the government's ``encouragement'' and ``endorsement'' as a1104command. Yet the Court did not rely on the theory that the government1105had indeed coerced the railroads to perform the tests. It appeared to1106be enough that it ``encourage[d], endorse[d], and participat[ed]'' in1107the tests. The same may apply to social media platforms, especially1108(but perhaps not only) in a political environment where there is talk1109of possible regulation, such as through antitrust law or by modifying1110Section 230 immunity.\25\1111---------------------------------------------------------------------------1112    \25\ See Murthy, 603 U.S. at 80-81 (Alito, J., dissenting)1113(reasoning that ``internet platforms, although rich and powerful, are1114at the same time far more vulnerable to Government pressure than other1115news sources'' because ``[t]hey are critically dependent on the1116protection provided by Sec. 230 of the Communications Decency Act of11171996,'' which Congress might threaten to withdraw; ``[t]hey are1118vulnerable to antitrust actions''; and, ``because their substantial1119overseas operations may be subjected to tough regulation in the1120European Union and other foreign jurisdictions, they rely on the1121Federal Government's diplomatic efforts to protect their interests'').1122---------------------------------------------------------------------------1123    Likewise, ``In the Fifth Amendment context, courts have held that1124the government might violate a defendant's rights by coercing or1125encouraging a private party to extract a confession from a criminal1126defendant.'' \26\ More broadly, the Supreme Court held in Blum v.1127Yaretsky (1982), a Due Process Clause case, that ``a State normally can1128be held responsible for a private decision only when it has exercised1129coercive power or has provided such significant encouragement, either1130overt or covert, that the choice must in law be deemed to be that of1131the State.'' \27\ And in Norwood v. Harrison (1973), an Equal1132Protection Clause case, the Court viewed it as ``axiomatic that a state1133may not induce, encourage or promote private persons to accomplish what1134it is constitutionally forbidden to accomplish.'' \28\1135---------------------------------------------------------------------------1136    \26\ United States v. Folad, 877 F.3d 250, 253 (6th Cir. 2017)1137(emphasis added). See also United States v. Garlock, 19 F.3d 441, 443-1138444 (8th Cir. 1994).1139    \27\ 457 U.S. 991, 1004 (1982). See also Fidelity Financial Corp.1140v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th1141Cir. 1986) (emphasis added).1142    \28\ 413 U.S. 455, 465 (1973) (emphasis added).1143---------------------------------------------------------------------------1144               D. Potential Limits: Systemic Cooperation1145    Might there be a difference between occasional one-off1146conversations and systematic programs? To be sure, when it comes to1147coercive threats aimed at suppressing speech, both the ad hoc and1148systematic demands are unconstitutional.\29\ Likewise, the cases1149involving government encouragement of searches by private parties find1150even ad hoc demands unconstitutional.\30\1151---------------------------------------------------------------------------1152    \29\ See Fagundes, supra note 14, at Part II.B.1153    \30\ See id. at Part IV.A.1154---------------------------------------------------------------------------1155    But if courts do conclude that ad hoc requests to remove or block1156speech are constitutional, perhaps some line should still be drawn1157between those requests and systematic encouragement of such removing or1158blocking. This appears to be what the Fifth Circuit concluded in1159Missouri v. Biden, when it found that the government's speech was1160impermissible ``significant encouragement'' of speech restriction by1161platforms, even apart from the coercion argument:11621163        The officials had consistent and consequential interaction with1164        the platforms and constantly monitored their moderation1165        activities. In doing so, they repeatedly communicated their1166        concerns, thoughts, and desires to the platforms. The platforms1167        responded with cooperation--they invited the officials to1168        meetings, roundups, and policy discussions. And, more1169        importantly, they complied with the officials' requests,1170        including making changes to their policies. . . .11711172        When the platforms' policies were not performing to the1173        officials' liking, they pressed for more, persistently asking1174        what ``interventions'' were being taken, ``how much content1175        [was] being demoted,'' and why certain posts were not being1176        removed. Eventually, the officials pressed for outright change1177        to the platforms' moderation policies Beyond that, they1178        relentlessly asked the platforms to remove content, even giving1179        reasons as to why such content should be taken down. They also1180        followed up to ensure compliance and, when met with a response,1181        asked how the internal decision was made. . . .11821183        Consequently, it is apparent that the officials exercised1184        meaningful control--via changes to the platforms' independent1185        processes--over the platforms' moderation decisions. By pushing1186        changes to the platforms' policies through their expansive1187        relationship with and informal oversight over the platforms,1188        the officials imparted a lasting influence on the platforms'1189        moderation decisions without the need for any further input. In1190        doing so, the officials ensured that any moderation decisions1191        were not made in accordance with independent judgments guided1192        by independent standards. Instead, they were encouraged by the1193        officials' imposed standards.11941195        In sum, we find that the White House officials, in conjunction1196        with the Surgeon General's office, coerced and significantly1197        encouraged the platforms to moderate content. As a result, the1198        platforms' actions ``must in law be deemed to be that of the1199        State.'' \31\1200---------------------------------------------------------------------------1201    \31\ 83 F.4th 350, 387 (5th Cir. 2023).12021203    Indeed, when it came to requests for removal made by the Centers1204for Disease Control and Prevention, the Fifth Circuit concluded that1205the requests were not coercive, but still constituted unconstitutional1206---------------------------------------------------------------------------1207significant encouragement:12081209        [T]he CDC was entangled in the platforms' decision-making1210        processes. The CDC's relationship with the platforms began by1211        defining--in ``Be On the Lookout'' meetings--what was (and was1212        not) ``misinformation'' for the platforms. Specifically, CDC1213        officials issued ``advisories'' to the platforms warning them1214        about misinformation ``hot topics'' to be wary of. From there,1215        CDC officials instructed the platforms to label disfavored1216        posts with ``contextual information,'' and asked for1217        ``amplification'' of approved content. That led to CDC1218        officials becoming intimately involved in the various1219        platforms' day-to-day moderation decisions. For example, they1220        communicated about how a platform's ``moderation team'' reached1221        a certain decision, how it was ``approach[ing] adding labels''1222        to particular content, and how it was deploying manpower.1223        Consequently, the CDC garnered an extensive relationship with1224        the platforms.12251226        From that relationship, the CDC, through authoritative1227        guidance, directed changes to the platforms' moderation1228        policies. . . . [The platforms] adopted rule changes meant to1229        implement the CDC's guidance. . . . Thus, the resulting content1230        moderation, ``while not compelled by the state, was so1231        significantly encouraged, both overtly and covertly'' by CDC1232        officials that those decisions ``must in law be deemed to be1233        that of the state.'' \32\1234---------------------------------------------------------------------------1235    \32\ Id. at 390.12361237    And the court held the same as to CISA requests.\33\1238---------------------------------------------------------------------------1239    \33\ Id. at 391.1240---------------------------------------------------------------------------1241    As noted above, the Supreme Court reversed this Fifth Circuit1242decision on procedural grounds and cast some doubt on the factual1243findings on which the Fifth Circuit relied.\34\ But the Fifth Circuit's1244legal analysis as to substantial encouragement and systematic1245entanglement may still offer a persuasive precedent.1246---------------------------------------------------------------------------1247    \34\ See 603 U.S. at 60 n.4.1248---------------------------------------------------------------------------1249    Of course, distinguishing ``consistent and consequential1250interaction'' from mere occasional interaction--such as the examples of1251constitutionally permissible requests given above--can be difficult.1252Still, constitutional law does sometimes draw such distinctions between1253occasional action and systemic action. One analogy, though distant,1254might be how the law sometimes treats administrative searches.1255    Courts have upheld various kinds of searches--even ones that lack a1256warrant, probable cause, or both--on the grounds that they are targeted1257at specific public safety concerns rather than at broad law1258enforcement. Airport searches of luggage, aimed at detecting weapons,1259are one example, as the Ninth Circuit discussed in detail in United1260States v. $124,570 U.S. Currency (1989).\35\1261---------------------------------------------------------------------------1262    \35\ 873 F.2d 1240, 1244-45 (9th Cir. 1989).1263---------------------------------------------------------------------------1264    Now say that Transportation Security Administration agents, U.S.1265government employees following their normal duty to search for weapons,1266spot a suspicious amount of cash or drugs. They then alert the police1267who use this information as part of the probable cause needed to1268justify a search. That is constitutional.\36\ TSA agents are free to1269``report information pertaining to criminal activity, as would any1270citizen.'' \37\1271---------------------------------------------------------------------------1272    \36\ See id. at 1247 n.7 (approvingly describing United States v.1273Canada, 527 F.2d 1374, 1376, 1378-79 (9th Cir. 1975)).1274    \37\ Id.1275---------------------------------------------------------------------------1276    So far, so good. But say that the Drug Enforcement Administration1277comes up with a systematic program to encourage TSA agents to search1278not just for weapons, the rationale that led airport searches to be1279upheld in the first place, but also for drugs or cash. The Ninth1280Circuit held that this would be going too far:12811282        We see the matter as materially different where the1283        communication [about the drugs or money that the TSA agent1284        found] is undertaken pursuant to an established relationship,1285        fostered by official policy, even more so where the1286        communication is nurtured by payment of monetary rewards.\38\1287---------------------------------------------------------------------------1288    \38\ Id.12891290    Even if ad hoc reporting by TSA agents to the police of things1291other than weapons is permissible under the Fourth Amendment, a system1292set up to encourage such reporting is not. ``The line we draw is a fine1293one but, we believe, one that has constitutional significance.'' \39\1294---------------------------------------------------------------------------1295    \39\ Id.1296---------------------------------------------------------------------------1297    Or consider sobriety checkpoints. The Court has upheld them as1298permissible administrative seizures because they are aimed at1299protecting safety on the very roads that are being temporarily1300blocked.\40\ Yet the Court has held that the government may not set up1301drug trafficking checkpoints aimed at finding drug dealers.\41\ The1302difference in these cases, the Court held, stems from the ``difference1303in the Fourth Amendment significance of highway safety interests and1304the general interest in crime control.'' \42\1305---------------------------------------------------------------------------1306    \40\ Michigan v. Sitz, 496 U.S. 444 (1990).1307    \41\ City of Indianapolis v. Edmond, 531 U.S. 32 (2000).1308    \42\ Id. at 40.1309---------------------------------------------------------------------------1310    Now, if officers conducting sobriety checkpoints happen to see1311evidence of crime in plain sight--blood on the seat, an illegally1312carried gun, or, for that matter, drugs--they are free to keep1313detaining the driver and search further, based on this newly discovered1314probable cause.\43\ But say that the checkpoint is deliberately set up1315as a systematic way of searching for drugs or for other contraband.1316That would trigger additional Fourth Amendment scrutiny: ad hoc1317observation of evidence of crime, in the course of a valid1318administrative seizure (valid because the seizure is part of a drunk1319driving checkpoint, rather than a drug checkpoint or a general law1320enforcement checkpoint), may become unconstitutional if it happens in1321the course of a systematic program of search for evidence of crime.\44\1322---------------------------------------------------------------------------1323    \43\ See Texas v. Brown, 460 U.S. 730, 744 (1983) (plurality1324opinion); id. at 746 (Powell, J., concurring in the judgment); People1325v. Edwards, 101 A.D.3d 1643, 1644 (2012).1326    \44\ I borrow this from United States v. Soyland, 3 F.3d 1312, 13171327(9th Cir. 1993).1328---------------------------------------------------------------------------1329    I should stress again that these analogies are imperfect. Among1330other differences, they involve the Fourth Amendment and not the First,1331and concern attempts to systematically encourage certain action by1332government employees and not by private parties.1333    But my point here is that they offer some support for the view that1334even if some actions are not subject to constitutional scrutiny when1335done on a one-off basis, they may become unconstitutional when done1336systematically. In the Fourth Amendment context, systematizing1337permissible ad hoc searches into ``an established relationship,1338fostered by official policy'' increases the threat of undue government1339intrusion on privacy, enough to change the Fourth Amendment analysis.1340Perhaps systematizing permissible ad hoc requests not to publish1341something (or to block or remove users' publications) into a similar1342official established relationship may likewise increase the threat of1343undue government interference with public debate to the point that1344First Amendment scrutiny would be required.1345                  III. Reason for Congressional Action1346    To be sure, courts may be reluctant to try to draw lines between1347permissible persuasion and excessively systematized persuasion. They1348might conclude that government attempts to persuade entities to1349restrict speech just aren't First Amendment violations, so long as they1350fall short of coercion.1351    At the same time, even if the merger of government and social media1352platform power aimed at setting up a system for blocking, deleting, or1353otherwise deplatforming user posts isn't unconstitutional, it may be1354bad for democracy. At least, it may be the sort of thing that ought to1355be done with public scrutiny, rather than behind closed doors.1356    And Congress may be able to draw lines that courts might be1357reluctant to draw. Indeed, the Committee's proposals seem to be1358promising ideas:13591360   Create transparency around Federal agency communication with1361        private entities on issues that may affect American speech.13621363   Produce guidelines that clearly restrict government1364        officials from influencing social media platforms' content1365        moderation decisions of constitutionally protected speech.13661367   Establish a reporting mechanism to allow platforms to report1368        if they think they may be experiencing government jawboning1369        efforts of censorship or content moderation.13701371   Before contemplating new Federal regulation, enact1372        guardrails that preclude existing Federal AI pro-grams, such as1373        the NAIRR and the Center for AI Standards and Innovation1374        (CAISI) (formerly known as the AI Safety Institute) from1375        curtailing speech in the name of addressing harms.\45\1376---------------------------------------------------------------------------1377    \45\ See The Mechanics of Government Censorship 35 (2025).13781379    Any such proposals would of course have to be carefully crafted,1380and would need to be attentive to how, for instance, we may want to1381expect different things from AI platforms than from social media1382platforms. But it's good that the Committee is considering what1383Congress can do here, rather than just relying entirely on courts.1384    Indeed, such new statutes would be like other Federal statutes in1385which Congress has provided more protection for constitutional values1386than the courts have expressly held is required. For instance, Congress1387has chosen to provide extra protection for religious freedom through1388the Religious Freedom Restoration Act and the Religious Land Use and1389Institutionalized Persons Act. It has chosen to provide extra1390protection for free press through the Privacy Protection Act of 1980,1391which limits searches and seizures of journalists' notes and work1392product. It has chosen to provide extra protection for Fourth Amendment1393values through statutes such as the Stored Communications Act and the1394Electronic Communications Privacy Act. Likewise, Congress may wisely1395choose to provide extra protection against government jawboning for1396ordinary citizens' free speech and free press interests as well.1397    The Internet has democratized speech, restricted the power of one1398set of intermediaries (traditional media), and empowered a new set1399(social media platforms). In the process, it has made the latter1400tempting targets both for government coercion and government1401persuasion. Congress should turn its attention to whether government1402jawboning, even when constitutionally permissible, unduly risks1403increasing government power and undermining public debate.1404            Sincerely,1405                                             Eugene Volokh,1406                                    Thomas M. Siebel Senior Fellow,1407                               Hoover Institution, Stanford University.1408          Gary T. Schwartz Distinguished Professor of Law Emeritus,1409                                                    UCLA School of Law.14101411    Senator Schmitt. Thank you very much.1412    We will now recognize Mr. Alex Berenson to deliver his1413opening statement.14141415 STATEMENT OF ALEX BERENSON, INDEPENDENT JOURNALIST AND AUTHOR14161417    Mr. Berenson. Senator Schmitt, Committee Members, thank you1418for giving me the chance to speak on this crucial topic.1419    On October 28--on August 28, 2021, Twitter, as it was then1420called, permanently suspended my account, supposedly for1421violating its COVID-19 Misinformation Rules. The ban deprived1422me of my largest and most vital platform for my journalism at a1423time when many Americans were eager to hear what I had to say1424about COVID and the mRNA vaccines and viewed what I wrote1425millions of times a day.1426    Twitter's decision was no accident. It came after a1427deliberate and relentless campaign by the Biden administration1428as well as at least one senior Pfizer board member to violate1429my First Amendment Rights.1430    Led by Andrew M. Slavitt, an official in the Biden White1431House, the administration began pressuring Twitter to silence1432me almost as soon as President Biden took office with both1433public and private attacks on my reporting. Frontline and1434senior Twitter employees viewed what was happening to me with1435dismay.1436    Going back to 2020, the company had previously defended my1437right to speak as third parties demanded I be censored because1438Twitter believed that it should be a place where free speech1439and debate were encouraged.1440    Ultimately, at the time of my suspension, Twitter's top1441executives, including then Chief Executive Jack Dorsey,1442secretly believed the company should not have suspended me. But1443the Twitter lobbyist who faced the Biden administration's1444pressure most directly went around them to orchestrate my ban.1445    In the words he wrote to another Twitter official just days1446before he silenced me, this lobbyist hoped, ``To keep the1447target off our back'', none of this is speculation.1448    Thanks to internal e-mails and other documents that Twitter1449turned over to me before Elon Musk took over, and more1450documents that Musk voluntarily and graciously turned over1451after he bought the company, I have hard proof of everything I1452have just told you.1453    In fact, after I sued Twitter in 2021, in December 2021,1454over the ban, the company admitted I had not broken its rules1455and that my tweets, quote, ``Should not have led to his1456suspension''--``my suspension''. The company even reinstated me1457in July 2022. Again, that is before Elon bought Twitter.1458    By then, though, I had already suffered and so had a lot of1459people who were depending on my reporting to help them think1460about COVID vaccines and COVID lockdowns. In losing my access1461to Twitter, I lost my best chance to offer Americans my1462dissenting views on the Biden administration's COVID vaccine1463mandates, mandates that the Supreme Court would later strike1464down.1465    Federal District Judge Jessica G.L. Clarke laid out all1466these facts in two rulings she made this year on a 2023 lawsuit1467I brought against the Biden administration and senior officials1468at Pfizer for its censorship--for their censorship.1469    In fact, in a ruling just last week, Clarke noted that,1470``On the merits, the Federal Government has now conceded my1471claim that the Biden administration unconstitutionally violated1472my First Amendment Rights in 2021''. Yet, in the same ruling,1473Clarke still dismissed my lawsuit. That may sound impossible. A1474Federal judge agreed my constitutional rights had apparently1475been violated, yet said my lawsuit over the violation could not1476move forward.1477    But it is true. The Supreme Court has made it essentially1478impossible for me or anyone to win monetary damages for1479violations of their First Amendment Rights by the Federal1480Government. As the law now stands, Federal officials can run1481censorship campaigns, like the Biden administration carried1482out--like the one the Biden administration carried out against1483me, with impunity. At worst, they may face an injunction, but1484they will never have to pay for doing so for violating our most1485basic right, the right to speak freely.1486    So it is open season for government censorship. This1487loophole is even more expansive and dangerous when it comes to1488Federal efforts to jawbone, pressure, or outright threaten1489third parties like Twitter into silencing the speech of their1490users, employees, or business partners. That is true whether1491these third parties are legacy media companies, news social1492media giants, or other types of businesses.1493    As a practical matter, users are generally not privy to the1494communications between Federal officials and the companies, so1495they have no way of proving the pressure existed, or that it1496led to their censorship. My case is exceptional because of the1497documents I have proving my rights were violated. Yet even so I1498have been unable to obtain a remedy so far. And expecting1499companies to resist censorship on behalf of their users or1500business partners is unrealistic.1501    My case, as well as documents the House has unearthed in1502its own censorship investigation shows social media companies1503dislike the Biden administration's efforts to force them to1504censor users, yet, they had many other interests before the1505Federal Government. They viewed sacrificing speech as the price1506they had to pay to stay in the administration's good graces.1507    Every company will face this calculus, whether it is a1508Democrat or Republican, in the White House. And social media1509companies are really the most important way that independent1510Americans, that citizens can get their speech out into the1511marketplace of debate. That is why there is so much pressure on1512them.1513    The truth is that as the law now stands, Federal officials1514have every reason to believe they can coerce private third1515parties to suppress speech. This is a powerful loophole that is1516no doubt enticing to politicians and officials of both parties.1517But it is wrong. Whether it affects Republicans or Democrats,1518journalists or comedians, conservatives, or liberals, or1519independents, and whether it goes by jawboning, coercion,1520pressure, or threats, this kind of censorship is wrong.1521    And this committee has the chance to begin the process of1522fixing that wrong. I urge you to take