Transcript: Senate Republicans Hold Social Media Jawboning Hearing

Senate Republicans on Wednesday held a hearing examining allegations that the Biden administration inappropriately pressured social media companies to take down content, claims that were the subject of a high-profile lawsuit that the Supreme Court tossed last year.

In its 6-3 ruling rebuffing the lawsuit, the Supreme Court wrote that state officials who had sued the Biden administration had failed to establish any “concrete link” between restrictions placed by social media companies and government pressure.

The Senate Commerce Committee hearing followed last week’s release of a GOP report reviving accusations that the Cybersecurity and Infrastructure Security Agency (CISA) during the Biden administration participated in a “censorship campaign” online.

It came amid ratcheting scrutiny over the Trump administration’s own crackdowns on free expression, including against protesters, media outlets, and universities. And it follows reports that Google and Apple removed apps from their stores after facing pressure from the administration.

The hearing featured two individuals who have accused tech companies of censoring them or their organizations, The Federalist CEO Sean Davis and independent writer Alex Berenson, and two policy experts, Stanford University’s Eugene Volokh and Yale’s Gene Kimmelman.

• Sen. Eric Schmitt (R-MO), who, while previously serving as Missouri’s attorney general, led the jawboning lawsuit against the Biden administration, kicked off the hearing by reviving claims that the government had engaged in a “vast censorship enterprise.”
• The committee’s Democrats largely redirected their fire toward Federal Communications Commission Chairman Brendan Carr, who last month threatened to revoke ABC’s licenses over a monologue by late-night host and comedian Jimmy Kimmel. Sen. Maria Cantwell (D-WA) said the hearing should instead focus on “making sure the FCC as a federal agency cannot use its authority to threaten or intimidate the media.”
• Just before the hearing kicked off, the Wall Street Journal reported that Sen. Ted Cruz (R-TX), who chairs Commerce, plans to introduce legislation to make it easier to sue the federal government over allegations of censorship. Cruz told the Journal he plans to explore the topic in a series of hearings, including a planned session with Carr.

Below is a lightly edited transcript of the hearing, “Shut Your App: How Uncle Sam Jawboned Big Tech Into Silencing Americans.” Please refer to the official audio when quoting.

Sen. Eric Schmitt (R-MO):

The Commerce, Science, and Transportation committee meeting to order. The author of the great book Dune, Frank Herbert, set the table for what techno-totalitarianism looked like. Once men turned their thinking over to machines in the hope that this would set them free, but that only permitted other men with machines to enslave them. In the West, we're headed down this path towards thought crime enslavement. In the United Kingdom, 30 Brits are arrested per day for speech-related offenses. In the EU, the Digital Services Act is creating a censorship regime that would make communist China blush. In the United States, before President Trump's return to power, the American vast censorship enterprise sought to control speech, to control how we think, and to influence national discourse and elections.

In 2022, as the Attorney General of Missouri, I filed the landmark lawsuit Missouri v. Biden, which Justice Alito called one of the most important First Amendment cases in American history. Though my loss through the lawsuit uncovered a vast censorship regime perpetrated by the Biden administration, I saw all the emails, I saw all the text messages, I deposed senior government officials, including Anthony Fauci. Missouri v. Biden uncovered for the American people how the Biden administration built one of the largest censorship operations in American history, by working in secret through third parties, pressuring, bullying, threatening, jawboning Big Tech into suppressing viewpoints that they disagreed with. Jen Psaki boasted about flagging disinformation with Facebook. The Biden White House was revealed to have been back-channeling with YouTube about suppressing disfavored speech, suppressing things like the lab leak theory. White House Digital Director Rob Flaherty pressured platforms like Facebook and YouTube to censor all kinds of COVID-related speech. Joe Biden said Facebook was killing people.

Last week, Chairman Cruz and the Senate Commerce Committee released a report that revealed more details about how the Biden administration, as part of this larger censorship operation, weaponized the Cybersecurity and Infrastructure Security Agency, or CISA, into an agent of censorship pressuring Big Tech to police speech. The Biden administration's collusion with Big Tech and non-governmental organizations to censor speech infringed on the individual freedoms of millions of Americans to limit what they could say, what they could hear, and what they could read. Fortunately, President Trump won a historic victory, and on January 20th, 2025, the first day of his second presidential term, President Trump signed an executive order titled Restoring Freedom of Speech and Ending Federal Censorship.

But the story of censorship does not begin and end with the federal government. Big Tech was censoring long before presidential jawboning, and I imagine will continue to censor long after. Here are some instances of pre-Biden censorship. All of Big Tech censored the Hunter Biden laptop story. Google banned COVID skepticism. Twitter shadowbanned and suspended conservatives. Facebook throttled posts from pages like The Federalist and the New York Post. Facebook flagged and removed posts questioning voter ID laws and ballot harvesting.

Two of today's witnesses, Alex Berenson and Sean Davis, were direct targets of this censorship operation and were deplatformed, shadowbanned, and silenced for their viewpoints. Congress should address this problem with decisive legislative action like my COLLUDE Act or my Censorship Accountability Act, both of which hold Big Tech and government censors accountable. I look forward to hearing from our witnesses about what Congress and this committee can do to make sure that no American, regardless of their political leanings, ever learns that the federal government, trusted with protecting their First Amendment rights, is actually working to undermine them behind closed doors. Our founding fathers recognized that freedom of speech is vital. Protecting it is first and foremost in the Bill of Rights. While some argued that free speech was already protected because the Constitution did not give the government power to censor, the framers went further, affirmatively restricting government intrusion. The First Amendment is the beating heart of our Constitution. Free speech is not just instrumental but an end to itself. In the digital age with all the peril and possibility that accompanies it, the struggle for free speech is the struggle for civilization itself.

I want to thank the witnesses for being here today and look forward to their testimony. And I will, before I turn it over to the ranking member for her opening remarks, request that Chairman Cruz's opening statement be entered into the record. Without objection, Ranking Member Cantwell.

Sen. Maria Cantwell (D-WA):

Thank you. Thank you, Mr. Chairman, and welcome to our witnesses. Thank you for joining us this morning. These issues of the media and consumers and free speech, very important issues for us to discuss. In an era where consumers are paying more, where not enough competition exists, where deals are getting done that lead to fewer choices, less local news, I do have an important question: where is Chairman Carr? Americans are paying and spending more money on content that used to be free more than ever before. And just a few weeks ago, we witnessed a deeply troubling episode, the FCC chairman demanding ABC take immediate action against Jimmy Kimmel for tasteless remarks and saying, "We can do this the easy way or the hard way," a line that Senator Cruz rightly criticized as something "right out of Goodfellas."

Within hours, the nation's largest ABC affiliate, Nexstar and Sinclair, announced they would preempt the show indefinitely, and shortly thereafter, ABC suspended Jimmy Kimmel Live! altogether. While ABC, Nexstar and Sinclair have since returned Mr. Kimmel to the air, that chain of events should alarm every American, because the power of the FCC was never meant to weaponize against a president or political targets. Let me be clear. Chairman Carr does not have the authority to police speech that he or the White House finds offensive. He does not have the authority to threaten license based on content decisions. And this is especially true when those same companies have mergers and licensings pending before the FCC. That is exactly the kind of political interference, chilling effect on free speech that the First Amendment was designed to prevent. We need to hold Chairman Carr accountable for these threats, and that's why I've called on us to have a hearing, and hopefully that will happen sometime in the near future. There is a need to have oversight on this, and I hope that this hearing does happen without further delay.

Professor Volokh... Am I saying that right? Volokh?

Eugene Volokh:

Yes.

Sen. Maria Cantwell (D-WA):

Thank you. ... said in his testimony, "FCC Chairman Brendan Carr's statement about Jimmy Kimmel may likewise have threatened retaliation in a way that would violate the First Amendment." So, the point on this, there is broad agreement. Free expression is not a partisan issue. It is the bedrock of our democracy. So, this is a long list of issues about the First Amendment. I think the president is making pretty much a standard issue. Just last week, the federal court found that the administration violated the First Amendment by arresting, detaining, and deporting non-citizen students and faculty members for their pro-Palestinian advocacy. This follows the White House revocation of the Associated Press' credentials for refusal to use the term "Gulf of Mexico," clearly an attempt to police the language and intimidate free speech. Meanwhile, the administration continues to wield the full power of the federal government to retaliate against law firms the president doesn't like and threaten funding for universities he disfavors. It is alarming to see the administration use its regulatory and informal authority to unlawfully infringe on free speech, the free press, and the First Amendment.

And it's important that we also understand the broader context here. That is why, Mr. Kimmelman, I'm so glad to see you here today. Local journalism in America is already under extraordinary strain. The Commerce Committee has documented how online platforms monopolize advertising, siphon revenue away from local newspapers and broadcasters, and the result has been newsroom closures, layoffs across the country, and even as the public trust in local journalism remains at an all-time high. At the same time, media consolidation has been concentrated into fewer hands. Since 2005, the U.S. has lost almost one-third of its newspapers. This year alone, 127 newspapers closed. Nearly 55 million Americans have limited or no access to local news, disproportionately affecting rural areas. That leaves new outlets more vulnerable to political and corporate pressures and leaves the public without further resources of getting to true competition, which I believe gets us to the truth. If Chairman Carr can threaten one network over a single late-night host and his message, what kind of message does that send to local broadcasters in Seattle or Houston? Do they lose their license if they're reporting or they're crossing the White House? This kind of intimidation undermines the very foundation of the free press.

I want to be clear. Protecting a free press does not mean ignoring the dangers of harmful hate speech. I've expressed concerns about companies like Facebook, Google, and X on issues that really did threaten the lives of individuals. And I know that we will hear a lot about what the Biden administration did in these areas. But let's not forget, the Supreme Court rejected allegations of the Biden administration's censorship because the record showed that social media companies "continued to exercise their independent judgment" and had "independent incentives to moderate content." I'm sure we'll talk a lot about this.

Persuading companies to enforce their own content moderation policies is not the same, is not the same as threatening them with retaliation. And that is precisely what Chairman Carr did when he publicly threatened ABC, an entity over which the FCC holds direct regulatory power, to take action over the speech the administration did not like. Holding companies accountable for amplifying harm is not the same as expressing constitutional protected speech the president finds politically inconvenient. That is what we should be focusing on today, making sure the FCC as a federal agency cannot use its authority to threaten or intimidate the media to ensure the license decisions are based on the law and not on political coercion. I hope today we can speak clearly about this and do what we can to make sure that we show that free speech is something we all agree on. Thank you, Mr. Chairman. Look forward to hearing from the witnesses.

Sen. Eric Schmitt (R-MO):

Thank you, Ranking Member. One point of clarification for the record. Murthy v. Missouri was not decided that way. It was sent back to lower court for additional arguments on standing, not on the merits.

I would like to introduce our witnesses for today. Our first witness is Mr. Eugene Volokh, a senior fellow with the Hoover Institution at Stanford University and a professor of law emeritus at UCLA School of Law. He's an expert in First Amendment law. His writings have been cited in over 300 court opinions, including 10 Supreme Court cases. Welcome.

