Table of Contents

‘So to Speak’ podcast transcript: Disney and Elon Musk

Graphic of Florida Gov. Ron DeSantis at a podium in front of the entrance to Walt Disney World

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

Nico Perrino: Hello, and welcome back to So to Speak, the free speech podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino, and I wanted to pull together a quick episode for this week because we have a lot of free speech topics in the news.

Of course, Elon Musk bought Twitter as of yesterday. We’re recording this on Tuesday, so he bought it on Monday. And then, there’s been the news about Disney, which is the reason I wanted to bring on our guest, Bob Corn-Revere, to today’s show. Bob should be a familiar guest to those regular listeners. He is a partner at Davis Wright Tremaine and recently joined Fire’s advisory council. Bob, welcome back onto the show.

Bob Corn-Revere: Thanks Nico, happy to be here.

Nico: So, you just published an op ad in First Amendment News, which for those of you who are not familiar with Fire Amendment News, you should be. It’s a weekly newsletter editorially independent, although published on Fire’s website. It’s produced by Ron Collins, who is also a regular guest on the show. You can subscribe via email and get it delivered directly to your inbox each week. But this week’s email is just one standalone piece from Bob about the recent move in Florida to deny the Walt Disney Company its special tax district status, which it has held since – what was it – the ‘60s, Bob?

Bob: 1967 in preparation for the construction of Disney World.

Nico: Yeah. And my understanding, historically, is that Walt Disney created Disneyland in Anaheim, California and was annoyed, in part, by all the red tape that came along with building Disney World. So, when he was scouting out – for building Disneyland, excuse me. Disneyland in California. So, when he was out, scouting out spaces for Disney World, he sought this special tax district status which would allow Disney World to sort of govern itself. It has 250,000 acres, and it’s run by the Reedy Creek Improvement District, which is essentially the Walt Disney Corporation. They have their own fire department, police department. They –

Bob: They build roads. Yeah.

Nico: Roads, hospitals, all that stuff is handled by them. But fast forward, this has been in place since 1967. Fast forward to this year when Florida passed the Parental Rights and Education Bill, widely dubbed the “Don’t Say Gay” bill, which regulates, in part, what you can teach in – what it is? Kindergarten through third grade. And it has a private right to action in order to enforce it.

Bob Chapek, who’s Disney’s new CEO, also happens to be an Indiana University Alumni – my alma mater – announced the company’s opposition to this bill and said in a statement that, “The law should never have passed and should never have been signed. Our goal as a company is for this law to be repealed by the legislator or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that.”

Well, Ron DeSantis, the govern of Florida, did not like this development and wrote in a fundraising email that, “If Disney wants to pick a fight, they chose the wrong guy. I will not allow a woke corporation based in California to run our state.” So, he called a special session. The Florida legislature voted to repeal this special tax district for the Walt Disney Corporation, although I don’t think it named them. It just said anyone who had this special tax district before the Florida State Constitution was enacted – I forget what year that was – would need to get their special tax status renewed.

And the laws set to go in effect on June 2023. So, there is a chance that it will get renewed, but as of right now Disney is losing its special tax district status and the responsibility, including for the debt that Disney has accrued, now falls to the two counties over which those 250,000 acres are a portion.

So, in comes Bob Corn-Revere with his op-ed for First Amendment news arguing that, actually, what Florida is doing is unconstitutional because the Walt Disney Corporation has a First Amendment right to speak up about politics. Bob, I thought corporations weren’t supposed to have free speech rights.

Bob: That’s a larger conversation for a different case. But yes, there are those who are skeptical of having the First Amendment extend to corporate speech as well. As we know, the Supreme Court has settled that question. Corporations do have First Amendment rights. And, you know, that comes up in a lot of different contexts.

The issue here, though – I think first it’s important to identify what this is not about. It’s not about the merits or demerits of the Parental Rights and Education Pact. It’s not about whether or not the Reedy Creek Improvement District is a good idea, should have been created in the first place, or should continue? Those are really separate issues.