it.1523    [The prepared statement of Mr. Berneson follows:]15241525 Prepared Statement of Alex Berenson, Independent Journalist and Author1526    Chairman Cruz, committee members, thank you for giving me the1527chance to speak on this crucial topic.1528    On Aug. 28, 2021, Twitter (as it was then called) permanently1529suspended my account, supposedly for violating its ``COVID-191530misinformation rules.'' The ban deprived me of the largest and most1531vital platform for my journalism--at a time when many Americans were1532eager to hear what I had to say about COVID and the mRNA vaccines and1533viewed what I wrote millions of times a day.1534    But Twitter's decision was no accident. It came after a deliberate1535and relentless campaign by the Biden Administration (as well as at1536least one senior Pfizer board member) to violate my First Amendment1537rights. Led by Andrew M. Slavitt, an official in the Biden White House,1538the administration began pressuring Twitter to silence me almost as1539soon as President Biden took office, with both public and private1540attacks on my reporting.1541    Both frontline and senior Twitter employees viewed what was1542happening to me with dismay. Going back to 2020, the company previously1543defended my right to speak as third parties demanded I be censored.1544Ultimately, Twitter's top executives, including then-chief executive1545Jack Dorsey, secretly believed the company should not have suspended1546me. But the Twitter lobbyist who faced the Biden Administration's1547pressure most directly went around them to orchestrate my ban. In the1548words he wrote to another Twitter official just days before he silenced1549me, the lobbyist hoped ``to keep the [White House] target off our1550back.''1551    None of this is speculation. Thanks to internal e-mails and other1552documents that Twitter provided to me before Elon Musk took over--and1553more documents that Musk graciously and voluntarily turned over after1554he bought the company--I have hard proof of everything I've just told1555you. In fact, after I sued Twitter in December 2021 over the ban, the1556company admitted I had not broken its rules and ``Mr. Berenson's Tweets1557should not have led to his suspension.''1558    The company even reinstated me in July 2022--again, before Musk1559bought Twitter. By then, though, the damage had already been done. In1560losing my access to Twitter, I lost my best chance to offer Americans1561my dissenting views on the Biden Administration's COVID vaccine1562mandates, mandates the Supreme Court would strike down.1563    Federal District Judge Jessica G.L. Clarke laid out all these facts1564in two rulings she made this year on a 2023 lawsuit I brought against1565the Biden Administration and senior officials at Pfizer for its1566censorship. In fact, in a ruling just last week, Clarke noted that ``on1567the merits,'' the federal government has now conceded my claim the1568Biden Administration unconstitutionally violated my First Amendment1569rights in 2021.1570    Yet, in the same ruling, Clarke still dismissed my lawsuit.1571    This may sound impossible--a Federal judge agreed my Constitutional1572rights had apparently been violated, yet said my lawsuit over the1573violation could not move forward. Yet it's true.1574    Why?1575    Because the Supreme Court has made it impossible for me, or anyone,1576to win monetary damages for violations of their First Amendment rights1577by the Federal government. In fact, as the law now stands, Federal1578officials can run censorship campaigns like the one the Biden1579Administration carried out against me with near-impunity. At worst,1580they may face a judicial injunction telling them to stop violating the1581First Amendment. But neither the officials individually nor the1582government as a whole face any risk that they may have to pay for doing1583so--for violating Americans' most basic Constitutional right, the right1584to speak freely.1585    It's open season for government censorship.1586    This loophole is even more expansive, and thus dangerous, when it1587comes to Federal efforts to ``jawbone,'' pressure, or outright threaten1588third parties like Twitter into silencing the speech of their users,1589employees, or business partners. That's true whether those third-1590parties are legacy media companies, new social media giants, or other1591kinds of businesses.1592    Why? First, as a practical matter, users are generally not privy to1593the communications between Federal officials and the companies, so they1594have no way of proving the pressure existed or that it led to their1595censorship. My case is exceptional because of the documents I have1596found proving that my rights were violated--yet even so, I have been1597unable to obtain a remedy so far.1598    Second, expecting the companies to resist censorship on behalf of1599their users or business partners is unrealistic. My case, as well as1600documents from Facebook/Meta and other social media companies that the1601Select Subcommittee on the Weaponization of the Federal Government has1602unearthed in its own censorship investigation, shows that social media1603companies disliked the Biden Administration's efforts to force them to1604censor users.1605    Yet they had many other interests before the Federal government.1606They viewed having to sacrifice speech from some users as the price1607they had to pay to stay in the administration's good graces. Every1608company faces this calculus, whether a Democrat or Republican is in the1609White House.1610    Yet jawboning of social media companies, in particular, is a more1611successful censorship strategy than ever before. These outlets are now1612the most important way for individuals to push their ideas into the1613marketplace of debate. I saw this firsthand in 2020 and 2021 (and still1614do). Twitter gave me a megaphone I would not otherwise have had, which1615is why the Biden Administration was so desperate to take it from me.1616    In 2024, the Supreme Court found that ``a government official1617cannot do indirectly what she is barred from doing directly: A1618government official cannot coerce a private party to punish or suppress1619disfavored speech on her behalf.'' But that case, NRA v Vullo, applied1620to state government officials--New York state's insurance commissioner,1621to be precise.1622    The truth is that as the law now stands, Federal officials have1623every reason to believe they can coerce private third parties to1624suppress speech without facing any sanction. And following the success1625of the Biden Administration's efforts against me and other users, they1626have every reason to believe those efforts will succeed.1627    This is a powerful loophole that is no doubt enticing to1628politicians and officials of both parties. But it is wrong. Whether it1629affects Republicans or Democrats, journalists or comedians,1630conservatives or liberals or independents--and whether it goes by1631``jawboning,'' ``coercion,'' ``pressure,'' or ``threats,'' this kind of1632censorship is wrong. Only two institutions have the power to fix it--1633Congress and the Supreme Court.1634    But the Supreme Court has until now declined to act, by extending1635the right to money damages to First Amendment claims.1636    This committee has a chance to begin the process of doing so--to1637take the first step helping Congress protect our vital Constitutional1638rights from censorious Federal officials. I urge you to take it.1639    Again, thank you for giving me the chance to tell you about my case1640and my censorship. I view the protection of free speech as a bipartisan1641issue, and this issue as one that will hopefully have a bipartisan1642solution. I am happy to take any questions.16431644    Senator Schmitt. Thank you.1645    We will now recognize Sean Davis to deliver his opening1646statement.16471648     STATEMENT OF SEAN DAVIS, CHIEF EXECUTIVE OFFICER, THE1649                           FEDERALIST16501651    Mr. Davis. It begins with censorship, it moves to the1652destruction of statues and monuments, and it ends with the1653murder of people. It begins with censorship, it moves to the1654destruction of statues and monuments, and it ends with the1655murder of people.1656    The drive to silent speech does not end at a podium's edge1657or at the four corners of a page, it always advances toward the1658violent elimination of speakers. And that is because the1659authoritarian impulse to silent speech is driven by a1660totalitarian desire to seize total power by any means1661necessary, up to and including the murder of one's political1662opponents.1663    This dynamic was made clear on a Tuesday afternoon in Utah1664last month when my friend, Charlie Kirk, was assassinated in1665broad daylight by a left-wing transgender ideologue who is1666enraged by Charlie's clear understanding and teaching that God1667created us male and female. That boys cannot become girls and1668girls cannot become boys. Charlie was murdered by this left-1669wing assassin who had been radicalized by demonic transgender1670ideology because he was one of the most bold and effective1671speakers in the country opposed to this evil ideology.1672    Rather than see a nation unite against terroristic violence1673designed to permanently silence speech, we actually saw the1674opposite. We witnessed people praising the murder of Charlie.1675We witnessed people thanking his assassin. We even witnessed1676members of the U.S. Congress all but say that Charlie deserved1677it.1678    That is not the only recent example. The Democratic1679candidate for Attorney General in Virginia was revealed last1680week to have called for the murder of one of his political1681opponents. Even worse, he also said he wanted his opponent to1682witness the murder of his own children, to watch them die in1683their mother's arms. Why? To make him feel pain for having1684different political opinions.1685    How many here today condemned that insanity or publicly1686recognized that someone with such a broken moral compass is1687simply unqualified to be a state's top law enforcement officer?1688We have heard the tired cliche that riots are the language of1689the unheard. But the reality is that violence is the language1690of the unhinged and far too many people in this room are fluent1691in it.1692    My name is Sean Davis and I am the CEO and Co-Founder of1693The Federalist, a conservative digital media company that1694focuses on politics, culture, and religion. I am also a victim1695of illegal and unconstitutional censorship. My company, my1696colleagues, and I have been the targets of a coordinated and1697global multiyear censorship campaign.1698    In 2020, a foreign government connected outfit in the UK1699colluded with Google to demonetize The Federalist, our crime,1700we published an article in the summer of 2020 entitled, ``The1701Media Are Lying to You About Everything, Including the Riots''.1702    Later that year, in the midst of a close and heated1703Presidential election campaign, government-funded efforts in1704the U.S. repeatedly censored Mollie Hemingway, The Federalist1705Editor-in-Chief and a New York Times bestselling author who is1706here behind me today, and me because of our election reporting1707and commentary. I was censored for posting a screenshot of and1708a link to a Pennsylvania Supreme Court decision requiring mail-1709in ballots received after election day and lacking a postmark1710to be counted and presumed as valid votes.1711    Mollie was censored for posting a link to an article The1712Federalist published. The headline of that article, ``America1713Won't Trust Elections Until the Voter Fraud Is Investigated.''1714    But the censorship did not stop there. We were also1715targeted for bankruptcy and destruction by the U.S. State1716Department and its Global Engagement Center, or GEC. Despite1717the fact that GEC was explicitly prohibited by both the U.S.1718Constitution via the First Amendment and its authorizing1719statute from targeting domestic speech, it nonetheless sought1720to drive us out of business by funding, developing, and1721distributing technologies and tools to reduce our reach, by1722bullying advertisers into blacklisting us, and many other1723conservative outlets, and by coercing big tech companies like1724Facebook, Google, and Twitter to throttle access to our1725content.1726    In essence, our own government secretly and without any due1727process, charged us with thought crimes, convicted us, and1728sentenced The Federalist to death. The censorship efforts our1729government funded with our money are still being wielded1730against us today.1731    I am here today to testify about the unconstitutional and1732illegal censorship of my company and my colleagues. But I am1733also here to help you understand the real-world consequences in1734flesh and in blood of the drive to silence your political1735opposition.1736    It does not stop at the page's end. The effort to censor1737and silence political opposition is not the final step in the1738effort to usher in tyranny and authoritarianism. It begins with1739censorship. It moves to the destruction of statues and1740monuments, and it ends with the murder of people. And it has to1741stop. Thank you.1742    [The prepared statement of Mr. Davis follows:]17431744  Prepared Statement of Sean Davis, CEO and Co-Founder, The Federalist1745    Chairman Cruz, Ranking Member Cantwell, and members of the1746committee, thank you for inviting me to testify on behalf of First1747Amendment speech and press rights and against authoritarian censorship1748designed to shut down the free speech rights of American citizens.1749    My name is Sean Davis, and I am the CEO and co-founder of The1750Federalist, a conservative digital media company focused on politics,1751culture, and religion. I am a Christian, a conservative, and a1752political commentator and reporter. I am also the victim of illegal and1753unconstitutional censorship by my government which was targeted at my1754publication, my publication, and me personally.1755    The First Amendment affirms and protects five God-given rights:1756free speech, religion, press, assembly, and petition. In my capacity as1757the publisher of a major national media outlet which produces news and1758opinion, an infringement on or abridgement of any one of those five1759rights can be cataclysmic.1760    Unfortunately, my publication, our writers, and I were all directly1761targeted for destruction by my own government, using my tax dollars.1762Even worse, much of the targeting was done in secret, by individuals1763and institutions who were desperate to hide their illegal and1764unconstitutional actions against us. This long-running conspiracy to1765deprive us of our God-given First Amendment rights is illegal,1766unconstitutional, and unconscionable. Sadly, many senators who sit on1767this committee either refused to condemn and fight these censorship1768efforts, or outright supported them.1769    In the summer of 2020, at the behest of foreign government-1770connected organizations, Google attempted to demonetize The Federalist1771for the apparent crime of criticizing American government response to1772and media coverage of COVID-19 and the violent Black Lives Matter (BLM)1773riots that raged throughout the country. The apparent article that1774triggered this outrageous attack on us and our First Amendment rights1775was entitled, ``The Media Are Lying To You About Everything, Including1776The Riots.''1777    This was all orchestrated secretly behind closed doors between a1778foreign NBC News cell and corrupt Google executives, despite the fact1779that we had broken zero rules. But that was only the beginning.1780    Unbeknownst to us at the time, a government department called the1781Cybersecurity and Infrastructure Security Agency (CISA) was also1782directing and funding censorship efforts against my colleagues and me1783because of our reporting on unprecedented new election laws rammed1784through ahead of the 2020 election. This agency is supposed to prevent1785attacks on American infrastructure, but at some point its leaders1786apparently decided that its real objective was to censor American1787citizens and journalists for criticizing their own government.1788    My colleagues and I were deliberately singled out for censorship1789because our own government decided our rights as citizens and members1790of the news media needed to be crushed. The agency and its partners1791used a ticketing system to flag and report social media posts that it1792wanted to be eliminated and funded efforts to badger and threaten tech1793companies, many of which had effective monopolies over online content,1794to delete social posts that the government and its partners found1795inconvenient.1796    For those who know me or follow me on social media, I can be1797opinionated and provocative. But in this particular case, it wasn't1798even one of my spicier tweets that attracted the ire of Orwellian1799government censors. In a tweet targeted for censorship, I posted a1800screenshot of and a link to a Pennsylvania Supreme Court decision which1801stated that mail-in ballots received after the election and containing1802no postmark still had to be presumed as cast on-time, and counted.1803Anyone who understands basic logic can see the problems with such a1804declaration: ballots cast and mailed long after the election,1805potentially even after preliminary results were known, would still have1806to be counted, creating huge incentives to flood the system with late,1807invalid ballots.1808    My tweet with the link to and screenshot of that Pennsylvania1809Supreme Court decision was censored by Twitter, and it was done so at1810the direct demand of a U.S. Federal government-sponsored censorship1811consortium. Another one of my tweets, in which I alleged that the best1812evidence that the 2020 election was being rigged was the fact that1813tweets stating the election was being rigged were being censored, was1814censored. Another ticket demanding censorship of me stated, ``[S]ame1815guy (sean davis) continues to post about this. has spread to thousands1816on [Facebook] because of Federalist article[.]''1817    According to JIRA ticket data obtained and release by the House1818Judiciary Committee, at least 21 separate tickets were submitted to1819censor Twitter posts from me. Several of those tickets also demanded1820censorship by Facebook.1821    Kafka-esque doesn't even begin to describe this madness.1822    My colleague Mollie Hemingway, who wrote a national best-selling1823and rigorously researched and fact-checked book about 2020 election1824shenanigans, was also censored by Twitter at the demand of the Federal1825government and its partners. Multiple censorship tickets were submitted1826to shut down her social media presence. The most ridiculous example was1827a demand to censor a tweet from Mollie which contained a link to an1828article published by The Federalist. The headline of that article?1829``America won't trust elections until the voter fraud is1830investigated.''1831    Imagine how deranged and authoritarian you must be to want to1832censor a post about how addressing voter fraud is key to ensuring1833election integrity.1834    Though we noticed and wrote about that censorship at the time, we1835had no idea that it was our own government which funded and targeted1836our speech for censorship, nor did we understand how often we had been1837targeted, both personally and institutionally. It was only through1838dogged investigation and oversight from people like Rep. Jim Jordan and1839then-Missouri Attorney General and now-Sen. Eric Schmitt that the1840depths of the government scheming against us even began to be plumbed.1841    Again, the censorship didn't stop there, and it didn't remain1842contained within CISA. We were also targeted for outright bankruptcy1843and destruction by the U.S. State Department and its Global Engagement1844Center (GEC). Despite the fact that GEC was explicitly prohibited by1845both the U.S. Constitution via the First Amendment and by the very1846statute which created and authorized the agency from targeting domestic1847speech, it nonetheless sought to drive us out of business by funding,1848developing, and distributing technologies and tools to reduce our1849reach, by bullying advertisers into blacklisting us and many other1850conservative outlets, and by coercing Big Tech companies like Facebook,1851Twitter, and Google to throttle access to our content. In essence, our1852own government secretly and without any due process charged us with1853thoughtcrimes, convicted us, and sentenced The Federalist to death.1854    We survived, but just barely.1855    Once the censorship-industrial complex injected its lies into the1856bloodstream of the body politic, the effects became endemic and1857permanent. To this day, we are still dealing with the effects of their1858blatantly illegal and unconstitutional censorship efforts. Although we1859sued in Federal court nearly two years ago, we are still awaiting1860relief. Although the President and Vice President of the United States1861admitted that these illegal censorships efforts were undertaken, we are1862still awaiting relief. And although the U.S. Secretary of State1863himself, whose agency targeted The Federalist, plainly admitted in our1864very pages that the State Department did exactly what we alleged, we1865are still awaiting relief. Some members of this committee have1866supported our efforts to vindicate our rights. Many, however, haven't1867said a word in our defense, a fact which suggests that defenses of1868media millionaires like Jimmy Kimmel are based more on partisanship1869than any sort of actual belief in free speech.1870    And it is worth noting that unlike Mr. Kimmel, who is employed and1871distributed by a broadcaster who is required to abide by well-known1872rules as a condition of operating a monopoly on publicly owned1873airwaves--rules that were drafted and enacted by this very legislative1874body--my colleagues and I are independent journalists who operate1875online, far outside the regulatory purview of the Federal1876Communications Commission (FCC). FCC rules and regulations, which radio1877and television broadcasters like Mr. Kimmel are required to obey, do1878not apply to us. It also takes real chutzpah, in the aftermath of the1879assassination of Charlie Kirk--who was brutally murdered while1880peacefully debating a college student about transgender ideology--to1881try and make Jimmy Kimmel a free speech martyr just to cynically change1882the subject from yet another example of left-wing violence designed to1883permanently silence not just speech, but its speakers.1884    As we noted in our complaint against the State Department, we are1885the victims of one of the most audacious, manipulative, secretive, and1886gravest abuses of First Amendment rights by the Federal government in1887American history.1888    I have no doubt today that we will hear words like1889``disinformation,'' ``misinformation,'' and ``malinformation'' thrown1890around by politicians desperate to create a pretext for censoring1891speech and speakers they don't like. Make no mistake: these types of1892labels exist entirely to justify illegal and unconstitutional1893violations of the First Amendment rights of every American.1894    Americans are allowed to say ridiculous things on the Internet.1895They are allowed to post things you don't think are true. They are1896allowed to publish things that are mean. They are allowed to be1897hateful. Politicians and government officials do not have the authority1898to bootstrap their way to censorship by baselessly throwing a ``Russian1899disinformation'' label on every post or news article they don't like.1900In fact, the more a particular politician dislikes a particular1901political statement, the more it is protected by the First Amendment.1902We don't really need laws to protect popular speech. It is the1903unpopular speech, the speech that criticizes government, that is most1904desperately in need of protection.1905    It also is imperative that everyone lives under the exact same1906speech regime. A legal regime in which one party or one side of the1907political spectrum has free speech, while another is subjected to1908speech controls, is an abomination, and one that should not be1909tolerated. It is absurd to watch the government crack down on accurate1910reporting, like that of the New York Post, which was censored for1911reporting on Hunter Biden's laptop, and then watch publications that1912repeatedly published falsehood after falsehood not just escape1913scrutiny, but receive lucrative journalism prizes and rewards for their1914nonsense.1915    I would prefer that everyone live under a legal regime that1916treasures and protects free speech and freedom of the press. In fact, I1917have fought for that for years. But I will not abide a system that1918illegally cracks down on conservative media while doing nothing to stem1919left-wing lies. Everyone should live under the same set of rules.1920    The best antidote to speech you don't like is more speech. That is1921why the Founding Fathers drafted the Constitution and the Bill of1922Rights. They understood that a government could not purport to1923represent its people if it prohibited their rights to speech, assembly,1924religion, press, and petition. It is time to return to a world where we1925can say what we wish without fear of being censored, or deplatformed,1926or shot dead.1927    If you woke up two weeks ago and suddenly decided you care about1928free speech, I invite you to prove it. I invite you to demonstrate to1929the world that your commitment to free speech is principled, rather1930than an attempt to change the subject because one of your famous1931millionaire friends on television received 1/1,000,000,000th of