 and welcome to Think Tech Hawaii. Thanks so much for joining us. We have another absolutely all-star group and panel here. We have Sire Benjamin Davis Emeritus. Emeritus from University of Toledo School of Law and also internationally renowned and recognized award-winning nationally, internationally and probably beyond, as you can tell from his virtual background. We have our leading First Amendment lawyer and senior partner at K. Chuddy Jeff Portnoy back from the Bahamas and here ready to provide some insights on the former chief executives lawsuit against Facebook, Twitter and others. We have Rebecca Ratliff, long, a highly nationally and internationally recognized insurance claim executive and still and now mediator, arbitrator, including for Jams, one of the world's largest and Tina Patterson from Germantown, Maryland, not to be confused with New Jersey. It was just confusing enough in and of itself. Another nationally and internationally accredited mediator and arbitrator. Thank you all for joining us. Well, Jeff, what do you think about Mr. Trump and his First Amendment rights sued against Facebook, Twitter and others? First, I have two clarifications. It's from Bermuda and not the Bahamas. And secondly, Emeritus only means that Ben is very old. Now, having said that, having said that, I believe that this lawsuit is doomed to failure. The First Amendment only protects the rights of free speech and press from intervention by the government, not by private parties. Private parties remedies for alleged First Amendment violations are simply civil remedies such as defamation or invasion of privacy. The fact that a private company, and we can talk about how private they are because you can make an argument that because of the Communications Decency Act, entities like Facebook may not, they may be a hybrid that the government may have given them some importer of governmental sanction. But having said that, I think that argument will fail. So there is no constitutional right to require a private entity to publish anything. And so my belief of Facebook, which is on the New York Stock Exchange and Google and related entities are private and that therefore this lawsuit should be dismissed quite expeditiously. It's a great way to raise money though. You've got to, you know, understand that the fundraising letters went out the same day. Look at me, right? I mean, what can I tell you? What can I tell you? Through them to work. I mean, you know, no one should be shocked about anything that Trump does regarding litigation. I mean, I haven't checked recently, but I remember reading a few months ago that he was involved in more than 100 lawsuits over the last several decades in various forms. He has, as I said earlier before we went on the air, little trouble finding lawyers that are happy to charge him $1,000 an hour to do whatever his bidding is. They win virtually nothing. I've never read, there must be one lawsuit he's won, but that would be a surprise. He winds up losing or settling every single lawsuit that he either brings or has brought against him. And this will just be another one. And I wish the lawyers good luck in getting paid. But the last time he raised funds for a lawsuit, he used it for other purposes, as I recall. Yeah, exactly. Yeah. Jeff, I'm curious. So you're looking at this from the perspective of Trump being the complainant, but for the, in this case, the respondent, whether it's Facebook or Instagram or these other social media outlets, what does this, where does this place them? Because it's now a matter of a limited speech and what is being said on social media sites. And there's been this whole talk about cancel culture and how social media is the backdrop for a lot of the things that we're seeing the worst of today. Well, you know, you raised the other side of the coin and his truck knows and people in Hawaii know, I've spent close to five decades fighting for free speech. A lot of times in very unpopular ways, both locally and nationally. I'm just a free speech person and I know a lot of people don't agree. And you know, I teach this at the law school. I teach it to journalism students. I just don't believe speech is conduct, okay? And we can get into a long debate on that. But being a free speech person, I am not in favor of what Google and Twitter and Facebook have done. I mean, frankly, unless you're threatening the overthrow of the government and it's imminent or physical harm, I think their decision making is highly suspect. But I don't think it's a legal or constitutional issue. I think it's a social, political and moral issue. And I don't disagree with Trump. And others that certain speakers are being hindered in their ability to make unpopular statements. Now you can go a little bit too far in this whole thing about January 6th, and whether Trump encouraged the violence and how did he encourage the violence? That's an interesting issue. But you know, a lot of things Trump has put on Facebook or Twitter, wherever his account was, because I don't do that stuff, I'm old too. You know, it's just unpopular speech. And I don't believe unpopular speech should be censored even by companies that have the right to do that. But there's a lot of people who disagree with that on the left and on the right, speaking of cancel culture. Okay, let me ask you this. What about if the speaker is a member of government? Is it even higher than that you would let them to be free? Because I was thinking about that. It's one thing to have a private account and run your stuff. And the other thing is to have the role as the president or governor or all these things, putting out stuff