The question here is whether or not government can withdraw a benefit in retaliation for the speech of an individual or the corporation. And I think the case log that I explore in the op-ed piece pretty firmly says, “No it can’t.”

Nico: Now, I… I know a little bit about the First Amendment, right? I’ve been doing this podcast for six years. Although, I’m not a lawyer. But I remember reading somewhere during my education in civics about bills of attainder. Is that something that would apply here or is that just for criminal prosecutions?

Bob: No, it’s not just for criminal prosecution. And in fact, there’s a precedent from about 30 to 35 years ago where Congress adopted a writer to an appropriations bill that focused on Rupert Murdock as he was forming the Fox Network. And the court suggested that this operator is a bill of attainder because it focused on Murdock with the precision of a laser beam. Even though his name wasn’t in the legislation, it permeated the legislative debates. You could make that argument, although I haven’t explored that separately in this piece.

Nico: And the bill of attainder is constitutional provision which prohibits laws passed targeting specific individuals –

Bob: Yes.

Nico: Or groups. Or in this case, corporations.

Bob: That’s right.

Nico: So, what precedence do you rely upon to suggest that – because legislatures pass laws all the time. It’s the prerogative of legislators, in a certain sense, to provide an environment for economic improvement. So, in a certain sense, they can create this law. But what you’re saying they can’t take it away if it’s for a retaliatory reason.

Bob: That’s right.

Nico: But they can take it away if the facts suggest that it’s just because they think the economics of it are better or the incentives for counties and taxes, anything unrelated to a constitutionally numerated right.

Bob: Well, that’s right. I mean, legislative powers are expansive. They can – legislatures can adopt regulations of business within constitutional limits. They can enter or remove the state from certain relations with businesses. But what they can’t do is act with a motive designed to suppress constitutionally protected rights. And so, even if the legislature could have eliminated this special district for any number of reasons related to the policy benefits or demerits of the district, if it is done specifically to punish a corporation for its speech activities, then the precedent suggests that no, this is not something that is permissible. And it’s because the First Amendment is a limitation on what government can do. And it can’t use its powers in a way designed to suppress speech.

Nico: And so, this isn’t a controversial – I’m assuming – interpretation of the First Amendment. In your piece, you cite a couple of cases in the past, and I think two which happened in the same year, where the supreme court ruled that this sort of retaliation is unconstitutional.

Bob: Well yeah, there are two lines of authorities, both from the Supreme Courts and the lower courts. One involves just the question of retaliation. And it’s well-established that government cannot restrict rights based on retaliatory motives. But the other line of authority – and again, I don’t see is as controversial – is the doctrine of unconstitutional conditions. And that is: the government can’t condition its actions on someone relinquishing their rights.

The classic example, as you say, decades ago in the ‘50s actually, involved a tax benefit in California that required veterans who qualify for the benefit to swear to a loyalty oath. And the court basically said: No. If you’re conditioning this benefit, the government doesn’t have to provide. There’s no right to the benefit per se. But if you condition that benefit on the relinquishment of a right that you do have – in this case the right to engage in political speech or not to have to swear to beliefs you don’t have or those that you do – then that violates the constitution. And then that principle of unconstitutional conditions has been reaffirmed in a variety of different contexts.

Nico: There’s also a chilling effect concern here, right? What’s unseen are all the other corporations that operate in Florida who have interests at play in any given debate in the Florida legislature who might not speak up now as a result of this very targeted attack on the Walt Disney Company for its political positions.

Bob: Well yeah, and the chilling effect comes not so much from this particular action – although it does. It’s targeted at one corporation. But the idea is if this type of government retaliation were sanctioned by the courts, if this were tested and approved, then anytime a state, local, or federal government wanted to put pressure on a corporation and say, “Don’t take this position,” they would have a hammer to use that would be able to – and that they would be able to claim has nothing to do with free speech rights “We’re just taking away this benefit.”

