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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Former President Donald Trump was banned from Facebook, Twitter, and

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Speaker 1: Google for his role in stoking the January six insurrection,

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Speaker 1: and Trump is now escalating his battle against the social

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Speaker 1: media giants with three separate class action lawsuits. I'm filing

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Speaker 1: as the lead class representative a major class action lawsuit

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Speaker 1: against the big tech giants, including Facebook, Google, and Twitter,

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Speaker 1: as well as their CEOs, Mark Zuckerberg, Sunder and Jack Dorsey,

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Speaker 1: three real nice guys. Trump and the Republican National Committee

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Speaker 1: began blasting fundraising solicitations almost immediately after he announced the

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Speaker 1: lawsuits Yesterday. Joining me is Jim Dempsey, who teaches at

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Speaker 1: you See Berkeley Law School. What is the bay cysts

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Speaker 1: of President Trump's lawsuit? Well, the President Trump argues that

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Speaker 1: Facebook and Twitter and the other platforms have censored him

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Speaker 1: by denying him access by shutting off his accounts, and

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Speaker 1: he claims this is a violation of his First Amendment rights.

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Speaker 1: Unfortunately for Mr Trump, the First Amendment just flat out

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Speaker 1: simply does not apply to the actions of private entities.

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Speaker 1: The First Amendment protects us against government censorship, but doesn't

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Speaker 1: have anything to say about the decisions made by private companies.

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Speaker 1: An Internet group said that the action shows a deliberate

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Speaker 1: misunderstanding of the First Amendment and was without merriage. Is

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Speaker 1: the problem that these Czech giants are private and can

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Speaker 1: decide what they want to do on their platforms. That

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Speaker 1: the problem for the president. It's good for the rest

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Speaker 1: of us that all of our media in the United

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Speaker 1: States is privately owned. We don't have government media. We

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Speaker 1: don't have government newspapers, we don't have government social media.

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Speaker 1: So the First Amendment protects Mr Trump and protects all

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Speaker 1: the rest of us against government censorship. It protects us

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Speaker 1: against the government controlling our speech. Um, it protects us

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Speaker 1: against government infringements on free expression as well as exercise

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Speaker 1: of religion. But it has nothing to say. It simply

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Speaker 1: has nothing to say about what private entities do or say.

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Speaker 1: In fact, what President Trump is asking for, which is

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Speaker 1: trying to force Twitter and Facebook to carry him, That would,

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Speaker 1: in fact be a violation of whatever First Amendment rights

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Speaker 1: Facebook and Twitter have. The government can't force someone to

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Speaker 1: shut up, and the government, concluding the courts can't force

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Speaker 1: anyone to speak, So you can't have forced silence by

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Speaker 1: the government, and you can't have forced speech, and forcing

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Speaker 1: Twitter or Facebook or others to give a platform to

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Speaker 1: the President would ask basically forcing them to do something

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Speaker 1: that they can't be forced to do. To try to

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Speaker 1: get around that, Trump is arguing that the tech giants

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Speaker 1: work with the government to censor Americans and thus their

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Speaker 1: state actors who can be sued. Would that argument work?

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Speaker 1: I don't think that's gonna work. It's a pretty high

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Speaker 1: bar to make a private entity into a state actor.

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Speaker 1: You know, Mr Trump when he was president was pretty

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Speaker 1: effective himself at job owning the media and people work

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Speaker 1: the ref so to speak, on both sides of the aisle.

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Speaker 1: But that doesn't make the platform a state actor. That

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Speaker 1: doesn't make the social media company a state actor. So

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Speaker 1: I don't think that's gonna work either. Something has to

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Speaker 1: go pretty far to be said that a private entity

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Speaker 1: becomes a state actor. Tell us about Section two thirty

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Speaker 1: of the Communications Decency Act. Yeah, Section to thirty has

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Speaker 1: become a bit of a punching bag from both the

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Speaker 1: left and the right. President Biden, when he was candidate

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Speaker 1: actually said it should be repealed immediately. So in that

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Speaker 1: weird sense, President Biden and UH for President Trump, I

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Speaker 1: actually agree with the there uh, they did so for

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Speaker 1: opposite reasons, and people attacking sex and are attacking it