the1932treatment that conservatives have been subjected to for years. I invite1933you to condemn the nakedly illegal and unconstitutional censorship1934efforts of the last 5 years. I invite you to apologize for any past1935support of censorship. I invite you to finally stand up for speech you1936don't like from people you don't like. And I invite you to condemn any1937and all violence meant to permanently silence speech, and speakers,1938even if you hate them.1939    Prove your commitment to the First Amendment is real by finally1940admitting to the censorship schemes many of you cheered, and working to1941make sure nothing like that ever happens again.19421943    Senator Schmitt. Thank you. We will now recognize Mr. Gene1944Kimmelman for his opening remarks.19451946  STATEMENT OF GENE KIMMELMAN, SENIOR FELLOW, TOBIN ECONOMIC1947                 POLICY CENTER, YALE UNIVERSITY19481949    Mr. Kimmelman. Thank you, Mr. Chairman, Senator Cantwell,1950Members of the Committee. It is an honor to appear before you1951today.1952    So as we have experienced this explosion in digital1953technology which fundamentally is transforming our media1954landscape and information ecosystem, I think the fundamental1955principles that our democracy has always relied upon remain the1956same. First, we must prevent government from censoring1957protected speech as Mr. Volokh said. Second, we must also1958prevent media and information distribution platforms from1959concentrating enough power to block the competition and1960diversity that fuels open debate in our society.1961    I am worried that the current FCC is heading down a1962dangerous path on both of these principles. Recent statements1963from Chairman Carr echoing the President threatening to revoke1964broadcast licenses for presenting content unfavorable to the1965administration has chilled protected speech, and the FCC's push1966to eliminate or relax broadcast ownership rules and to welcome1967consolidation in media threatened the independence and1968diversity of local media that are critical to an informed1969citizenry.1970    Just consider we have pending before us the NextStar merger1971with TEGNA, combining broadcast--national broadcast companies1972with more than 250 broadcast stations. combining multiple1973broadcast licenses in the top markets that are the most popular1974broadcast television stations, and having ownership in two-1975thirds of all markets, covering almost 80 percent of all1976households in the country, even though this appears to violate1977the limit Congress set at half that level Chairman Carr seems1978to be moving forward.1979    And this is on the heels of Skye Dance backed by Oracle's1980owner, Mr. Larry Ellison, buying Paramount Global, CBS, now1981seeking to buy Warner Brothers, Discovery, more studios, more1982networks, cable channels, and Mr. Ellison appearing to pick up1983about a 20 percent stake in TikTok. And the FCC is also1984considering allowing companies to own multiple national1985networks.1986    These deals, and certainly more to follow, likely threaten1987to build a form of private censorship through outsized media1988power. It is time to update the law and establish new1989guardrails to promote local, diverse, and independent media.1990The threat to democracy also comes from the dominant1991information distribution systems controlled by Google, Meta1992with Facebook, Instagram, WhatsApp, and Apple with its App1993Store.1994    Here, the Trump administration has done an excellent job1995challenging these companies monopolistic behavior, continuing1996the antitrust enforcement from the Biden administration.1997However, antitrust is not enough to eliminate the enormous1998power of these text platforms. More needs to be done.1999    Congress must give antitrust enforcers more tools to truly2000open up the tech information distribution platforms and modern2001media markets to robust competition. We need to reduce2002concentration of control in these markets. Private control that2003can censor just as the government can censor.2004    In conclusion, I want to say it is really time for Congress2005to update the Communications Act, to jump in and put an end to2006the threat of the bullying that we are seeing from the FCC,2007which chills speech and eliminates open debate and information2008flow in our media. And it is time to stop media consolidation2009and monopolization that puts too much control over the2010marketplace of ideas into few hands.2011    Thank you, Mr. Chair.2012    [The prepared statement of Mr. Kimmelman follows:]20132014  Prepared Statement of Gene Kimmelman, Senior Fellow, Tobin Economic2015Policy Center, Yale University; Senior Fellow, Mossavar-Rahmani Center2016          for Business and Government, Harvard Kennedy School2017    Democracy in the United States is built upon a foundation of2018constitutional speech protections plus a process of open debate and2019elections, fueled by independent and diverse media. I believe our2020democracy cannot survive unless we prevent government from coercing or2021suppressing protected speech. Nor can it survive without strong2022competition along independent and diversely owned information and media2023distribution platforms.2024    A robust marketplace of ideas requires strong protection against2025both public interference in open debate and the exercise of private2026market power that distorts or blocks public discourse. I am concerned2027that recent statements and actions from government officials, like the2028Chairman of the Federal Communications Commission (FCC), appear2029designed to unduly pressure tech platforms and media distribution2030companies to favor certain speech and suppress the views of others. I2031am equally concerned that a wave of media consolidation driven by the2032current FCC's efforts to relax or eliminate ownership rules will2033concentrate local media power in the hands of a few national companies,2034reduce the diversity of national media players, and thereby empower a2035few media tycoons to distort the most popular sources of information in2036our society.2037    While strong antitrust enforcement can play a critical role to2038prevent media monopolization or excessive concentration of ownership,2039it is not enough to ensure open debate through local and diverse2040players in the media ecosystem. The Trump Administration's antitrust2041enforcement cases (which build upon the work of the Biden2042Administration) against Google's, Meta's, and Apple's monopolization2043practices are precisely what is needed to break up or restrain tech2044platform practices that harm competition and impede the free flow of2045information.2046    Although many of these cases are still pending, the recent Google2047search remedy decision illustrates how cautious courts are when2048confronted with a legitimate request to require asset divestitures or2049ban on payments that have been found by the courts to be illegal in2050nature. Courts seem reticent to upend business models, even in the face2051of blatantly illegal behavior. Furthermore, antitrust was never2052designed to directly promote democracy by maximizing diverse2053marketplace voices. Antitrust is a necessary but often insufficient2054tool to sustain local, diverse media.2055    That is why Congress's decision to promote local and diverse media2056through communications policy has always been so important to our2057democracy. Obviously, the explosion of digital technology has2058dramatically changed the media landscape. However, a substantial2059portion of the public still relies upon local broadcast content,2060regardless of how the content is distributed, for their daily news and2061information. More importantly, these local media play a critical role2062in promoting open public debate at the key moments when we select our2063public representatives.2064    I am therefore concerned that the FCC is heading down a very2065dangerous path by suggesting that diverse and locally controlled2066broadcast media may not matter anymore. It is also disconcerting to see2067a data gathering giant (Oracle) become financially intertwined with a2068national television network (Paramount/CBS) which is seeking to2069purchase a major studio and cable channels through Warner Bros2070Discovery while picking up a substantial ownership stake in TikTok.2071Such conglomeration involving major media companies threatens media2072diversity and will likely lead to further consolidation among other2073tech and media players.2074    Now is the time for Congress to step in and update the2075Communications Act and expand antitrust tools that can pry open tech2076platforms and the emerging Artificial Intelligence (AI) market to2077increase competition. I believe technological changes have blurred the2078lines between broadcast, cable, streaming, website content, and user2079generated media like YouTube. Therefore, Congress needs to delineate2080and update public duties across all media. Congress should treat all2081forms of media power equally, and establish new standards for2082independent ownership and control that promote a robust marketplace of2083ideas. In addition dominant tech platforms must be prevented from2084discriminating against those dependent on information and services2085distributed over those platforms.2086    Given that Google was not constrained by the Federal District Court2087from making unlimited payments to Apple, Samsung, Motorola, or the2088wireless phone carriers to promote their search and AI services, it is2089now imperative that Congress also established guardrails to ensure that2090neither Google nor anyone else can dominate the exploding AI2091marketplace.2092    It is critical that we prevent both government and private players2093from impeding the free flow of ideas in our society. Our democracy2094cannot survive without robust media competition and open debate,2095especially involving public discourse about how we govern ourselves.20962097    Senator Schmitt. Thank you. Thank you for testimony.2098    And I guess I will just start there with just a quick2099question. So Mr. Kimmelman, you are the CEO of a group called2100Public Knowledge; is that correct?2101    Mr. Kimmelman. I was at one point, sir.2102    Senator Schmitt. OK. When what years were you the CEO of2103Public Knowledge?2104    Mr. Kimmelman. 2014 to 2019.2105    Senator Schmitt. OK. Let us just take a DeLorean back in2106time to COVID era. Do you think it is appropriate for these,2107sort of, NGOs or non-profits to work hand-in-hand with2108government agencies to flag misinformation, or disinformation,2109or malinformation?2110    Mr. Kimmelman. Mr. Chairman, I have worked with NGOs for2111many, many years, and I think it is appropriate on the left and2112the right for them to present ideas to the government, to the2113major players in the marketplace about their views, that2114certainly, that is what I was involved with.2115    Senator Schmitt. Well, let me get more specific then. Do2116you think it is appropriate that the White House was working2117directly through a number of different agencies to work with2118the University of Washington and Stanford information to sort2119of outsource their censorship enterprise to find out what the2120posts that they did not like, and then work with--and then2121collude with at least, or coerce social media companies to2122punish those folks?2123    Mr. Kimmelman. Well, Senator, I think it is--I have seen2124the government in many instances work with private2125contractors----2126    Senator Schmitt. But I am asking--I am asking about this2127instance because it was not like a you know a galaxy far, far2128away, it was like a few years ago. Do you think that is2129appropriate?2130    Mr. Kimmelman. Yes, I am not familiar with the details of2131what might or might not happen there.2132    Senator Schmitt. But what about the scenario I just gave2133you though?2134    Mr. Kimmelman. Working with a university to----2135    Senator Schmitt. To flag misinformation so that the2136government then can coerce social media companies to throttle2137or to----2138    Mr. Kimmelman. I never think government should coerce2139social media companies, so I cannot imagine----2140    Senator Schmitt. OK.2141    Mr. Kimmelman [continuing]. That that part of it as----2142    Senator Schmitt. OK. Thank you.2143    Mr. Davis, your testimony described how in the summer of21442020 Google attempted to demonetize The Federalist following2145your critiques of violent Black Lives Matter riots. it is2146documented that the Center for Countering Digital Hate, the2147CCDH, specifically worked to demonetize The Federalists for2148these critiques. Could you just describe what tactics,2149specifically, were employed to do that?2150    Mr. Davis. Yes, sir. Thank you for bringing that up. So I2151believe it was in July 2020, we started receiving e-mails from2152a NBC News reporter based out of the UK, I do not remember her2153name exactly, and they were almost taunting asking for comment:2154Hey, Federalist, how does it feel knowing Google is going to--2155is about to demonetize you for hate speech, or something like2156that. I am paraphrasing.2157    And this was news to us. We had not broken any rules. We2158had gotten no notifications of breaking rules that we had2159violated Google's terms and conditions, or AdSense's, or2160whatever. And so we started calling around to contacts at2161Google and learned that: Oh, yes, you are about to be2162demonetized because of hate speech was what we were told. We2163had, you know, racist, violent hate speech which was not true2164at all.2165    And it was the CCDH who was working with this NBC News, I2166think it was called the Verification Unit at the time, they2167were working together and colluding with executives at Google,2168to this day I do not know who, to come in and secretly2169demonetize us. And what I found most offensive about it was2170they were all in on it. They had news articles ready to be2171written kind of crowing about how we got demonetized.2172    We were able to fight back. We had a pretty robust response2173to that, and they ended up relenting. Largely, what was2174interesting was in that initial news article targeting us they2175had cited that news article, how the media are lying to you2176about literally everything including the riots. The NBC News2177ended up stealth editing that out, and they worked with Google2178to come up with a new rationale for demonetizing us, which was2179our comments were mean.2180    We had an unmoderated comment section. So we ended up2181having to delete our comment section to avoid being demonetized2182by Google because a bunch of foreign-connected government2183outfits decided that they did not like what we were publishing.2184    Senator Schmitt. OK. In limited time, I want to--Mr.2185Berenson, it is clear now that during the Biden administration,2186CISA, which is mentioned a lot in this report obviously,2187operated kind of a switch-boarding mechanism during this period2188flagging disfavored content from domestic sources for social2189media platforms. Based on what you have seen, how was CISA2190specifically doing this? What was the abuse really all about?2191    Mr. Berenson. Well, again, I think you laid it out. You2192know, they redefined infrastructure so it was not actual2193physical infrastructure or software infrastructure it was2194things people were saying. And you know, there was a period2195very early in 2022 when they actually tried to redefine2196terrorism as quote/unquote ``misinformation'', there is a2197bulletin from February 2022 which I think DHS put out and then2198retracted under pressure.2199    So you know, once you start saying that people's speech is2200terrorism, you are going down a bad path and I think--I do not2201think that is something that either party should do, honestly.2202    Senator Schmitt. Thanks. Ranking Member Cantwell.2203    Senator Cantwell. Thank you, Mr. Chairman. I am going to2204yield to my colleague for a second to make a statement, then I2205will finish with my questions.22062207               STATEMENT OF HON. AMY KLOBUCHAR,2208                  U.S. SENATOR FROM MINNESOTA22092210    Senator Klobuchar. Thank you. I will do my questions on the2211record because I have to leave, but I was not going to speak2212and I appreciate Senator Cantwell's willingness to let me say a2213few words here, given what happened in my state this summer.2214    First of all, I think Mr. Kimmelman knows that I have been2215out front on monopoly issues, and antitrust, and making sure2216that we have true competition in the marketplace, working with2217Senator Cruz, and Senator Lee, and Senator Kennedy, and many2218others on that issue, and I continue to believe that it is a2219legitimate solution.2220    Second, I think what happened with the Chair of the FCC was2221wrong in the last month. I appreciated Senator Cruz being out2222front on it. I truly do. And calling it out. And I am looking2223forward to that hearing to try to get some sense into what is2224going on there, with not just the Jimmy Kimmel moment, but many2225others.2226    Third, I think that the AI piece of this, and I will ask2227some questions about this, but to me, it should not be that2228radical that we say number one that if speech is violent or it2229incites violence, that that is different than other kinds of2230speech, but that with these AI videos where you cannot even2231tell it is yourself or not, I had this experience at a hearing,2232that they could at least be labeled.2233    It is always going to be litigation over whether something2234is the violent side, and the heat side, or whether it is the2235legally, constitutionally allowed speech like parody. But at2236the very least these videos should say something about prepared2237for by AI, or digitally created.2238    I just happened to be late on CNN last night and Robin2239Williams' family was on one of the shows talking about how he2240is dead, and they have created AI videos that do not say2241digitally altered, that people think are real. So people should2242have the right over their own identity.2243    And the last thing, when it comes to these horrific mass2244shootings and acts of violence, I have come to see them as all-2245purpose haters, which is something that the FBI actually said,2246after the enunciation, church shooting in Minnesota, because2247that shooter actually hated President Trump in the manifesto,2248hated wokeness, hated Jews, hated Muslims, hated Hispanics,2249hated Blacks, and shot these two little kids, Fletcher and2250Harper, through stained-glass windows in a Catholic church.2251    Then you go to the shooting of my dear friend, and I had a2252good discussion with FBI Director Patel about this in2253judiciary. He lost his friend Charlie Kirk and we mourn that.2254And we lost our friend Melissa Hortman.2255    Now, that shooter literally had a manifesto or ramblings2256that targeted mostly, and in fact all Democratic office holders2257and he went to the houses of the people that he knew--that he2258knew the addresses, and the ones that he did not he was not2259able to go to.2260    He went after law firms, businesses, went after planned2261parenthood, and then left a actual letter saying that he did it2262because he was supposed to assassinate me, which is on X about2263every 5 minutes with my name with ``assassination'', which I2264think is completely not a good idea for public safety, but I2265cannot get it off.2266    So the point of all this is that to say it is one side or2267the another when you look at the Cato Institute Report that2268came out this year of this extremism and what is triggering2269these, basically, mad murderers to commit these acts, whether2270it is in the Michigan temple, or whether it is Charlie Kirk in2271Utah. I just do not think it is the right approach to be like2272it is one side or the other.2273    These people have been targeted, in their heads, and they2274go out and create these mass crimes and it is on us to figure2275out what is triggering them and actually do something about it2276instead of playing the blame game.2277    One of my answers is an assault weapon ban or at least 212278years and under that would have helped in Uvalde, Buffalo,2279Parkland, doing something about this instead of just blaming2280each other. Thank you.2281    Senator Schmitt. Thank you. Senator Fischer.22822283                STATEMENT OF HON. DEB FISCHER,2284                   U.S. SENATOR FROM NEBRASKA22852286    Senator Fischer. Thank you, Senator Schmitt.2287    Mr. Davis, government censorship in the name of fact-2288checking is an unacceptable trampling on our democratic values.2289Knowing what we know now, how should social media companies2290respond if the government comes to them to deplatform users2291based on their political opinions? What is your suggestion?2292    Mr. Davis. That is a great question. Thank you for raising2293it. If I could wave a magic wand and create a solution or a2294response there, what I would say is anytime a government goes2295to a social media platform, Google, YouTube, Twitter, whatever,2296and they tell someone, you need to take this down because it is2297hate speech, or misinformation, or whatever fancy label they2298want to throw on speech they do not like, first off, those tech2299companies should tell them to take a hike. We do not censor2300anyone. We are a platform. we are not a content company.2301    And then number two, I think they should have to disclose2302it to the public and the people who were targeted. I would love2303to have known in 2020 who was actually behind the censorship of2304me and my colleagues. We knew we were being censored because we2305watched it happen. We saw our posts disappear. We saw ourselves2306being shadow-banned. We did not actually know why.2307    I would say to this day, we do not actually understand the2308full extent of the government effort to censor us. So I think2309there should be full disclosure following an absolute denial of2310any sort of censorship demands from government. it is totally2311inappropriate.2312    Senator Fischer. Thank you. Mr. Berenson, I thank you for2313sharing your experience of being deplatformed by Twitter. it is2314a valuable story for us to hear. You spoke of a huge influence2315that you witnessed between Twitter and the White House at the2316time back in 2020. And you described your understanding that2317the company's lobbyist hoped to keep the White House target off2318their back. Can you explain, specifically, what your2319understanding of that target was? And are you aware of any2320specific threats that were made?2321    Mr. Berenson. Sure. So in July 2021, as the Biden2322administration was preparing vaccine mandates, and that is sort2323of what you have to understand about the backdrop here, and2324they knew that those might be politically unpopular, they2325started pressuring the companies to deplatform people like me--2326I mean, they have been doing this, but they upped the pressure.2327And that is when President Biden said that Facebook was quote/2328unquote, ``Killing people'' by allowing people like me or RFK2329Jr. to speak.2330    And you know, the biggest legal protection that social2331media companies have is what is called the Section 230, as I am2332sure you know, where they are essentially immune from lawsuits,2333from users over the decisions they make for content. So they2334have all the immunity of a traditional publisher to make2335decisions over what speech they want to carry, and so----2336    Senator Fischer. Yes. But did the White House--do you have2337any of any kind of information or records? Did the White House2338specifically say what they would do to Twitter?2339    Mr. Berenson. Well, so they specifically--well, they2340publicly said that they were going to reconsider Section 230.2341That was again in July. And they had privately said to Twitter2342in April, they had, based on Twitter's own records said a2343really--quote/unquote, ``A really hard question about why I was2344still being allowed to speak'', which in my--from my point of2345view, and my lawyer's point of view, that all by itself was a2346First Amendment violation, because it forced Twitter to start2347looking at me in a way that Twitter had not previously done.2348And that was in secret. And you know and I will say this I----2349    Senator Fischer. And again, there was no transparency2350that----2351    Mr. Berenson. No transparency----2352    Senator Fischer.