Nico: Do you think the Walt Disney Corporation will challenge this, or do you think they’ll try to work within the legislature to get their special tax status removed?

Bob: I have no idea.

Nico: So, we have three possible ways in which this is unconstitutional, right? On First Amendment grounds, which is what your piece addressed. My theory that this a bill of attainder. Again, not a lawyer. Just throwing that out there.

Bob: No, there’s precedent for it.

Nico: And then, the idea that it’s an unconditional condition as well. Now, you write in your piece that this isn’t the first time that Florida has – and I think you put – you wrote it was induced to pass comically unconstitutional legislation in service of a political agenda. You speak also about Senate Bill 7072, which requires large social media platforms to operate as common carries subject to a host of poorly drafted mandates.

And you write that as Governor DeSantis said in his signing statement, “Day in, day out, our freedom of speech as conservatives is under attack by big tech oligarchs of Silicon Valley. But in Florida, we set this egregious example of bias. Silencing will not be tolerated.” But a federal court preliminarily enjoined the law, which it described as an effort to reign in social media providers deemed too large and too liberal. You say it’s comically unconstitutional. How so?

Bob: Well, it’s comically unconstitutional for a variety of reasons. One is the district court made pretty short work of it in its opinion for granting the preliminary injunction, saying that wanting to balance private speech politically is not even a legitimate government objective. And so, it drew the line pretty firmly.

But then, it said the legislation is both content and viewpoint based and that it doesn’t satisfy strict scrutiny under the law. So, again, where the political motivations were that plain, and that naked, and in the face of the law, then as I said, the court made pretty short work of it, as did the court did in a similar Texas law that tried to regulate social media platforms as common carries. The Florida law is going – the decision of the Florida law was appealed. It’s argued this week, I believe, in the 11th Circuit. And so, we’ll see what happens.

Nico: What do you make, though, of this argument that social media companies are common carries? You hear about this often. The utility of them are such that they are comparable to the gas company, the electric company, the phone company. Would a law such as that be constitutional were it so not so nakedly political, for example?

Bob: No, I don’t think it would be, and for the same reason that we had discussed for the measure affecting Disney, and that is that corporations have rights. And social media platforms exercise those rights when they make moderation decisions, something that the courts that have confronted this issue have recognized. And it’s not as if the legislature has the authority to snap its fingers and say, “Poof. You’re a common carrier. You don’t get to exercise your editorial or moderation rights. We’re taking that away from you.”

And so, you can try and argue that it’s a common carrier like railroads were created as, and carriages before that as common carries, and then later on phone companies. But phone companies didn’t provide editorial functions like social media platforms do. Social media platforms also come in all shapes and sizes. They apply different kinds of moderations practices depending on what kind of community they were set up to create.

The comparison really breaks down pretty quickly, and I think mainly what’s going on is that those with an interest in regulating, both on the left and the right, have simply latched onto what they see as a useful doctrinal tool to allow them to do what they want. But I don’t think they’ll be able to.

Nico: Well, the argument – it’s the argument that DeSantis was making – is that these ubiquitous social media companies – and talking about their ubiquity in a certain sense might be true, but it also presumes their existence forever. But all you need to really do is look at Facebook and its recent decline, especially among younger generations, to know that some things are forever. Death and taxes, maybe. But I’m not so sure social media companies are in the same way standard order for us, maybe.

Bob: Well, once their parents and grandparents adopted Facebook, it wasn’t quite as cool.

Nico: No, it wasn’t quite as cool.

Bob: Yeah. You know someone. That’s going to [inaudible – crosstalk] [00:16:42].

Nico: But their concern – conservatives in particular are concerned about the moderation decisions made on some of these platforms. And so was Elon Musk, right? If you listen to his statements surrounding his interest in Twitter, for example, it sounds like he was motived to buy it based on concerns around moderation and a larger concern for freedom of speech. Calling Twitter, for example, in a recent TedTalk, the new town square, the new public square.