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Speaker 1: with very different outcomes in mind. Section to says two things. First,

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Speaker 1: it says social media platform Google, Facebook, Twitter is not

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Speaker 1: to be treated as the publisher or speaker of any

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Speaker 1: information they carry. So the speaker, the user, the content

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Speaker 1: creator is liabel for what they say Twitter, Facebook, Google

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Speaker 1: not liabel. Secondly, section says that the companies are free

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Speaker 1: to pick and choose what content they carry if they

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Speaker 1: consider something to be obscene reading for the statute obscene,

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Speaker 1: lewd of he is filthy, excessively violent, harassing, or otherwise objectionable,

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Speaker 1: whether or not such material is constitutionally protected. Again quoting

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Speaker 1: the statute, the companies are free to pick and choose

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Speaker 1: what they carry. And when you think about it, what

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Speaker 1: former President Trump is asking for would just be chaos.

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Speaker 1: So he's saying that he has a right, and I

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Speaker 1: guess every person has a right to insist that they

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Speaker 1: are material be carried. If you don't like what I'm

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Speaker 1: saying on this interview, I can't go and force you

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Speaker 1: to carry my quotes. If I submit an OpEd to

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Speaker 1: the newspaper, or if I call the radio station or

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Speaker 1: TV station and say I want to be on your

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Speaker 1: show and they say no, what you have to say

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Speaker 1: isn't worth newsworthy, or it's otherwise objectionable. I can't force

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Speaker 1: them to put me on the air. I can't force

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Speaker 1: you to carry my interview. But that's basically what Mr

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Speaker 1: Trump is asking for. It would just be chaos because

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Speaker 1: then the platforms would have no ability to control their service.

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Speaker 1: They would have to carry all kinds of hate speech

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Speaker 1: and racist stuff. You know, there's a lot of stuff,

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Speaker 1: a lot of content that is legal but objectionable. A

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Speaker 1: lot of hate speech, unfortunately is lawful. You can't be

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Speaker 1: censored for it. But the platforms, both the traditional ones radio,

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Speaker 1: TV as well as the social media ones, don't have

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Speaker 1: to carry it. And what section to thirty says is

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Speaker 1: you're not required to carry something you find objectionable. And

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Speaker 1: the alternative would be chaos. And I think conservatives who

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Speaker 1: criticize this portion of two thirty aren't really thinking ahead

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Speaker 1: very far, because they would just hate an environment in

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Speaker 1: which all kinds of anti Christian speech would have to

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Speaker 1: be carried and all kinds of hate speech or all

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Speaker 1: kinds of offensive material would have to be carried in

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Speaker 1: Section to thirty were eliminated, that would just be chaos.

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Speaker 1: Trump's legal team is asking the judge to declare that

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Speaker 1: Section two thirties unconstant stitutional. Suppose you have a judge

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Speaker 1: who's political and wants to make a statement. Could the

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Speaker 1: judge do that? Well, a judge could. I don't think

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Speaker 1: it would survive all the way up the line. The

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Speaker 1: Supreme Court has been very strong both conservatives and liberals

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Speaker 1: in recent years on free speech First Amendment issues, particularly

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Speaker 1: religious freedom issues, but other First Amendment issues as well.

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Speaker 1: But at the same time, I think the conservative majority

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Speaker 1: is also pro private property and pro private business and

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Speaker 1: is not going to get into a situation where it's

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Speaker 1: forcing private business to carry content of someone of the

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Speaker 1: private business wants to moderate and control what's on their platform.

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Speaker 1: So I would hope that no judge would use a

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Speaker 1: case to make a political statement. But I'm pretty confident

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Speaker 1: at any such lower court decision would not survive on appeal.