--as Mr. Davis spoke on.2353    Mr. Berenson. Yes. So I mean, look, what I do not like what2354Brendan Carr did but he did it publicly and we can have a2355debate about it. What is really problematic is when the2356government goes in secret to these companies and targets2357individual users or individual categories of speech. And I2358think that that should not be allowed. I think that both2359parties should agree that that targeting an individual user, or2360an individual post, as you know, if it is legal, it is wrong.2361    And nobody has ever said that I had said anything illegal,2362and actually I think most people now would agree that a lot of2363what I said was--has been confirmed. So I think that that is a2364pretty basic place to start.2365    Senator Fischer. Thank you. Mr. Volokh, you mentioned a2366reporting mechanism that might be a promising idea for2367companies that think the government is coercing them. Can you2368describe to the Committee how such a mechanism might have2369prevented a situation that Mr. Berenson just described, and how2370would you structure that mechanism?2371    Mr. Volokh. Sure. So this is a familiar line [no mic]--is2372the best disinfectant. There may in fact be certain kinds of2373requests to remove something that might be justifiable in2374certain situations, if they are not coercive, but they are2375just, kind of appealed to somebody's better instinct. Maybe,2376maybe not.2377    But presumably it is something that members of this2378committee, that other Members of Congress might be interested2379in, that reporters for newspapers might say: Well, here is a2380list of all of these things that the government has been asking2381that people remove. Is it justifiable or not? Is it excessive?2382Does it show political bias? That is impossible to do if it is2383all essentially corporate secrets and government secrets.2384    Senator Fischer. Is there, I am picking up on Senator2385Klobuchar's--I am over time. Can I finish? Thank you.2386    Senator Klobuchar was saying, is you know, she is worried,2387as I think many of us are with AI and things that are happening2388there, and at least to get a label, at least to get a label. Do2389any of you know, are these social media companies, any of these2390companies capable of doing that to be able to identify when2391something has been tampered with, with AI, or if it is to2392totally false, to be able to do that?2393    Mr. Volokh. So I think that that is a separate question but2394a very important question, there is a--what you are asking I2395think is the technical question, which is even if they were2396just to do it on their own, can they do it?2397    Senator Fischer. And in that case----2398    Mr. Volokh. So my understanding is that there are ways of2399determining that, they are hard to do at scale. So perhaps a2400forensic examiner might look at a video, but it does not mean2401that you can have an algorithm that will reliably do it, and2402there is going to be false positives and false negatives. There2403is also always going to be an arms race, right.2404    If there is a better fake technology, better detector2405technology, better fake technology that evades the detector2406technology. I am not up on all the details, but my2407understanding is right now there is no guaranteed reliable2408mechanism of determining it all.2409    Senator Fischer. Then maybe you get into the whole question2410also on, what is comedy, what is satire.2411    Mr. Volokh. Yes.2412    Senator Fischer. It opens up a whole, another avenue then.2413    Mr. Volokh. That is absolutely right. There certainly is no2414software you can write that says, oh, this is obvious parody2415and therefore it should not be taken down or labeled.2416    Senator Fischer. Thank you, sir. Thank you, Mr. Chairman.2417    Senator Schmitt. Thank you, Senator Cantwell.2418    Senator Cantwell. Thank you, Mr. Chairman.2419    And thank you Professor Volokh for both the, you know,2420statement you made about Brendan Carr's coercive tactics and2421that that would not be appropriate, and for your2422recommendations on transparency, and rules that I think would2423be a concept of just making sure that things were clear.2424    And to my colleague's comment, Senator Klobuchar.2425Definitely, one of the reasons I appreciate many things she2426said, but one of the reasons I support the Blackburn2427Legislation and joined her as a co-sponsor on the COPIED Act is2428because it gives the content holders some rights, and it shows2429who the content holders are, and even in the case of2430compensation, which is an important issue to keeping2431competition and perfect information.2432    I will just note that during this debate, this Committee2433and this Body passed a public health emergency language--2434related to deceptive practice language. It was unlawful to2435engage in deceptive practices related to the treatment, cure,2436prevention, mitigation, or diagnosis related to COVID.2437    Why did we do that? Why did we give that extra power?2438Because there were a lot of crazy things online, like take2439bleach, or what have you, and we wanted to make sure that we2440were being--protecting consumers against deceptive practices,2441as it related to that. That was passed with a very, very big2442bipartisan support by this this--by the Senate, and became law.2443    OK. So now to this, Mr. Kimmelman, this larger issue. Even2444my colleague from the House who was Chairman of the China2445Committee, I see does not like the TikTok decision because he2446does not think it goes far enough, and banning you know the2447actual algorithm. We have this attempt by Carr to kind of2448realign the deck chairs at this moment that we have competition2449shrinking. And so that is why it is so concerning to me.2450    And the unevenness. We had a hearing here, a Facebook2451whistleblower who literally said the company knew that it was2452putting--elevating hate speech as a way to increase the revenue2453for advertisers. And you know, I feel like that is--you know,2454if a newspaper or a broadcaster puts false information in the2455paper, the community will respond and that person will no2456longer be able to continue their business. But online, you do2457not even know that that is happening.2458    And so making sure that we do not have, you know, these2459challenges, what do we need to do to really get people to2460understand that right now you could in a very--I mean, in a2461very vertical way have such an alignment that that influence2462that we are talking about now, of not being coercive, is2463actually done in major ways? Even as my Republican colleague in2464the House is saying he is concerned about this as it relates to2465what TikTok might be doing.2466    Mr. Kimmelman. Well, um, Senator Cantwell, I think it is a2467critical issue because as the technology has changed, the2468entire media landscape has changed. So I think we have to2469update our understanding of: Where is the excess power being2470used, how is it being used? These examples you have heard today2471all relate to a gatekeeper in the media landscape that is a2472tech company. We have not always thought of them as being part2473of the same ecosystem, and I think we need to do that.2474    Because if you have such enormous power over the major ways2475in which the public gets news, information, can keep up about2476whether it is their community, or matters of public health, or2477national affairs, we have got to make sure that they are2478playing by some reasonable rules, or that there is full2479competition in the marketplace to give people the checks and2480balances in the media. And that is all----2481    Senator Cantwell. You do not think Professor Volokh's2482statement about transparency is a bad idea? It is a good idea.2483    Mr. Kimmelman. No, it is a great idea. I think transparency2484is one element of this, but it is not enough to prevent the2485kinds of concerns about coercion and suppression if too few2486people have the megaphone, have the ability to turn on the2487microphone for the voices that need to be part of our public2488debate.2489    Senator Cantwell. And are you worried about too much2490content being behind paywalls? Because I am. I am worried that2491the more of this vertical integration, and that is why, again,2492I was so concerned about Chairman Carr's comments, in addition2493to the free speech, that if you start using this power as the2494FCC Chairman, and you just allow for all of this vertical2495integration, and the next thing you know, it is kind of like on2496the sports issue you put so much of it behind a paywall, you2497know, how is the consumer just kind of constantly being short-2498changed by this whole change in the landscape?2499    Mr. Kimmelman. It is a huge problem, and that is why we2500need to make sure there is adequate ways for the companies that2501really invest in news and information, and gathering the2502information that the public wants, engaging people in public2503debate, can finance that and present it, so it is not all2504dumbed down, and kind of diluted in an Internet where there is2505just such massive information flow that you cannot tell fact2506from fiction.2507    Senator Cantwell. And you are talking about localism now,2508and that we make sure that we----2509    Mr. Kimmelman. Absolutely. It is localism, and it is2510preventing the few companies that seem to have amassed quite a2511bit of power already from getting any larger and acting as2512gatekeepers to our public debate.2513    Senator Cantwell. Thank you. Thank you, Mr. Chairman.25142515               STATEMENT OF HON. BERNIE MORENO,2516                     U.S. SENATOR FROM OHIO25172518    Senator Moreno. Thank you to all the witnesses for being2519here. If there is no objection, I would like to put into the2520record a letter sent from this committee back in 2018 to the2521Chairman of the FCC requesting that Sinclair Broadcasting2522licenses be reviewed because in the minds of the 12 Democrats,2523including two on this committee, felt that Sinclair was2524perpetuating misinformation.2525    We will put that into the record.2526    [The information referred to follows:]25272528    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]25292530    Senator Moreno. Which I find given the conversations around2531Commissioner Carr, I find that decently ironic.2532    Mr. Volokh, I am just----2533    Senator Cantwell. Can I just make a----2534    Senator Moreno. We can do it then. You had your time. So2535Mr. Volokh, you mentioned that you came to the U.S. 50 years2536ago. We, to this day, congratulations. I came to America a2537little bit more than 50 years ago, which I hate to actually say2538in public testimony, because it makes me feel old. How many TV2539stations you--you are probably like me, had to learn English2540watching TV--how many TV stations and news information sources2541were there by then?2542    Mr. Volokh. I do think that----2543    Senator Moreno. The button.2544    Mr. Volokh. I am sorry.2545    Senator Moreno. You have to hit the button so we can hear2546you.2547    Mr. Volokh. The button. Sorry. When we came to LA, I think2548there were maybe six or seven VHF. And then if I twiddled the2549antenna around, you get like four or five UHF.2550    Senator Moreno. Did you listen to a lot of podcasts?2551    Mr. Volokh. I believe that I was not allowed to listen to2552podcasts in 1975, if that----2553    Senator Moreno. Well, there was not--it did not exist. It2554did not exist.2555    Mr. Volokh. Exactly.2556    Senator Moreno. Did you go online and get sources from2557online sources?2558    Mr. Volokh. No.2559    Senator Moreno. Did you go on X, or Facebook, or Twitter?2560Did you open TikTok?2561    Mr. Volokh. I did not.2562    Senator Moreno. Did you go on Facebook, Instagram? None of2563that existed? Because I just find it----2564    Mr. Volokh. None of that, no.2565    Senator Moreno.--I just find it interesting that my2566colleagues are talking about how broadcast TV and monopolism,2567and Mr. Kimmelman, you talked about that which I thought was2568just fascinating that there is all of a sudden, this lack of2569resources to find information when there has never been more2570ways to get information than there is today.2571    But Mr. Kimmelman, I have a question for you. You are over2572at the Harvard School; is that correct?2573    Mr. Kimmelman. At the Kennedy School, yes, sir.2574    Senator Moreno. The Kennedy School? So you would agree with2575all of us, I think, that free speech is important. You would2576agree with George Washington's comment that if freedom of2577speech is taken away, then dumb and silent, we may be led like2578sheep to the slaughter. You would agree with that, right?2579    Mr. Kimmelman. Certainly.2580    Senator Moreno. What are you doing about Harvard's F rating2581for free speech?2582    Mr. Kimmelman. I am a fellow at the Kennedy School, I have2583a very----2584    Senator Moreno. No. I mean, have you spoken to your2585colleagues? Have you made a protest? Have you rallied the2586students to say: How do we get rid of this F rating? I mean, I2587cannot imagine Harvard students would find it objectionable to2588have an F in anything. What are you doing about fixing Harvard?2589    Mr. Kimmelman. There is a lot of discussion I know around2590me about trying to make sure there is an open environment for2591learning and----2592    Senator Moreno. But they have an F rating, just to be2593clear. They have an F rating. Harvard University has an F2594rating in free speech. And you are here giving us lectures on2595free speech. Does not exactly--ring very hollow.2596    Mr. Berenson, a quick question for you. We need to put on2597the record. What was the outrageous things that you said in25982021 that got you thrown off Twitter? I mean, were you planning2599to overthrow the United States government? Were you creating a2600militia? Like, give me an example. Give me a flavor of the2601outrageous things that you must have said?2602    Mr. Berenson. The tweet that got me banned from Twitter on2603August 28, 2021, begin, ``It does not stop infection or2604transmission''.2605    Senator Moreno. What?2606    Mr. Berenson. Yes.2607    Senator Moreno. Are you saying that a mask--a cloth mask2608does not stop the spread of COVID, how dare you say those kinds2609of outrageous comments?2610    Mr. Berenson. I said that the mRNA vaccine did not stop2611infection or transmission.2612    Senator Moreno. And did it?2613    Mr. Berenson. I mean, I think I might be the only person in2614this room who was not vaccinated with the mRNA vaccine. And we2615all got COVID.2616    Senator Moreno. Did the vaccine stop the spread?2617    Mr. Berenson. No. No, of course not.2618    Senator Moreno. So you were allowed to be wrong, but you2619were right. Does that make it--now, what accountability has2620been in place for that? Like who has been held accountable for2621this?2622    Mr. Berenson. Well, Twitter actually admitted that they2623should not have done that.2624    Senator Moreno. Yes, you know they admitted it, but what2625accountability? Because that cost you money, that cost you2626direct----2627    Mr. Berenson. Oh, yes.2628    Senator Moreno.--money in your pocketbook. What2629accountability has been put in place?2630    Mr. Berenson. There has been no--I mean, more important2631than accountability, I did not get to tell people what I2632thought and there were--I mean, I was getting hundreds of2633millions of views a month. People wanted to hear what I2634thought, and the Biden administration did not like it and they2635forced Twitter to ban me. And I will also say it is a way----2636    Senator Moreno. So you are saying--you are saying the U.S.2637Government, elected officials, who swore an oath to the2638Constitution told private media companies to terminate your2639account which cost you your money? I assume you are not2640naturally wealthy from five generations of wealth, and that you2641actually have to work for a living, and that ability to earn an2642income was taken away from you because you dared to have an2643opinion on a vaccine?2644    Mr. Berenson. I regard it as more important that I was not2645able to say what I thought. The money matters less to me. And I2646also have to say this, Pfizer made $100 billion selling that2647vaccine, and Pfizer officials cooperated or collaborated with2648the Biden administration. It is a scandal.2649    Senator Moreno. Yes.2650    Mr. Berenson. Let me just say one thing. If I had been2651reporting on plane crashes and Boeing had colluded with the2652Biden administration or the Trump administration, it would be a2653national scandal that a Boeing official had leaned on a social2654media company.2655    Senator Moreno. Yes.2656    Mr. Berenson. But Pfizer somehow got away with this.2657    Senator Moreno. Yes. And in the--her opening statement, the2658Ranking Member talked extensively about protecting free speech,2659but then stated she was not referring to hate speech. I think2660what maybe my colleagues mean to say is speech that they hate.2661    Mr. Berenson. That is right.2662    Senator Moreno. Because it is--hate speech is in the eye of2663the beholder. Would you agree, Mr. Davis?2664    Mr. Davis. I completely agree. Hate speech, misinformation,2665disinformation, they are just fancy words that people use to2666shut down speech they do not like.2667    Senator Moreno. Right. So if I say that there is only--such2668thing as a man and woman, that maybe when I got to the U.S. 50-2669plus years ago, somebody would have said, why did you say that,2670like obviously there is only men and women. I come from a2671culture where our entire language is male or female, but that2672could be considered hate speech, right, if I say that?2673    Mr. Davis. It was for a long time, if you said that on2674Twitter for several years you ran the risk of being censored,2675shadow-banned, or permanently suspended.2676    Senator Moreno. Well, obviously we will talk more about2677this topic. I do find it interesting that my colleagues who2678were totally and completely complicit during the Biden era,2679that were absolutely applauding people being thrown off social2680media, that were saying that any commentary about a Hunter2681Biden laptop story being misinformation was considered an2682insurrectionist.2683    That now all of a sudden clutch their pearls because a2684moronic, second-rate comedian who makes $16 million a year got2685fired from his job for having atrocious ratings, is somehow now2686an attack on free speech. I do not know that they have the2687moral high ground here, but thank you for your testimony.2688    And I recognize the Senator from Nevada.26892690                STATEMENT OF HON. JACKY ROSEN,2691                    U.S. SENATOR FROM NEVADA26922693    Senator Rosen. Thank you. Thank you for being here today2694and speaking your mind. It is about the First Amendment.2695Appreciate that because the freedom to express yourself and2696speak your mind is the cornerstone of America. It is one of the2697main ways we distinguish ourselves from other nations. In the2698United States, you are free to criticize whomever you want,2699including government leaders, without government censorship.2700    And so it is wholly appropriate and indeed necessary for2701this committee to hold oversight hearings that focus on2702protecting this critical right from being eroded by anyone. But2703that is not the focus of today's hearing. Rather than providing2704us with a forum that will evaluate truly harmful government2705censorship.2706    This has become increasingly commonplace under the Trump2707administration, are undertaking an effort to settle old2708political scores against an administration that is no longer in2709power. There are issues that we have to deal with, and we do2710want to support and we must support free speech, but this2711hearing is not the place.2712    Two weeks ago, I sent a letter to Chairman Cruz calling for2713the FCC Chairman to testify before this Committee after he2714threatened to revoke broadcast licenses over Jimmy Kimmel's2715comments criticizing President Trump. I was particularly2716concerned as I know the Chair was from his statements calling2717the threat mafia-like. Chairman Cruz called the threats mafia-2718like, with his clear attempt to suppress speech, a comedian.2719    However, I am disappointed that that is not what is the2720focus of today's hearing. Chairman Carr's later backtracking,2721claiming there is some sort of local community exception to the2722First Amendment. There is no exception. You have free speech or2723you do not. We know those limits. There is precedent for that.2724His comments, Chairman Carr's, were reprehensible and this2725demands a full accountability, and we demand full2726accountability.2727    Indeed, his weak excuses have been repeatedly contradicted2728by the President's own statements. President Trump has said2729outright that the reason the FCC should revoke broadcast2730licenses is because of negative coverage of his administration.2731I want there to be journalist that looks at things. This is the2732clearest possible violation of the First Amendment.2733    The President of the United States directing an agency to2734revoke a license of networks that run a critical story of him.2735There never would have been press, or print, or TV, or radio.2736You could go back 250 years if all presidents did this.2737    This is a government--this is government censorship by our2738President. Plain and simple. It is what they do in Russia. It2739is what they do in North Korea. It is what they do in China. It2740is not what we do in a democracy that has a First Amendment.2741    Those attacks on free speech. They harm not only our2742democracy but our economy. Last month it was Brendan Carr's2743interference in the private business decisions of large media2744companies. But tomorrow could be tech, energy, tourism, any2745other industry could be impacted.2746    In Las Vegas, we are seeing fewer international tourists2747because people are afraid to come to the U.S. under this2748administration. People planning to travel to the U.S. see this2749administration detaining people for posting something online2750that is critical of the President in another country where they2751live, and they cancel their trips to America out of fear of2752U.S. Government retaliation. And the consequences for our2753economy are substantial.2754    So Mr. Kimmelman, can you discuss the direct impacts of2755infringement on speech rights, and can you tell us what you see2756as the biggest threat to the First Amendment, writ large,2757please?2758    Mr. Kimmelman. Sure. Well, the threats, coercion, chill2759speech. Either they suppress directly or create an environment2760in which everyone is afraid to speak his or her mind, to engage2761in debate, to have the kind of open discussion that our2762democracy requires. So it is extremely dangerous. Obviously, as2763you point out, when the government does it directly, it is2764horrible. It is a First Amendment violation. It needs to be2765stopped.2766    But it also can happen when tech platforms become too2767powerful, when they do not face competition, when they play a2768gatekeeper role. This could be the same if there is too much2769roll up of media, and it is the most popular media. Senator2770Moreno made a good point. There is a lot of--there is so much2771more out there than before. But it is not just availability. It2772is what do people rely upon? What is most popular? What do they2773need to get news and information?2774    And so anywhere there is a chokehold, I think there is an2775appropriate question of: Is it too much concentration? Is it2776too much power? Does it work for our democracy? And that is2777where Congress has a role to set guardrails.2778    Senator Rosen. Thank you. I see my time is up. Appreciate2779this hearing and wish that we would be having Chairman Carr2780here to discuss some of free speech and the open platforms. And2781I look forward to Chairman Cruz working with us to get that on2782the docket. Thank you.2783    Senator Schmitt. Thank you, Senator. I am told that we will2784do that. We need to open the Government up first, right? That2785is the first priority.2786    I will also note that I asked the Chairwoman to have Lina2787Khan come before this Committee. Never came in my two years. I2788asked for Pete Buttigieg to appear, the Secretary of2789Transportation, never appeared in my two years, but I know the2790Chairman is committed to having the FCC and the FTC here.2791    Senator Blackburn.27922793              STATEMENT OF HON. MARSHA BLACKBURN,2794                  U.S. SENATOR FROM TENNESSEE27952796    Senator Blackburn. Thank you, Mr. Chairman. That is exactly2797right. we are looking forward to being able to return to2798regular order and to do oversight.2799    Just one item I want to mention. There was a comment:2800Tourists are not coming because they are fearful of words.2801Tourists are not coming because they are fearful of crime. And2802there are so many stories that bear this out. When you look at2803New York City, when you look at Chicago, when you look at the2804effect that violent crime is having in some of these cities, I2805am very grateful that President Trump has made it a priority to2806address this.2807    We are seeing fantastic results in Memphis from the2808increased presence that is there from the Memphis Safe Task2809Force, which is 13 Federal agencies. The Tennessee Bureau of2810Investigation, the Tennessee Highway Patrol, the National Guard2811will be going in there this week to assist the Memphis PD. They2812have arrested nearly a thousand gang members, and they have2813already started the process with indictments, and moving these2814criminals into court.2815    And indeed, we are very grateful for that, and we know the2816crime level needs to come down in these big cities so people do2817want to go to these cities.2818    Mr. Davis, always good to see you. Grateful that you are2819here, and for the good work that you all do. I am pleased that2820Ms. Hemingway is here today also.2821    I want to talk with you a little bit because I know The2822Federalist and your team at The Federalist was constantly on2823the receiving end of some of these attacks and actions from the2824Biden administration. And I would like to hear you talk about2825why you all were on the receiving end, why you felt like you2826were on that, and why you were accused of misinformation, and2827why their goal was to always shut you up?2828    And we know that the left made great sport out of shutting2829up conservatives, and attacking conservatives. And as we2830learned this week, surveilling conservatives. And of course,2831seven of my Senate colleagues and I found out that the FBI was2832surveilling us, and pulling our phone records. And I think it2833would be helpful if our colleagues across the dais wanted to2834join us in calling the FBI--the Biden-led FBI out about those2835actions.2836    But lay out for me what you all experienced and why you2837felt like it was such a repeated attack on you and The2838Federalist?2839    Mr. Davis. Well, thank you, Senator. It