Our second witness is Mr. Alex Berenson, an author, independent journalist, and victim of the Biden administration's embargo on free speech. We look forward to hearing from Mr. Berenson and his story and what we can do to preserve speech online.

Our third witness is Mr. Sean Davis, chief executive officer and co-founder of The Federalist, a conservative news outlet that was subject to censorship and demonetization efforts for speaking out against the COVID-19 shutdowns.

And our final witness is Mr. Gene Kimmelman, a senior policy fellow at Yale's Tobin Economic Policy Center and a senior research fellow at the Harvard Kennedy School's Center for Business and Government.

And I, at this point, would recognize Mr. Volokh for your own opening statement. Thank you for being here.

Eugene Volokh:

Thank you. Thank you very much for [inaudible].

This is a topic that is, I think, very important and something that I've been very interested in myself. I should also say, by sheer accident, turns out that today is 50 years to the day since my parents brought me to the United States from the then Soviet Union. So, thank you to the United States of America for letting me in. Very, very glad to be here.

So, I wanted to speak briefly about the First Amendment law on the subject, both that which is settled and that which is not entirely certain. So, one thing that I think is worth noting is that the word jawboning is sometimes used in two different senses. One sense is coercion, when the government is essentially threatening someone with retaliation as a means of suppressing either that person's speech or getting that person to suppress somebody else's speech. A second one is what I might call persuasion and maybe pressure short of coercion, when the government is kind of urging people, some people might say, again, pressuring people, to restrict, again, either their own speech or other people's speech.

So, the government coercion is generally unconstitutional. I think, indeed, the remarks of Chairman Carr seemed to be an attempt at coercion. Whether or not they actually caused the suspension of Jimmy Kimmel, I think they were an attempt to do something the Constitution does not allow. Just last year, the Supreme Court found in NRA v. Vullo that the National Rifle Association had adequately alleged coercion on the part of New York government authorities aimed at trying to get insurance companies to limit ties to the NRA as a means of trying to interfere with the NRA's political advocacy. So, that is pretty well settled that that's a constitutional problem.

Now, what about persuasion? Well, in some situations, the government is entitled to urge entities to not speak. You can imagine a situation where a police chief calls up a newspaper and says, "Look, I'm not trying to coerce you. I know I can't coerce you. You can publish this article you're about to publish, but it's going to interfere with us catching the criminals. And you wouldn't want that, right? So, could I just ask you, please, to do this?" Some amount of that has got to be permissible. Or to take another example, as to misinformation, somebody calls up a reporter, says, "You're about to publish this article or this op-ed, and it's just false. It's just wrong. Don't you want to be corrected on this?" Again, some amount of that, it seems to me, has to be constitutionally permissible.

At the same time, there is a complication, because the line between coercion and persuasion is often very hard to draw. And that's particularly true when the speaker has power over the listener. The Supreme Court has most clearly recognized this in the employment context. Employers are entitled to talk to their employees, including about unionization. They're entitled to explain why they think unionizing would be a mistake. But the court has recognized that in looking at what the employer says and seeing if the employer is speaking coercively, one has to appreciate that the employee is dependent of the employer and may pick up coercive messages, even in situations where it's not expressed on the face of the statement. And I think the same thing is true when the government, which is a very powerful regulator, is talking to people in a regulated industry. There are times when what might sound on its face, or let's say just on the bare paper, might look like it's not coercive, may in fact, in context, be quite coercive.

Another concern is the merger of government and private power, when it's not just kind of occasional conversations but a systemic mechanism-

Eugene Volokh:

... not just kind of occasional conversations, but a systemic mechanism for trying to restrict speech.

An analogy might be a few amendments down in the Fourth Amendment. If you have a roommate and you notice some evidence of crime and you call up the police, the police can use that evidence because that's not a government search. The police didn't search for it. You did.

On the other hand, the police call you up and say, "Hey, not trying to coerce you, but could you please rummage through your roommate's papers?" That does become Fourth Amendment's, a search subject to the Fourth Amendment, precisely because it's encouraged, substantially encouraged, by the police. The police become enmeshed with a private search. So that suggests that something similar may apply to the First Amendment.

So let me just close with suggesting that this is, in fact, the right body to be dealing with a lot of these concerns, that some of these problems can only be solved through statutory action, through laws that maybe limit attempts at systemic persuasion and systemic suppression of speech, even if it's not technically coercive, at laws that facilitate finding information about that and at laws that actually provide a cause of action, which the Congress has, for over a century, provided against state governments, but provided against the federal government as well.

Sen. Eric Schmitt (R-MO):

Thank you very much. We'll now recognize Mr. Alex Berenson to deliver his opening statement.

Alex Berenson:

Senator Schmitt, Committee Members, thank you for giving me the chance to speak on this crucial topic.

On August 28th, 2021, Twitter, as it was then called, permanently suspended my account, supposedly for violating its COVID-19 misinformation rules. The ban deprived me of my largest and most vital platform for my journalism, at a time when many Americans were eager to hear what I had to say about COVID and the mRNA vaccines and viewed what I wrote millions of times a day.

Twitter's decision was no accident. It came after a deliberate and relentless campaign by the Biden administration, as well as at least one senior Pfizer board member to violate my First Amendment rights. Led by Andrew M. Slavitt, an official in the Biden White House, the administration began pressuring Twitter to silence me, almost as soon as President Biden took office, with both public and private attacks in my reporting.

Frontline and senior Twitter employees viewed what was happening to me with dismay. Going back to 2020, the company had previously defended my right to speak, as third parties demanded I be censored, because Twitter believed that it should be a place where free speech and debate were encouraged.

Ultimately, at the time of my suspension, Twitter's top executives, including then Chief Executive Jack Dorsey, secretly believed the company should not have suspended me. But the Twitter lobbyist who faced the Biden administration's pressure most directly went around them to orchestrate my ban. In the words he wrote to another Twitter official just days before he silenced me, this lobbyist hoped, quote, to keep the target off our back.

None of this is speculation. Thanks to internal emails and other documents that Twitter turned over to me before Elon Musk took over and more documents that Musk voluntarily and graciously turned over after he bought the company, I've hard proof of everything I've just told you. In fact, after I sued Twitter in 2021, in December 2021 over the ban, the company admitted I had not broken its rules and that my tweets, quote, should not have led to his suspension, my suspension. The company even reinstated me in July 2022. Again, that's before Elon bought Twitter.

By then, though, I'd already suffered and so had a lot of people who were depending on my reporting to help them think about COVID vaccines and COVID lockdowns. In losing my access to Twitter, I lost my best chance to offer Americans my dissenting views on the Biden administration's COVID vaccine mandates, mandates that the Supreme Court would later strike down.

Federal District Judge Jessica G.L. Clarke laid out all these facts in two rulings she made this year on a 2023 lawsuit I've brought against the Biden administration and senior officials at Pfizer for its censorship, for their censorship.

In fact, in a ruling just last week, Clarke noted that, quote, on the merits the federal government has now conceded my claim that the Biden administration unconstitutionally violated my First Amendment rights in 2021.

Yet in the same ruling, Clarke still dismissed my lawsuit. That may sound impossible. A federal judge agreed my constitutional rights had apparently been violated. It said my lawsuit over the violation could not move forward, but it's true. The Supreme Court has made it essentially impossible for me, or anyone, to win monetary damages for violations of their First Amendment rights by the federal government.

As the law now stands, federal officials can run censorship campaigns, like the Biden administration carried out, like the one the Biden administration carried out against me with impunity. At worst, they may face an injunction, but they will never have to pay for doing so for violating our most basic right, the right to speak freely so it's open season for government censorship.

This loophole is even more expansive and dangerous when it comes to federal efforts to jawbone pressure or outright threaten third parties like Twitter into silencing the speech of their users, employees or business partners. That's true whether these third parties are legacy media companies, new social media giants or other types of businesses.

As a practical matter, users are generally not privy to the communications between federal officials and the companies so they have no way of proving the pressure existed or that it led to their censorship. My case is exceptional because of the documents I have proving my rights were violated. Yet even so, I've been unable to obtain a remedy so far.

And expecting companies to resist censorship on behalf of their users or business partners is unrealistic. My case, as well as documents the House has unearthed in its own censorship investigation, shows social media companies disliked the Biden administration's efforts to force them to censor users.

Yet they had many other interests before the federal government. They viewed sacrificing speech as the price they had to pay to stay in the administration's good graces. Every company will face this calculus, whether it's a Democrat or Republican in the White House. And social media companies are really the most important way that independent Americans, its citizens can get their speech out into the marketplace of debate. That's why there is so much pressure on them.

The truth is that as the law now stands, federal officials have every reason to believe they can coerce private third parties to suppress speech. This is a powerful loophole that is no doubt enticing to politicians and officials of both parties, but it's wrong.

Whether it affects Republicans or Democrats, journalists or comedians, conservatives or liberals or independents, and whether it goes by jawbone and coercion, pressure or threats, this kind of censorship is wrong, and this committee has the chance to begin the process of fixing that wrong. I urge you to take it.

Sen. Eric Schmitt (R-MO):

Thank you. We'll now recognize Sean Davis to deliver his opening statement.

Sean Davis:

It begins with censorship. It moves to the destruction of statues and monuments, and it ends with the murder of people.

It begins with censorship. It moves to the destruction of statues and monuments, and it ends with the murder of people.

The drive to silence speech doesn't end at a podium's edge or at the four corners of a page. It always advances toward the violent elimination of speakers. And that is because the authoritarian impulse to silence speech is driven by a totalitarian desire to seize total power by any means necessary, up to and including the murder of one's political opponents.

This dynamic was made clear on a Tuesday afternoon in Utah last month, when my friend Charlie Kirk was assassinated in broad daylight by a left-wing transgender ideologue, who is enraged by Charlie's clear understanding and teaching that God created us male and female, that boys cannot become girls and girls cannot become boys.

Charlie was murdered by this left-wing assassin, who had been radicalized by demonic transgender ideology, because he was one of the most bold and effective speakers in the country opposed to this evil ideology.

Rather than see a nation unite against terroristic violence designed to permanently silence speech, we actually saw the opposite. We witnessed people praising the murder of Charlie. We witnessed people thanking his assassin. We even witnessed members of the United States Congress all but say that Charlie deserved it.

That isn't the only recent example. The Democratic candidate for Attorney General in Virginia was revealed last week to have called for the murder of one of his political opponents. Even worse, he also said he wanted his opponent to witness the murder of his own children, to watch them die in their mother's arms. Why? To make him feel pain for having different political opinions.

How many here today condemned that insanity, or publicly recognized that someone with such a broken moral compass is simply unqualified to be a state's top law enforcement officer? We have heard the tired cliche that riots are the language of the unheard, but the reality is that violence is the language of the unhinged, and far too many people in this room are fluent in it.

My name is Sean Davis, and I'm the CEO and co-founder of The Federalist, a conservative digital media company that focuses on politics, culture and religion.

I'm also a victim of illegal and unconstitutional censorship. My company, my colleagues and I have been the targets of a coordinated and global multiyear censorship campaign.

In 2020, a foreign government-connected outfit in the UK colluded with Google to demonetize the Federalist. Our crime? We published an article in the summer of 2020 entitled, The Media are Lying to You About Everything, Including the Riots.