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Speaker 1: Do you think that this sue will be dismissed early

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Speaker 1: on the motion to dismiss stage, before there's any discovery. Yeah,

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Speaker 1: I think it will. Um I don't know that any

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Speaker 1: discovery would add anything to the case. Anyhow, facts such

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Speaker 1: as they are are in the complaint. UM. So most

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Speaker 1: people are saying this is more of a political and

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Speaker 1: fundraising move by Mr Trump than it is a coherent

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Speaker 1: legal effort. And I think again, to me, what they're

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Speaker 1: asking for here is um internally inconsistent. On the one hand,

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Speaker 1: they're saying that Twitter and Facebook should be libel for

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Speaker 1: the content they carry, and on the other hand they

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Speaker 1: should be required to carry content of anybody and everybody. Um,

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Speaker 1: if you make the platforms libel for the speech of

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Speaker 1: their their users, the platforms are actually a sensor. More so,

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Speaker 1: the theories here are very coherent. The First Amendment, I

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Speaker 1: think is pretty clear that there's no state action. There's

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Speaker 1: no application in the First Amendment to the actions of

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Speaker 1: private entities. Big tech is really unpopular and a Florida

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Speaker 1: law was supposed to go into effect prohibiting social media

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Speaker 1: platforms from suspending the accounts of political candidates, and that

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Speaker 1: was blocked by a federal judge in Florida. Well, the

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Speaker 1: Florida uh state legislature adopted and governor signed legislation that

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Speaker 1: was intended to address some of the issues of some

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Speaker 1: of the concerns around section to thirty and included a

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Speaker 1: provision that would have required the platforms to carry views

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Speaker 1: of candidates. I don't think that was very again a

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Speaker 1: very well considered provision in the first place, because you

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Speaker 1: really don't want to again the platforms to be told you,

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Speaker 1: you know, you must care the views of the powerful

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Speaker 1: out than the pick and choose among which candidates you

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Speaker 1: do carry, and you don't carry it again, it would

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Speaker 1: just be chaos involved the courts and all kinds of

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Speaker 1: minute decisions about what gets carried or what gets promoted

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Speaker 1: by the algorithm. But that law was struck down, so

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Speaker 1: in essence Section two thirties survived against that state legislative challenge.

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Speaker 1: I don't want to predict where that case will go

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Speaker 1: as it proceeds, But to look, two things can be

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Speaker 1: the seemingly contradictory things can can be simultaneously true. Um One,

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Speaker 1: the tech companies, the big platforms are probably too big.

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Speaker 1: They probably do have too much power, they probably do

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Speaker 1: have too much information about us, and um they probably

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Speaker 1: do exercise too much control. But at the same time,

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Speaker 1: the First Amendment and this section to thirty, to my mind,

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Speaker 1: are not are not the problem, and trying to use

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Speaker 1: the First Amendment against the companies. The First remember, protects

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Speaker 1: the companies that can't really be turned against them. Um,

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Speaker 1: that's just the wrong approach. And Congress is obviously struggling,

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Speaker 1: and Justice Department and the courts and the Federal Trade

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Speaker 1: Commission struggling with the anti trust laws and whether anti

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Speaker 1: trust is the way to think about this. So there's

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Speaker 1: a real I think there's a real problem here in

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Speaker 1: terms of the power of the big tech companies. But

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Speaker 1: this lawsuit isn't kind of feed the isn't going to

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Speaker 1: be the way that that those really serious problems are resolved.

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Speaker 1: Thanks Jim. That's James Dempsey. If you see Berkeley Law School.

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Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.

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Speaker 1: Americans are eagerly waiting for the pandemic to end, except

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Speaker 1: that is for the pusends of federal inmates who dreaded.

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Speaker 1: These are the prisoners released to home confinement under the

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Speaker 1: Cares Act, released until the pandemic ends. Once the government

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Speaker 1: declares the end of the pandemic, about half of the

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Speaker 1: inmates will be forced to return to prison, even though

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Speaker 1: they followed all the rules since their release. It's because

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Speaker 1: of a memo by the Justice Department's Office of Legal

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Speaker 1: Counsel issued in the waning days of the Trump administration

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Speaker 1: outlining its interpretation of the CARES Acts Home Confinement Provision.

