You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. Elon Mosk is close to acquiring Twitter. Many are wondering, and some are concerned about what his absolutist view of the First Amendment will mean for the social media platform. Most described his outlook during a Ted interview this month. We want to be just very reluctant to delete things and have just just be very cautious with with with
permanent bands. Uh, you know, timeouts I think are better or my guest his First Amendment law expert Eugene Follick, a professor at u c l A Law School. Some people might confuse First Amendment rights with speech on social media platforms like Twitter. Can you explain free speech in the context of social media sites. Sure, we have this tendency to use First Amendment and be speech interchangeably, but well, they're related, they're different. The First Amendment is a constraint
on the government. Remember the first word of the First Amment is Congress. Congress shall make no law. That's been applied through the Fourteenth Amendment to states. The Fourteenth Amend instructs with no state shall and also to local governments and the like, which are agencies of state. But basically only the government is bound by the First Amendment. Only
the government can violate the First Amendment. So, for example, if your employer fires you for your speech, or for your political activity, or even for your vote, that's not a First Amendment violation. Likewise, if let's say a private university expels a student because of the student's speech, that's
not a First Amendment violation. Freedom of speech is a broader concept potentially, so you might say, for example, that universities, especially secular universities that describe themselves as devoted to free inquiry, should comply with free speech principles. Maybe not every maybe not in the classroom where the professor gets to decide whom to call on and what issues to discuss, but for example, that the university private university shouldn't expel a
student because of a speech. In fact, in California, there's a state statute that bans private universities except religious ones, from imposing speech codes on their students. I think that statute is a free speech protection, even though it's not a First Amendment protection. Likewise, you might say, maybe private employers shouldn't be able to fire their employees for their speech,
especially maybe off the job speech, especially maybe speech about politics. Again, in my own California, private employers are not allowed to fire employees based on the employees political activity, which is defined very broadly to cover advocacy not just of candidates, but also of ideological causes. Quite a few other states also protect private employees against employers. That way, you might
say that's a free speech protection. Likewise, if you think back historically to say the Hollywood Blacklist of the nineteen fifties, where people who were viewed as having been communists, to have been in affiliated with communist related organizations were blacklisted from jobs. You know that wasn't the First Amendment violation, but you might have said that that was bad for the freedom of speech and maybe a violation of free speech principles. So likewise, people talk about free speech on
social media platform social media platforms or not. The government they don't violate the First Amendment if they banned people based on their speech, but you might argue that they ought to respect free speech because that's what our American
democracy requires. So I think it's an important question how much and what kinds of free speech ought to be allowed whether the law should require such protections or whether it just ought to be allowed as a matter of the platform decision on these privately owned platforms, so must. In trying to explain his position on freedom of speech, he tweeted, quote, I simply mean that which matches the law? Is he showing tay in thinking that it's a simple
concept like that? Well, I think you said, He tweeted that, Well, you can't capture even First Amendment rules in two characters or less, and you certainly can't capture the possible differences between free speech and First Amendment rules in Twitter day characters or less. Just to give an example, I think it's necessary for any platform to do something about spam.
And there may be certain kinds of things which are protected by the First amend and certain kinds of mass mailings and mass posts that a platform might say, you know, they just degrade too much the user's ability to see real material that they want to see. That therefore, we need to block spam, even if spam is not illegal, or at least even kinds of spams that are not illegal. Likewise, you could imagine a platform Twitter is not one of them.