Later that year in the midst of a close and heated presidential election campaign, government-funded efforts in the US, repeatedly censored Mollie Hemingway, the Federalist's editor-in-chief and a New York Times bestselling author who's here behind me today, and me because of our election reporting and commentary.

I was censored for posting a screenshot of, and a link to, a Pennsylvania Supreme Court decision requiring mail-in ballots received after election day and lacking a postmark to be counted and presumed as valid votes.

Mollie was censored for posting a link to an article The Federalist published. The headline of that article? America Won't Trust Elections Until the Voter Fraud is Investigated.

But the censorship didn't stop there. We were also targeted for bankruptcy and destruction by the US State Department and its Global Engagement Center, or GEC. Despite the fact that GEC was explicitly prohibited by both the US Constitution via the First Amendment and its authorizing statute from targeting domestic speech, it nonetheless sought to drive us out of business by funding, developing and distributing technologies and tools to reduce our reach, by bullying advertisers into blacklisting us and many other conservative outlets, and by coercing big tech companies like Facebook, Google and Twitter to throttle access to our content.

In essence, our own government, secretly and without any due process, charged us with thought crimes, convicted us and sentenced the Federalists to death. The censorship efforts our government funded with our money are still being wielded against us today.

I'm here today to testify about the unconstitutional and illegal censorship of my company and my colleagues, but I'm also here to help you understand the real-world consequences, in flesh and in blood, of the drive to silence your political opposition. It doesn't stop at the page's end.

The effort to censor and silence political opposition is not the final step in the effort to usher in tyranny and authoritarianism. It begins with censorship. It moves to the destruction of statues and monuments, and it ends with the murder of people, and it has to stop.

Thank you.

Sen. Eric Schmitt (R-MO):

Thank you. We'll now recognize Mr. Gene Kimmelman for his opening remarks.

Gene Kimmelman:

Thank you, Mr. Chairman, Senator Cantwell, Members of the Committee, it's an honor to appear before you today.

So as we've experienced this explosion in digital technology, which fundamentally is transforming our media landscape and information ecosystem, I think the fundamental principles that our democracy has always relied upon remain the same. First, we must prevent government from censoring protected speech as Mr. Volokh said. Second, we must also prevent media and information distribution platforms from concentrating enough power to block the competition and diversity that fuels open debate in our society.

I'm worried that the current FCC is heading down a dangerous path on both of these principles. Recent statements from Chairman Carr echoing the President, threatening to revoke broadcast for presenting content unfavorable to the administration has chilled protected speech. And the FCC's push to eliminate or relax broadcast ownership rules and to welcome consolidation in media threaten the independence and diversity of local media that are critical to an informed citizenry.

Just consider we have pending before us the Nexstar merger with TEGNA, combining national broadcast companies with more than 250 broadcast stations, combining multiple broadcast licenses in the top markets that are the most popular broadcast television stations and having ownership in two-thirds of all markets covering almost 80% of all households in the country, even though this appears to violate the limit Congress set at half that level. Chairman Carr seems to be moving forward.

And this is on the heels of Skydance, backed by Oracle's owner, Mr. Larry Ellison, buying Paramount Global, CBS, now seeking to buy Warner Brothers Discovery, more studios, more networks, cable channels, and Mr. Ellison appearing to pick up about a 20% stake in TikTok. And the FCC is also considering allowing companies to own multiple national networks.

These deals and certainly more to follow, likely threaten to build a form of private censorship through outsized media power. It is time to update the law and establish new guardrails to promote local, diverse and independent media.

The threat to democracy also comes from the dominant information distribution systems controlled by Google, meta with Facebook, Instagram, WhatsApp, and Apple with its App Store. Here, the Trump administration has done an excellent job challenging these companies' monopolistic behavior, continuing the antitrust enforcement from the Biden administration.

However, antitrust is not enough to eliminate the enormous power of these tech's platforms. More needs to be done. Congress must give antitrust enforcers more tools to truly open up the tech information distribution platforms and modern media markets to robust competition. We need to reduce concentration of control in these markets, private control that can censor just as the government can censor.

In conclusion, I want to say it is really time for Congress to update the Communications Act, to jump in and put an end to the threat of the bullying that we're seeing from the FCC, which chills speech and eliminates open debate and information flow in our media, and it's time to stop media consolidation and monopolization that puts too much control over the marketplace of ideas into few hands.

Thank you, Mr. Chairman.

Sen. Eric Schmitt (R-MO):

Thank you. Thank you for testimony, and I guess I'll just start there with just a quick question.

So Mr. Kimmelman, you are the CEO of a group called Public Knowledge. Is that correct?

Gene Kimmelman:

I was at one point, sir.

Sen. Eric Schmitt (R-MO):

Okay. What years were you the CEO of Public Knowledge?

Gene Kimmelman:

May '14 to 2019.

Sen. Eric Schmitt (R-MO):

Okay. Okay. Let's just take a DeLorean back in time to COVID era. Do you think it's appropriate for these sort of NGOs, or nonprofits, to work hand-in-hand with government agencies to flag misinformation or disinformation or malinformation?

Gene Kimmelman:

Mr. Chairman, I've worked with NGOs for many, many years, and I think it's appropriate on the left, on the right for them to present ideas to the government, to the major players in the marketplace about their views, and certainly that's what I was involved in.

Sen. Eric Schmitt (R-MO):

Well, let me get more specific then. Do you think it's appropriate that the White House was working directly through a number of different agencies to work with the University of Washington and Stanford Information to sort of outsource their censorship enterprise, to find out what the posts that they didn't like, and then work with and then collude with at least, or coerce social media companies to punish those folks?

Gene Kimmelman:

Well, Senator, I think I've seen the government in many instances work with private contractors-

Sen. Eric Schmitt (R-MO):

I'm asking you about this instance because it wasn't like a galaxy far, far away. It was like a few years ago. Do you think that's appropriate?

Gene Kimmelman:

Yeah. I'm not familiar with the details of what might or might not happen there.

Sen. Eric Schmitt (R-MO):

What about the scenario I just gave you, though?

Gene Kimmelman:

Working with a university to-

Sen. Eric Schmitt (R-MO):

To flag misinformation so that the government then can coerce social media companies to throttle or-

Gene Kimmelman:

I never think government should coerce social media companies, so I can't imagine that part of it is.

Sen. Eric Schmitt (R-MO):

Okay. Thank you.

Mr. Davis, your testimony described how, in the summer of 2020, Google attempted to demonetize the Federalist following your critiques of violent Black Lives Matter riots. It's documented that the Center for Countering Digital Hate, the CCDH, specifically worked to demonetize the Federalist for these critiques.

Could you just describe what tactics specifically were employed to do that?

Sean Davis:

Yes, sir. Thank you for bringing that up.

So I believe it was in July of 2020, we started receiving emails from NBC news reporter based out of the UK. I don't remember her name exactly, and they were almost taunting, asking for comment. "Hey, Federalist, how does it feel knowing Google is going to, is about to demonetize you for hate speech?" Or something like that, I'm paraphrasing.

And this was news to us. We hadn't broken any rules. We had gotten no notifications of breaking rules, that we had violated Google's terms and conditions or AdSense's or whatever.

And so we started calling around to content, contacts at Google and learned that, "Oh, yeah, you are about to be demonetized because of hate speech" is what we were told. We had racist, violent hate speech, which was not true at all, and it was the CCDH who was working with this NBC News, I think it was called the Verification Unit at the time. They were working together and colluding with executives at Google to this day, I don't know who, to come in and secretly demonetize us.

And what I found most offensive about it was they were all in on it. They had news articles ready to be written, kind of crowing about how we got demonetized.

We were able to fight back. We had a pretty robust response to that, and they ended up relenting largely. What was interesting was in that initial news article targeting us, they had cited that news article, How The Media Are Lying To You About Literally Everything Including The Riots, the NBC news ended up stealth editing that out, and they worked with Google to come up with a new rationale for demonetizing us, which was our comments were mean. We had an unmoderated comment section.

So we ended up having to delete our comment section to avoid being demonetized by Google because a bunch of foreign-connected government outfits decided that they didn't like what we were publishing.

Sen. Eric Schmitt (R-MO):

Okay. In limited time, I want to... Mr. Berenson, it's clear now that during the Biden administration, CISA, which is mentioned a lot in this report, obviously operated kind of a switch-boarding mechanism during this period, flagging disfavored content from domestic sources for social media platforms.

Based on what you've seen, how was CISA specifically doing this? What was the abuse really all about?

Alex Berenson:

Well, again, I think you laid it out. They redefined infrastructure, so it wasn't actual physical infrastructure or software infrastructure. It was things people were saying.

And there was a period very early in 2022 when they actually tried to redefine terrorism as, quote unquote, misinformation. There's a bulletin from February 2022, which I think DHS put out and then retracted under pressure.

So once you start saying that people's speech is terrorism, you're going down a bad path, and I don't think that's something that either party should do, honestly.

Sen. Eric Schmitt (R-MO):

Thanks. Ranking Member Cantwell.

Sen. Maria Cantwell (D-WA):

Thank you, Mr. Chairman. I'm going to yield to my colleague for a second to make a statement, and then I'll finish with my questions.

Sen. Amy Klobuchar (D-MN):

Thank you. I'll do my questions on the record because I have to leave. But I wasn't going to speak, and I appreciate Senator Cantwell's willingness to let me say a few words here, given what happened in my state this summer.

First of all, I think Mr. Kimmelman knows that I've been out front on monopoly issues and antitrust and making sure that we have true competition in the marketplace, working with Senator Cruz and Senator Lee and Senator Kennedy and many others on that issue, and I continue to believe that it's a legitimate solution.

Secondly, I think what happened with the chair of the FCC was wrong in the last month. I appreciated Senator Cruz being out front on it, I truly do, and calling it out. And I'm looking forward to that hearing to try to get some sense into what's going on there with not just the Jimmy Kimmel moment, but many others.

Third, I think that the AI piece of this, and I'll ask some questions about this, but to me, it should not be that radical that we say, number one, that if speech is violent or it incites violence that that is different than other kinds of speech. But that with these AI videos where you can't even tell it's yourself or not, I had this experience at a hearing, that they could at least be labeled. It is always going to be litigation is over whether something is the violent side and the heat side, or whether it is the legally constitutionally allowed speech like parody. But at the very least, these videos should say something about "prepared for by AI" or "digitally created."

I just happened to be late on CNN last night, and Robin Williams' family was on one of the shows, talking about how he's dead and they've created AI videos that don't say "digitally altered" that people think are real. So people should have the right over their own identity.

And the last thing when it comes to these horrific mass shootings and acts of violence, I have come to see him as all-purpose haters, which is something that the FBI actually said after the Annunciation Church shooting in Minnesota. Because that shooter actually hated President Trump in the manifesto, hated wokeness, hated Jews, hated Muslims, hated Hispanics, hated Blacks, and shot these two little kids, Fletcher and Harper, through stained-glass windows in a Catholic Church.

Then you go to the shooting of my dear friend and I talk, had a good discussion with FBI Director Patel about this in judiciary, he lost his friend Charlie Kirk, and we mourn that, and we lost our friend Melissa Hortman.