that has got the imprimatur of the state on it in a way that can have an influence on everybody. I mean, is it, well, the governor said this or, you know, and they think it could be nonsense, right? Okay, but it's still, it's different from you or me saying whatever we want, you know? Do you guys see a limit at all with that? Are they free to say just anything they want under your vision, even though they are now in that governmental role? It's a great question and it really gets complicated because it could also depend upon the forum they're using. I, as I say, don't go on Twitter. My belief, and you guys can correct me, that it was a private Twitter account, even though he's the president, he's issuing statements on a private Twitter account, not a government Twitter account. And I think that would be an important issue. I mean, I deal with this in a non-Twitter issue in governmental people who send emails and then the media tries to get copies of the emails and there's been multiple cases on this in which governors and senators say, no, those are my private email accounts, not my US Senate email account. And therefore you don't have access to that under public records laws. And so there's a lot of litigation on that. And so my guess is that he's gonna argue that he's a private citizen when he posts things on Twitter. Again, I don't think it affects the law, but I think it could affect, you know, people's views on whether he should be censored or not. Yeah, I just, you know, it really, this kind of thing in my head that gets ticked because there was a thing where when you were in government you were required to use certain governmental emails. It's all in your official role that you're supposed to do. And then you fall into a hole and I think this goes back in the Bush administration at least, that they were using non-governmental private emails to essentially conduct governmental business. So the whole public records of what actually was going on, you know, gets blurred there. What about Hillary Clinton? I mean, you know- Oh yeah, you know, before Hillary Clinton too, sure. I mean, how much trouble did she get into because of her claims that all these emails were on her private email account and they weren't subject to disclosure? Well, yeah, I mean, it's like, I mean, I think there's a lot of fast and loose is all I'm trying to say, but- I'd like to hear from the professional arbitrators and mediators on how you see this issue when it comes before you. Rebecca, Tina? I think some good points are raised. I mean, Ben raises the point about responsibility and whether or not there is law around, you know, responsibility for a person who is of influence. We know, we believe from what we've seen on, you know, unsee January 6th that people can be influenced by people in positions of authority. And what is the, you know, what might be the responsibility? I mean, obviously, if I'm arbitrating it, I can't inject, interject my opinion. I have to look at what people bring me to look at. You're looking like a true arbitrator, aren't you? No, no. You like that? Yeah, I've heard it many times. Yes, yes. Exactly. Tina, what do you think? You know, Jeff, you brought up a good point, but there's an aspect to this that I find troubling. And I think it's the nexus of this argument, which is he was acting as a private citizen, but he knew the influence and the impact and the agency that his position had. So when he told people, my votes were stolen, he wasn't saying that as a private citizen. Wasn't a private citizen that lost votes? It was a former president of the United States who had lost his election. So there's a lot of arguments in that. I think as an arbitrator, I'm going to look, where's my law? What rule am I going to look at? I am going to look at the First Amendment, but I'm also going to look at where he stands and what is his obligations and his actions. And he's walking a fine line. He truly is. Mediation, completely different. We're going to talk about what's in the best interest. What would you like to see happen today? And of course, the social media outlets are going to say, we want this to go away as quickly as possible. We're talking about a man who lives, I'll use the word grifter. And if you get mad at me, that's okay. But he has made a living, living on other people's money. So he's going to look for money and try to get as much of this out of it as possible. As a mediator, this is not something I would want to mediate alone. I would definitely want to have a co-mediator just for one, a sanity check, but also to remind the parties because there's going to be a lot of times when you're going to see stalling and people literally trying to find a way to, I want $50 million. And the other party's saying, no, not going to happen. You know, the reputation- And can he have it both ways? You make a great point, Tina. Can he have it both ways? You make the point, as a private citizen, you know, he's, you know, asserting his position as a private citizen, but you weren't, you know, the claim that you make has to do with you being in the position of president. So yeah, can you have it both ways? But the lawsuit is just part of a much bigger effort. Yes. On the part of the Republicans to change the immunity that Facebook and Google and Twitter have under the Communications Decency Act, Section 230. And I don't want to bore everybody who might be listening, but that essentially gave immunity to entities like that from libel defamation privacy suits by finding they were a blackboard, I mean a blackboard, a chalkboard, where you post things on a board in your employment, you know, where you