is an honor to be2840here in front of you. And wonderful to see you as always. You2841pose a great question. Why were we targeted? I am reminded of2842the quote, I think it was the baseball player Reggie Jackson:2843They do not boo nobodies. Well, they do not censor nobodies2844either. In fact, that it is the most effective voices which2845tend to be targeted for censorship.2846    And at The Federalist we are extremely effective at tearing2847down false narratives and reporting the facts. We have a team2848of absolutely fearless, courageous journalists who get up every2849day to tell the truth and report the facts, especially when2850they might be facts the government does not want people to2851hear. And so they targeted us because we were effective,2852because we were exposing the lies about the Russia collusion2853hoax, about the Kavanaugh hoax, about COVID-19 lies that it2854came out of a wet market in China.2855    We were exposing ridiculous new election laws that ignored2856existing laws in the Constitution in 2020. We exposed the whole2857Hunter Biden laptop thing, which was 100 percent real. It was2858not a hoax. Somebody remarked earlier that: Oh well, you have2859the market to take care of if a newspaper or a network says2860something that is not true, why people will not follow them.2861Well, we know that is not true because MSNBC and CNN, they are2862all still around. They lied repeatedly. They were not targeted2863for censorship.2864    And I have to say, it is nice to be here to hear a2865bipartisan support for free speech. Man, I wish a lot of you2866all were helping us as the Biden administration was censoring2867us. We have been in Federal court for two years trying to2868vindicate our free speech rights. And I have got to tell you,2869it is pretty aggravating being an American citizen whose family2870has been here for hundreds and hundreds of years, to see2871illegal immigrants get faster action in Federal district courts2872than we have gotten.2873    We are still awaiting vindication and relief. And we were2874not targeted because what we were saying was false. We were2875targeted because what we were saying was true.2876    Senator Blackburn. And how much, talk to me about the2877expense of having to be tied up with trying to get your day in2878court for that period of time?2879    Mr. Davis. You know, it is extensive. Thankfully we have2880lawyers who are representing us out of the goodness of their2881own hearts. But if you look at the effect of censorship over2882years, Alex made the great point that you cannot compensate2883someone for the crime of having shut them up, by unjustified2884means for years. That speech that he should have been able to2885give for years, he can never give. That that opportunity is2886gone.2887    But there is also a real cost in terms of money. I cannot2888even begin to think about how many millions or tens of millions2889of dollars we lost out on because our advertisers were2890targeted, because our readers were targeted, because Facebook,2891and Google, and Twitter, and YouTube were told to throttle us.2892It has to be in the millions or tens of millions of dollars.2893Quite frankly, we are owed restitution.2894    Senator Blackburn. Thank you. Thank you, Mr. Chairman.2895    Senator Schmitt. Thank you. Well, I am sure you will2896support my legislation which would give a private right of2897action to a citizen to sue an individual government bureaucrat2898for suppression of speech. I think that turns the tables on the2899incentive structure that currently exists.2900    Senator Markey.29012902               STATEMENT OF HON. EDWARD MARKEY,2903                U.S. SENATOR FROM MASSACHUSETTS29042905    Senator Markey. Thank you, Mr. Chairman.2906    We have heard a lot today about the Biden administration2907supposedly censoring of conservatives by talking to social2908media companies about misinformation. Republicans have wasted2909an enormous amount of time and resources over the past few2910years attempting to prove this theory correct, only for it to2911be repeatedly proven false.2912    The Supreme Court shot down their big lawsuit against the2913Biden administration in a 6 to 3 vote. Their big House2914Judiciary Committee investigation came up empty. And in the2915Chairman's Report last week, the supposedly incriminating e-2916mails from Biden administration officials pressuring the big2917tech platforms to censor conservatives, including--included2918explicit disclaimers that the officials were not threatening2919any action against any platform. Strike one, strike two, strike2920three, you are out, Republican theory of censorship.2921    Since my Republican colleagues seem confused about what2922actual government censorship looks like, I thought I could show2923a few of them to you. It is not just the mafia boss threats2924from Brendan Carr at the FCC to Disney and ABC, on six2925different occasions Donald Trump took office and he now has2926posted on Truth Social explicitly calling for the Federal2927Communications Commission to revoke broadcast station licenses2928owned by major networks over their editorial decisions.2929    On February 6, Trump said CBS should, quote, ``Lose its2930licenses'' over its interview of Vice President Kamala Harris2931in the fall of 2024. Just over TWO months later, on April 13,2932Trump again said ``CBS should lose its license for its Harris2933interview''. On July 26, Trump wrote: ``Networks are not2934allowed to be political pawns for the Democratic Party''.2935    It has become so outrageous that in my opinion, their2936licenses could and should be revoked. On August 24, that was a2937big day for unconstitutional threats. Twice in under an hour,2938Trump said that ``ABC and NBC should lose their licenses''. And2939then just last Sunday, Trump said the FCC should quote, ``Look2940into the license of NBC''.2941    Mr. Kimmelman, do you agree that the explicit threats from2942the President of the United States against broadcasters are far2943more dangerous than e-mails from the Biden administration2944officials identifying online misinformation?2945    Mr. Kimmelman. Yes.2946    Senator Markey. Mr. Kimmelman, how many times did President2947Biden threaten to revoke a broadcast license in our country?2948    Mr. Kimmelman. None to my knowledge.2949    Senator Markey. Mr. Kimmelman, how many times did President2950Biden publicly direct his FCC Chairman to look into a2951broadcaster's license?2952    Mr. Kimmelman. None to my knowledge.2953    Senator Markey. Again, zero. This hearing is a farce. We2954are not focusing upon the imminent threat to the First2955Amendment. The beating heart of democracy, freedom of speech,2956freedom of press. That is what this hearing should be about.2957What is going on at the FCC right now.2958    We are relitigating an issue that the Supreme Court has2959already decided, that in fact independent analysts have2960debunked even as President Trump and Federal Communications2961Chairman Brendan Carr and other Trump officials wage a war on2962free speech that this country has not seen since the McCarthy2963Era in the 1950s. Like during that Red Scare, if you are a2964voice of dissent in this country, you have a target on your2965back. And they let you know you have a target on your back if2966you speak up.2967    Law firms, universities, protesters, news media, all have2968faced this administration's wrath for their political speech.2969These threats are real. They are scary and they undermine our2970democracy. The President is threatening the free speech of the2971broadcasters in our country every time they dare to run some2972news story that questions their judgment as an administration.2973    Yet, we are wasting time here trying to distract the2974American people with old e-mails from the Biden administration,2975while Chairman Carr turns the FCC into the Federal Censorship2976Commission, threatening free speech, censoring free speech in2977our country, allowing Donald Trump to continue with his direct2978attacks on the First Amendment in our country.2979    This is an urgent crisis for our country. Our democracy is2980at risk when the First Amendment is being challenged so2981fundamentally by the President out of the White House and2982instructing his Chairman of the Federal Communications2983Commission to revoke the licenses of anyone who dares run any2984program that runs contrary to his views. That is what we should2985be focusing upon right now. That is the threat to our2986democracy.2987    Thank you, Mr. Chairman.2988    Senator Schmitt. Thank you, Senator. And a mixed2989sportsman----2990    Senator Moreno. Mr. Chairman? Mr. Chairman, just a quick2991question to my colleague, just 5 seconds. Did you sign on to2992that letter asking the FCC to revoke the license of Sinclair2993Broadcasting in 2018?2994    Senator Markey. I will have to go in to review that, but2995from my perspective, what Trump is doing right now at a2996Presidential level, ordering the FCC to act is absolutely an2997imminent threat to our democracy.2998    Senator Schmitt. OK. And I also mixing sports metaphors on2999your strikes. I am going to throw the red flag because the3000Federal District Court, I know something about this, said that3001the Biden administration had engaged in the worst example of3002violation of the First Amendment in American history. That3003decision was upheld by the Fifth Circuit. The Supreme Court did3004not rule against it. It sent it down. It did not rule on the3005merits. It sent it down for a standing issue.3006    So Senator Peters.30073008                STATEMENT OF HON. GARY PETERS,3009                   U.S. SENATOR FROM MICHIGAN30103011    Senator Peters. Thank you, Mr. Chairman. I had first just3012like to start by making a very clear statement. Government3013censorship is wrong. Full stop. Never should be should be3014tolerated. That should be no matter what side of the aisle that3015you are on. I think we can agree that the government takes when3016it--when government takes adverse action against speech that it3017dislikes, that is bad for all Americans, and it is counter to3018the fundamental values that this country stands for.3019    As Ranking Member of Homeland Security and Governmental3020Affairs Committee, I have reviewed thousands of pages of3021documents, including testimony from the cybersecurity and3022infrastructure agency employees. And I will say that I simply3023do not agree that CISA, the agency, has worked in a coordinated3024effort to censor American speech. And the Supreme Court has3025basically agreed with that finding.3026    However, if there is evidence, if there is evidence of3027wrongdoing on the part of anyone in previous administrations, I3028want to address it and I will work with folks on this panel to3029do that. Protecting free speech should not be--should not be a3030partisan issue. And that is why I am disappointed that instead3031of having the FCC here today to discuss what are urgent and I3032believe a flagrant violation of America's First Amendment3033rights, as my colleague just mentioned before me, instead we3034are rehashing debunked claims regarding activities at CISA from30352018 to 2022.3036    Since it was created in 2018, CISA has protected our Nation3037against cyber criminals and foreign adversaries who are3038constantly, constantly seeking to breach critical networks and3039steal America's most sensitive personal information. And3040unfortunately, today we are hearing claims that have been3041debunked about the Agency's mission and its vital work.3042    The Supreme Court decision in Murthy v. Missouri found with3043regard to CISA, quote, ``The evidence does not support the3044conclusions that the relevant plaintiff made that CISA had3045violated the First Amendment Rights.'' So it is a Supreme Court3046decision.3047    None of the documents I reviewed included instructions for3048the social media platforms to respond to CISA's questions on3049flagged content, nor did they attempt to cover up their3050interaction in some way with these companies.3051    So it is concerning to me that the Committee would choose3052to focus on a backward-looking claim at a time when today,3053currently, we are seeing unprecedented efforts to wield3054government power as a tool to suppress free speech and stifle3055legitimate criticism, and legitimate political discourse.3056    In recent months, the Trump administration has revoked3057media access, revoked media access, got to say it again, over3058news coverage that did not flatter the President. Oh, my gosh,3059horrible. You did not flatter the President. You cannot have3060media access. That is a high crime and misdemeanor, apparently.3061He also sued media outlets who publish content that the3062President does not agree with. And he has launched baseless3063investigations into the President's perceived political3064enemies.3065    In one instance, the President's FCC Chair, Brendan Carr,3066threatened to revoke the broadcast licenses of ABA [sic]3067affiliates over comments made by a comedian. Oh, my, gosh,3068horrible, comedian comments. Revoke that license. President did3069not like the comedy.3070    Let us be clear, these acts are unprecedented.3071Unprecedented in American history, and they rightfully raise3072alarms, I think, for every American. Thousands of Michiganders3073have reached out to my office saying that we must hold the3074Trump administration accountable to ensure that these abuses of3075power are not left unchecked.3076    And I certainly hope that the Chairman of this Committee,3077and members of the Committee will devote their efforts to3078examining these abuses that I mentioned, regardless of who3079commits them because we must all stand up for First Amendment3080rights in the face of unprecedented overreach. And it is right3081to call out wherever we see it, no matter who is saying it, no3082matter what administration, but let us not ignore what we are3083seeing in front of us right now, constantly, in the media.3084    So Mr. Kimmelman, a quick question. After threatening3085regulatory action against ABC affiliates if it did not suspend3086Jimmy Kimmel, FCC Chair Brendan Carr said, quote, ``If you are3087going to have a license from the FCC, we expect you to broadly3088serve the public interest''; end of quote.3089    So my question for you, sir, is there precedent for the FCC3090using the public interest convenience and necessity standard in3091the Communications Act to stifle First Amendment protected3092speech? And how has the FCC historically interpreted the public3093interest? How is this different?3094    Mr. Kimmelman. Not to my knowledge, Senator. The FCC has3095used--it is a public interest standard--the FCC has used it3096very carefully. There is specific direction in the3097Communications Act beyond the Constitution itself of Congress3098reminding the FCC not to stifle speech, not to impede First3099Amendment rights. And the FCC has been very careful in that3100regard.3101    Senator Peters. So the comments made by the current FCC3102Chair is simply unprecedented, in all of your knowledge of past3103actions?3104    Mr. Kimmelman. In my experience, Senator, I have been doing3105this for more than 45 years. I have never seen anything like3106that.3107    Senator Peters. That is perhaps why it was so shocking to3108Americans all over this country, but apparently not to some3109individuals serving in the U.S. Senate.3110    Thank you. Thank you, Mr. Chairman.3111    Senator Schmitt. Thank you, Senator. Senator Lujan.31123113               STATEMENT OF HON. BEN RAY LUJAN,3114                  U.S. SENATOR FROM NEW MEXICO31153116    Senator Lujan. Thank you, Mr. Chairman. Mr. Chairman,3117before I begin, one of my colleagues raised a letter that was3118sent to the FCC back in 2018, that was signed by Democrats. I3119do not know how many of you know who the Chair of the FCC was3120in 2018. Do any of you know? Does the name Ajit Pai sound3121familiar?3122    You know who was president in 2018? Donald Trump. I am3123sorry if I stumped you all. It was Chairman Pai that denied3124this thing. And Chairman Pai in his order, he said something3125along the lines of: What was submitted to the FCC lacked3126candor.3127    It is funny to me how there are so many legal ways to call3128a lie a lie. When the FCC says a submission lacks candor, it3129means that it intentionally provided false or misleading3130information omitting crucial facts. Just so that the record is3131straight.3132    Mr. Volokh, just a few weeks ago, the Federal3133Communications Commission Chairman, Brendan Carr, made several3134statements. You heard a lot of them today with regulatory3135action over remarks made by Jimmy Kimmel if they, quote, ``Did3136not take action''. In his own words, Chairman Carr said, quote,3137``We can do this the easy way or the hard way.''3138    Now, to be clear, ABC can suspend Jimmy Kimmel's show for3139whatever reason they want. However, the fact pattern that led3140ABC to suspend Jimmy Kimmel's show involved a government3141official, in this case FCC Chair Carr, making direct threats.3142    As you have written, quote, ``But if the Government coerced3143ABC into suspending the show through threats or of retaliation,3144that would have likely violated the First Amendment.''3145    Yes, or no, if ABC acted to remove Jimmy Kimmel because of3146FCC Chairman Carr's threats, would Carr's actions violate the3147First Amendment?3148    Mr. Volokh. Yes, I think so.3149    Senator Lujan. Unfortunately, the events from a few weeks3150ago related to Kimmel's show was not the first time that3151Chairman Carr has weaponized the FCC against broadcasters since3152he took office.3153    Mr. Kimmelman, I would like for you to help get some facts3154on the record. I think you answered these to Chairman Markey,3155but questions sometimes need to be heard twice, and as the3156responses. Did President Biden ever direct Chair Rosenworcel to3157investigate a media company, pull their license, and: Impose3158the maximum fines and punishment, by the way that is a quote3159for from Donald Trump, for their unlawful and illegal behavior3160immediately after threatening to sue that company?3161    Mr. Kimmelman. No, Senator.3162    Senator Lujan. Did President Biden suggest Chair3163Rosenworcel should revoke broadcaster licenses for giving him,3164quote, ``Bad publicity''?3165    Mr. Kimmelman. No, sir.3166    Senator Lujan. Did Chairman Carr reinstate complaints3167against NBC, ABC, and CBS for election coverage that were3168dismissed by the prior FCC?3169    Mr. Kimmelman. Yes, Senator.3170    Senator Lujan. Did Chairman Carr launch investigations into3171local NPR, PBS stations alleging that they could be violating3172Federal Law by airing commercials?3173    Mr. Kimmelman. Yes, Senator.3174    Senator Lujan. Has Chairman Carr openly threatened to3175remove Comcast broadcast license over a news coverage?3176    Mr. Kimmelman. Yes, Senator.3177    Senator Lujan. Now look, what is disappointing is that is3178just a sample of what is recently happened. And I appreciate3179this hearing. I think this was a good hearing. There are a few3180of us that actually authored legislation to say FCC, keep your3181hands off of these media companies. Protect the First3182Amendment. Follow the law. I hope that is something that you3183all will take a look at and see if maybe there is3184bipartisanship. And if anyone is worried about doing it under3185this president, let us say the next president, let us just say3186let us take this off the table. So I certainly hope that is3187something that we can all do together.3188    Now, Mr. Kimmelman, President Trump has developed a habit3189of suing media companies if they report or publish content he3190does not like. He sued CNN, ABC, CBS, Washington Post, Wall3191Street Journal. I mean, it goes on and on. Trump even sued the3192Pulitzer Prize winner to the New York Times and Washington Post3193for their reporting about Russian interference in the 20163194election.3195    Now, some of the media companies such as ABC and CBS chose3196to settle, others are still fighting. Even if a lawsuit is3197baseless, what effect does it have on the opposing part party,3198Mr. Kimmelman?3199    Mr. Kimmelman. Senator, it has an enormous chilling effect.3200Even as you have heard from these, my colleagues on this panel3201here in a different context, it is overwhelming to take on the3202government even if you think you can vindicate your rights. It3203is a daunting task, and it tends to pull people away from3204presenting the views, or actually trying to vindicate their3205rights because it is such an overwhelmingly costly endeavor.3206    Senator Lujan. Look, I think it is fact that Meta paid $223207million to President Trump to settle a lawsuit. Did Paramount3208pay, yes, $16 million to President Trump as well? after3209Skydance settled, there was a merger approved within days as3210well.3211    As a matter of fact, my team looked into the last time that3212a president sued one of these media companies. They had to go3213back to Teddy Roosevelt to find it. And do you know how much3214the settlement was for? Six cents.3215    Anyhow, there is a little trivia for you all as well. Look,3216as my time concludes. Mr. Davis, I do not know if you have ever3217been asked this. I cannot find anywhere on the record where you3218have answered it. Who won the 2024 election in the United3219States of America?3220    Mr. Davis. Who won the 2024 election?3221    Senator Lujan. Yes, for President?3222    Mr. Davis. Joe Biden was elected President.3223    Senator Lujan. In 2024?3224    Mr. Davis. Oh. Excuse me. sorry, had 2020----3225    Senator Lujan. Now, misinformation right there. So let us3226set the record straight. Who won the 2024 election?3227    Mr. Davis. I was in government censorship mode. Donald3228Trump won the 2024 election.3229    Senator Lujan. Who won the 2020 election?3230    Mr. Davis. Joe Biden was elected President in 2020.3231    Senator Lujan. I appreciate that very much.3232    Mr. Chairman, I yield back.3233    Senator Schmitt. Thank you. Well, since we are doing some3234Presidential history, Mr. Davis, could you name the last3235president that was a prosecutor attempted to throw in jail for3236the rest of his life and impoverish his family, has that ever3237happened?3238    Mr. Davis. Yes, I recall Donald Trump being threatened,3239right----3240    Senator Schmitt. The only one, not even Teddy Roosevelt.3241Since we are going back in time. I do want to ask you, you Mr.3242Kimmelman, because just as a follow up for, and I am going to3243get to you just very quickly. The question was a president3244suing a news organization and you said that the government3245taking that on would have a chilling effect. You are not3246arguing that an individual citizen as President Trump suing a3247media company for lies is a threat to the First Amendment,3248right?3249    Mr. Kimmelman. No. No, I am not.3250    Senator Schmitt. OK. Thank you.3251    Senator Blunt Rochester.32523253            STATEMENT OF HON. LISA BLUNT ROCHESTER,3254                   U.S. SENATOR FROM DELAWARE32553256    Senator Blunt Rochester. Thank you Mr. Chairman. To my3257colleagues, yesterday there was a split screen on the news.3258Coverage of committee hearings and a shutdown clock. It was a3259tale of two realities. Republicans continue to call for3260hearings like it is business as usual, while Americans are3261literally living in the midst of a shutdown that jeopardizes3262their health, that jeopardizes their jobs, and the services3263that Americans rely on.3264    So the issues before us are vitally important, but our3265number one priority in this moment should be reopening the3266government and restoring people's healthcare.3267    So today, I want to use my time to remind all of us what is3268at stake. We are in a pivotal moment. Energy costs are up. Food3269prices are up. The rent has gone up for many. And millions of3270Americans in red states and blue states alike are on the brink3271of their health care costs doubling or losing it altogether.3272From small businesses, to farmers, to ranchers, to moms and3273dads, at this very moment, Americans across our Nation are3274making some very difficult decisions about how to make ends3275meet.3276    We can fix this. But it requires negotiations. It requires3277us all to do our jobs, and to find a path forward together. We3278can reopen the Government. We can restore health care for the3279millions of Americans who are counting on us. But it requires3280urgency, and it requires trust, and it requires willingness to3281come to the table now.3282    My Republican colleagues control the White House, the3283House, and the Senate. The ball is in your court. Let us make a3284deal.3285    Thank you. And I yield back, Mr. Chairman.3286    Senator Schmitt. Thank you, Senator. I want to ask just a3287couple of questions before we close out here, because this is a3288topic of great interest to me.3289    Mr. Davis, obviously this agenda that was at work cost you3290a lot, critical resources, for your publication, your family.3291Given organizations like, I mean, there are so many of these3292that I just do not have time to go into them. I mean, the truth3293of the matter is what was uncovered was that, you know, we took3294their deposition.3295    The CDC had approved words and phrases that social media3296companies could use in this secret portal that was established3297between the government and these social media companies3298conveyed this, and if people utter this phrase, I mean, this is3299sort of like--this is prior restraint, sort of like this is3300what you will take down ahead of time.3301    CISA was very much involved in this. You have an alphabet3302soup of agencies most people have never heard of that were3303weaponized against millions