That shooter, literally, had a manifesto or ramblings that targeted mostly and, in fact, all Democratic office holders, and he went to the houses of the people that he knew, that he knew the addresses and the ones that he didn't, he wasn't able to go to.

He went after law firms, businesses, went after Planned Parenthood, and then left a actual letter saying that he did it because he was supposed to assassinate me, which is on X about every five minutes with my name with assassination, which I think is completely not a good idea for public safety, but I can't get it off.

So the point of all this is that to say it's one side or another, when you look at the Cato Institute report that came out this year of this extremism and what's triggering these basically mad murderers to commit these acts, whether it's in the Michigan temple or whether it is Charlie Kirk in Utah, I just don't think it is the right approach to be like it's one side or the other. These people have been targeted in their heads and they go out and create these mass crimes. And it's on us to figure out what's triggering them and to actually do something about it instead of playing the blame game.

One of my answers is an assault weapon ban, or at least 21 years and under that would've helped in Uvalde, Buffalo, Parkland, doing something about this, instead of just blaming each other. Thank you.

Sen. Eric Schmitt (R-MO):

Thank you. Senator Fischer.

Sen. Deb Fischer (R-NV):

Thank you, Senator Schmitt.

Mr. Davis, government censorship in the name of fact-checking is an unacceptable trampling on our democratic values. Knowing what we know now, how should social media companies respond if the government comes to them to deplatform users based on their political opinions? What's your suggestion?

Sean Davis:

That's a great question. Thank you for raising it.

If I could wave a magic wand and create a solution or a response there, what I would say is any time a government goes to a social media platform, Google, YouTube, Twitter, whatever, and they tell someone, "You need to take this down because it's hate speech or misinformation" or whatever fancy label they want to throw on speech they don't like, first off, those tech companies should tell them to take a hike. We don't censor anyone. We're a platform. We're not a content company. And then number two, I think they should have to disclose it to the public and the people who were targeted.

I would love to have known in 2020 who was actually behind the censorship of me and my colleagues. We knew we were being censored because we watched it happen. We saw our posts disappear. We saw ourselves being shadow-banned. We didn't actually know why.

I would say to this day, we don't actually understand the full extent of the government effort to censor us. So I think there should be full disclosure following an absolute denial of any sort of censorship demands from government. It's totally inappropriate.

Sen. Deb Fischer (R-NV):

Thank you.

Mr. Berenson, I thank you for sharing your experience of being deplatformed by Twitter. It's a valuable story for us to hear.

You spoke of a huge influence that you witnessed between Twitter and the White House at the time back in 2020, and you described your understanding that the company's lobbyist hope to keep the White House target off their back.

Can you explain specifically what your understanding of that target was, and are you aware of any specific threats that were made?

Alex Berenson:

Sure. So in July 2021, as the Biden administration was preparing vaccine mandates, and that's sort of what you have to understand about the backdrop here, and they knew that those might be politically unpopular, they started pressuring the companies to deplatform people like me. I mean, they'd been doing this, but they upped the pressure, and that's when President Biden said that Facebook was, quote unquote, killing people by allowing people like me or RFK Jr. to speak.

And the biggest legal protection that social media companies have is what's called Section 230, as I'm sure you know, where they're essentially immune from lawsuits from users over the decisions they make for content. So they have all the immunity of a traditional publisher to make decisions over what speech they want to carry. And so-

Sen. Deb Fischer (R-NV):

Do you have any kind of information or records, did the White House specifically say what they would do to Twitter?

Alex Berenson:

Yeah. So they specifically, oh, well, they publicly said that they were going to reconsider Section 230. That was again in July, and they had privately said to Twitter in April, they had, based on Twitter's own records, said a really, quote unquote, a really hard question about why I was still being allowed to speak, which from my point of view and my lawyer's point of view, that all by itself was a First Amendment violation because it forced Twitter to start looking at me in a way that Twitter had not previously done, and that was in secret.

And I'll say this, I-

Sen. Deb Fischer (R-NV):

And again, there was no transparency that-

Alex Berenson:

No transparency.

Sen. Deb Fischer (R-NV):

... that Mr. Davis spoken.

Alex Berenson:

Yes. So I mean, look, I don't like what Brendan Carr did, but he did it publicly, and we can have a debate about it.

What's really problematic is when the government goes in secret to these companies and targets individual users or individual categories of speech, and I think that that shouldn't be allowed. I think that both parties should agree that targeting an individual user or an individual post if it's legal is wrong.

And nobody's ever said that I'd said anything illegal, and actually I think most people now would agree that a lot of what I said has been confirmed. So I think that that's a pretty basic place to start.

Sen. Deb Fischer (R-NV):

Thank you.

Mr. Volokh, you mentioned a reporting mechanism that might be a promising idea for companies that think the government is coercing them. Can you describe to the committee how such a mechanism might have prevented a situation that Mr. Berenson just described, and how would you structure that mechanism?

Eugene Volokh:

Well, sure, [inaudible] It is the best disinfectant. There may, in fact, be certain kinds of requests to remove something that might be justifiable in certain situations if they're not coercive, but they're just kind of appeal to somebody's better instincts. Maybe, maybe not, but presumably it's something that members of this committee, that other members of Congress might be interested in, that reporters for newspapers might say, "Well, here's a list of all of these things that the government has been asking that people remove. Is it justifiable or not? Is it excessive? Does it show political bias?"

That's impossible to do if it's all essentially corporate secrets and government secrets.

Sen. Deb Fischer (R-NV):

I'm picking up on Senator Klobuchar's... I'm over time. Can I finish? Thank you.

Senator Klobuchar was saying is she's worried, as I think many of us are, with AI and things that are happening there, and at least to get a label, at least to get a label. Or do any of you know are these social media companies, any of these companies capable of doing that to be able to identify when something's been tampered with with AI, or if it's totally false to be able to do that?

Eugene Volokh:

That is a separate question, but a very important question. What you're asking, I think, is the technical question, which is even if they were just to do it on their own, can they do it?

Sen. Deb Fischer (R-NV):

Mechanism.

Eugene Volokh:

So my understanding is that there are ways of determining that. They're hard to do at scale. So perhaps a forensic examiner might look at a video, but it doesn't mean that you can have an algorithm that will reliably do it, and there's going to be false positives and false negatives.

There's also always going to be an arms race, right? If there's a better fake technology, better detector technology, better fake technology that evades the detector technology,

I'm not up on all the details, but my understanding is right now there is no guaranteed reliable mechanism of determining-

Sen. Deb Fischer (R-NV):

Then maybe you get into the whole-

Eugene Volokh:

... need a reliable mechanism of determining what [inaudible].

Sen. Deb Fischer (R-NV):

Then maybe you get into the whole question also on what's comedy? What's satire? It opens up a whole another avenue then.

Eugene Volokh:

That's absolutely right. There certainly is no software you can write that says, "Oh, this is obvious parody and therefore, it shouldn't be taken down or labeled."

Mr. Chairman:

Thank you, sir. Thank you, Mr. Chairman.

Sen. Eric Schmitt (R-MO):

Thank you. Senator Cantwell.

Sen. Maria Cantwell (D-WA):

Thank you, Mr. Chairman and thank you Professor Volokh for both the statement you made about Brendan Carr's coercive tactics, and that that wouldn't be appropriate, and for your recommendations on transparency and rules that I think would be a concept of just making sure that things were clear.

And to my colleague's comment, Senator Klobuchar, one of the reasons I appreciate many things she said, but one of the reasons I support the Blackburn legislation and joined her as a co-sponsored on the COPIED Act is because it gives the content holders some rights. And it shows who the content holders are, and then even in the case of compensation, which is an important issue to keeping competition and perfect information.

I will just note that during this debate, this committee and this body passed a public health emergency language related to deceptive practice language. It was unlawful to engage in deceptive practices related to the treatment, cure, prevention, mitigation or diagnosis related to COVID.

Why did we do that? Why did we give that extra power? Because there were a lot of crazy things online, like take bleach or what have you, and we wanted to make sure that we were being protecting consumers against deceptive practices as it related to that. That was passed in a very, very big partisan support by the Senate and became law.

Okay, so now to this Mr. Kimmel, this larger issue, even my colleague from the House who was chairman of the China Committee I see doesn't like the TikTok decision 'cause he doesn't think it goes far enough in banning the actual algorithm. We have this attempt by Carr to realign the deck chairs at this moment that we have competition shrinking, and so that's why it's so concerning to me.

And the unevenness, we had a hearing here, Facebook whistleblower who literally said the company knew that it was elevating hate speech as a way to increase the revenue for advertisers. And I feel like if a newspaper or a broadcaster puts false information in the paper, the community will respond, and that person will no longer be able to continue their business. But online, you don't even know that that's happening.

And so, making sure that we don't have these challenges, what do we need to do to really get people to understand that right now you could, in a very vertical way, have such an alignment that that influence that we're talking about now, of not being coercive, is actually done in major ways? Even as my Republican colleague in the House is saying, he's concerned about this as it relates to what TikTok might be doing.

Gene Kimmelman:

Well, Senator Cantwell, I think it's a critical issue, because as the technology has changed, the entire media landscape has changed. So I think we have to update our understanding of where is the excess power being used, how is it being used? These examples you've heard today all relate to a gatekeeper in the media landscape that is a tech company. We haven't always thought of them as being part of the same ecosystem, and I think we need to do that.

Because if you have such enormous power over the major ways in which the public gets news, information, can keep up about whether it's their community, or if it matters of public health or national affairs, we've got to make sure that they're playing by some reasonable rules, or that there's full competition in the marketplace to give people the checks and balances in the media. And that's what-

Sen. Maria Cantwell (D-WA):

You don't think Professor Volokh's statement about transparency is a bad idea? It's a good idea.

Gene Kimmelman:

No, it's a great idea. I think transparency is one element of this, but it's not enough to prevent the kinds of concerns about coercion and suppression if too few people have the megaphone, have the ability to turn on the microphone for the voices that need to be part of our public debate.

Sen. Maria Cantwell (D-WA):

And are you worried about too much content being behind paywalls? Because I am. I'm worried that the more this vertical integration. And that's why, again, I was so concerned about Chairman Carr's comments, in addition to the free speech, that if you start using this power as the FCC chairman, and you just allow for all of this vertical integration, and the next thing you know, it's kind of like on the sports issue, you put so much of it behind a paywall. How is the consumer just constantly being shortchanged by this whole change in the landscape?

Gene Kimmelman:

It's a huge problem, and that's why we need to make sure there's adequate ways for the companies that really invest in news and information, and gathering information that the public wants, engaging people in public debate, can finance that and present it so it's not all dumbed down and kind of diluted in an internet where there's just such massive information flow that you can't tell fact from fiction.

Sen. Maria Cantwell (D-WA):

You're talking about localism now.

Gene Kimmelman:

Absolutely. It's localism and it's preventing the few companies that seem to have amassed quite a bit of power already from getting any larger and acting as gatekeepers to our public debate.

Sen. Maria Cantwell (D-WA):

Thank you. Thank you, Mr. Chairman.