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Speaker 1: Joining me is Bloomberg Legal reporter David Yaffee Beleny. So,

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Speaker 1: David tell us about the CARES Act and who was

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Speaker 1: released under the home confinement provision. Sure, So, typically typically

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Speaker 1: prisoners are eligible to be released to home confinement either

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Speaker 1: the last ten percent or the last six months of

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Speaker 1: their sentences, whatever happens to be shorter. So you know

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Speaker 1: that applies to a lot of a lot of people,

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Speaker 1: but it's obviously limited. After COVID hit, the CARES Act

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Speaker 1: expanded the Bureau of Prisoners powers in that area, allowing

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Speaker 1: them to release prisoners who or at least halfway through

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Speaker 1: who their sentences. And so that made thousands more people

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Speaker 1: eligible than it's ever been eligible before. And I believe

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Speaker 1: the current the current number of prisoners who are kind

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Speaker 1: of released pursuant to that expansion of the CARES Act

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Speaker 1: is around four thousand, four thousand people who are at

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Speaker 1: home with ankle monitors rather than sitting in a prison

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Speaker 1: cell who, if not for the Cares Act, would have

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Speaker 1: been imprisoned this whole time. And not many of them

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Speaker 1: have been sent back for violating the terms of their release. No,

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Speaker 1: only a tiny fraction of them have been sent back,

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Speaker 1: either for committing new crimes or for violating some of

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Speaker 1: the strict rules of home confinement. You have to wear

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Speaker 1: an ankle monitor, you have to report to prison officials

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Speaker 1: a few times a day they call, and you have

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Speaker 1: to be available to check in and that sort of thing.

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Speaker 1: You can't leave your home unless you know, you have

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Speaker 1: special permission or you're working a job, something along those lines.

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Speaker 1: But yeah, you know, for for the most part, this

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Speaker 1: has been a successful program. Only a hundred and ninety

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Speaker 1: of the prisoners sent home have actually been been sent

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Speaker 1: back to It's a very small percentage. And despite the restrictions,

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Speaker 1: some prisoners have been able to restart their lives. Tell

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Speaker 1: us about Brian Carr. Yeah, so, you know, Brian Carr,

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Speaker 1: for for example, was sentenced for drug conviction, serving his

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Speaker 1: sentence at at a prison camp in certain New Jersey,

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Speaker 1: but he was released under this program to start trying

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Speaker 1: to rebuild his life in Baltimore. He's living with family,

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Speaker 1: and he's seeing you children, and he hasn't been able

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Speaker 1: to see regularly while he's in prison. If you're playing

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Speaker 1: for his future, hoping to apply the technical school at

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Speaker 1: some point, hoping to eventually start some kind of logistics

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Speaker 1: So he's really kind of trying to move on with

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Speaker 1: So now he's faced with this new possibility. The Justice

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Speaker 1: Department's Office of Legal Counsel wrote a memo during the

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Speaker 1: Trump administration tell us about that. So, yeah, it's kind

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Speaker 1: of the dying embers of the Trump administration. The Office

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Speaker 1: of Goal Council within the Justice Department, which is a

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Speaker 1: you know, an office mostly mostly staffed by career officials

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Speaker 1: who basically answer kind of legal questions facing the Justice Department.

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Speaker 1: You know, they're not they're not producing kind of binding

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Speaker 1: legal opinions the way a judge would, but they are

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Speaker 1: answering legal questions, and their opinions kind of reflect these

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Speaker 1: sort of stamps of the government is taking. And so,

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Speaker 1: you know, officials that department were asked to determine what

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Speaker 1: would happen to these prisoners once the pandemic ended. Because

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Speaker 1: the way the CARES Active is written, it limits this

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Speaker 1: expansion of the Bureau of Prisoners powers to the emergency

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Speaker 1: period of the pandemic. So when it's no longer a pandemic,

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Speaker 1: you know, can these people stay free of that they

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Speaker 1: have to go back. And the opposite of legal counsel concluded,

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Speaker 1: and this was a legal analysis rather than a policy judgment.

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Speaker 1: They concluded that under the language of the statute, um,

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Speaker 1: these prisoners would likely have to be sent back. Some

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Speaker 1: who you know, might already have moved into that last

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Speaker 1: six months, last ten percent of their sentence period that

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Speaker 1: was that was covered before, they might be able to

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Speaker 1: stay home. But about half of the of the four

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Speaker 1: thousands who are currently at home pursuance the CARES Act,

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Speaker 1: you know, will be it will be affected when the

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Speaker 1: pandemic is over, and unless the government does something about it,

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Speaker 1: it looks like they'll be sent back to prison. So

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Speaker 1: what's the reaction been. I mean, I think people are heartbroken. Um.