work, they were not a publisher. And so they were given immunity that would not be given to a newspaper, for example, that would post a letter to the editor that might say the same exact thing that's posted on Facebook, where the publisher of the newspaper would be as responsible as the letter writer under current law for any defamation. Facebook is not responsible because under the Communications Decency Act, Section 230, they've been given basically immunity and say they're nothing but a posting board for people who post- A bulletin board. A bulletin board, sorry, to post comments. And the Republicans have introduced the bill and there's some support on the left, by the way, to do away with the immunity in Section 230 because a lot of people believe it's been totally abused by allowing people to post all of these horrible things without any repercussion. So it sounds like we also have- The poster, let me just finish. The poster has some liability, but most of them are living out of a trailer that's been parked in the middle of a desert and don't have any income. So normally then you would sue Facebook, which has billions of dollars, but you can't under the present law. Yeah. Out. What an interesting combination of moving pieces, right? First, Jeff, as you identified right from the beginning, it's a ploy to get money. That's what Trump has always done. Everything he has ever done has been to get money for himself, even if it appears to be as he indicated, directed towards something more institutional. He's his own institution. He may be one who should be institutionalized, but we'll get to that later. The other thing going on is that the strategy continues to be to basically try to invalidate, set aside, overcome the clear, indisputable, verified results of our election and election choices. If Trump were reinstated by August, as he keeps saying he expects to be and wants to be, there's no way that can happen without essentially overthrowing the results of this election. Yeah. And then in the background, you've got these things coming together with a generation who is very closely connected to social media, not only as its communications vehicle, but as its news resource, its primary news resource, that studies have shown that. And that generation went very heavily for the Biden-Harris Democratic ticket in the 2020 elections at a level that was not seen before. So you've got a bunch of things going on here. I had Trump trying to raise money, but also attacking organizations that are connected with the successful opposition to him, both the administration and its elected status and the social media, that was a major part of his winning that election. How do these things interconnect? Is there an intersection? Rebecca? I'm thinking about what you're saying. And what's coming to mind for me is the fear that because of the election laws now that are being made, I mean, how many states, how many of our states are engaging in voter suppression now with these new laws? Yeah, I know then we'll have. Yeah, 28 acts in 17 states that have passed and there are close to 400 pending. What's going to happen in future elections? What does that mean for the future of elections and how this type of, because now a lot of people didn't know, I don't claim to be the most sophisticated in an election law. A lot of people didn't know that this kind of disruption could even happen and that it could cause the new track of voter suppression. And I mean, the ridiculousness that's being proposed and actually passed. So what is going to happen? You mentioned the interaction. Are the Democrats going to step up and be able to do something? I mean, Mitch McConnell has said that their goal is to make sure that President Biden doesn't get anything done while he's in office. I mean, so what we're seeing here, just the obstructionist behavior and what does it mean for the future of Democrats and Republicans? Is anybody going to stand up eventually? Are people being, you know, why is this happening and how is this happening this way? And what does it mean for the future and the interaction between the party and the two-party system? You know, what can we expect in the future? If I can jump in to add on to that, I think it was Chuck sent around on commentary by Ken Cloak, which I found really interesting because he said, from the point of view of those folks who are supporting Trump, they're basically looking at Biden having been a coup, all right, a coup that was successful. Yeah, Biden was the coup, okay? And so they are trying to reestablish, so to speak, the proper government because the election was stolen. Now that's a powerful trope in somebody, if somebody buys that storm, that is a powerful trope. Even though everything you're being told is like, in fact, no, everything went according to the way it's supposed to go. But if you have that sense of the way reality is, you know, that's a powerful thing. And there's another part of it that occurred to me after the voting rights decision of the Supreme Court is that you had a veto and had talking about a legitimate interest of states is to address fraud. So, you know, I mean, he's not saying directly, you know, I'm agreeing with you, but he's saying that this, even though people tell you that there's actually no kind of fraud, he's saying that's a legitimate state interest in passing laws that we have to deal with. So that's another piece of it. And if you look at how a veto rights in there, it's like slicing and dicing. He doesn't look at the whole game. He said, he looks at, I mean, the rule said totality of circumstances, but he's kind of saying, well, there's a little