Sen. Bernie Moreno (R-OH):

Thank you to all the witnesses for being here. If there's no objection, I'd like to put into the record a letter sent from this committee back in 2018 to the chairman of the FCC, requesting that Sinclair broadcasting licenses be reviewed, because in the minds of the 12 Democrats, including two on this committee, felt that Sinclair was perpetuating misinformation. So we'll put that into the record. Which I find, given the conversations around Commissioner Carr, I find that decently ironic. Mr. Volokh-

Sen. Maria Cantwell (D-WA):

Can I just make a-

Sen. Bernie Moreno (R-OH):

We can do it at the end. You have your time. So Mr. Volokh, you mentioned that you came to the US 50 years ago. Congratulations. I came to America a little bit more than 50 years ago, which I hate to actually say in public testimony 'cause it makes you feel old. You probably, like me, had to learn English watching TV. How many TV stations and use information sources were there back then?

Eugene Volokh:

So I do remember in LA-

Sen. Bernie Moreno (R-OH):

You have to hit the button so we can hear you.

Eugene Volokh:

Button. Sorry. When we came to LA, I think there were maybe six or seven VHF, and then if I twiddled the antenna right, I could get four or five UHF.

Sen. Bernie Moreno (R-OH):

Did you listen to a lot of podcasts?

Eugene Volokh:

I believe that I was not allowed to listen to podcasts in 1975.

Sen. Bernie Moreno (R-OH):

Well, it didn't exist. It didn't exist.

Eugene Volokh:

Exactly.

Sen. Bernie Moreno (R-OH):

Did you go online and get sources from online sources?

Eugene Volokh:

No.

Sen. Bernie Moreno (R-OH):

Did you go on X or Facebook or Twitter? Did you open TikTok?

Eugene Volokh:

I did not.

Sen. Bernie Moreno (R-OH):

[inaudible] Facebook, Instagram? None of that existed because I-

Eugene Volokh:

A lot better now.

Sen. Bernie Moreno (R-OH):

... I just find it interesting that my colleagues are talking about how broadcast TV and monopolism. And Mr. Kimmelman, you talked about that, which I thought was just fascinating, that there's all of a sudden this lack of resources to find information when there's never been more ways to get information than there is today. But Mr. Kimmelman, I have a question for you. You're over at the Harvard School, is that correct?

Gene Kimmelman:

At the Kennedy School. Yes.

Sen. Bernie Moreno (R-OH):

The Kennedy School. So, you would agree with all of us, I think, that free speech is important. You would agree with George Washington's comment that, "If freedom of speech is taken away, then dumb and silent, we may be led like sheep to the slaughter." You would agree with that, right?

Gene Kimmelman:

Certainly.

Sen. Bernie Moreno (R-OH):

What are you doing about Harvard's F rating for free speech?

Gene Kimmelman:

I'm a fellow at the Kennedy School. I have a very-

Sen. Bernie Moreno (R-OH):

No, I mean have you spoken to your colleagues? Have you made a protest? Have you rallied the students to say, "How do we get rid of this F rating?" I can't imagine Harvard students would find it objectionable to have an F in anything. What are you doing about fixing Harvard?

Gene Kimmelman:

There's a lot of discussion I know around me, about trying to make sure there's an open environment for learning.

Sen. Bernie Moreno (R-OH):

But they have an F rating, just to be clear. They have an F rating. Harvard has an F rating in free speech, and you're here giving us lectures on free speech doesn't exactly ring very hollow. Mr. Berenson, quick question for you.

We need to put on a record. What was the outrageous things that you said in 2021 that got you thrown off Twitter? Were you planning to overthrow the United States government? Were you creating a militia? Give me an example. Give me a flavor of the outrageous things that you must have said.

Alex Berenson:

The tweet that got me banned from Twitter on August 28th, 2021 began, "It doesn't stop infection or transmission."

Sen. Bernie Moreno (R-OH):

What?

Alex Berenson:

Yes.

Sen. Bernie Moreno (R-OH):

Are you saying that a mask, a cloth mask does not stop the spread of COVID? How dare you say those kinds of outrageous comments.

Alex Berenson:

I said that the mRNA vaccine did not stop infection or transmission.

Sen. Bernie Moreno (R-OH):

And did it?

Alex Berenson:

I think I might be the only person in this room who wasn't vaccinated with the mRNA vaccine. We all got COVID.

Sen. Bernie Moreno (R-OH):

Did the vaccine stop the spread?

Alex Berenson:

No, no, of course not.

Sen. Bernie Moreno (R-OH):

So, you were allowed to be wrong, but you were right. Now, what accountability has been in place for that? Who has been held accountable for this?

Alex Berenson:

Well, Twitter actually admitted that they shouldn't have done that.

Sen. Bernie Moreno (R-OH):

No, no, they admitted it, but what accountability? Because that costs you money, that cost you direct money in your pocketbook. What accountability has been put in place?

Alex Berenson:

There's been none. More important than accountability, I didn't get to tell people what I thought and there were... I was getting hundreds of millions of views a month. People wanted to hear what I thought and the Biden administration didn't like it, and they forced Twitter to ban me. And I will also say it is outrageous-

Sen. Bernie Moreno (R-OH):

So you're saying the United States government, elected officials who swore an oath to the constitution, told private media companies to terminate your account, which cost you your money?

I assume you're not naturally wealthy from five generations of wealth and that you actually have to work for a living, and that ability to earn income was taken away from because you dared to have an opinion on a vaccine?

Alex Berenson:

I regard it as more important that I wasn't able to say what I thought. The money matters less to me, and I also have to say this, Pfizer made $100 billion selling that vaccine, and Pfizer officials cooperated or collaborated with the Biden administration. It is a scandal.

Let me just say one thing. If I had been reporting on plane crashes and Boeing had colluded with the Biden administration or the Trump administration, it would be a national scandal that a Boeing official had leaned on a social media company, but Pfizer somehow got away with this.

Sen. Bernie Moreno (R-OH):

Yeah. And in her opening statement, the ranking member talked extensively about protecting free speech, but then stated she wasn't referring to hate speech. I think what maybe my colleagues mean to say is speech that they hate, because hate speech is in the eye of the beholder. Do you agree, Mr. Davis?

Sean Davis:

I completely agree. Hate speech, misinformation, disinformation. They're just fancy words that people use to shut down speech they don't like.

Sen. Bernie Moreno (R-OH):

Right. So if I say that there's only such thing as a man and a woman, that maybe when I got to the US 50 plus years ago, somebody would've said, "Why did you say that?" Obviously there's only men and women. I come from a culture where our entire language is male or female, but that could be considered hate speech, right? If I say that?

Sean Davis:

It was for a long time. If you said that on Twitter for several years, you ran the risk of being censored, shadow-banned or permanently suspended.

Sen. Bernie Moreno (R-OH):

Well, obviously, we'll talk more about this topic. I do find it interesting that my colleagues, who were totally and completely complicit during the Biden era, that were absolutely applauding people being thrown off social media, that were saying that any commentary about a Hunter Biden laptop story being misinformation was considered an insurrectionist. That now, all of a sudden, clutch their pearls because a moronic second rate comedian who makes $16 million a year got fired from his job for having atrocious ratings is somehow now an attack on free speech. I don't know that they have the moral high ground here, but thank you for your testimony, and I recognize Senator from Nevada.

Sen. Jacky Rosen (D-NV):

Thank you. Thank you for being here today and speaking your mind. It's about the First Amendment. Appreciate that because the freedom to express yourself and speak your mind is the cornerstone of America. It's one of the main ways we distinguish ourselves from other nations. In the United States, you are free to criticize whomever you want, including government leaders without government censorship.

And so, it is wholly appropriate and indeed necessary for this committee to hold oversight hearings at focus on protecting this critical right from being eroded by anyone. But that is not the focus of today's hearing. Rather than providing us with a forum that will evaluate truly harmful government censorship, this has become increasingly commonplace under the Trump administration undertaking an effort to settle old political scores against an administration that is no longer in power.

There are issues that we have to deal with. And we do want to support, and we must support free speech, but this hearing is not the place. Two weeks ago I sent a letter to Chairman Cruz calling for the FCC chairman to testify before this committee, after he threatened to revoke broadcast licenses over Jimmy Kimmel's comments criticizing President Trump. I was particularly concerned, as I know the chair was, from his statements, calling the threat mafia-like. Chairman Cruz called the Threats mafia-like.

With this clear attempt to suppress speech, comedian. However, I'm disappointed that that's not what's the focus of today's hearing. Chairman Carr's later backtracking, claiming there's some sort of local community exception to the First Amendment. There's no exceptions. You have free speech or you don't, and we know those limits. There's precedent for that.

His comments, Chairman Carr's, were reprehensible and we demand full accountability. Indeed, as weak excuses have been repeatedly contradicted by the president's own statements. President Trump has said outright that the reason the FCC should revoke broadcast licenses is because of negative coverage of his administration. I want there to be journalists that looks at things.

This is the clearest possible violation of the First Amendment. The President of the United States directing an agency to revoke a license of networks that run a critical story of him? There never would have been press or print or TV or radio. You could go back 250 years if all presidents did this. This is government censorship by our president, plain and simple. It's what they do in Russia. It's what they do in North Korea. It's what they do in China. It is not what we do in a democracy that has a First Amendment.

There was attacks and free speech. They harm not only our democracy but our economy. Last month, it was Brendan Carr's interference in the private business decisions of large media companies, but tomorrow could be tech, energy, tourism, any other industry could be impacted. In Las Vegas, we're seeing fewer international tourists because people are afraid to come to the US under this administration.

People planning to travel to the US see this administration detaining people for posting something online that's critical of the president in another country where they live, and they cancel their trips to America out of fear of US government retaliation, and the consequences for economy are substantial. So Mr. Kimmelman, can you discuss the direct impacts of infringement on speech rights? And can you tell us what you see as the biggest threat to the First Amendment writ large, please?

Gene Kimmelman:

Sure. Well, the threats, coercion, chill speech. Either they suppress directly or create an environment in which everyone is afraid to speak his or her mind, to engage in debate, to have the kind of open discussion that our democracy requires. So it's extremely dangerous.

Obviously, as you point out, when the government does it directly, it is horrible. It is a First Amendment violation. It needs to be stopped. But it also can happen when tech platforms become too powerful, when they don't face competition, when they play a gatekeeper role.

This could be the same if there's too much roll up of media and it's the most popular media. Senator Moreno made a good point, there's so much more out there than before, but it's not just availability, it's what do people rely upon? What is most popular? What do they need to get news and information?

And so anywhere there's a chokehold, I think there's an appropriate question of is it too much concentration? Is it too much power? Does it work for our democracy? And that's where Congress has a role to set guardrails.

Sen. Jacky Rosen (D-NV):

Thank you. I see my time is up. I appreciate this hearing and wish that we would be having Chairman Carr here to discuss some of free speech open on the open platforms. I look forward to Chairman Cruz working with us to get that on the docket. Thank you.

Sen. Eric Schmitt (R-MO):

Thank you, Senator. I'm told that we will do that. We need to open the government up first, right? That's the first priority. I'll also note that I ask the Chairwoman to have Elena Kahn come before this committee. Never came in my two years. I asked for Pete Buttigieg to appear, the Secretary of Transportation never appeared in my two years, but I know the Chairman is committed to having the FCC and the FTC here. Senator Blackburn.