Twitter actually allows pornography at least of certain kinds. But you can imagine a platform saying, you know, we're not going to allow pornography because there's too much of a risk of people incidentally stumble across it, and therefore we're just going to ban it. Likewise, Twitter, as I understand it, that allows pornography basically requires it to be labeled and kind of gives people warnings before showing it. Again, that's not a legal requirement. That's just Twitter's decisions. So there
are possible differences. This having been said, you know, if you want to kind of take a first cut, admittedly oversimplified view, you might say, yes, our view should be the Twitter should generally speaking protect free speech at least so long as it's not illegal speech. So, no, we won't host child pornography. No, we won't host things that are clearly conspiracy to commit crimes or kind of accounts that are being used for criminal conspiracy. Let's say we
won't host copyright infringement because that's illegal. But pretty much all other things, generally speaking, we're going to host. Maybe there'll be a few exceptions, but they really should be very narrow exceptions. It's a plausible way of thinking about these. Musk is a self described free speech absolutist, and in an interview at the TED Conference a couple of weeks ago, he said, if in doubt, if it's a gray area, let the tweet exist. If there's a lot of controversy,
you wouldn't necessarily want to promote that speech. But I'm very reluctant to delete things and cautious with permanent fans. Some civil rights advocates are saying that that kind of uh minimally moderated Twitter can pose dangers or can harm women, minorities, and anyone out of favor with the establishment. What's your take on whether that kind of a minimally moderated Twitter poses any dangers. Well, of course, free speech poses dangerous
Free speech is always posts. That's one reason why governments do, indeed try to restrict. And there's nothing special about those dangerous for the women, or as the minorities, or as to others. Just to give an example, there's been a lot of attacks on police officers recently, and some of them seem to be prompted by kind of very harsh criticism and kind of dehumanizing criticisms of police officers. And that's something that is a downside of speech. Likewise, for example,
jahaddest kind of pro terrorists extremism is potentially harmful. Actually it's especially harmful to Muslims. Muslims are the main victims of extremist Islam, but it's also potentially harmful to others.
Of course, speech is potentially harmful, But generally speaking, when it comes to the First Amendment, we take the view that on balance, it's better for everyone, and historically this has been especially important for various out of favor minority groups that speech be protected, because when speech is restricted, that keeps people from being able to argue about what they think are genuine wrongs and to advocate for for change, And that giving the government power to suppress speech of
the government thinks is harmful will also suppress lot of
speech that's valuable. So one could argue it's not necessarily obviously correct, but one could argue that the same thing applies not just to the government but immensely powerful platform operators like Facebook, Twitter and the like, that perhaps, on balance, just as it's good to deny the government the power to say we're not going to allow this kind of speech because it's harmful, Generally speaking, it's also good for these platforms to deny themselves this power to say, look,
we we don't trust ourselves to make decisions about which speech is so harmful that should be prohibited, perhaps except for a really extraordinary things like, for example, child pornography or the life. So it seems to be a perfectly plausible position. Now, of course, you could argue that, no, the government ought to be banning more speech. The government ought to ban some people say, oh, the band racist speech, or ought to ban anti government speech or anti police speech,
or whatever else. Lots of people have argued this in the past. Or you could say, no, no, the government shouldn't ban it. But instead of the government banning it, we should make sure that all of these influential platforms do what the government can't, which has suppressed speech that
we think is harmful in various ways. You could argue that, But again, I think it's at least a plausible position to say that just as we don't trust the government to make these decisions, we shouldn't trust Mark Zuckerberg to make these decisions, or even Elon Musk to make these decisions.
On a case by case basis, that maybe it's better for you on Musk to say, look, you know, I don't want to be the sensor dictating what is too harmful to be allowed and what is not, and then again, accepting extraordinary circumstances, I'm going to allow everything to be to be present. So I think it's a perfectly plausible position. It's not the only plausible position, but it seems to me one that makes a good deal of sense in light of the general assumptions that the courts and others
have long held with regard to free speech broadly. So, the former chair of the FEC, Tom Wheeler, said that Musk is taking actions that highlight the need for the creation of a new regulator that would oversee the technology industry. So for Congress to pass legislation, you think that's a good idea or a bad idea, Well, it depends on
what legislation, right. I mean. I'll give an example. Let's say somebody says, you know, yes, we think that it's bad to have statements that tend to encourage the killing of police officers, so there are to be regulation that prohibits that. Or we think it's bad to have statements that say insulting things about particular racial groups or particular religious groups. Well, that regulation would violate the First Amendment.
We're not now in the category of free speech ethics, in the field of actual First Amendment law, and we know that that regulation would violate the First Amendment. If the proposal and doesn't sound at all like what the
FT chair is talking about. But if the proposal is, let's require platforms not to discriminate based on viewpoint, Let's require them to host speech without regard to viewpoint, kind of like a phone company is required to basically hope stall paying customers and can't shut down your phone line because it doesn't like the viewpoints you're expressing using it. Well, that's a different story. I'm not sure that would be unconstitutional, although one can argue whether it is or isn't it,
whether it's a good idea or not. Or Some people are saying the regulations should be that platforms should have the power to decide whether to block certain things, and some will say will block a lot of things, Some like maybe Elon Musk's Twitter, will say will block very little. But what they should do is they should disclose it.