If you’re on Twitter, you’d think Elon Musk’s purchase of Twitter was the end of the world. And there’s also some people who are poking fun at the people who think it’s the end of the world. But I wanted to get your sense, as someone who’s in this space of the purchase, and how you think it will impact the debate, and also potentially the – and I realize this is all speculation as this point –how it’ll effect Twitter and perhaps other social media companies beyond it.

Bob: Yeah, it is, I think, complete speculation. And there was a long piece in this morning’s newsletter from the Columbia Journalism Review that explores the various reactions to it. And they’re largely based on trying to decipher what Musk has meant in his various tweets on the issue and his Ted appearance. But I don’t think anybody really knows at this point. I think it underscores the point that you made at the top, that is has been quite a month for news in their area. And both of these issues, the issue of Florida retaliating against Disney and the Musk purchase of Twitter, occurring in record speed for these kinds of major issues.

Musk first indicated that he was interested in buying Twitter or a large portion of Twitter at the beginning of April. April 4th, I think. Within days, he was offered a board position. It looked like he was going to be on the board. And then, he said he wasn’t going to be on the board. Then, he announced he was going to do hostile takeover. The board said they’re going to have a poison pill to prevent that. And then, we see them make a deal, which, at a 40% premium on existing share prices, I guess it just proves that money talks, which is not quite the same thing as saying money is speech. But it does say that the existing board of Twitter knew a good offer then they saw one.

Now, what that means – who knows? I don’t think that anyone is going to operate a platform of that magnitude without having moderation practices. That’s what pretty much all the major platforms have discovered over years of trying to manage them. Think about it: Twitter has something like 325,000 tweets a minute, which is about 31 million tweets per hour. There has to be some way, if you’re going to have any terms of service – and there’s no suggesting they’re not – without having moderation. The question is how you do it.

Nico: No one’s been able to crack that nut.

Bob: Right.

Nico: My boss, Greg Lukianoff, when the news broke that Elon Musk became the majority shareholder in Twitter with, I think, nine percent – this was earlier this month – wrote an open letter to Elon Musk, not necessarily telling him or social media companies how they should approach their moderation decisions, but rather saying there’s a lot of wisdom behind the First Amendment, particularly with regards to its viewpoint neutrality and how it categorizes speech.

And taking some of that wisdom, for example, what qualifies as incitement? What qualifies as a true threat? There’s a lot of contours have been built around those over the past hundred years in First Amendment Law. And thinking those through when thinking through moderation decisions.

And of course, the limits on the viewpoint-based discrimination, particularly with free speech. But I don’t know even the more ardent free speech advocate would say that these platforms need to have crush videos, which are protected by the First Amendment, or pornography on their platforms. But I also don’t think that those are the sorts of categories of speech, if you’re looking at categories of speech identified by the First Amendment, that have most people up in arms. It seems to be mostly based on political discrimination or alleged political discrimination –

Bob: Right.

Nico: And a lack of transparency. For example, two things that Elon Musk says he wants to change about Twitter. He also wants to get rid of bots and wants to verify all users, which as the EFF, Election Freedom Foundation, pointed out yesterday, does pose a problem for those advocates of anonymous speech of which I am one. Now, maybe there’s a way to verify them and let them remain anonymous on the platform. But you’re not remaining anonymous to Twitter at that point, which is one of the concerns of EFF.

But speaking to Elon Musk’s larger motivations, I listen on my way into the office every morning to Bloomberg Radio, which I find to be one of the more interesting programs on in the morning. And they had a bunch of financial analysts kind of analyzing this deal. And they said this is a gift to Twitter. They said, “Twitter is not worth $50,420.00 speaking to Elon Musk proclivity to make offers that end in 420.

Bob: Yes.