Sen. Marsha Blackburn (R-TN):

Thank you, Mr. Chairman. That's exactly right. We're looking forward to being able to return to regular order and to do oversight. Just one item I want to mention. There was a comment, "Tourists aren't coming because they're fearful of words." Tourists aren't coming because they're fearful of crime. And there are so many stories that bear this out.

When you look at New York City, when you look at Chicago, when you look at the effect that violent crime is having in some of these cities, I'm very grateful that President Trump has made it a priority to address this. We are seeing fantastic results in Memphis from the increased presence that is there from the Memphis Safe Task Force, which is 13 federal agencies.

The Tennessee Bureau of Investigation, the Tennessee Highway Patrol, the National Guard will be going in there this week to assist the Memphis PD. They've arrested nearly 1,000 gang members and they have already started the process with indictments and moving these criminals into court. And indeed, we're very grateful for that. And we know the crime level needs to come down in these big cities so people do want to go to these cities.

Mr. Davis, always good to see you. Grateful that you are here and for the good work that you all do, and pleased that Ms. Hemingway is here today also. I want to talk with you a little bit, because I know The Federalist and your team at The Federalist was constantly on the receiving end of some of these attacks and actions from the Biden administration.

And I'd like to hear you talk about why you all were on the receiving end, why you felt like you were on that, and why you were accused of misinformation, and why their goal was to always shut you up? And we know that the left made a great sport out of shutting up conservatives and attacking conservatives, and as we learned this week, surveilling conservatives.

And of course, seven of my Senate colleagues and I found out that the FBI was surveilling us and pulling our phone records. And I think it would be helpful if our were colleagues across the dais wanted to join us in calling the FBI out, the Biden led FBI out about those actions. But lay out for me what you all experienced and why you felt like it was such a repeated attack on you and The Federalist.

Sean Davis:

Well, thank you, Senator. It's an honor to be here in front of you and wonderful to see you, as always. You pose a great question, why were we targeted? I'm reminded of the quote, I think it was the baseball player, Reggie Jackson, "They don't boo nobodies." Well, they don't censor nobodies either. In fact, it's the most effective voices which tend to be targeted for censorship. And at The Federalist, we are extremely effective at tearing down false narratives and reporting the facts.

We have a team of absolutely fearless, courageous journalists who get up every day to tell the truth and report the facts, especially when they might be facts the government doesn't want people to hear. And so they targeted us because we were effective, because we were exposing the lies about the Russia collusion hoax, about the Kavanaugh hoax, about COVID-19 lies, that it came out of a wet market in China.

We were exposing ridiculous new election laws that ignored existing laws in the Constitution in 2020. We exposed the whole Hunter Biden laptop thing, which was 100% real. It wasn't a hoax. Somebody remarked earlier that, "Oh, well, you have the market to take care of if a newspaper or network says something that's not true, why people won't follow them?"

Well, know that's not true because MSNBC and CNN, they're all still around. They lied repeatedly. They were not targeted for censorship. And I have to say, it's nice to be here to hear a bipartisan support for free speech. Man, I wish a lot of y'all were helping us as the Biden administration was censoring us.

We've been in federal court for two years trying to vindicate our free speech rights, and I got to tell you, it's pretty aggravating being an American citizen whose family's been here for hundreds and hundreds of years to see illegal immigrants get faster action in federal district courts than we've gotten. We are still awaiting vindication and relief, and we were not targeted because what we were saying was false. We were targeted because what we were saying was true.

Sen. Marsha Blackburn (R-TN):

And talk to me about the expense of having to be tied up with trying to get your day in court for that period of time.

Sean Davis:

It's extensive. Thankfully, we have lawyers who are representing us out of the goodness of their own hearts. But if you look at the effective censorship over years, Alex made the great point that you cannot compensate someone for the crime of having shut them up by unjustified means for years. That speech that he should have been able to give for years, he can never give. That opportunity is gone.

But there's also a real cost in terms of money. I cannot even begin to think about how many millions or tens of millions of dollars we lost out on because our advertisers were targeted, because our readers were targeted, because Facebook and Google and Twitter and YouTube were told to throttle us. It has to be in the millions or tens of millions of dollars. Quite frankly, we're owed restitution.

Sen. Marsha Blackburn (R-TN):

Thank you. Thank you, Mr. Chairman.

Sen. Eric Schmitt (R-MO):

Thank you. Well, I'm sure you'll support my legislation, which would give a private right of action to a citizen to sue an individual government bureaucrat for suppression of speech. I think that turns the tables on the incentive structure that currently exists. Senator Markey.

Sen. Ed Markey (D-MA):

Thank you, Mr. Chairman. We've heard a lot today about the Biden administration's supposedly censoring of conservatives by talking to social media companies about misinformation. Republicans have wasted an enormous amount of time and resources over the past few years attempting to prove this theory correct, only for it to be repeatedly proven false.

The Supreme Court shot down their big lawsuit against the Biden administration in a six to three vote. Their big House Judiciary Committee investigation came up empty. And in the Chairman's Report last week, the supposedly incriminating emails from Biden administration officials pressuring the big tech platforms to censor conservatives included explicit disclaimers that the officials weren't threatening any action against any platform. Strike one. Strike two. Strike three. Your out, Republican theory of censorship.

Since my Republican colleagues seem confused about what actual government censorship looks like, I thought I could show a few of them to you. It's not just the mafia boss threats from Brendan Carr at the FCC to Disney and ABC, on six different occasions, Donald Trump took office and he now has posted on Truth Social explicitly calling for the Federal Communications Commission to revoke broadcast station licenses owned by major networks over their editorial decisions.

On February 6th, Trump said CBS should, quote, "Lose its license over its interview of Vice President Kamala Harris in the fall of 2024." Just over two months later on April 13th, Trump again said, "CBS should lose its license for its Harris interview," on July 26th. Trump wrote, "Networks aren't allowed to be political pawns for the Democratic Party. It has become so outrageous, that in my opinion, their licenses could and should be revoked," on August 24th. That was a big day for unconstitutional threats.

Twice in under an hour, Trump said that ABC and NBC should lose their licenses. And then just last Sunday, Trump said the FCC should, quote, "Look into the license of NBC." Mr. Kimmelman, do you agree that the explicit threats from the President of the United States against broadcasters are far more dangerous than emails from the Biden administration officials identifying online misinformation?

Gene Kimmelman:

Yes.

Sen. Ed Markey (D-MA):

Mr. Kimmelman, how many times did President Biden threaten to revoke a broadcast license in our country?

Gene Kimmelman:

None, to my knowledge.

Sen. Ed Markey (D-MA):

Mr. Kimmelman, how many times did President Biden publicly direct his FCC chairman to look into a broadcasters license?

Gene Kimmelman:

None, to my knowledge.

Sen. Ed Markey (D-MA):

Again, zero. This hearing is a farce. We're not focusing upon the imminent threat to the First Amendment, the beating heart of democracy, freedom of speech, freedom of press. That's what this hearing should be about, what's going on at the FCC right now.

We are re-litigating an issue that the Supreme Court has already decided, that in fact, independent analysts have debunked, even as President Trump and Federal Communications Chairman Brendan Carr and other Trump officials wage a war on free speech that this country has not seen since the McCarthy era in the 1950s. Like during that Red Scare, if you are a voice of dissent in this country, you have a target on your back, and they let you know you have a target on your back if you speak up.

Law firms, universities, protesters, news media, all have faced this administration's wrath for their political speech. These threats are real. They're scary, and they undermine our democracy. The President is threatening the free speech of the broadcasters in our country every time they dare to run some news story that questions their judgment as an administration.

Yet, we're wasting time here trying to distract the American people with old emails from the Biden administration while Chairman Carr turns the FCC into the Federal Censorship Commission, threatening free speech, censoring free speech in our country, allowing Donald Trump to continue with his direct attacks on the First Amendment in our country.

This isn't urgent crisis for our country. Our democracy is at risk when the First Amendment is being challenged so fundamentally by the President of the White House, and instructing his chairman of the Federal Communications Commission to revoke the licenses of anyone who dares run any program that runs contrary to his views. That's what we should be focusing upon right now. That is the threat to our democracy. Thank you, Mr. Chairman.

Sen. Eric Schmitt (R-MO):

Thank you, Senator. In the mix-

Sen. Bernie Moreno (R-OH):

Mr. Chairman, just a quick question to my colleague, just five seconds. Did you sign on to that letter asking the FCC to revoke the license of Sinclair Broadcasting in 2018?

Sen. Ed Markey (D-MA):

I'll have to go and to review that, but from my perspective, what Trump is doing right now at a presidential level, ordering the FCC to act is absolutely an imminent threat to our democracy. Thank you.

Sen. Eric Schmitt (R-MO):

And I also, mixing sports metaphors on your strikes, I'm going to throw the red flag because the Federal District Court, I know something about this, said that the Biden administration had engaged in the worst example of violation of the First Amendment in American history. That decision was upheld by the Fifth Circuit. The Supreme Court did not rule against it. It sent it down. It didn't rule on the merits. It sent it down for a standing issue. So, Senator Peters.

Sen. Gary Peters (D-MI):

Thank you, Mr. Chairman. I'd first just like to start by making a very clear statement. Government censorship is wrong, full stop. Never should be tolerated. That should be no matter what side of the aisle that you're on. I think we can agree that when the government takes adverse action against speech that it dislikes that's bad for all Americans, and it's counter to the fundamental values that this country stands for.

As ranking member of Homeland Security and Government Affairs Committee, I have reviewed thousands of pages of documents, including testimony from the Cybersecurity and Infrastructure Agency employees, and I'll say that I simply don't agree that CISA, the agency, has worked in a coordinated effort to censor American speech. And the Supreme Court has basically agreed with that finding.

However, if there's evidence, if there's of wrongdoing on the part of anyone in previous administrations, I want to address it, and I'll work with folks on this panel to do that. Protecting free speech should not be a partisan issue. And that's why I'm disappointed that instead of having the FCC here today to discuss what our urgent, and I believe, a flagrant violation of America's First Amendment rights, as my colleague just mentioned before me, instead, we're rehashing...

Sen. Gary Peters (D-MI):

... colleague just mentioned before me. Instead, we're rehashing debunked claims regarding activities at CISA from 2018 to 2022. Since it was created in 2018, CISA has protected our nation against cyber criminals and foreign adversaries who are constantly, constantly seeking to breach critical networks and steal America's most sensitive personal information. And unfortunately, today we're hearing claims that have been debunked about the agency's mission and its vital work. The Supreme Court decision in Murthy versus Missouri found with regard to CISA quote, "The evidence does not support the conclusions that the relevant plaintiff made that CISA had violated the First Amendment rights." So it's the Supreme Court decision. None of the documents I've reviewed included instructions for the social media platforms to respond to CISA's questions on flagged content, nor did they attempt to cover up their interaction in some way with these companies. So it's concerning, to me, that the committee would choose to focus on a backward-looking claim, at a time when, today, currently we're seeing unprecedented efforts to wield government power as a tool to suppress free speech and stifle legitimate criticism and legitimate political discourse.