They should disclose for the public all their editing decisions you know, that might be constitutional, might even be a good idea, although there are possible interpretation problems as well. So the fact is that when it comes to speech, there are some kinds of permissible regulations. We haven't even touched on, things like regulations with regard to liabel or regulations with regard to true threat of violence and the like.
There lots of regulations that would be impermissible, so it's hard to talk about whether there should be regulation in the abstract. You need to know what exactly is. The biggest change that's expected is re platforming of accounts that Twitter banned after they were used to harass, or incite violence or spread misinformation. And he also said that he would be cautious with permanent bands and that time outs would be better. I just want your take on that. Well, again,
it all depends on exactly what we're talking about. So, for example, you said it accounts that would harass, that that incite violence, or that spread misinformation. So those are very different things harass. I'm actually writing an article about this. It's a term that doesn't have a really clear legal definition, or rather it has lots of different definitions in different contexts. Under some state laws, harassment means, among those things, physical misconduct,
but also threats of violence. And you know, threats of violence are constitutionally unprotected. Platforms don't have to take them down, but I think we can plausibly say that if something actually threatens violence, it's a crime, and the platforms ought to take it down. On the other hand, sometimes you will use harass to mean saying really mean things about someone and doing so repeatedly in a way that makes
this person feel kind of insulted and set upon. Well, all right, you could call that harass, but it's also you could call it criticism, you could call it condemnations. So I'd need to know a lot more if you're asking whether some particular account that was guilty of harassment ought to be thenned, I'd lead needs a lot know a lot more about what that harassment incite violence. Well, it means incitement in the First Amendment sense of speech
that is intended to and likely to cause imminent illegal conduct. Well, again, that's constitutionally unprotective, and maybe Twitter would remove it once it concludes that it's constitutionally unprotected. On the other hand, often people use insight loosely, which basically just in the sense of tending to lead some people, almost always a
tiny fraction of all readers, towards violence. And again you might ask, well, what do you do with your garden account to harshly condemns the police, calls them an occupying army, says no justice, no piece, praises rioters and looters and the like. Is that incitement of violence against the police or incitement of writing that I'm a looting Well, you know, h it could be called that in ordinary English. I'm not sure that that's an account that should be banned
in those kinds of situations. And then you say misinformation. The problem is misinformation according to whom right, One of the problems is a lot of times people have a dispute about what is accurate information and what is misinformation. What are accurate allegations about counter Biden's laptop and which ones were not? What we're accurate allegations about whether President fromp colluded with the Russians in s and which we're not.
So I'm not sure that a company such as Twitter should be making decisions of this account should be banned because it's misinformation, because it may just be that it's information that Twitter doesn't like or the Twitter's owners don't like. Then there's a separate question of once you conclude something ought to be locked in some measure, should it be a permanent block or should be a temporary block. That's
this time out question. That's also a separate issue and may depend a lot on the on the nature of the speech that's involved. Must take in charge of Twitter and making changes, Will it change how we define free speech? Well, first, a lot depends on what changes he actually makes. We now are hearing the kind of changes he's interested in making. But of course, no battle plan survives contact with the enemy. We'll see in some months or maybe even some years
as to what Twitter actually ends up to it. Second, of course, on one hand, free speech is a philosophical concept. People have been discussing it for hundreds of years, of some measure thousands of years, but at least the current debate about it dates back to the sixteen hundreds or seventeen hundreds in England. Current American debate dates back to that. So as a result of the policy that Twitter implements or Facebook implements is not something that is a philosophical
matter should affect our definitions of speech. But as a practical matter, I do think that a lot of times people kind of take their cues about the meaning of a concept based on what is actually allowed. So if indeed platforms routinely banned certain kinds of speech on the grounds that, well, that's not free speech, it's hate speech, which is a legal matter, that's a non sequitor because
so called hate speech is generally protected free speech. But imagine enough platforms say that, Imagine enough platforms say well, that's not free speech, it's misinformation. Then maybe indeed, over time, people will get used to it, and people will come to assume that will of course it's not free speech because we see that it's already prohibited by these influential entities.