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Speaker 1: You know, it's traumatic to go to prison once um,

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Speaker 1: but to be released, um, to sort of start reintegrating

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Speaker 1: society into society, to see your family again, and then

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Speaker 1: have to return. Is is a real emotional blow. I

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Speaker 1: think a lot of people are also, um, sort of

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Speaker 1: suffering uncertainty. Um. There are a number of things that

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Speaker 1: could be done to keep these prisoners at home. Good

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Speaker 1: Biden administration could grant them clemency, for example, or Congress

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Speaker 1: could pass new legislation, you know, making it clear that um,

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Speaker 1: for the people who have already been released under relief,

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Speaker 1: the home infinement. UM, you know, they can they can

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Speaker 1: stay there even after the pandemic ends. But we don't

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Speaker 1: really have an answer. I mean, it seems unlikely that

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Speaker 1: this opposite of legal council membo will be reversed. Um.

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Speaker 1: Most people agree that, you know, actually, you know, it's

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Speaker 1: a it's a pretty valid legal analysis. UM. And the

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Speaker 1: Biden administration has not made clear what it's what it's

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Speaker 1: putting to do with these with these prisoners. Tell us

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Speaker 1: more about the reaction of the prisoners themselves who have

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Speaker 1: been released under the Cares Act. Um. They're really devastated. UM.

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Speaker 1: You know, they've had to have tough conversations with young

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Speaker 1: children saying you know, hey, I've been back for the

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Speaker 1: last year, but I might have to have to go home. Um.

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Speaker 1: You know, I talked to one man, Robert Lustnik, who

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Speaker 1: was in Sleepy Hollow, New York, the farmer FBI agent

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Speaker 1: who UM was convicted of bribery. UM sent to prison

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Speaker 1: for fifteen years and finished about half a sentence and

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Speaker 1: then was sent at home. Um. You know, he has

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Speaker 1: avoided getting a COVID vaccine because he's afraid that if

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Speaker 1: he's inoculated against the virus, that will make it more

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Speaker 1: likely the Bureau of Prison sense and act when the

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Speaker 1: pandemic is over. Remember the initial reason for expanding the

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Speaker 1: b OPS authority under the CARES Acts to prevent the

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Speaker 1: spread of the coronavirus in prison. So you know, people

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Speaker 1: are putting themselves at risk to kind of avoid this state.

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Speaker 1: So have they appealed or have groups appealed to the

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Speaker 1: Biden administration? Um? Yeah, you know, members members of Congress

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Speaker 1: have written letters to the Biden administrations. Ad becausey groups

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Speaker 1: are very active talking to the media, you know, writing

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Speaker 1: their own letters, lobbying the Biden administrations as much as

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Speaker 1: they can. UM. I mean, I think there's there's some

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Speaker 1: debate within the advocacy community over whether the OLC memo

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Speaker 1: is the right target. You know, I think I think,

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Speaker 1: you know, privately, you know some some people who think that,

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Speaker 1: as a matter of policy, would be a terrible idea

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Speaker 1: to send these prisoners back home. You know, actually don't

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Speaker 1: necessarily disagree with your memo as a piece of legal analysis.

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Speaker 1: You know, the statute is written in a in a

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Speaker 1: way that you know can certainly be read as kind

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Speaker 1: of narrowly tailored to this period of the pandemic. So

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Speaker 1: so you've got groups that are going after the emma.

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Speaker 1: You've got you know, people who are just urging by

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Speaker 1: the administration to you know, take a different avenue, like

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Speaker 1: granting these people clemency, um, which of course would be

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Speaker 1: better than you know, from their perspective, would be better

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Speaker 1: than you know, having these people remain in home confinement

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Speaker 1: for for for years and years. Um. You know, clemency

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Speaker 1: will allow them to kind of foy reintegrate the society

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Speaker 1: and resume their lives. Has the Justice Department or the

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Speaker 1: Bureau of Prisons definitively said they're going to return all

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Speaker 1: these prisoners. They haven't. Um, they said, basically, Um, it's

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Speaker 1: a matter for the end of the pandemic. This is

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Speaker 1: something we'll figure out at the end of the pandemic

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Speaker 1: will cross that bridge when we come to it, which is,

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Speaker 1: you know, not the answer that these people want to

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Speaker 1: want to hear. I mean they want certainty, They want

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Speaker 1: to be able to plan for the future. They want

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Speaker 1: to know whether they can afford to take out a loan,

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Speaker 1: by a new car, you buy a new house. Um,

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Speaker 1: all the sorts of financial decisions that would be a

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Speaker 1: to be someone taken to prison and you know their

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Speaker 1: income is disappears. What constitutes the end of the pandemic?