Nico: But they said this is not – the financials aren’t there. And I think if you read all the reporting on this acquisition, the board voting unanimously to accept the offer seemed to realize that. So, the question then becomes, what is Elon’s real – does he actually think this company is profitable when nobody else thinks it can be? Or is he actually motivated by some deeper concern or deeper interest in the values at stake.

And if you read the press release, put out by Twitter, the only quote that Musk provides is this: “Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated. I also wanna make Twitter better than ever by enhancing the product with new features, making the algorithm open sourced to increase trust, defeating the spam bots, as I just mentioned, and authenticating all humans. Twitter has tremendous of potential. I look forward to working with the company and the community.”

Bob: And then he tweeted out that part of the press release as his own tweet.

Nico: And there’s a rocket, and stars, and a bunch of emojis. So, maybe he does have legitimate concern for it.

Bob: Well, I think the reactions have been fascinating to this development. One of the reactions is now this is going to make Twitter completely commercially unviable because its going to be flooded with all kinds of horrible speech, and spam, and advertising. I don’t think there’s anything in what Musk has said to suggest that that’s the plan.

But if that is the concern, then it’s sort of a self-fulfilling prophecy because if those policy choices – if they were to be made – made Twitter not commercially attractive, it would lose advertisers, which may not bother Musk. But it would become less important and less influential because fewer people would use it.

The other reaction that I find really fascinating is that so many of the commentators have suggested that Musk’s interest in free speech is the threat. That, “Oh my God, we might have a platform that doesn’t engage in selective editorial review.” Now, you know, platforms have every right to do that. But I just find the commentaries describing free speech as the threat as being particularly odd.

Nico: Yeah. I think a lot of it is a concern stemming from whether he would allow former President Trump back on the platform, right? A concern stemming from that. But President Trump says he doesn’t want to come back on.

Bob: Said he wouldn’t come back even if invited. So, who knows where the truth lies on that. But… if that’s the concern – if those concerned about Twitter as a free speech platform are that it wouldn’t ban, in their view, the right people, then I think we have a larger concern with social media platforms.

Nico: Yeah. Greg and I are working on a piece right now because a lot of the chatter is about hate speech and allowing hate speech on the platform. And the crux of the piece is that we’ve had hate speech regulation in America for the past 40 years on college campuses, and it hasn’t turned out great. Even one of the first harassment codes, which was based on a concern surrounding hate speech, was at University of Michigan. Dovi Michigan, an effort to protect minority students, particularly black students, from hate speech and harassment, ended up being used in its first two cases on two black students. Right? And that’s one of the problems

Bob: It’s always the way.

Nico: It’s always the way, and that’s what you see on social media companies too. And one of the things that social media companies have a particularly hard time identifying is satire. So, you see satirical posts that are making the exact opposite point or expressing the exact opposite view of what the hate speech regulations are meant to address being taken down; their accounts suspended. And then, what you also have going on now is the companies flagging misinformation or potentially dangerous content. Misinformation in May of 2020 was the lab leak theory related to COVID, which became a leading theory of the United States government a short a year later.

Bob: Right, right.

Nico: Right? And then, you have people like Charles C.W. Cooke, who is a writer for National Review – I think a very articulate defender of free speech – who has a personal website which he talks about mostly rollercoasters but also gun rights. You try and click on that website from Twitter, it flags it as being a potentially dangerous website that would be violative of Twitters terms of service.

So, you see all these weird applications of these terms of service, and you can’t be surprised by people like DeSantis, for unconstitutional, comically unconstitutional reasons, come after it. And you have people like Elon Musk, who proclaims an interest of free speech. Then, richest man in the world seeking to just buy the public square.

Bob: Well, yeah. I mean, again, the word public square needs to be done with air quotes because it is one of many commercial platforms on which people have a global platform where they can express their views. But as you say, they tend to come and go in popularity and often with internet speed. And there’s a real difference between a platform’s efforts to control its community and have terms of service that they enforce for things like hateful speech or other kinds of unwelcome speech and having governments try and do it.