So it's possible. It's also possible that maybe platforms decisions try to sense of things will backfire and we will remind people that this is free speeches, just free speech, that platforms are wrongly forbidding. So it's really hard to tell how public attitudes towards these kinds of concepts will evolve as a result of private corporations decisions. Thanks Eugene,
that's Professor Eugene Ballack of US law school. Former President Donald Trump is appealing in New York Judes ruling holding him in contempt of court and imposing a ten thousand dollar fine each day for failing to comply with this subpoena in the Attorney General Civil fraud investigation. In more than six million pages of corporate records handed over, only ten documents were Trump's Joining me is Eric Larson Bloomberg. Joining me is Eric Larson Bloomberg legal reporter, for failing
to comply with this subpoena. So, for those who may have been living under a rock, tell us about what the a G Is investigating. Sure, this is an investigation that started in two thousand nineteen looking into the Trump organization, the use of asset valuations over the years for some of its biggest assets, and whether or not those valuations were manipulated in any way to give Trump better terms on things like bank loans or insurance or even task
refunds and things like that. And this investigation started after Trump's longtime lawyer Michael Cohen testified for Congress and alleged all kinds of wrongdoing at the Trump Boards. So the Attorney General, Leticia James opened the investigation at that time issued a bunch of subpoenas, I mean, ultimately had to go to court to enforce those subpoenas because the Trump
organization disagreed with their validity. So that's how this court case got started, and that's that investigation is obviously ongoing. Have Trump and the Trump Organization turned over documents? Well, yeah, there's are two very different questions, because the Trump organization ultimately was ordered to comply with the subpoena and has been doing so. Obviously there's still this agreement about that, but they have turned over more than six million pages
of documents. Dozens of employees and former employees, you know, have searched their records and been deposed under oaths and things like that. But as for Trump, you know, the earlier subpoenas to the Trump Organization and everyone else had turned over some documents that were Trumps essentially, but but only ten. So at the six million pages, only ten documents were actually from Trump himself, who is you know,
the leader of the company. So in December um the Attorney General issued a subpoena to Trump himself for records and information in his possession, as well as his testimony. You may recall that that Trump and also his son Don Jr. And Ivanka Trump, who has also received subpoenas, they all challenged the subpoena for their testimony. They lost on that they were ordered to be deposed. They've appealed and that is happening separately. But what they didn't challenge
was the subpoena for Trump's records. So it was understood and expected that the former president would be handing over some records of his own in his possession related to these various asset valuations by March thirty one. That was the deadline that was agreed by the Attorney General and Trump,
and it was ordered by the court. So March thirty one came, and instead of complying in full as he was ordered to do, he instead filed a sixteen page what the judge described as a boiler plate objections to the subpoena for records that he had already agreed to comply with um and an affirmation by his lawyer stating that there were no records. They've looked and there were not. So that's where we ended up with this content of
court decision. A lawyer for the A G Flag concerns about hard copy records that should be searched in file cabinets on two floors of Trump Tower, a storage closet near Trump's office, and an off site location that seems awfully specific. How did they even know about those locations and that there might be documents there. Well, they would
have learned about this from their investigations so far. You know, they've gotten uh from all of their interviews with other employees and just from looking at the documents that have been turned over. I'm sure they have a very good idea of how the records are stored. Um, there's a lot of hard copy records that go into a series of filing cabinets, I think they said on the twenty
five and twenty six floors of Trump Tower. There's also a storage closet outside of Trump's office where some records are stored, and then of course an off site location, which is not unusual. But basically, what the judge determined was that if Trump is going to stay and there are no records, that it needs to be done with more than just saying that, you know that that was clearly, in the judges view, did not comply with his order to follow up with the subpoena, so he did find
him in contempt. Of course, said that it just was not nearly enough just to raise these objections at this point, that it was too late. He'd already agreed to comply about his subpoena um and then instead of doing so, filed some objects that should have been filed earlier, and then just made up sort of a blanket statement by his lawyer that there were no records around. So the
judge that you need to be much more specific. You need to tell me exactly where you searched, exactly what you searched, exactly when you searched it, and who searched it, and then maybe you'll be in compliance with the court order and you'll no longer be in contempt. But until then he's in content of court and is approving a ten tho dollar a day fine. So his lawyer said, President Trump does not email, he does not chext message, and he has no work computer at home or anywhere else.