of voices in this country. We talk3304about President Trump a lot but there is just a lot of just3305people who were online who had questions about forced masking3306of kids, or the vaccine mandate all those sorts of things and3307they were throttled or taken down.3308    So given what you knew about organizations like--the3309Election Integrity Project, that is another one, in3310collaboration with CISA and received taxpayer funding, how are3311these NGOs still working currently to harm individuals from3312speaking their mind, particularly conservatives?3313    Mr. Davis. Yes, it is a great question. The thing about3314these censorship tools, and technologies, and efforts is they3315are a little bit like injecting something into the body's3316bloodstream. They inject it in, it is in there, it is working3317its thing. And just because you pull the needle out does not3318mean the effects are gone. A lot of these organizations are3319still out there using technologies, and tools, that were3320deliberately funded and distributed by the Federal Government3321for the purpose of censoring people like me, people like Alex3322Berenson, people like my colleague Mollie Hemingway.3323    I do not know if we will ever actually be free of the3324effects of this censorship industrial complex that the previous3325administration created. I do not know if we will ever be free3326of the horrible effect that it created. The horrible dampening3327and abridgement of our speech that we were forced to endure,3328secretly, for years and the extent of which we still do not3329fully know.3330    Senator Schmitt. Mr. Berenson, I want to ask you. What is3331the most--in your kind of review of all this stuff after the3332fact, what is the single--it is hard to probably pick one--what3333is the most shocking thing that sort of you uncovered or found3334out about this whole thing, your experience?3335    Mr. Berenson. That the White House would directly target me3336as an individual, you know, and again RFK. I think the White3337House, the Federal Government has tremendous power it is more3338than it should go out there and say what it thinks, and if it3339wants to promote mask, or whatever it wants to promote,3340obviously it has every right to do that, but to target3341individuals or target entire classes of speech I just do not3342understand how anybody thought that was OK.3343    And clearly, I will tell you actually what the most3344stunning thing was. The companies did not like it. OK. You had3345private companies saying: Hey, we are worried about the First3346Amendment. You had you had a British politician, the former3347deputy prime minister of Britain saying to the White House: I3348think there is a problem here. And the White House said: Oh.3349No, do not worry about it.3350    Senator Schmitt. And then last, then I will get to Senator3351Hickenlooper.3352    Mr. Volokh, I want to ask you. The NIST, AI Risk Management3353Framework Guidance advises developers, this is a government3354agency, advises developers to mitigate risks related to quote,3355``Harmful bias'' and content that may not, quote, ``distinguish3356fact from opinion or fiction''. From a First Amendment3357perspective, what is the danger of the government suggesting3358that these AI companies or other platforms should filter out3359quote/unquote ``harm'', or quote/unquote, ``bias''?3360    Mr. Volokh. Well, if the government--I am sorry--if the3361government were to mandate that AI companies restrict their3362outputs in particular ways, I think that would violate the3363First Amendment partly because of the rights of the companies,3364but partly because of the rights of users, users as listeners,3365users as people who would want to use the AI to create their3366own speech.3367    At the same time, when it comes to government procurement3368decisions, government needs to get AI for its own purposes, it3369has to insist that the AIs provide accurate information. I am3370still----3371    Senator Schmitt. You understand the danger of that though,3372right?3373    Mr. Volokh. There is definitely a danger, but at the same3374time, again, the government as buyer, the purpose of AI is to3375provide accurate information. Social media, I think the main3376purpose is to provide information that users supply. It is to3377provide, I think, should be a largely unfiltered channel----3378    Senator Schmitt. A passthrough platform----3379    Mr. Volokh. Right.3380    Senator Schmitt.--which is why they are given the Section3381230 protections in the first place, correct?3382    Mr. Volokh. Well, I do think that that is the--that that is3383a good model as a passthrough platform. But AI cannot be to be3384effective a passthrough platform. It has to make decisions that3385we hope are decisions in favor of more accurate information.3386Otherwise, the government, as a user of AI, will be constantly3387deceived by it.3388    So I think as in its procurement capacity the government3389needs to be able to insist that the AI companies do what it3390takes to provide more accurate information, and to fight indeed3391misinformation in their own output. That is something that is3392required. And indeed, AI companies do not have Section 2303393immunity in that context, that we----3394    Senator Schmitt. Correct. And I suppose--I think this is3395going to be a big issue, whether you call it Woke AI, whatever.3396    Mr. Volokh. Um-hum.3397    Senator Schmitt. The previous administration, one of the3398untold stories to lock in, and I actually agree with Mr.3399Kimmelman on this point, to lock in the incumbents and the3400monopolies in exchange for that was to have algorithms that3401locked in this bias. And that is a very, very dangerous road to3402go down. So I do not think this is the last we are going to--is3403not really the purpose of this hearing, but since we are having3404the discussion, I think it is really kind of an interesting and3405important thing.3406    So, Senator Hickenlooper.34073408             STATEMENT OF HON. JOHN HICKENLOOPER,3409                   U.S. SENATOR FROM COLORADO34103411    Senator Hickenlooper. Thank you, Mr. Chair, and I agree3412completely that what we should be looking at is the algorithms3413as much as the speech because those algorithms are going to3414control what we get. And in a funny way that is an abrasive and3415intrusive form of speech that has almost nothing to do with3416your freedoms.3417    Let me just start just by saying that the First Amendment3418to most of us is a bedrock of our country, it is a bedrock of a3419healthy democracy. It protects people from government3420censorship at every level. It provides free speech, but it is3421not unlimited. And we know that speech encourages violence,3422spreads lies from foreign enemies, or defrauds people, a fire3423in a crowded theatre, that that is not protected.3424    But this freedom should be nonpartisan. It is, you know,3425whether you are Republicans or Democrats are in power, we3426should all remain united in stopping these genuine threats to3427the fundamental civil rights of our society. People in this3428country should be free to speak their minds without pressure,3429without censorship. Not from government, not from government3430agencies or policies, not from companies acting under political3431influence.3432    What worries me is that some claim to defend free speech3433only when it helps their political party and ignore it when it3434silences others. And I think it is worth reiterating that we3435are not here to pick sides, it is to make sure that we protect3436everyone's right to speak freely no matter who they are, what3437they believe, or what they are saying.3438    Let me start just by talking a little bit about campus. You3439know, I went to a small liberal arts college in Middletown,3440Connecticut, the famous Wesleyan University, and they, like3441every school had to navigate a lot of this in the last couple3442years. We have seen an increase in people calling for imposing3443bans on peaceful organizing related to issues such as the war3444in Gaza, or Black Lives Matter.3445    I think we also need to recognize our duty to protect the3446rights of conservative views that are expressed on college3447campuses. I know that Wesleyans worked very hard to make sure3448that they get both sides. But not everyone has. And whether we3449agree or disagree with each other, our right to that freedom of3450speech should be defended loudly and consistently. I think as3451long as we all feel that our safety is protected from threats3452of violence, of unconscionable violence.3453    So let me start, Mr. Berenson, regardless of ideology, as3454long as individuals or groups are not inciting violence with3455the intent to harm others, should they not have the same rights3456to free speech?3457    Mr. Berenson. Yes.3458    Senator Hickenlooper. Not a very complicated question, but3459it is one of those ones that I feel like the more times you can3460ask it on the record, each time you do that, it builds a little3461bit of a better foundation.3462    Mr. Davis, you have defended conservative speech online.3463Would you extend that same defense to college students3464expressing their views about the U.S. foreign policy, or3465calling for racial justice, if their speech was censored by a3466state government?3467    Mr. Davis. Yes, I do not think American citizens should be3468subjected to censorship by their government anywhere for any3469reason.3470    Senator Hickenlooper. I just want to make sure that is on3471the record. I was pretty sure what that answer would be. You3472know, we have seen some disinformation campaigns from foreign3473governments. U.S. Government under both Republicans and3474Democrats have worked hard to limit, counter foreign3475propaganda--and counter foreign propaganda, they are especially3476important. These efforts are especially important when it comes3477to stopping these disinformation campaigns that, oftentimes,3478are trying to interfere in our elections.3479    Under the first Trump administration, the FCC even proposed3480to require the mandatory disclosure of all foreign sponsored3481content broadcast over TV or radio. Again, there are some that3482argue that that disclosure would in fact be a form of3483limitation. I am not saying that myself.3484    Now, Mr. Berenson, again, would you support the government3485having zero communication with companies about foreign3486disinformation campaigns that could affect U.S. elections or3487public safety?3488    Mr. Berenson. I mean, I have not really thought about that.3489Zero? I do not know. There might be a time when it would be3490reasonable. But I mean, you said foreign, right?3491    Senator Hickenlooper. Yes.3492    Mr. Berenson. So the First Amendment does not--is not3493implicated. The problem as we have seen in the last 10 years,3494it is very easy to go down a slippery slope and you start3495interfering in American speech. So I think you have to be very3496careful.3497    Senator Hickenlooper. That is where that question comes3498from, especially when sometimes that disinformation is our3499foreign rivals or adversaries of Iran, Russia, China.3500    Last question, Mr. Volokh, is there not a difference3501between coercive threats and agencies actually sharing factual3502information about foreign disinformation campaigns? And I think3503one example of this would be Russia's 2016 interference3504efforts. And would you recommend the U.S. Government simply3505stop investigating foreign interference on our elections3506altogether, or you know, if we were to do that, what would that3507do? Would that help or harm our democracy?3508    Mr. Volokh. So there is a difference between coercion and3509kind of other non-coercive communication. The coercion would be3510a First Amendment violation. The others may or may not be,3511depending I think on how systemic they are. I do think that3512indeed we have seen lots of situations throughout American3513history where attempts to try to suppress foreign influence3514have turned into attempts to suppress domestic dissent.3515    Including in the examples you gave of some people who are3516trying to suppress, I think wrongly trying to suppress anti-3517Israel speech on campuses are arguing: Oh, these people are the3518cats' paws of Hamas and such.3519    So I do think that, even to the extent it is permissible3520for the government to communicate with the platforms, I think3521it is important that there be as much transparency as is3522possible consistently with national security, and that it is3523especially dangerous when they are trying to--where the3524government is trying to do that and then nobody finds out about3525it for years or until somebody manages to break the log jam in3526a lawsuit using discovery.3527    Senator Hickenlooper. Thank you. Mr. Chair, if I can ask3528one more question?3529    Senator Schmitt. Sure.3530    Senator Hickenlooper. It will just be a yes/no, because3531this is one that I was--never really followed I had--until I3532was partners with a woman, remarkable woman named Joyce Meskis,3533had a bookstore in Denver called the Tattered Cover, and she3534was a great defender of free speech, and she looked at it in3535the--in that sense of: Your speech is part of what you read,3536and you should be able to read whatever you want without3537government interference or knowing about it.3538    And there was a domestic terrorist who had blown up--had a3539bomb. They were pretty sure that he had purchased the book on3540how to make this bomb at her bookstore. And she refused to give3541the information over what her customers had purchased. And I3542just wanted to see with each of you whether you think that is--3543in that situation whether that is appropriate or not? And that3544is it is pretty much what it was. They wanted to get--find out3545whether this guy had bought that book from the bookstore as3546part of the case. And she said: You do not need that case. You3547got them on a million other things. This is a freedom of3548information issue.3549    Yes, so I will start with you, Mr. Volokh.3550    Mr. Volokh. Yes, so as I recall, I think she prevailed in3551that particular case. I am not sure that the court got it right3552there. As a general matter if--especially if there is probable3553cause and a warrant, all sorts of information may need to be3554turned over, and I am not sure there should be a categorical3555prohibition on disclosure of that information, especially when3556there is probable cause in a warrant.3557    Mr. Berenson. I think that is a very smart answer, and I3558will just go with it.3559    [Laughter.]3560    Mr. Davis. Yes, I am not familiar with the facts of that3561case obviously as you are. I think that is a pretty complicated3562one. So I am going to have to decline on that one because I3563just do not have enough information. But that that is a, that3564is a tricky one.3565    Senator Hickenlooper. You guys would not make very good3566senators. You know, all of our cases are pretty tricky.3567    Mr. Kimmelman. Senator, I can understand the sentiment that3568she expressed and why she did it. I think I agree with Mr.3569Volokh, if there is a real legal cause for that information be3570handed over, the government has a right to it.3571    Senator Hickenlooper. Well, I guess----3572    Senator Schmitt. I think they dodged pretty well, Senator.3573They would make good senators.3574    Senator Hickenlooper. Yes. I am pretty sure. You are3575exactly right--that means they would be excellent material for3576senators.3577    Senator Schmitt. Yes. They pivoted.3578    Senator Hickenlooper. I think that the Supreme Court3579obviously did support her and that this was part of the free3580speech that should be protected. And I guess you can, those3581most of you disagreed with that. So you can feel some comfort3582that precedence does not seem to be that all powerful in the3583present court. So there is a--certainly a chance in a similar3584situation we might get a different ruling.3585    Senator Schmitt. Thank you. Thank you, Senator.3586    Senator Hickenlooper. I yield back3587    Senator Schmitt. Thank you, all. I want to thank all the3588witnesses for their testimony here today.3589    Senators will have until the close of business on October359015 to submit questions for the record. The witnesses will have3591until the close of business on October 29 to respond to those3592questions.3593    And with that, that concludes today's hearing. The3594Committee stands adjourned.3595    [Whereupon, at 12:33 p.m., the hearing was adjourned.]35963597                            A P P E N D I X35983599        The Leadership Conference on Civil and Human Rights3600                                                    October 8, 202536013602Hon. Ted Cruz,3603Chair,3604Committee on Commerce, Science, and Transportation,3605U.S. Senate,3606Washington, DC.36073608Hon. Maria Cantwell,3609Ranking Member,3610Committee on Commerce, Science, and Transportation,3611U.S. Senate,3612Washington, DC.36133614Dear Chair Cruz and Ranking Member Cantwell,36153616    On behalf of The Leadership Conference on Civil and Human Rights, a3617coalition charged by its diverse membership of more than 240 national3618organizations to promote and protect the rights of all persons in the3619United States, and the undersigned co-chairs of our Media/3620Telecommunications Task Force, we appreciate the committee's attention3621to the critical issue of government overreach and threats to free3622expression guaranteed by the Constitution. The First Amendment serves3623as the bedrock of American democracy, and vigilance against government3624overreach is essential to preserving our constitutional freedoms. For3625these reasons, we respectfully request that you follow this hearing3626with one conducting oversight of the current Federal Communications3627Commission (FCC) and its commissioners. We also ask for this letter to3628be entered into the record of the Senate Committee on Commerce,3629Science, and Transportation hearing titled ``Shut Your App: How Uncle3630Sam Jawboned Big Tech Into Silencing Americans.''3631The Supreme Court Recently Rejected Claims of Unconstitutional3632        ``Jawboning'' by the Prior Administration, Including3633        Allegations Against CISA.3634    This hearing claims to examine a ``censorship campaign conducted in3635secret by the Biden administration's Cybersecurity and Infrastructure3636Security Agency (CISA).'' Just last year, the Supreme Court examined3637similar allegations in Murthy v. Missouri (2024) and rejected them.3638    In Murthy, plaintiffs--including two states and five social media3639users--alleged that Biden administration officials, including CISA, the3640White House, the Surgeon General, and the Center for Disease Control3641(CDC), pressured social media platforms to censor speech about COVID-193642and election-related topics in violation of the First Amendment. The3643District Court issued a preliminary injunction against multiple3644agencies including CISA, and the Fifth Circuit affirmed.3645    The Supreme Court reversed 6-3, holding that plaintiffs lacked3646standing because they failed to establish that their injuries were3647fairly traceable to government conduct or that an injunction would3648redress their harms. Writing for the majority, Justice Coney Barrett3649emphasized that the extensive factual record--spanning over 26,0003650pages--did not support the conclusion that government communications3651actually coerced platforms into content moderation decisions.3652    The Court made several critical factual findings that undermined3653plaintiffs'' claims of coercion. First, ``the platforms had independent3654incentives to moderate content and often exercised their own3655judgment.'' Second, and most significantly, ``the platforms began to3656suppress the plaintiffs' COVID-19 content before the defendants'3657challenged communications started.'' The Court found that this is3658timeline undermined any inference that government pressure, rather than3659platforms' independent editorial policies, drove moderation decisions.3660As Justice Coney Barrett explained, this ``complicates the plaintiffs'3661effort to demonstrate that each platform acted due to `government-3662coerced enforcement' of its policies, rather than in its own3663judgment.''3664    The Court further found that by the time plaintiffs filed suit in3665August 2022, ``the frequent, intense communications that took place in36662021 between the Government defendants and the platforms had3667considerably subsided.'' Without evidence of ongoing pressure, the3668Court concluded that there was no basis to conclude that future content3669moderation would be traceable to government action rather than3670platforms' independent editorial choices. The Court noted that ``the3671available evidence indicates that the platforms have continued to3672enforce their policies against COVID-19 misinformation even as the3673Federal Government has wound down its own pandemic response measures.''3674    Critically, the Murthy decision distinguished between government3675communications--even strong or critical ones--and unconstitutional3676coercion. The Court recognized that government officials may express3677views about misinformation and even ``speak with the platforms about3678COVID-19 and election-related misinformation,'' without violating the3679First Amendment. The core of this analysis is whether such3680communications cross the line into coercion that transforms private3681editorial decisions into state action. The Court held that the3682extensive factual record before it did not meet this standard.3683    In Murthy, the Supreme Court examined claims similar to those at3684the heart of this hearing. After exhaustive fact-finding, the Court3685concluded that the evidence did not establish the causal link required3686to show unconstitutional coercion, finding instead that platforms acted3687on independent incentives, began content moderation before most3688government communications occurred, and continued their policies after3689government engagement ceased.3690    The Court's framework makes clear that strong government criticism3691of platform policies, or even requests for policy changes, do not3692constitute ``jawboning'' absent concrete evidence that government3693pressure, rather than platforms' own editorial judgment, drove specific3694moderation decisions.3695The First Amendment Protects Content Moderation Decisions by Platforms3696        and Prevents Government Intrusions that Suppress Individual3697        Freedom of Expression.3698    This hearing's framing inverts the actual threat of jawboning and3699the continued undermining of First Amendment rights that people in the3700U.S. face today. While the committee examines the actions of a previous3701administration no longer able to jawbone, the current administration is3702waging an unprecedented campaign of government coercion against private3703actors' constitutionally protected rights to engage in content3704moderation and editorial judgement.3705    Since inauguration day, the President has used private lawsuits to3706extract nearly $60 million in settlements from social media platforms3707and over $30 million from major broadcast media outlets; the3708administration has simultaneously been attempting to criminalize3709otherwise protected speech by threatening prosecutions and political3710retaliation.\1\ These actions fall squarely within this Committee's3711jurisdiction and demand immediate oversight, investigation, and3712accountability for these ongoing abuses.3713---------------------------------------------------------------------------3714    \1\ Charlie Warzel, ``YouTube Bends the Knee,'' The Atlantic (Oct.37151, 2025), https://www.theatlantic.com/technology/2025/10/youtube-trump-3716settlement/684431/?gift=YyWH8Vk3717lYl_6f2ICNsEnCaezGBz2MZZ0fzSx_iY8nfE; Meg James, ``After CBS and ABC's3718Trump Settlements, Democrats Want to Curb Presidential Library Gifts,''3719Los Angeles Times (July 16, 2025), https://www.latimes.com/3720entertainment-arts/business/story/2025-07-16/cbs-abc-trump-payouts-3721qatar-jet-proposed-curbs-library-gifts.3722---------------------------------------------------------------------------3723    Private companies--including social media platforms, broadcasters,3724and publishers--possess their own First Amendment rights to establish3725and enforce community standards, moderate content, and make editorial3726decisions about what speech to host or amplify on their platforms. The3727Supreme Court has repeatedly and recently affirmed these principles.3728    In Moody v. NetChoice (2024), the Court held that platforms engage3729in constitutionally protected speech activity when they exercise3730editorial discretion, and that the government cannot require platforms3731to ``carry and promote [] speech they would rather discard or3732downplay.'' The Court explicitly rejected arguments that government can3733dictate platforms' content moderation to achieve ideological balance,3734noting that ``it is no job for government to decide what counts as the3735right balance of private expression.''3736    Similarly, in National Rifle Association v. Vullo (2024), the Court3737unanimously held that government officials cannot use regulatory3738authority to coerce private entities into suppressing speech, warning3739that officials cross into impermissible coercion when their conduct3740``could be reasonably understood to convey a threat of adverse3741government action in order to punish or suppress speech.''3742Recent Activity and Statements by the Trump Administration Constitute a3743        Campaign of Coercive Intrusion and Control that Violate the3744        First Amendment.3745    The Trump administration's ongoing campaign against companies'3746content moderation and editorial decisionmaking runs afoul of the3747standard for impermissible government coercion set out in NRA v. Vullo.3748In September 2025, YouTube settled with President Trump for $24.53749million over its decision to suspend his account following January 6,37502021--joining Meta ($25 million) and X ($10 million) in paying nearly3751$60 million collectively for enforcing their own community standards3752during a national crisis.