And when governments attempt to enforce these laws, they tend to – if they don’t become authoritarian vehicles for suppression, they tend to simply fail in their objectives. Consider France, for example, had some of the strongest hate speech laws in Europe, where such laws can be enforced. Yet far right candidates like Marine Le Pen, while not winning the French election, fortunately, had gained popularity over the last few years. So, whatever you’ll say about hate speech laws, they don’t perform the objective that those who support them are looking for, and that is to change how people think and change how they express themselves.

Nico: So, we talk about Twitter having the ability, the First Amendment right to make editorial decisions on its own platform. It’s a private company. You see Senate democrats, for example, right now taking a particular interest in Musk’s attempt to purchase Twitter. A lot of democratic politicians are taking an interest, perhaps motivated by concern that the platform would allow Donald Trump back on. But for whatever reason. Then, we look at what’s happening in Florida, right? A company suffering – which you argue is First Amendment retaliation – for exercising its First Amendment right.

I do want to go back to the first question I asked – because it’s an important one for me, and it’s one we often have to overcome in making free speech arguments – about the right of corporations to speak. You see arguments that they should’ve have that right. But if they don’t have that right, then Twitter doesn’t have the right to make its editorial decisions in a certain sense. Disney doesn’t have the right to chime in about the Parental Rights and Education Act, on the flip side.

Bob: Oh, wait. It has the right or – better to say – the ability to do that. They just might get retaliation from the legislature if the First Amendment didn’t exist.

Nico: Yes. So… and this all comes back, of course, to the big bugaboo that people hate, which is Citizens United. Often forgetting the facts of that case, which is that a corporation, a nonprofit corporation, Citizens United, sought to make a documentary about Hillary Clinton and released it within 90 days of an election.

Bob: Right.

Nico: And did they have a First Amendment right to do so? And the court held that they did. So, why should corporations – and this a normative question more than anything, I guess. It seems like the law is fairly clear that corporations have these rights. Why should they have these rights? And did the founders kind of anticipate corporations having these rights? I think of corporations, in a certain sense, as an amalgamation of people working towards a common goal, with the protection of law. But maybe that’s wrong.

Bob: Well, no, I think of course the framers had that in mind. That’s why they mentioned the press in the First Amendment, properly understood as a corporate entity. And so, in trying those rights in the Bill of Rights. You know, when people raise this question about whether or not corporations should have rights, I guess they just assume that those rights would exist for newspaper corporations like the New York Times company, or the Washington Post, or CNN, or Fox News.

And yet, I don’t know how you justify that belief and then exclude other corporations like the ACOU, like the NAACP, other nonprofit organizations, or like labor unions. Those are all corporate entities that if they didn’t have First Amendment rights wouldn’t be able to perform their function in society.

So, I think of course corporations are protected by the First Amendment. The Supreme Court has made that clear many times over the years. Citizens United, they did so in context of election law regulation. But I think generally, if you say corporations don’t have rights, then you’re also saying corporations like Disney can’t come out against the Parental Rights and Education Bill, which strikes me as an untenable position.

Nico: When was the argument made? Because I believe this comparison to newspapers was made during the Citizens United case as well. But can the argument be that, well the first – corporations don’t have these First Amendment rights, but newspapers do because of the free press clause of the First Amendment.

Bob: Well, yes, you could try to make that argument. I don’t know how you draw that line. What about corporations that have newsletters? What about these other entities, like [inaudible – crosstalk] [00:33:29].

Nico: Like, like labor unions, right?

Bob: They’re still corporations.

Nico: Right. So, Bob I think we’re going to leave it there. Oh, one thing I just did see in the coverage – was news to me – that Anthony Romero, who is the executive director of the American Civil Liberties Union, said that Elon Musk is an ACLU card carrying member and one of their most significant supporters. But Romero goes onto say there’s a lot of danger in having so much power in the hands of any one individual.