So is she saying these documents just don't exist? Right? His lawyer, Elena Habba at the hearing on Monday where Trump was found in contempt, but she guaranteed to the judge verbally that she had personally looked in all of these places and that she had actually flown down to Florida and met with Trump at Mara Lago to interview her client about these records to determine if there were
any responsive records. And she guaranteed to the court that she had done all of these searches personally and that no responsive records were found. And the Trump said there were no records that were found. Obviously, that did not cut it with the judge. He said, that's saying this to me now in court is a lot different than explaining this in the sworn affidavit. And by the way, the judge says, why don't we just get a sworn
affidavit from Trump himself. He didn't end up ordering anything like that, but he said in court, I just can't take your word for it. We need to have something much more detailed explaining why there are no records from Donald J. Trump responsive to all of these huge asset valuations, some of his key assets at the company that he's at the head of. So the judge wants something much
more concrete. Do you think that if the lawyer signed an affidavit swearing to what she said in court, that would suffice that my takeaway that the judge you know, ested that that is something that would bring them into compliance. It's another question whether or not the Attorney General would you know, accept that or believe that. You know, they did indicate that during these hours of arguments and court that you know, they just sort of find it a
little hard to believe that. You know, as I mentioned, the guy running this company does not have any records that are responsive compared to the six million pages that have been handed over by the company and everyone else. So, you know, Miss Hobba did make the point, of course
that that Trump does not use a computer. But nevertheless, the Attorney General believes that there may be responsive documents anyway, whether it's hard copies of calendars or other documents that he received and put away in a filing can or something you know like that. But his lawyer just you know, pointed out that even the text messages of his children had already been turned over and searched, and that none
of those text messages were to Donald Trump. She made that point to say, he doesn't even text with his own kids. But you know, as the judge said, put it in writing, put your name on it, and we'll see if that brings you the compliance. So Trump is filing an appeal, what are his chances? Well, that appeal is just not surprising. The lawyer said that she would be filing an appeal as soon as the written order hit,
and that happened yesterday afternoon. So I spoke with I'm a gentleman who's not involved in the case, but who is a former prosecutor in California and a former stake board judge, and he said that these kinds of contempt orders and finds are generally upheld on appeal because the appellate courts, you know, give a lot of deference to judges to determine the best way to enforce compliance with
their poor orders. That these trial judges, they're the ones who have all of the fact in the possession for all of these these cases, and that a contempt finding is very fact specific, and so they just leave it to the judges most for the most part, to determine
when someone is in contempt and the issue fine. So I think it would be fairly hard, would be my guest, to get out of contempt finding like this, given the way the judge felled out exactly in his order how Trump came to not be in compliance with the order and the amount of time that Trump had to previously raise the concerns instead of waiting until after the March
thirty first deadline. So we'll see where that goes. But for right now, it's the contempt order is in place and he's currently accruing this ten thousand dollars a day. Like I said, the judge also ordered Cushman in Wakefield, a real estate services firm that was used by Trump,
to comply with subpoenas. Have they been fighting subpoenas? You know, they had Pushman, wakes Build, have been cooperating, They had received subpoenas like a lot of other entities and businesses that had been involved with Trump organization over the years in the process of these huge appraisals, you know, law firms, engineers, architects, things like that. So this Cushman and Wakefiel was was complying, but at one point, says I think it seems they
decided that it was going too far. The demands for documents were getting too broad for their liking, and they did finally go to court to try to wash the most recent subpoena, and the judge denied that and ordered them to to continue complying UM and actually added Pushman and Wakefield as a respondent to the case, which the company had also tried to prevent from happening. So, you know, this company was involved in three of the main assets
Trump organization assets that are being scrutinized. There are a lot of assets things scrutinized, the three of them in particular, Cushman and Wakefield was involved in in appraisals I'm including Trump Golf Club in Los Angeles, property called Seven Springs, New York City, and the forty Wall Streets skyscraper downtown.