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Speaker 1: I mean it's a it's a very technical, you know

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Speaker 1: question as it relates to this, to this law. Um,

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Speaker 1: it's just when the federal government declares that the emergency

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Speaker 1: period is over, um, which you know, it's unlikely to

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Speaker 1: happen you know soon. I mean, it's not going to

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Speaker 1: happen tomorrow. It's probably not going to happen this summer,

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Speaker 1: but you know, it certainly could happen by the end

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Speaker 1: of the year. Now, the prisoners that are normally released

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Speaker 1: to home confinement are those near the end of their sentences. Yeah.

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Speaker 1: Typically it's UM. Before the BPS authority to do this

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Speaker 1: was expanded, Um, it was either the last ten percent

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Speaker 1: of your sentence or the last six months of your

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Speaker 1: sentence whichever whichever is shorter. Um. You know, that's when

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Speaker 1: you're eligible to home confinement. And typically unless you broke

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Speaker 1: a rule when you went home, you weren't going back. Um.

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Speaker 1: You know, this was to finish out your sentence. It

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Speaker 1: was a little bit of the reprieve. And so a

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Speaker 1: lot of the people who were sent back under the

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Speaker 1: under the Cares Act, who had longer periods are mating

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Speaker 1: under sentences assume that they would be going home for good.

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Speaker 1: There's somewhere even told by Bureau of Prisons officials, Um,

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Speaker 1: you're going home for good. Um. And so it's been

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Speaker 1: a real kind of pumped the gut to find out

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Speaker 1: that no, actually they may be forced to return. There's

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Speaker 1: a lot of talk about, of course, prison overcrowding. You know,

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Speaker 1: they're looking for alternatives to mass incarceration. That was part

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Speaker 1: of the Manhattan District Attorney's race. So is this offering

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Speaker 1: a model for the future perhaps, Yeah. I think a

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Speaker 1: lot of prisoner advocates do this as kind of a

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Speaker 1: perfect test run for a permanent expansion to the Bureau

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Speaker 1: of Prisons home consignment capacities, which you know, could be

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Speaker 1: a potential solution to mass incarceration, you know, or not

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Speaker 1: a cure all, you know, something that could start chipping

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Speaker 1: away at the problem and start releasing more people to

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Speaker 1: home complinement more often. It's clearly something that we're capable

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Speaker 1: of doing. There's now firm evidence that people follow the rules,

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Speaker 1: and so the argument goes, we should be focusing on

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Speaker 1: expanding the Bureau of Prisons authority and you know, emptying

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Speaker 1: prisons elves rather than you know, forcing people back who's

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Speaker 1: shown that they can follow the rules. So before I

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Speaker 1: let you go, I just want you to tell us

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Speaker 1: about Jackie Brossard, because it was sort of heartbreaking her

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Speaker 1: relationship with her daughter. She's a mother in Fort Worth,

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Speaker 1: Texas whose daughter was also sentence because of a drug

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Speaker 1: conviction and came home in December of and no, she

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Speaker 1: made the point that, you know, her daughters definitely took

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Speaker 1: months to just kind of reacclimate to being outside prison.

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Speaker 1: She wouldn't talk that much, she was sort of nervous

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Speaker 1: all the time. She wouldn't open the frite, she wouldn't

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Speaker 1: ask her anything, and it took her months to kind

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Speaker 1: of adjust. And at this point now her daughter is

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Speaker 1: a good job operating forklift at the warehouse and her

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Speaker 1: mom's house, and she's starting to rebuild her life, but

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Speaker 1: she still got to the half years left on a

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Speaker 1: drugs so Jackie reserved, like some of the others, is

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Speaker 1: dreading the end of the pandemic. Thanks David. That's Bloomberg

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Speaker 1: Legal reporter David Jaffee Beleni. I'm June Grosso, and you're

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Speaker 1: listening to Bloomberg