In recent months, the Trump administration has revoked media access, revoked media access, got to say it again, over news coverage that didn't flatter the president. Oh my gosh, horrible. You didn't flatter the president, you can't have media access. That's a high crime and misdemeanor apparently. He also sued media outlets who published content that the president doesn't agree with, and he has launched baseless investigations into the president's perceived political enemies. In one instance, the president's FCC chair, Brendan Carr, threatened to revoke the broadcast licenses of ABA Affiliates over comments made by a comedian. Oh my gosh, horrible. Comedian comments, revoke that license. President didn't like the comedy. Let's be clear. These acts are unprecedented, unprecedented in American history, and they rightfully raise alarms, I think, for every American. Thousands of Michiganders have reached out to my office saying that we must hold the Trump administration accountable to ensure that these abuses of power are not left unchecked.

And I certainly hope that the chairman of this committee and members of the committee will devote their efforts to examining these abuses that I mentioned, regardless of who commits them, because we must all stand up for First Amendment rights in the face of unprecedented overreach, and it's right to call out wherever we see it no matter who is saying it, no matter what administration. But let's not ignore what we're seeing in front of us right now constantly in the media.

So Mr. Kimmelman, a quick question. After threatening regulatory action against ABC Affiliates, if it did not suspend Jimmy Kimmel, FCC chair, Brendan Carr said, "If you're going to have a license from the FCC, we expect you to broadly serve the public interest." So my question for you, sir, is there a precedent for the FCC using the public interest, convenience, and necessity standard in the Communications Act to stifle First Amendment protected speech? And how has the FCC historically interpreted the public interest? How is this different?

Gene Kimmelman:

No, not to my knowledge, Senator. The FCC, it's a public interest standard. The FCC has used it very carefully. There's specific direction in the Communications Act beyond the Constitution itself of Congress reminding the FCC not to stifle speech, not to impede First Amendment rights, and the FCC has been very careful in that regard.

Sen. Gary Peters (D-MI):

So the comments made by the current FCC chair is simply unprecedented in all of your knowledge of past actions?

Gene Kimmelman:

In my experience, Senator, I've been doing this for more than 45 years, I have never seen anything like that.

Sen. Gary Peters (D-MI):

That's perhaps why it was so shocking to Americans all over this country, but apparently not to some individuals serving in the US Senate. Thank you. Thank you, Mr. Chairman.

Sen. Eric Schmitt (R-MO):

Thank you, Senator. Senator Luján.

Sen. Ben Ray Luján (D-NM):

Thank you, Mr. Chairman. Mr. Chairman, before I begin, one of my colleagues raised a letter that was sent to the FCC back in 2018 that was signed by Democrats. I don't know how many of you know who the chair of the FCC was in 2018? Do any of you know? Does the name Ajit Pai sound familiar? Do you know who was President 2018? Donald Trump. I'm sorry if I stumped you all. It was Chairman Pai that denied this thing and Chairman Pai, in his order, he said something along the lines of, "What was submitted to the FCC lacked candor." It's funny to me how there's so many legal ways to call a lie, a lie. When the FCC says a submission lacks candor, it means that it intentionally provided false or misleading information, omitting crucial facts, just so that the record's straight.

Mr. Volokh, just a few weeks ago, the Federal Communication Commission Chairman Brendan Carr, made several statements. You've heard a lot of them today, with regulatory action over remarks made by Jimmy Kimmel, if they "didn't take action". In his own words, Chairman Carr said, "We can do this the easy way or the hard way." Now, to be clear, ABC can suspend Jimmy Kimmel's show for whatever reason they want. However, the fact pattern that led ABC to suspend Jimmy Kimmel's show involved a government official, in this case, FCC Chair Carr, making direct threats. As you have written, "But if the government coerced ABC into suspending the show through threats or of retaliation, that would've likely violated the First Amendment." Yes or no, if ABC acted to remove Jimmy Kimmel because of FCC Chairman Carr's threats, would Carr's actions violate the First Amendment?

Eugene Volokh:

Yes, I think so.

Sen. Ben Ray Luján (D-NM):

Unfortunately, the events from a few weeks ago related to Kimmel's show was not the first time that Chairman Carr's weaponized the FCC against broadcasters since he took office. Mr. Kimmelman, I'd like for you to help get some facts on the record. I think you answered these to Chairman Markey, but questions sometimes need to be heard twice, as the response is, did President Biden ever direct Chair Rosenworcel to investigate a media company, "pull their license and impose the maximum fines and punishment", by the way, that's a quote from Donald Trump for their unlawful and illegal behavior immediately after threatening to sue that company?

Gene Kimmelman:

No, Senator.

Sen. Ben Ray Luján (D-NM):

Did President Biden suggest Chair Rosenworcel should revoke broadcaster licenses for giving him "bad publicity"?

Gene Kimmelman:

No, sir.

Sen. Ben Ray Luján (D-NM):

Did Chairman Carr reinstate complaints against NBC, ABC and CBS for election coverage that were dismissed by the prior FCC?

Gene Kimmelman:

Yes, Senator.

Sen. Ben Ray Luján (D-NM):

Did Chairman Carr launch investigations into local NPR PBS stations alleging that they could be violating federal law by airing commercials?

Gene Kimmelman:

Yes, Senator.

Sen. Ben Ray Luján (D-NM):

Has Chairman Carr openly threatened to remove Comcast broadcast license over news coverage?

Gene Kimmelman:

Yes, Senator.

Sen. Ben Ray Luján (D-NM):

Now look, what's disappointing is that's just a sample of what's recently happened, and I appreciate this hearing. I think this was a good hearing. There are a few of us that actually authored legislation to say, "FCC, keep your hands off of these media companies. Protect the First Amendment, follow the law." I hope that's something that you all will take a look at and see if maybe there's bipartisanship. And if anyone's worried about doing it under this president, let's say the next president. Let's just say, "Let's take this off the table." So I certainly hope that's something that we can all do together.

Now, Mr. Kimmelman, President Trump has developed a habit of suing media companies if they report or publish content he doesn't like. He sued CNN, ABC, CBS, Washington Post, Wall Street Journal. I mean, it goes on and on. Trump even sued the Pulitzer Prize winner to New York Times and Washington Post for their reporting about Russian interference in the 2016 election. Now, some of the media companies such as ABC and CBS chose to settle, others are still fighting. Even if a lawsuit is baseless, what effect does it have on the opposing party, Mr. Kimmelman?

Gene Kimmelman:

Senator, it has an enormous chilling effect. Even as you've heard from my colleagues on this panel here in a different context, it's overwhelming to take on the government even if you think you can vindicate your rights. It's daunting task and it tends to pull people away from presenting the views, actually trying to vindicate their rights because it is such an overwhelmingly costly endeavor.

Sen. Ben Ray Luján (D-NM):

Look, I think it's fact that Meta paid 22 million to President Trump to settle a lawsuit. Did Paramount pay? Yes, $16 million to President Trump as well. After Skydance settled, there was a merger approved within days as well. As a matter of fact, my team looked into the last time that a president sued one of these media companies. They had to go back to Teddy Roosevelt to find it. And do you know how much the settlement was for? 6 cents. Anyhow, there's a little trivia for you all as well. Look, as my time concludes, Mr. Davis, I don't know if you've ever been asked this, I can't find anywhere on the record where you've answered it, who won the 2024 election in the United States of America?

Sean Davis:

Who won the 2024 election?

Sen. Ben Ray Luján (D-NM):

Yeah, for president.

Sean Davis:

Joe Biden was elected president.

Sen. Ben Ray Luján (D-NM):

In 2024?

Sean Davis:

Oh, excuse me, sorry. Had 2020 brain.

Sen. Ben Ray Luján (D-NM):

That was misinformation right there. So lets set the record straight. Who won the 2024 election?

Sean Davis:

I was in government censorship mode. Donald Trump won the 2024 election.

Sen. Ben Ray Luján (D-NM):

Who won the 2020 election?

Sean Davis:

Joe Biden was elected president in 2020.

Sen. Ben Ray Luján (D-NM):

I appreciate that very much. Mr. Chairman, I yield back.

Sen. Eric Schmitt (R-MO):

Thank you. Well, since we're doing some presidential history, Mr. Davis, could you name the last president that was a prosecutor, attempted to throw in jail for the rest of his life and impoverish his family? Has that ever happened?

Sean Davis:

Yeah, I recall Donald Trump being threatened with-

Sen. Eric Schmitt (R-MO):

Right, the only one. Not even Teddy Roosevelt, since we're going back in time. I do want to ask you, Mr. Kimmelman, because just as a follow-up for it, and I'm going to get to you just very quickly, the question was a president suing a news organization and you said that the government taking that on would have a chilling effect. You're not arguing that an individual citizen as President Trump suing a media company for lies as its threat to the First Amendment, right?

Gene Kimmelman:

No. No, I'm not.

Sen. Eric Schmitt (R-MO):

Thank you. Senator Blunt, Rochester.

Sen. Roy Blunt (R-MO):

Thank you, Mr. Chairman. To my colleagues, yesterday there was a split screen on the news, coverage of committee hearings and a shutdown clock. It was a tale of two realities. Republicans continue to call for hearings like its business as usual, while Americans are literally living in the midst of a shutdown that jeopardizes their health, that jeopardizes their jobs and the services that Americans rely on. So the issues before us are vitally important, but our number one priority in this moment should be reopening the government and restoring people's healthcare. So today, I want to use my time to remind all of us what is at stake. We're in a pivotal moment. Energy costs are up, food prices are up, the rent has gone up for many, and millions of Americans in red states and blue states alike are on the brink of their healthcare costs doubling or losing it altogether.

From small businesses, to farmers, to ranchers, to moms and dads, at this very moment, Americans across our nation are making some very difficult decisions about how to make ends meet. We can fix this, but it requires negotiations. It requires us all to do our jobs and to find a path forward together. We can reopen the government, we can restore healthcare for the millions of Americans who are counting on us. But it requires urgency, it requires trust, and it requires willingness to come to the table now. My Republican colleagues control the White House, the House and the Senate. The ball is in your court, let's make a deal. Thank you, and I yield back, Mr. Chairman.

Sen. Eric Schmitt (R-MO):

Thank you, Senator. I want to ask just a couple of questions before we close out here, because this is a topic of great interest to me. Mr. Davis, obviously this agenda that was at work cost you a lot, critical resources for your publication, your family. Given organizations, I mean, there's so many of these that we just do not have time to go into them. I mean, the truth of the matter is, what was uncovered was that we took their deposition. The CDC had approved words and phrases that social media companies could use in this secret portal that was established between the government and these social media companies conveyed this. And if people utter this phrase, I mean, this is prior restraint, this is what you will take down ahead of time.

CISA was very much involved in this. You have an alphabet soup of agencies most people have never heard of that were weaponized against millions of voices in this country. We talk about President Trump a lot, but there's just a lot of just people who were online who had questions about forced masking of kids or the vaccine mandate, all those sorts of things. And they were throttled or taken down. So given what you know about organizations like the Election Integrity Project, that's another one, in collaboration with CISA and receive taxpayer funding, how are these NGOs still working currently to harm individuals from speaking their mind, particularly conservatives?