piece over here, there's a little piece over here and they're okay. But in the context of the whole game of what was going on, you can understand why those little two pieces there are part of a whole picture of voter suppression. If you're somebody who looks at the whole thing and looked at the big picture, so to speak, you know? But where are we gonna end up with this? Because it's crazy out there. It's crazy in America right now, okay? So question is where we are. A large group and a political party and its leadership saying, we didn't lose the election, but if you're going to prevent us from obtaining the results of the election that we believe we actually won, we're gonna go change the system so that that can happen again. Yeah, yeah, and it's a powerful trope, even though what it ends up being is voter suppression, right? On the other side, it's like, we're doing the one true thing which ends up being voter suppression. Now the future is validating the past, right? I mean, it's almost trotsky, Marxist, or totalitarian, certainly. And you've got a two-pronged strategy. A U.S. Supreme Court that says, hey, as long as you do that at the state level, we're not gonna touch it. And over in the legislative side, you've got Mitch and Kevin and their boys all saying, we're gonna make sure that you can't prevent us from pulling these corrupt mechanisms to restrict voting access and change the system at the state level. Well, the whole irony is that half of the people in the Senate got elected from the same system they now claim is corrupt. I mean, and the Republicans have taken over the overwhelming majority of state houses, governorships, on the same voting system that is absolutely corrupt. I mean, the hypocrisy is ludicrous, but the reality is there's no reality. Great, right? There's multiple realities. Alternative facts. I just say, follow the money, follow the money. Somebody's got an interest in this happening because if we can make the federal government not do anything, then, you know, you're not gonna get legislation that's gonna do things like raise taxes or whatever. It's in somebody's interest not to have things happen, you know? And there's lots of money in to make it happen so that everything is frozen. And, Jeff, I wanted to say to you to not give me the double protection of the security of my rights that was supposed to be promised by James Madison when we created our system of federalism and separation of powers. He was an old one. Hey, Ben, he was an old white man. Remember that. Old white men can have good ideas, Jeff, you know? And I just wanted the double protection, brother. Remember, remember, he... The federal government's gonna help me. The federal government's gonna screw me the state government's gonna help me. You remember, he probably had slaves, too, so you better be careful. He did have slaves. The thing against James Madison is that he didn't even free him when he, you know, he kept his. Yeah, right, that's my point. Yeah, I know. But I was said, okay, give me that double protection of my rights. You mean I want it? Federal government, do your job, brother. You know what I mean? If the state's gonna mess with me, federal government, do your job. So we've got a viewer question that says, if and when Trump gets his social media questions back, social media privileges back, who will he be able to use it successfully? Well, the only way, I mean, I could be dead wrong. I've been wrong before, not often, but I've been wrong before. Really? He's not gonna get it back by court either. He may get it back because, for example, doesn't Facebook have this committee that reviews things and they said they're gonna review it in six months and they may give it back to him in six months, but he's not getting it back in my view from any court ordering them to do it. And how successful will he be? Just look at how successful he has been. Right? So this brings me to a thought that just occurred to me if I can allow this, which is the statement of Hannah Nicole Jones, and the Nicole Hannah Jones about declining tenure offered by UNC, where she went to Howard and the line wasn't Tina reminded me of it was, I cannot heal you, okay? And I think that that is really the heart of where we're at with this craziness, is that we cannot, this person of effort cannot heal America. You're gonna think crazy. I cannot heal you from your craziness. Well, I don't mean this as seriously as I'm gonna say it, but as someone who went to Duke, I'm happy to what happened in North Carolina. Oh, my God. Oh, my God. Oh, my God. Oh, my God. Okay. So in our last minute here, is that the third prong of the strategy that, okay, if you're not gonna give us the election that we believe we won, and if we can't change the system enough to get it back that way, we're going to deadlock you on any positive change to any of our legislation and our systems and our relief. So that when 22 comes, who will be able to deadlock you for another 22 years and get it back in 2024? Is that the third prong? It's what they did with Obama, right? Doesn't they do that? The 90 was elected that said we're gonna block him and he got McConnell saying he's gonna do it again. Yes. They don't want to wait for the interests of people. They're not gonna wait until 24. Their goal is to take it back in 22. Yep. We're at a point where we're out of time for today. We've just kind of gotten warmed up here. We'll be back in two weeks. Please come back and join us. It is same time, same station. Tina, Rebecca, Jeff, Ben, thank you. Lively handed and we covered a lot of ground. Thank you all. Thank you, brother. I'm back in two weeks. Thank you.