\2\3753---------------------------------------------------------------------------3754    \2\ Charlie Warzel, ``YouTube Bends the Knee,'' The Atlantic (Oct.37551, 2025), https://www3756.theatlantic.com/technology/2025/10/youtube-trump-settlement/684431/3757?gift=YyWH8VklYl_6f23758ICNsEnCaezGBz2MZZ0fzSx_iY8nfE.3759---------------------------------------------------------------------------3760    These settlements represent precisely the chilling effect the First3761Amendment forbids: private companies' forced acquiescence in response3762to a ``threat of'' (or actual) ``adverse government action'' that3763interferes with and punishes private actors for exercising their3764editorial judgment as permitted by the First Amendment. This chilling3765effect extends across the entire media ecosystem, from social media3766platforms to broadcast networks to publishers, creating an environment3767of threat or undue government pressure in which companies make3768editorial decisions based on government pressures rather than their own3769standards, business model, users' safety, or the public interest.3770    Recent statements by top U.S. Department of Justice (DOJ) officials3771further showcase how this administration is perpetuating unlawful3772overreach, violating principles of freedom of expression. After the3773murder of Charlie Kirk, Attorney General Pam Bondi has threatened to3774prosecute individuals and even businesses for ``hate speech''--speech3775that is constitutionally protected from government sanction--while3776simultaneously pressuring companies to abandon their own voluntary3777efforts to moderate such content.\3\ This incoherent approach punishes3778the exercise of free speech by individuals and companies alike,3779undermining constitutional protections and boundaries while expanding3780government control and suppressing free expression.3781---------------------------------------------------------------------------3782    \3\ Giselle Ruhiyyih Ewing, `` `That is Not the Law': Bondi3783Promised to Target `Hate Speech.' She's Facing Backlash From All3784Corners.,'' Politico (Sept. 16, 2025), https://www.politico.com/news/37852025/09/16/pam-bondi-first-amendment-hate-speech-prosecution-00566424.3786---------------------------------------------------------------------------3787    Social media platforms have substantial legitimate interests--3788indeed, even responsibilities--in moderating hate speech, preventing3789the organization of violent extremist groups, and limiting the3790amplification of content that harms users and degrades the quality of3791discourse. Unlike government actors that are constrained by the First3792Amendment's prohibition on censoring hate speech, private platforms may3793permissibly decide not to host or amplify hate speech, inauthentic or3794misleading content, or extremist organizing. These editorial decisions3795serve multiple critical purposes: they maintain a platform's3796information ecosystem, protect users from harm, and prevent platforms3797from becoming vectors for radicalization and real-world violence.3798Coerced Demoderation Extracts Measurable Real-World Costs from3799        Communities, the Marketplace of Ideas, and American Democracy.3800    The consequences of abandoning content moderation fall3801disproportionately on communities of color and other marginalized3802groups. When platforms have reduced appropriate content moderation,3803unmoderated spaces have become vehicles for real-world voter3804suppression, orchestrated harassment campaigns, and targeted3805disinformation that functionally silences already marginalized voices.3806    As civil rights enforcement offices across Federal agencies are3807eliminated, and nondiscrimination standards are corroded, the absence3808of platform moderation exacerbates these threats. To be clear,3809harassment and disinformation do not function as mere expressions of3810viewpoints: they systematically silence communities that have3811historically faced discrimination and continue to face barriers to full3812participation in democratic discourse.3813    Moreover, content moderation protects consumers from fraud and3814scams that disproportionately target communities of color. The Federal3815Trade Commission's data shows that between January 2021 and June 2023,3816losses from social media-related fraud reached $2.7 billion, with Black3817and Latino consumers more than twice as likely as white consumers to3818lose money to digital scams.\4\ Platform policies that reduce fraud and3819disinformation serve essential consumer protection functions that align3820with--rather than contradict--regulatory objectives and First Amendment3821protections.3822---------------------------------------------------------------------------3823    \4\ Emma Fletcher, ``Social Media: A Golden Goose for Scammers,''3824Federal Trade Commission (Oct. 6, 2023), https://www.ftc.gov/news-3825events/data-visualizations/data-spotlight/2023/10/social-media-golden-3826goose-scammers.3827---------------------------------------------------------------------------3828    The consequences of demoderation have become evident. Users of X3829(formerly Twitter), following the platform's adoption of minimal3830content moderation policies and elimination of fact-checking, have3831experienced widely reported increases in hate speech, harassment, and3832extremist content. The platform has seen significant advertiser3833departures and user migration to alternative platforms.\5\ This3834degradation demonstrates why platforms historically invested in content3835moderation--not because the government forced them to, but because3836maintaining quality standards is essential to user safety and to3837product quality and viability.3838---------------------------------------------------------------------------3839    \5\ Michael Jensen, ``Hate Speech on X Surged for at Least 8 Months3840After Elon Musk Takeover--New Research,'' The Conversation (Feb. 12,38412025), https://theconversation.com/hate-speech-on-x-surged-for-at-3842least-8-months-after-elon-musk-takeover-new-research-2496033843---------------------------------------------------------------------------3844    Government jawboning in its most pernicious form is the current3845distortion and unlawful weaponization of legal precedent and3846established constitutional norms to pressure private actors to abandon3847editorial standards altogether while also attempting to criminalize3848otherwise protected speech. If this Committee is concerned about3849government threats to free speech and editorial independence, this3850administration's ongoing campaign of corporate and individual3851intimidation and capitulation-seeking behavior demands immediate3852oversight and investigation.3853FCC Chair Brendan Carr's Actions Warrant Scrutiny by the Full Commerce3854        Committee.3855    Much has already been said about FCC Chair Brendan Carr's comments3856to American Broadcasting Company (ABC) affiliates urging them to inform3857ABC that they would not carry Jimmy Kimmel Live and highlighting the3858power the FCC has over the broadcasting licenses of the affiliates.\6\3859First amendment experts pointed to Carr's rhetoric and the subsequent3860(temporary) removal of Kimmel's show as a textbook example of an undue3861and violative form of pressure,\7\ and highlighted the many ways in3862which the FCC has attempted to police speech in the name of the public3863interest (both in the issuance of broadcast licenses and the approval3864of mergers).\8\3865---------------------------------------------------------------------------3866    \6\ Press Release, ACLU, ACLU Responds to Trump Administration Move3867Censoring Jimmy Kimmel (Sept. 17, 2025), https://www.aclu.org/press-3868releases/aclu-responds-to-trump-administration-move-censoring-jimmy-3869kimmel.3870    \7\ Anna Branigin, ``How Cancel Culture Came for Everyone,''3871Washington Post (Oct. 1, 2025), https://www.washingtonpost.com/style/3872power/2025/10/01/cancel-culture-kimmel/.3873    \8\ Ted Johnson, ``Brendan Carr's Threats On Networks May Be3874``Jawboning,'' And Courts Don't Like It, Legal Experts Say'' Deadline3875(Sept. 19, 2025), https://deadline.com/2025/09/fcc-brendan-carr-3876jawboning-jimmy-kimmel-1236549243/; Tom Wheeler, ``Trump's CBS Lawsuit3877Ties Media Freedom to FCC's Regulatory Power,'' Brookings (Feb. 19,38782025), https://www.brook3879ings.edu/articles/trumps-cbs-lawsuit-ties-media-freedom-to-fccs-3880regulatory-power/.3881---------------------------------------------------------------------------3882    Underlying all of this is also Nexstar's pending merger before the3883FCC and the upcoming changes to its existing media ownership rules,3884necessary for the merger to be permitted under current law.\9\ This3885recent behavior by the Chair was so egregious that many members of3886Congress on both sides expressed deep concern,\10\ and some even called3887for Carr's removal as Chair.\11\3888---------------------------------------------------------------------------3889    \9\ Keith Collins and Raj Saha, ``How a TV Merger Raised the3890Pressure on ABC to Suspend Kimmel,'' New York Times (Sept. 19, 2025),3891https://www.nytimes.com/interactive/2025/09/19/business/media/abc-3892nexstar-kimmel.html.3893    \10\ Anthony Adragna, John Hendel, and Gabby Miller, `` `Be Very3894Careful:' Some in the GOP Balk at Kicking Kimmel Off TV,'' Politico3895(Sept. 18, 2025), https://www.politico.com/news/2025/09/18/gop-3896lawmakers-come-out-against-the-fccs-role-in-kimmel-axing-00572140.3897    \11\ Press Release, Democratic Leader Hakeem Jeffries, Whip3898Katherine Clark, Caucus Chair Pete Aguilar, Caucus Vice Chair Ted Lieu,3899Assistant Leader Joe Neguse and DCCC Chair Suzan DelBene, Joint3900Leadership Statement on the Suspension of Jimmy Kimmel (Sept. 18,39012025), https://democraticleader.house.gov/media/press-releases/joint-3902leadership-statement-suspension-jimmy-kimmel.3903---------------------------------------------------------------------------3904    We also have serious concerns about the way in which3905telecommunications companies have been pressured by FCC leadership into3906dropping their diversity, equity, and inclusion programs to ensure3907their mergers are approved.\12\ Both T-Mobile and Verizon had pending3908mergers before the FCC that were approved within days of sending3909letters to Chair Carr announcing the end of the programs. Despite plain3910civil rights mandates and an abject failure to meet them, the FCC3911required many companies to eliminate their programs that aimed to3912ensure fair treatment of and equal opportunity for women, people of3913color, people with disabilities, and the LGBTQ community in order for3914their mergers to be approved.3915---------------------------------------------------------------------------3916    \12\ Brit Morse, ``The FCC Takes on a New Role: DEI Regulator,''3917Fortune (July 17, 2025), https://fortune.com/2025/07/17/federal-3918communications-commission-new-role-dei-regulator/.3919---------------------------------------------------------------------------3920    Chair Carr has shown a pattern of complete disregard for the First3921Amendment and a willingness to abuse the FCC's authority to further3922this administration's authoritarian agenda. All of the above actions3923are part of a larger pattern of behavior at the FCC: disregard for the3924law and the will of Congress. This warrants further investigation by3925the Commerce Committee, and we strongly urge you to follow-up this3926hearing with one conducting oversight of the current FCC and its three3927commissioners.3928    We stand ready to work with Congress on policies that will protect3929civil rights, prevent unlawful discrimination, and advance equal3930opportunity. Should you require further information or have any3931questions regarding this issue, please feel free to contact Jonathan3932Walter, senior policy counsel, at walter@civilrights.org.3933            Sincerely,3934                    The Leadership Conference on Civil and Human Rights39353936                                                               UnidosUS39373938                         United Church of Christ Media Justice Ministry3939                                 ______39403941 Prepared Statement of Writers Guild of America West and Writers Guild3942                            of America East3943  Media Consolidation Enables Censorship and is a Threat to Workers,3944                    Consumers, and American Culture3945    The Writers Guild of America West (WGAW) and Writers Guild of3946America East (WGAE) appreciate the opportunity to submit this statement3947for the record concerning the hearing entitled ``Shut Your App: How3948Uncle Sam Jawboned Big Tech into Silencing Americans'' on behalf of our3949membership. WGAW is a labor organization representing more than 11,0003950professional writers of films, television and streaming series, and3951news programming. WGAE is a labor union of more than 7,500 members3952working in film, television, news, podcasts and online media.3953    For decades, the Guilds have called attention to the threat that3954concentrated market power in media poses to diversity of content and3955variety of viewpoints, in the context of mergers, antitrust policy, and3956broadcast and Internet regulations. Our members are directly affected3957by the lack of competition in media--a consolidated handful of3958employers have tremendous power to pressure writer compensation and3959working conditions and to gatekeep what stories can be seen in3960theaters, on television and on streaming services.3961    Recent events have illustrated how easily this concentration of3962power transforms into direct censorship. ABC's decision to stop airing3963Jimmy Kimmel Live! after pressure from the Trump Administration and3964Nexstar Media Group followed Paramount's cancellation of The Late Show3965with Stephen Colbert during the Federal government's review of the3966Paramount-Skydance merger.\1\ Still more consolidation looms on the3967horizon. Powerful and consolidated gatekeepers already exercise3968considerable control over free speech by deciding what programming3969reaches Americans and unless consolidation in this industry is3970addressed, censorship of Americans by large conglomerates and the3971Federal government will remain unchecked.3972---------------------------------------------------------------------------3973    \1\ Press Release, WGA Statement on ABC's Decision to Pull Jimmy3974Kimmel Live! WGAW (Sept. 17, 2025), https://www.wga.org/news-events/3975news/press/2025/wga-statement-on-abc-decision-to-pull-jimmy-kimmel-3976live.3977---------------------------------------------------------------------------3978Mergers have Consolidated Control over Media3979    Deregulation and antitrust underenforcement over the last few3980decades have allowed for waves of consolidation in the media industry,3981leaving just a handful of major studios with control over the3982marketplace. Over the last two decades, more than $435 billion worth of3983mergers and acquisitions have been completed in media production or3984distribution.\2\ These mergers have increased the power of corporations3985to the detriment of writers, viewers, and competition.3986---------------------------------------------------------------------------3987    \2\ WGAW, Broker Promises: Media Mega-Mergers and the Case for3988Antitrust Reform (2021), https://www.wga.org/uploadedfiles/3989news_and_events/public_policy/broken-promises-merger-report.pdf.3990---------------------------------------------------------------------------3991    After the Disney-Fox merger, for example, Disney closed the3992competing Fox animation studio, pulled back content it had licensed to3993Netflix, banned Netflix from advertising on its television3994entertainment networks, and pressed creators and other workers to3995forego sharing in future licensing revenue on Disney shows. Disney's3996serial acquisitions of Pixar, Marvel, Lucasfilm, and Fox have reduced3997innovative development in favor of focusing on franchise films,3998reducing variety and choice at the theater. The company now owns two of3999the four largest streaming services in the U.S., Disney+ and Hulu, and4000has announced plans to combine them. After the Warner-Discovery merger,4001the company canceled, pulled, or wrote off $2 billion in content,4002including numerous projects created by or about people of color, and4003laid off hundreds of workers. WarnerMedia and Discovery are now4004essentially up for sale as the pre-merger companies; yet another in a4005series of mergers that purported to create better competitors, but4006instead result in merged entities burdened by debt and focused on4007rationalizing their disastrous business decisions by cutting costs.4008Streaming is Accelerating the Problems of a Consolidated Media4009        Landscape4010    In recent years, streaming video has become the dominant4011distribution platform for content while also becoming increasingly4012vertically integrated. In the 2024-2025 television season, 78 percent4013of original scripted streaming series were distributed by four4014companies, Netflix, Disney, Amazon and Apple.\3\ The entertainment4015industry's major employers also combine content production and4016distribution arms in order to self-supply their own content globally on4017their affiliated streaming services. In the 2024-2025 television4018season, nearly three-quarters of online scripted content on the major4019streaming platforms was self-supplied.\4\ This market structure4020forecloses competition from independent producers and distributors,4021enables monopsony power over writers and other industry workers, and4022gives conglomerates outsized control over what content reaches4023audiences.4024---------------------------------------------------------------------------4025    \3\ Writers Guild of America West Internal Data, 2025 (on file with4026WGAW) (based on WGA-covered scripted series).4027    \4\ The major streaming platforms are Amazon Prime Video, Apple4028TV+, Disney+, HBO Max, Hulu (folding into Disney+), Netflix, Paramount+4029and Peacock. Writers Guild of America West Internal Data, 2025 (on file4030with WGAW) (based on WGA-covered scripted series).4031---------------------------------------------------------------------------4032    In the current streaming landscape, independent producers must4033compete with affiliated studios to sell content to the studios'4034streaming services, leaving them with few opportunities for accessing4035consumers. Meanwhile, a new competitor in streaming distribution would4036have difficulty licensing the third-party premium content it needs to4037offer a competitive service. The Disney-Fox and AT&T-Time Warner4038mergers, for instance, were both immediately followed by those4039companies withdrawing their content from competing services like4040Netflix and Amazon in favor of launching Disney+ and HBO Max.\5\ And in4041order to reach the end consumer, new streaming distribution entrants4042must strike deals with platform gatekeepers Amazon Fire TV, Roku, or4043Apple TV--which together control two-thirds of the U.S. connected TV4044market\6\--to have their apps available on the services, a barrier that4045reportedly inhibited the launches of HBO Max and Peacock.\7\ This4046market structure and the mergers that created it raise substantial4047barriers to entry, reduce innovation in content production, and4048increase the ability of gatekeepers to impose their own restrictions on4049what content gets made--while making further consolidation more likely.4050---------------------------------------------------------------------------4051    \5\ See, e.g., Michelle Castillo, Disney Will Pull Its Movies From4052Netflix and Start Its Own Streaming Services, CNBC (Aug. 8, 2017),4053https://www.cnbc.com/2017/08/08/disney-will-pull-its-movies-from-4054netflix-and-start-its-own-streaming-services.html; Sarah Perez, Disney+4055Gains the Marvel Series From Netflix and New Parental Controls,4056TechCrunch (Mar. 1, 2022), https://techcrunch.com/2022/03/01/disney-4057gains-the-marvel-series-from-netflix-and-new-parental-controls/; Ben4058Munson, HBO Max Expects Subscriber Impact From Amazon Channels Exit,4059Fierce Video (Aug. 11, 2021), https://www.fiercevideo.com/video/hbo-4060max-expects-subscriber-impact-from-amazon-channels-exit.4061    \6\ Press Release, Pixalate's Q2 2025 Global Connected TV Device4062Market Share Reports: Roku Leads in North America (37 percent) and4063LATAM (45 percent), Samsung No. 1 in EMEA (33 percent), Xiaomi Leads in4064APAC (24 percent) (2025), https://finance.yahoo.com/news/pixalate-q2-40652025-global-connected-143100935.html.4066    \7\ HBO Max and Peacock customers were unable to access the new4067streaming services through Amazon devices when they launched in 20204068because the companies had not reached agreement. Peacock and HBO's4069disputes reportedly stemmed from executives' desires to keep their4070streaming services outside of Amazon Channels to retain control of the4071user experience and viewership data. News commentary suggested that the4072lack of Amazon Fire carriage notably slowed subscriber growth at these4073services, and when HBO Max finally reached a deal with Amazon months4074later, the terms included an extension of WarnerMedia's contract with4075Amazon Web Services, its cloud computing platform.4076---------------------------------------------------------------------------4077    Streaming's dominant employers have also used their leverage to4078push down writers' pay. In 2023, writers went on strike for nearly five4079months to improve compensation and employment terms as practices such4080as short-term, more precarious employment and caps on experienced4081writer compensation had spread between employers to become4082``standard.'' The lack of competition and vertical integration has also4083led to disputes among the bargaining parties in the period between4084contract negotiations. For example, the WGAW has collected millions in4085underpayment from Paramount\8\ and Netflix\9\ for undervaluing4086``imputed'' license fees to vertically-integrated streaming services,4087and has filed related claims against Disney and NBCUniversal. Each of4088these disputes stems directly from the increasing consolidation of the4089media companies.4090---------------------------------------------------------------------------4091    \8\ Cynthia Littleton, WGA Sets $3.4 Million Settlement With CBS4092for All Access Streaming Residuals, Variety (Apr. 15, 2021), https://4093variety.com/2021/tv/news/wga-cbs-streaming-settlement-all-access-40941234952956/.4095    \9\ Katie Kilkenny, Writers Guild Arbitration With Netflix Yields4096$42M in New Residuals for Members, The Hollywood Reporter (Aug. 4,40972022), https://www.hollywoodreporter.com/business/business-news/wga-4098netflix-residuals-42-million-writers-1235192877/.4099---------------------------------------------------------------------------4100    In the streaming market, instead of dynamic competition, we also4101see all the major firms raising prices and reducing content spending in4102parallel, leaving consumers to pay more for less, hallmarks of a4103concentrated market. And despite these already anticompetitive4104conditions, Wall Street continues to call for further consolidation.4105More mergers will leave even fewer firms in control of what content can4106reach audiences, and diminished variety in media's marketplace of4107ideas. And as the suspension of Jimmy Kimmel Live! and cancellation of4108The Late Show of Stephen Colbert illustrate, the lack of competition4109can easily facilitate explicit censorship.4110Congress Must Act4111    Over the past few months, both Comcast-NBCUniversal and Warner4112Bros. Discovery have announced plans to spin off their linear networks4113to better position themselves for future M&A transactions. The newly4114combined Paramount-Skydance, immediately after that merger's4115conclusion, is exploring a bid for all of the assets of Warner Bros.4116Discovery, which would combine two major streaming services, movie and4117television studios, and a suite of television networks under a single4118owner. Absent government intervention, more harmful mergers are on the4119horizon as each merger spurs reactive consolidation among the remaining4120firms. But even the existing level of consolidation and vertical4121integration in the media industry is unacceptable and demands scrutiny,4122as we have recently seen it put free speech at risk. Congress must4123explore creative solutions that address the current level of4124consolidation, including limits on the ability of streaming services to4125own the content on their platforms, which was a condition of the4126Financial Interest and Syndication rules imposed on the broadcast4127networks when they held similar levels of control over content4128distribution. Failing to act will allow streaming services to dictate4129what stories are told, and permit media conglomerates to exercise their4130economic power as political power.4131                                 ______41324133[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]4134                                 ______41354136      Response to Written Questions Submitted by Hon. Ted Cruz to4137                             Eugene Volokh4138    Question 1. Does the First Amendment apply to the information4139Americans are permitted to receive and not just the content they can4140express?4141    Answer. Yes. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens4142Consumer Council, Inc., 425 U.S. 748, 756 (1976) (concluding that4143commercial speech is protected because ``protection afforded is to the4144communication, to its source and to its recipients both''); id. at 7574145(``[I]n Procunier v. Martinez, 416 U.S. 396, 408-409 (1974), where4146censorship of prison inmates' mail was under examination, we thought it4147unnecessary to assess the First Amendment rights of the inmates4148themselves, for it was reasoned that such censorship equally infringed4149the rights of noninmates to whom the correspondence was addressed.'');4150First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76, 7834151(1978) (concluding that corporate speech is protected ``based not only4152on the role of the First Amendment in fostering individual self-4153expression but also on its role in affording the public access to4154discussion, debate, and the dissemination of information and ideas'');4155Lamont v. Postmaster Gen., 381 U.S. 301, 305, 307 (1965) (relying on4156``the addressee's First Amendment rights'' rather than the sender's,4157where the sender was a foreign government); see also id. at 307-084158(Brennan, J., concurring) (stressing that it's not clear whether the4159First Amendment protects ``political propaganda prepared and printed4160abroad by or on behalf of a foreign government,'' but concluding that4161the law was unconstitutional because it violated the recipients'4162``right to receive'' information, regardless of the senders' rights to4163speak).41644165    Question 2. Does the First Amendment apply to artificial4166intelligence?4167    Answer. I think the First Amendment precludes the government from4168restricting the output of AI programs, because that would unduly4169interfere with Americans' right to receive information (and Americans'4170right to use the AI to help craft their own messages). See Eugene4171Volokh, Mark A. Lemley & Peter Henderson, Freedom of Speech and AI4172Output, 3 J. Free Speech L. 651 (2023).41734174    Question 3. What are the First Amendment and free speech4175implications of government attempts to alter content generated by4176artificial intelligence to address alleged ``bias'' or to pressure4177artificial intelligence companies to set up processes to moderate or4178eliminate alleged ``disinformation,'' as well as ``offensive'' or4179``objectionable'' content?4180    Answer. I think this would violate the First Amendment, just as it4181would be unconstitutional for the government to restrict ``bias,''4182``disinformation,'' or ``offensive'' or ``objectionable'' content in4183newspapers. See, e.g., Miami Herald Publishing Co. v. Tornillo, 4184184U.S. 241 (1974) (bias); New York Times Co. v. Sullivan, 376 U.S. 254,4185288 (1964) (disinformation about the government); United States v.4186Alvarez, 567 U.S. 709 (2012) (plurality opin.) (disinformation4187generally); id. at 731-32 (Breyer, J., concurring in the judgment)4188(disinformation about ``philosophy, religion, history, the social4189sciences, the arts, and the like''); id. at 751 (Alito, J., dissenting)4190(disinformation ``about philosophy, religion, history, the social4191sciences, the arts, and other matters of public concern''); Hustler4192Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (offensive or4193objectionable content).41944195    Question 4. What should I keep in mind as I craft legislation to4196ensure that Americans are fully protected against government efforts to4197decide or limit what they can read?4198    Answer. That substantive rules require procedural enforcement4199mechanisms, such as allowing people to sue the Federal government and4200officials for violating the First Amendment, just as Congress has let4201people sue state and local governments and officials.42024203    Question 5. What are some of the key challenges Americans face in4204court to hold the Federal government accountable for improper and4205unlawful jawboning?4206    Answer. The lack of a private right of action against Federal4207officials for violating First Amendment rights under color of Federal4208law, parallel to the private right of action provided as to violations4209by state and local officials under 42 U.S.C. Sec. 1983.42104211    Question 6. Can Congress help solve any of the challenges4212identified in the preceding question with new legislation?4213    Answer. Yes, by providing a private right of action against Federal4214officials for violating First Amendment rights under color of Federal4215law, parallel to the private right of action provided as to violations4216by state and local officials under 42 U.S.C. Sec. 1983.4217                                 ______42184219   Response to Written Questions Submitted by Hon. Maria Cantwell to4220                             Eugene Volokh4221    First Amendment. Brendan Carr, the Chairman of the FCC, recently4222went on a podcast to criticize Jimmy Kimmel's comments on his late-4223night talk show on ABC. He told Disney, the parent of ABC, that ``we4224can do this the easy way or the hard way.''4225    And he told the licensed broadcasters that carry ABC programming4226that ``it's time for them to step up'' and stop this ``garbage.'' Just4227hours later, the biggest affiliate groups said they would preempt4228Kimmel's show, including one with a major pending merger that requires4229FCC approval. Minutes later, ABC said it would suspend Kimmel. Kimmel4230is back on the air, but the chilling effect of Brendan Carr's words4231lingers.4232    As I wrote to Chairman Cruz weeks ago, we need Brendan Carr to4233answer for this attack on the free press.42344235    Question 1. Professor Volokh, you are a noted First Amendment4236scholar. Do you think that Carr's threats to ABC and its affiliates4237violated the First Amendment?4238    Answer. Yes.42394240    AP and Gulf of America. President Trump tried to rename the Gulf of4241Mexico to the Gulf of America. Polls show that more than 70 percent of4242Americans oppose the idea.4243    What's actually dangerous, though, is how the White House used this4244juvenile stunt to intimidate the free press. The Associated Press4245refused to go along with Trump's Orwellian attempt to make Americans4246change the name of the Gulf of Mexico.4247    In retaliation, the AP was kicked out of the White House press pool4248and not allowed into the Oval Office.42494250    Question 1. Professor Volokh, setting aside whether the White4251House's actions technically violated the First Amendment, do you think4252that in a free society, it is appropriate for the White House to punish4253news organizations that refuse to go along with its attempts to police4254language?4255    Answer. I don't believe it is appropriate, especially when the AP's4256decision went along with a long-established and broadly accepted name.4257    At some point, the actions of a news outlet may become so bizarre4258or ideologically skewed that they may lead the outlet to lose4259credibility, and reasonably lead the Administration to no longer want4260to give the outlet special access to the press pool: Say, for instance,4261that the AP decided to rename the Gulf of Mexico ``the Stolen4262Indigenous People's Sea,'' or to start calling Washington, D.C. ``the4263Capital of the Great Satan.'' But of course, the AP's retaining the4264longstanding name ``Gulf of Mexico'' is very far removed from such4265hypotheticals.42664267    Universities. In addition to the media and law firms, President4268Trump has also targeted universities and nonprofit organizations that4269express views that he disagrees with. The administration has threatened4270to revoke non-profit status; restricted universities' ability to enroll4271international students; and canceled or paused billions of dollars in4272grant funding.4273    Courts have consistently held that government officials cannot4274retaliate against individuals or entities because they disagree with4275their speech.42764277    Question 1. Prof. Volokh, you are a scholar of the First Amendment.4278Is it consistent with the First Amendment for the administration to4279strip the tax-exempt status or otherwise punish universities or other4280entities that have political disagreements with the administration?4281    Answer. No, if the stripping or punishment were to happen because4282the universities or other entities express viewpoints that the4283administration disagrees with.42844285    Law Firms. Since he took office earlier this year, President Trump4286has attacked institutions that he perceives to be opposed to him.4287President Trump signed a series of executive orders targeting law firms4288that hired perceived political opponents or represented clients who4289opposed him.4290    These executive orders suspend the security clearances for firm4291lawyers; deny them entrance to Federal buildings; and seek to force4292Federal contractors to end a relationship with them.42934294    Question 1. You are an expert on the First Amendment. Do these4295executive orders violate the First Amendment?4296    Answer. Yes, considerable portions of the orders do. I signed a4297brief so arguing, Brief of Amici Curiae 353 Law Professors in Support4298of Plaintiff's Motion for Summary Judgment and for Declaratory and4299Permanent Injunctive Relief, Perkins Coie LLP v. U.S. Department of4300Justice, No. 1:25-cv-00716 (D.D.C. Apr. 2, 2025), https://4301storage.courtlistener.com/recap/gov.uscourts.dcd.278290/4302gov.uscourts.dcd.278290.430345.1.pdf.43044305    Question 2. Does the First Amendment prevent government officials4306from retaliating against political opponents for their views?4307    Answer. That is complicated, because it depends on the nature of4308the retaliation. Government officials can't deny people or4309organizations generally available benefits (such as tax exemptions or4310broadly available grants aimed at promoting a diversity of private4311views) based on their viewpoints. Nor can they generally cut off4312contracts or other grants to people or organizations because of those4313people's or organizations' other speech (speech that isn't funded by4314those contracts or grants).4315    But they can, for instance, refuse to appoint a political opponent4316to high office based on the opponent's views. Likewise, they can choose4317to give discretionary grants for speech that endorses certain views but4318not other views. To offer one famous example, ``When Congress4319established a National Endowment for Democracy to encourage other4320countries to adopt democratic principles, it was not constitutionally4321required to fund a program to encourage competing lines of political4322philosophy such as communism and fascism.'' Rust v. Sullivan, 500 U.S.4323173, 194 (1991).4324    There are of course other possible scenarios; in some, government4325officials' viewpoint-based judgments may be unconstitutional while in4326others they may be constitutionally permissible.43274328    App Stores. Recently, after Attorney General Pam Bondi demanded4329that Apple remove a lawful app crowdsourcing location information from4330the App Store, Apple agreed to do so.43314332    Question 1. Do you think citizens sharing location information with4333each other, such as the locations of police speed checks, through an4334app, is protected speech under the First Amendment?4335    Answer. It depends. At some point, it may become essentially aiding4336and abetting crime or a civil violation--basically, acting as a lookout4337for someone else--or obstruction of justice, and thus constitute4338constitutionally unprotected ``speech integral to criminal conduct.''4339The exact boundaries of that First Amendment exception are not clearly4340settled. I wrote about this in detail at Eugene Volokh, Crime-4341Facilitating Speech, 57 Stan. L. Rev. 1095 (2005), but the law has4342become still more complex since then, see Eugene Volokh, The ``Speech4343Integral to Criminal Conduct'' Exception, 101 Cornell L. Rev. 9814344(2016); United States v. Hansen, 143 S. Ct. 1932 (2023).43454346    Question 2. Did the Attorney General violate the First Amendment4347when she demanded that Apple remove a legal app with crowdsourced4348location data from its app store?4349    Answer. If the AG threatened Apple with prosecution for removing4350such an app, then she might have violated the First Amendment,4351depending on the precise facts about just what information the app4352conveyed and under what circumstances (I'm not certain). But if the AG4353argued to Apple that the app violated Apple's own guidelines, and asked4354it to enforce those guidelines, without threatening Apple with4355prosecution or other government retaliation, then that likely didn't4356violate the First Amendment.43574358    Question 3. Are you aware of any instances during the Biden4359administration when the Federal government demanded that Apple or4360Google remove a legal app?4361    Answer. Yes; the Protecting Americans from Foreign Adversary4362Controlled Applications Act, the statute targeting TikTok enacted4363during the Biden Administration, essentially required Apple and Google4364to remove from their app stores the TikTok app, which had hitherto been4365legal.43664367    Question 4. Are you aware of any instances where foreign4368governments have demanded that Apple and Google remove legal apps?4369    Answer. No, but I haven't closely studied the actions of foreign4370governments.4371                                 ______43724373   Response to Written Questions Submitted by Hon. Maria Cantwell to4374                             Gene Kimmelman4375    First Amendment. Brendan Carr, the Chairman of the FCC, recently4376went on a podcast to criticize Jimmy Kimmel's comments on his late-4377night talk show on ABC. He told Disney, the parent of ABC, that ``we4378can do this the easy way or the hard way.''4379    And he told the licensed broadcasters that carry ABC programming4380that ``it's time for them to step up'' and stop this ``garbage.'' Just4381hours later, the biggest affiliate groups said they would preempt4382Kimmel's show, including one with a major pending merger that requires4383FCC approval. Minutes later, ABC said it would suspend Kimmel. Kimmel4384is back on the air, but the chilling effect of Brendan Carr's words4385lingers.4386    As I wrote to Chairman Cruz weeks ago, we need Brendan Carr to4387answer for this attack on the free press.43884389    Question 1. Mr. Kimmelman, you have observed the media for decades.4390Have you ever seen quite so blatant an attempt at censorship by the4391Chair of the FCC?4392    Answer. I have never seen such blatant interference in the content4393of media companies from any previous FCC Chair.43944395    Question 2. At the hearing, some claimed that legislators4396expressing their views about a licensed media company to the FCC, as I4397did in 2018, Senators Rubio, Scott, and Cotton did in 2022, and Senator4398Lee did in 2024, raises the same First Amendment concerns as the FCC4399Chair threatening action against a regulatee. Do you think that4400legislators expressing their views to the FCC about a licensee raises4401the same concerns as the regulator itself threatening a licensee?4402    Answer. No, I believe that legislators have a right to express4403their views and propose legislation as they see fit. It is a very4404different, direct threat to the First Amendment, for the FCC to4405threaten to take action against a licensee based on the content they4406distribute.4407    During the same podcast where Carr criticized Jimmy Kimmel, Carr4408also stated: ``It's the licensed TV stations that have the public4409interest standard, including those TV stations that Comcast and Disney4410own. So FCC regulatory action focuses on those individual stations.''4411He also claimed: ``The public interest means you can't be running a4412narrow partisan circus and still meet your public interest obligations.4413It means you can't be engaging in a pattern of news distortion.''44144415    Question 3. Is Carr's statement that the FCC's public interest4416obligation means broadcast stations ``can't be running a narrow4417partisan circus'' correct? Why or why not?4418    Answer. I don't really know what Chairman Carr was referring to,4419but the public interest test has previously been viewed as a way to4420evaluate whether a broadcaster is meeting community needs. It is hard4421to imagine that presentation of a set of views of interest in a4422community is somehow outside the scope of the public interest. The FCC4423has previously refrained from cataloging ideas as ``partisan'' just for4424presenting a particular point of view, to protect the First Amendment4425rights of their licensees.44264427    Question 4. Other than Carr, has an FCC chair ever threatened a4428network or local affiliate with regulatory action based on the content4429of a late-night comedian's monologue?4430    Answer. Not to my knowledge.44314432    Question 5. Have the FCC's actions since the Nixon administration4433to revoke broadcast licenses been limited to concerns over the4434licensee's character, such as being a convicted criminal, and not based4435on the content of the licensee's speech?4436    Answer. Yes4437    The Communications Act of 1934 requires broadcast licensees to4438serve the ``public interest, convenience, and necessity,'' and grants4439the FCC authority to consider those interests when granting or renewing4440licenses. The FCC has long held that ``the public interest is best4441served by permitting free expression of views,'' and Section 326 of the4442Communications Act specifically prohibits the Commission from4443``censorship.''44444445    Question 6. Does the ``public interest'' standard legally permit4446the FCC Chair to suppress speech by revoking the licenses of4447broadcasters for airing content the Administration does not like?4448    Please explain.4449    Answer. No44504451    Question 7. Should an FCC Chair repeatedly mislead the American4452public that the FCC's longstanding public interest standard should be4453used to suppress speech? Please explain.4454    Answer. I fear that repeated statements from the FCC Chair4455describing a power to suppress speech, which clearly exceeds his4456authority, has a chilling effect on public discourse and harms open,4457democratic debate in our society.44584459    Media Consolidation. Americans rely on local news to understand4460what's going on in their communities. According to the Pew Research4461Center, nearly three-quarters of Americans trust their local newspapers4462and broadcasters. But local news faces serious headwinds. The4463advertising-supported model of local newspapers and local broadcast has4464declined, with an increasing share of revenue going to tech platforms4465rather than news organizations.4466    There has been a wave of consolidation in the media, ranging from4467broadcast affiliates to newspapers. And for many Americans, most of4468their news comes through social media algorithms, giving the owners of4469these platforms inescapable influence over what we see and read.44704471    Question 1. What are the effects of media consolidation on the4472diverse voices and viewpoints that we need for a vibrant democracy?4473    Answer. Excessive media consolidation is likely to reduce open,4474diverse debate in our society, undermining the marketplace of ideas4475that is essential for a vibrant democracy.44764477    Question 2. Does the increasing consolidation of media make it more4478vulnerable to pressure from politicians?4479    Answer. Politicians can always try to pressure the media, however4480the fewer the owners the easier it is to make that pressure succeed.4481The more media is diversely owned by independent companies, the more4482difficult it is for politicians to steer public debate to serve their4483self interest.44844485    Social Media and Antitrust. Social media platforms are increasingly4486the most important town square in our democracy. The algorithms decide4487the topics that are debated and the views that are represented. Because4488of the power of these platforms in our society, there has been a4489bipartisan recognition of the need to hold them to account. To date,4490the most prominent efforts have been through antitrust law.4491    Major antitrust cases were brought against several platforms by the4492first Trump administration and the Biden administration and have been4493continued through transitions.44944495    Question 1. Is antitrust the right tool to bring platforms to heel?4496    Answer. Antitrust is an essential tool to address market abuses by4497tech platforms, however it is not sufficient to address all the4498impediments to robust competition in digital markets.44994500    Question 2. What other policies should we consider to ensure these4501platforms serve individuals and support a democratic society, rather4502than undermine it?4503    Answer. Congress should consider making it easier to bring4504antitrust cases against dominant digital platforms, and it should also4505create some regulatory guardrails to prevent discriminatory practices.45064507    Public Media and Local Journalism. Grants from CPB support nearly4508400 public radio stations across the country, which employ nearly 9,8004509people, including 3,000 local journalists, editors, and producers. With4510their signal reach, particularly in rural areas, public radio stations4511can help to slow the spread of ``news deserts,'' or areas that have no4512source of local news.4513    Of the 204 ``news desert'' counties identified by the State of4514Local News Project, 67 are served by local public radio signals.4515Newsrooms have lost over 60 percent of their newsroom employees over4516the last two decades. Meanwhile, public radio has added 900 local4517newsroom employees since 2012.4518    Despite this, Republicans zeroed out Federal funding for public4519broadcasting earlier this year, costing more than 400 jobs in public4520media, putting dozens of stations at risk of closure, and causing the4521Corporation for Public Broadcasting to close down.45224523    Question 1. How does public media enhance local journalism?4524    Answer. Public media has served a critical role in local markets,4525filling in information gaps left by the disappearance of private media4526players. Without public media, and with the shuttering of numerous4527local newspapers, many communities will be deprived of the information4528flow we rely upon to fuel a robust democracy.45294530    Question 2. What will be the effect of Republicans defunding public4531broadcasting?4532    Answer. Given the enormous loss of local information flowing4533through local newspapers, any reduction in public media threatens to4534harm the marketplace of ideas that is critical to an informed4535citizenry.4536                                 ______45374538   Response to Written Questions Submitted by Hon. Amy Klobuchar to4539                             Gene Kimmelman4540Question Topic: Antitrust and the First Amendment4541    Competitive markets can help ensure that no one entity controls4542what we see or hear. But when markets become consolidated, access to4543diverse viewpoints is put at risk. In your testimony, you said that4544antitrust is a necessary but often insufficient tool to sustain diverse4545local media.45464547   How have Big Tech platforms used their position as content4548        gatekeepers to siphon away resources from local media,4549        including by misappropriating content?4550    Answer. As more and more people rely upon the Internet as a gateway4551for their information needs, the dominant tech platforms (e.g., Google,4552Apple, Meta) have enormous power over how news and media content are4553disseminated. Control of these gateways to the public is synonymous4554with control over the advertising and related revenue necessary to4555produce content and report on local, societal and even global events.4556It is critical to prevent tech platforms from expropriating revenue4557necessary to fund high quality content.4558Question Topic: AI and Local Media4559    A free press is a crucial part of our democracy, but local news is4560facing an existential crisis. Since 2005, the U.S. has lost about 3,3004561local newspapers, roughly one-third of newspapers nationally. The pace4562of these newspaper closures is accelerating at a time when tech4563companies are using local news content to train AI models without4564compensating journalists and papers for their critical contributions.45654566   What role should companies that profit from AI models that4567        use news content play in ensuring journalists and newspapers4568        are fairly compensated?4569    Answer. Companies that build AI models with content created by4570others should pay license fees or royalties to content creators. We4571have done this for music and broadcasting in the past, and now is the4572time to do something similar for AI models.4573Question Topic: Political Violence4574    Our country has endured a troubling wave of political violence that4575threatens public safety and our democracy. Elected officials from both4576parties must bring down the temperature of our political discourse,4577especially online, where a lot of this hate is spread.45784579   How would transparency from platforms regarding their4580        ranking algorithms help address the algorithmic amplification4581        of violent political rhetoric?4582    Answer. Transparency should put pressure on the tech platforms to4583address the dangers they create or contribute to by amplifying violent4584content. Transparency should enable the public to reject engaging with4585platforms that promote violence, creating financial benefits for4586platforms that seek to limit algorithmic amplification of violence.45874588                                  [all]