UM and the a G lawyer pointed out at this court hearing that you know, evaluations had gone really kind of all over the like very quickly for some of these properties in a way that benefited the Trump organization, and that they want to see more records about how they came to value these assets and why they changed. Any idea when the AG is going to wrap up
this investigation, I know she said that she's uncovered significant evidence. Yes, I got the hint, certain more than a hints, I guess that the AGES lawyer said at the hearing on Monday that some sort of enforcement action was likely soon with the Trump organization. So there is a statute of
limitations concerned things like that. But the AGES lawyer even indicated um that after some enforcement action has taken that they might continue the investigation, and that they believe that the nature of some of the potential offenses would be sus that the offenses might have continued in a way that the statute of limitations wouldn't apply necessarily in their view.
So I think we could see something fairly soon. And as you mentioned, Tish Jane him As the Attorney General, has already said that she has found significant evidence of
potentially misleading asset value evaluations. She gave that in a preliminary report sort of trying to enforce these subpoenas and demands for testimony because they were putting up such a sight, James had to go to court to explain and really reiterate why the investigation was so necessary, and she put out some preliminary findings that seems to be potentially pretty serious. When you say enforcement actions, what does she mean? I thought she'd just bring a lawsuit against him well, I
think those are one in one of the name. I assume that that is what he meant, but he just used the term enforcement actions. Um. I think that it's likely it could come in the form of a civil complaint accusing the company and potentially individuals of wrongdoing in relation to these asset valuations. Well more to come, as always with these Trump investigations. Now I want to go
to a completely different subject, the mask mandates. It was a shock to a lot of the country and maybe the Biden administration as well, when a last week a Florida judge struck down the travel mask mandate. And this wasn't because of a lawsuit filed by the governor or state officials. It was because of a lawsuit filed by a former Wall Street banker who now lives in Idaho. Tell us what you found out. Yes, it was interesting.
I can. I can confirm that we were, at least in the newsroom taken by surprise when this when this order hit, because it was not a case that we were frankly watching as closely as the one you mentioned earlier, where Ron de Santis, the governor of Florida, was leading a multi state lawsuit in Florida, speeking to overturn the
national math mandate for public transportation. Uh So, when when this hit, um, it was a surprise, and I had never actually heard of this organization that had filed the lawsuit, But as you said, it was, it was filed by a former Wall Street banker. Her name is Leslie Manukian. Uh She's fifty eight years old. She lives in a Standpoint, Idaho to ski resort town. But she used to work at Goldman Sacked in New York and London, and then went to a precursor company for Alliance Bernstein uh in
London as well. She was in London for ten years and then around two thousands three, she retired at a fairly young age and moved back to her native Idaho to raise her child. And that is where she got into natural medicine and became anti vaccine and after the pandemic started anti mask even uh So, she founded a nonprofit organization called Health Freedom Defense Fund in with the specific aim of sewing over various mandates. Um. She also has a lawsuit pending in federal court against the Biden
administration's vaccine mandate for federal employees. Lots of other lawsuits filed over that as well. Her is just one of them. Um. But at any rate, Um, a Trump appointed federal judge, as we've all heard by now, um ruled in favor of Minuchans nonprofit and vacated the mass mandate nationwide. Let me ask you this. Maybe you asked her this for an organization based in Idaho to file a lawsuit in Florida, was she formed shopping for this particular judge or for
odd conservative judge. Well, I'm sure that she would say no to that. I did speak with some some experts who think that that was clearly potentially something that was going on there. Um. You know, even uh with all of those states joining together to file a lawsuits. You know, they filed it in Florida, so um, it could have been any of the states where they filed it, but
they saw it there. But you know, it's not difficult for a nonprofit based in any state to find some plaintift to work with their lawyers to establish a right to do in any other state. That's just kind of I suppose the nature of the federal court system. But she definitely got lucky with that judge. I guess you could say Thanks so much. Eric. That's Bloomberg Legal reporter Eric Larson, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest
legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every week night at ten b m. Wall Street Time. I'm June Grosso and you're listening to Bloomberg