Sean Davis:

Yeah, it's a great question. The thing about these censorship tools, technologies and efforts is they're a little bit like injecting something into the body's bloodstream. They inject it in, it's in there, it's working its thing. And just because you pull the needle out, doesn't mean the effects are gone. A lot of these organizations are still out there using technologies and tools that were deliberately funded and distributed by the federal government for the purpose of censoring people like me, people like Alex Berenson, people like my colleague, Mollie Hemingway. I don't know if we will ever actually be free of the effects of this censorship industrial complex that the previous administration created. I don't know if we will ever be free of the horrible effect that it created, the horrible dampening and abridgment of our speech that we were forced to endure secretly for years in the extent of which we still don't fully know.

Sen. Eric Schmitt (R-MO):

Mr. Berenson, I want to ask you, in your kind of review of all this stuff after the fact, it's hard to probably pick one, what's the most shocking thing that sort of you uncovered or found out about this whole thing, your experience?

Alex Berenson:

That the White House would directly target me as an individual. And again, RFK. I think the White House, the federal government has tremendous power. It's more than it should go out there and say what it thinks and if it wants to promote mass or whatever it wants to promote, obviously it has every right to do that, but to target individuals or target entire classes of speech, I just don't understand how anybody thought that was okay. I'll tell you actually what the most stunning thing was, the companies didn't like it. You had private companies saying, "Hey, we're worried about the First Amendment." You had a British politician, the former Deputy Prime Minister of Britain saying to the White House, "I think there's a problem here." And the White House said, "Oh no, don't worry about it."

Sen. Eric Schmitt (R-MO):

And then lastly, then I'll look at Senator Hickenlooper. Mr. Volokh, I want to ask you, the NIST AI Risk Management Framework guidance advises developers, this is a government agency, to mitigate risks related to "harmful bias" and content that may not "distinguish fact from opinion or fiction". From a First Amendment perspective, what is the danger of the government suggesting that these AI companies or other platforms should filter out "harm" or "bias"?

Eugene Volokh:

Well, if the government were to mandate that AI companies restrict their outputs in particular ways, I think that would violate the First Amendment. Partly because of the rights of the companies, but partly because of the rights of users, users as listeners, users as people who would want to use the AI to create their own speech. At the same time, when it comes to government procurement decisions, or government needs to get AI for its own purposes, it has to insist that the AIs provide accurate information. I'm-

Sen. Eric Schmitt (R-MO):

You understand the danger of that though, right?

Eugene Volokh:

There's definitely a danger, but at the same time, again, the government as buyer, the purpose of AI is to provide accurate information. Social media, I think the main purpose is to provide information that users supply. It's to provide, I think, should be a largely unfiltered channel for the public.

Sen. Eric Schmitt (R-MO):

A pass-through platform, which is why they're given the Section 230 protections in the first place, correct?

Eugene Volokh:

Well, I do think that is a good model as a pass-through platform, but AI cannot be to be effective at pass-through platform. It has to make decisions that we hope are decisions in favor of more accurate information. Otherwise, the government as user of AI will be constantly deceived by it. So I think in its procurement capacity, the government needs to be able to insist that the AI companies do what it takes to provide more accurate information and to fight indeed misinformation in their own output. That is something that is required. And indeed, AI companies don't have Section 230 immunity in that kind of context for that very reason.

Sen. Eric Schmitt (R-MO):

Correct. I suppose I think this is going to be a big issue, whether you call it woke AI, whatever. The previous administration, one of the untold stories, to lock in, and I actually agree with Mr. Kimmelman on this point, to lock in the incumbents and the monopolies in exchange for that was to have algorithms that locked in this bias. And that is a very, very dangerous road to go down. So I don't think this is the last we're going to be... It's not really the purpose of this hearing, but since we're having the discussion I think its really kind of an interesting and important thing. Senator Hickenlooper.

Sen. John Hickenlooper (D-CO):

Thank you, Mr. Chair. And I agree completely that what we should be looking at is the algorithms, as much as the speech, because those algorithms are going to control what we get. And in a funny way, that's an abrasive and intrusive form of speech that has almost nothing to do with your freedoms. Let me just start by saying that the First Amendment to most of us is a bedrock of our country, it's a bedrock of a healthy democracy. It protects people from government censorship at every level. It provides free speech, but it's not unlimited. And we know that speech encourages violence, spreads lies from foreign enemies or defrauds people, fire in a crowded theater. That's not protected. But this freedom should be non-partisanist. Whether you're Republicans, Democrats or in power, we should all remain united in stopping these genuine threats to the fundamental civil rights of our society.

People in this country should be free to speak their minds without pressure, without censorship, not from government, not from government agencies or policies, not from companies acting under political influence. What worries me is that some claim to defend free speech only when it helps their political party and ignore it when it silences others. And I think it's worth reiterating that we're not here to pick sides, it's to make sure that we protect everyone's right to speak freely, no matter who they are, what they believe or what they're saying.

Let me start just by talking a little bit about campus. I went to a small liberal arts college in Middletown, Connecticut, the famous Wesleyan University. And they, like every school, had to navigate a lot of this in the last couple of years. We've seen an increase in people calling for imposing bans on peaceful organizing related issues such as the war in Gaza or Black Lives Matter. I think we also need to recognize our duty to protect the rights of conservative views that are expressed on college campuses. I know the Wesleyans worked very hard to make sure that they get both sides, but not everyone has. And whether we agree or disagree with each other, our right to that freedom of speech should be defended loudly and consistently. I think as long as we all feel that our safety is protected from threats of unconscionable violence.

So let me start, Mr. Berenson, regardless of ideology, as long as individuals or groups are not inciting violence with the intent to harm others, should they not have the same rights to free speech?

Alex Berenson:

Yes.

Sen. John Hickenlooper (D-CO):

Not a very complicated question, but it's one of those ones that I feel like the more times you can ask it on the record, each time you do that, it builds a little bit of a better foundation. Mr. Davis, you've defended conservative speech online. Would you extend that same defense to college students expressing their views about the US foreign policy or calling for racial justice, if their speech was censored by a state government?

Sean Davis:

Yeah, I don't think American citizens should be subjected to censorship by their government anywhere for any reason.

Sen. John Hickenlooper (D-CO):

Just wanted to make sure that's on the record. I was pretty sure what that answer would be. We've seen some disinformation campaigns from foreign governments. US government from under both Republicans and Democrats have worked hard to limit and counter farm propaganda. They're especially important. These efforts are especially important when it comes to stopping these disinformation campaigns that oftentimes are trying to interfere in our elections. Under the first Trump administration, the FCC even proposed to require the mandatory disclosure of all foreign sponsored content broadcast over TV or radio. Again, there are some that argue that disclosure would in fact be a form of limitation. I'm not saying that myself. Mr. Berenson, again, would you support the government having zero communication with companies about foreign disinformation campaigns that could affect US elections or public safety?

Alex Berenson:

I mean, I haven't really thought about that. Zero. I don't know. There might be a time when it would be reasonable, but I mean, you said foreign, right?

Sen. John Hickenlooper (D-CO):

Yes.

Alex Berenson:

So the First Amendment is not implicated. The problem as we've seen in the last 10 years, it's very easy to go down a slippery slope and you start interfering in American speech. So I think you have to be very careful.

Sen. John Hickenlooper (D-CO):

That's where that question comes from, especially when sometimes that disinformation is our foreign rivals or adversaries, Iran, Russia, China. Last question, Mr. Volokh, isn't there a difference between coercive threats and agencies actually sharing factual information about foreign disinformation campaigns? And I think one example of this would be Russia's 2016 interference efforts, and would you recommend the US government simply stop investigating foreign interference on our elections altogether? Or if we were to do that, would that help or harm our democracy?

Eugene Volokh:

So there is a difference between coercion and kind of other non-coercive communication. The coercion would be a First Amendment violation, the others may or may not be, depending, I think, on how systemic they are. I do think that indeed we've seen lots of situations throughout American history where attempts to try to suppress foreign influence have turned into attempts to suppress domestic dissent, including in the examples you gave of some people who are, I think, wrongly trying to suppress anti-Israel speech on campuses, are arguing, "Oh, these people are the cat's paws of Hamas and such." So I do think that even to the extent it's permissible for the government to communicate with the platforms, I think it's important that there be as much transparency as is possible consistently with the national security. And that it's especially dangerous when the government is trying to do that and then nobody finds out about it for years or until somebody manages to break the logjam in a lawsuit using discovery.

Sen. John Hickenlooper (D-CO):

Thank you. Mr. Chair, if I can ask one more question, it'll just be a yes, no, because this is one that I never really followed until I was partners with a remarkable woman named Joyce Meskis, I had a bookstore in Denver called the Tattered Cover, and she was a great defender of free speech. And she looked at it in that sense of, your speech is part of what you read and you should be able to read whatever you want without government interference or knowing about it.

And there was a domestic terrorist who had blown up, had a bomb. They were pretty sure that he had purchased the book on how to make this bomb at her bookstore and she refused to give the information over what her customers had purchased. And I just wanted to see, with each of you, in that situation, whether that's appropriate or not. And it's pretty much what it was. They wanted to find out whether this guy had bought that book from the bookstore as part of the case and she said, "You don't need that case. You got him on a million other things." This is a freedom of information issue. Yeah. Start with you, Mr. Volokh.

Eugene Volokh:

Yeah, so as I recall, I think she prevailed in that particular case. I'm not sure that the court got it right there. As a general matter, especially if there's probable cause in a warrant, all sorts of informations may need to be turned over and I'm not sure there should be a categorical prohibition on disclosure of that information, especially when there's probable cause in a warrant.

Alex Berenson:

I think that's a very smart answer and I will just go with it.

Sean Davis:

I am not familiar with the facts of that case, obviously, as you are. I think that's a pretty complicated one, so I'm going to have to decline on that one because I just don't have enough information, but that's a tricky one.

Sen. John Hickenlooper (D-CO):

You guys wouldn't make very good senators, all of our cases are pretty tricky.

Gene Kimmelman:

Senator, I can understand the sentiment that she expressed and why she did it. I think I agree with Mr. Volokh. If there's a real legal cause for that information to be handed over, every man has a right to it.

Sen. John Hickenlooper (D-CO):

I guess-

Sen. Eric Schmitt (R-MO):

I think they dodged pretty well, Senator. They'd make good senators.

Sen. John Hickenlooper (D-CO):

Exactly. They would be excellent material for senators.

Sen. Eric Schmitt (R-MO):

They pivoted.

Sen. John Hickenlooper (D-CO):

I think that the Supreme Court obviously did support her and that this was part of the free speech that should be protected. And I guess most of you disagreed with that so you can feel some comfort that precedence doesn't seem to be that all-powerful in the present court. So there's certainly a chance in a similar situation we might get a different ruling.

Sen. Eric Schmitt (R-MO):

Thank you, Senator.

Sen. John Hickenlooper (D-CO):

I yield back.

Sen. Eric Schmitt (R-MO):

Thank you all. I want to thank all the witnesses for their testimony here today. Senators will have until the close of business on October 15th to submit questions for the record. The witnesses will have until the close of business on October 29th to respond to those questions. And with that, it concludes today's hearing. The committee stands adjourned.