Bob: And at the same time, I heard people worrying about Twitters’ decision to ban Donald Trump for life, saying that corporation shouldn’t be able to have that kind of… that kind of authority or ability. And yet, at the same time, now the same people – or some of the same types of people – are ringing their hands over the idea that Twitter might allow someone like Trump to come back on the platform. You know, it’s hard to tell what the actual concern is. Is it a concern that this will be a green light for Donald Trump? It’s not as if his lack of presence on Twitter has not made him a potential candidate for 2024. He’s out there anyway.

Nico: Yeah. As I like to say, we live in the age of the politics of expediency. It seems as though the motivating –

Bob: And the politics of the moment.

Nico: Yeah, it seems to be – and this has maybe always been the case – that the motivating factor behind how we approach any of these decisions is, “Is it good for my side, or isn’t bad for my side?”

Bob: And by the way, I for one think it’s been wonderful to have a Twitter vacation from Trump. I welcome picking up the newspaper in the morning and not seeing the lead story always be whatever outrageous thing he posted. But that being said, I don’t think it’s going to be the end of the world one way or another if the ownership of Twitter changes, and it allows a wider range of people, including the likes of Donald Trump, to have their Twitter accounts.

Nico: Well, if Elon did adopt Greg Lukianoff’s suggestions to follow First Amendment wisdom, he would need to answer – especially around categories of unprotected speech. He would need to answer on Trump’s speech on January 6th incitement. And I know there are a lot of divided First Amendment people.

Bob: There are, even among First Amendment experts, about whether or not it crossed the line. And the information that continues to come out from the January 6th committee adds more color to that debate. What exactly was going on? I think we do need to get to the bottom of it.

Nico: One of the challenges is, and any of the determining if anything is unprotected speech – and again, Twitter does not need to do this as private company – but often these are factual determinations that rely heavily on the facts, for example. Which Twitter doesn’t have subpoena power. They don’t have the rights to discovery in a certain sense. Maybe you could create a system where you ask people to voluntarily supply information if they’re subject to a ban. I don’t know. But it’s not the government.

Bob: Right, but Facebook has its admirable efforts to have its sort of review committee or its supreme court. I think the magnitude of the task is overwhelming, but I think it is a good faith effort to try and bring some sort of rationality to how those decisions are made.

Nico: Well, the irony of it all right now is that you cannot get any organic – I run a communications department; we spend a lot of marketing dollars on social media platforms and elsewhere. We use a lot of these platforms to get organic reach. We don’t even factor in our Facebook following in determining the amount of organic followers that we have or what our goals are because it’s impossible to reach people organically on Facebook right now in a way that the other platforms aren’t. I think a lot of that was throttled back after the backlash they got from the 2016 election and the alleged meddling on their platform.

So, a lot of that is a dead letter on the Facebook side with regard to transparency and getting your accounts banned. People aren’t reaching people. Anyway. But yes, I do think its admirable that they’re trying to introduce transparency into the process while allowing for appeals, especially of the hard cases.

Bob: Yes.

Nico: So, Bob, we’ll leave it there. I’d encourage folks who are listening to this if they do not already subscribe to First Amendment News to do so on Fire’s website, I’ll have a link in the show notes. Just gotta put in your email. It gets delivered to your email inbox every Wednesday.

Bob’s piece is: “Punishing Disney for opposing Florida’s ‘Don’t Say Gay’ law poses serious First Amendment problems.” It’s a quick read. Cites some of the cases that we were alluding to or suggesting of during this podcast. And as a reminder, Bob is a partner at David Wright Tremaine and a new member of Fire’s advisory council.

Bob, thanks again for coming on the show.

Bob: Thank you, Nico. Always good to talk to you.

Nico: This podcast is hosted and produced by me, Nico Perrino, and recorded and edited by Aaron Reese. You can learn more about So to Speak by following us on Twitter at or liking us on Facebook at We also take email feedback at Again, that is Until next time, I thank you all again for listening.

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