Speaker: Sarah Rogers, Under Secretary for Public Diplomacy, U.S. Department of State

Moderator: Eugene Volokh, Legal Scholar, Blogger, and Hoover Institution Senior Fellow

This transcript has been lightly edited for clarity. Time codes refer to the session video.

[00:05] Eugene Volokh

It's such a pleasure to have Under Secretary of State Sarah Rogers here. We first met while we were lawyers working together on a case called NRA v. Vullo, which will also explain the T-shirt in a moment. Sarah had been a lawyer for the NRA in challenging an action by New York financial enforcement authorities, but the action wasn't directed at the NRA itself. This was a motion to dismiss, so at this point we can just talk about what was plausibly alleged in the complaint. The allegation was that the financial authorities in New York pressured financial intermediaries—banks and insurance companies—to cut off or reduce their interactions with the NRA because of the New York authorities' disapproval of the NRA's political position. And the state said, well, look, we didn't go after the NRA. We didn't enforce anything against them. We just had these interactions with these financial entities, which we are the regulators of; we're supposed to have interactions with regulated bodies. I was brought in to work with the Brewer firm on the cert petition, the petition for Supreme Court review. I realize I need to translate this into English from legalese, or from Latin, as the case may be.

[01:40] Sarah Rogers

For international audiences.

[01:42] Eugene Volokh

Exactly. So we asked for review by the Supreme Court, and the Supreme Court agreed. I thought the Brewer firm would call in one of the leading conservative litigators—Paul Clement, to give an example—who I think would have done an excellent job. Very wisely, they asked, and very wisely this person agreed: they asked David Cole, who is the national legal director of the ACLU, to represent us. As I understand it, this was controversial within the ACLU. At least two chapters, I believe New York and New Mexico, actually publicly denounced the ACLU's decision to represent the NRA. But first of all, David is an excellent lawyer and did an excellent job. And also, to be up there with the ACLU representing the NRA—this left-right coalition, I think, was very effective. And we prevailed nine to zero. And Sarah just told me there's a T-shirt.

[02:35] Sarah Rogers

Yes. So Eugene and the ACLU and I were all co-counsel at the Supreme Court on this case. As a matter of public record—there have been articles written about this—it was really controversial within the ACLU. They have a core of First Amendment lawyers, with whom I maintain friendships, who are great. But there are other people within the ACLU who've done things like advocate for book burning and have different views. So the First Amendment lawyers made this T-shirt to playfully remind their colleagues that they had won nine to zero at the Supreme Court. Sotomayor wrote the opinion, so they didn't forfeit their leftist credentials by standing up for free speech, as the ACLU has done once or twice in its history. So the nine-zero is on the front, and the holding of the case is on the back, which is that the government can't pressure intermediaries to suffocate speech it dislikes.

[03:29] Eugene Volokh

Right. And the ACLU has, of course, been using that also to defend people on the left and people in other places, as well as on the right, which is, I'm sure, exactly what David Cole told them, correctly.

[03:43] Sarah Rogers

And then the ACLU gave a copy of the T-shirt to its friend, the Trump official. So you see what this coalition produced. It's my great pleasure to be back with Eugene.

[03:54] Eugene Volokh

So that's the great story behind the shirt. Now let's turn to what you do for a living now.

[04:03] Sarah Rogers

I am the Under Secretary of State for Public Diplomacy. It is my great pleasure to work with my boss, Secretary of State Marco Rubio. Then there's the deputy secretary, then there are under secretaries. And public diplomacy is kind of unique. Most diplomacy concerns the relationship between the American government and foreign governments. Diplomacy means you advance the national interest through international relations. Sometimes that means you're congenial and conciliatory; sometimes it means you're tough. And often it's two ambassadors shaking hands, signing a minerals deal, ending a war. Public diplomacy stewards the relationship between the American government and the foreign public. So I oversee things like arts and culture spending, but I also engage with the information environment. And since the internet became—it's a cliché, but it's true—the new public square, and particularly during the Biden administration, public diplomacy has become a very important under secretariat, because it deals with issues like purported disinformation, social media censorship, content moderation, conspiracy theories, et cetera. I thought it was courageous and correct for the administration to tap me. Unlike previous public diplomacy under secretaries, I didn't come from a career in political comms or arts or culture or museum management. I was a lawyer known for some edgy First Amendment work. And my position has been that we care about the information environment. We're not nihilists about what's true or false, right or wrong. We're just not going to impose the government's views by suppressing viewpoints online.

[05:41] Eugene Volokh

Tell us a little bit about what you see as the threats, including—to be parochial—the threats to Americans from foreign speech restrictions. Because one thing that many governments would say, and Jacob touched on this earlier today, is: look, there are almost 200 sovereign states in the world. You Americans have one approach to free speech; we have another approach. We think we're fundamentally a democracy, whether it's Denmark or South Korea, and we have our own rules about insult, about defamation, and such. We just want to make sure that we get to enforce them in our territory the way you do in yours.

[06:28] Sarah Rogers

Sure. I've done a lot of diplomacy dealing with statutes like the EU's DSA and the UK Online Safety Act, and one question I get from interlocutors is, why are you so hard on Europe? China censors the internet. Russia censors the internet far more. The answer is that there are some countries that are decidedly authoritarian. In these countries, you can't get online without a government-approved SIM card, and you can only see websites the government permits. The United States, obviously, has historically taken the view that American interests and American values favor freedom. So we did things like broadcast behind the Berlin Wall, and we still do that in North Korea; we still do that in Cuba. We care about free speech in those societies, but we're not doing a lot of diplomatic engagement when it comes to domestic internet law there, because their internet is not really entangled with ours. It's cut off from ours. So what we're doing instead is funding things like Tor and Signal to help dissidents in those countries.

Then there's a spectrum of countries that are often our allies or our commercial counterparties, and that are purporting to regulate the internet, including internet speech, in ways that affect the information environment in those countries and worldwide, and also in ways that have extraterritorial effect in the United States. At every moment in human history where communications technology changes—whether it's the invention of the printing press or the telegraph or the filmstrip or social media or AI—

[07:57] you see a flurry of instability, institutional disruptions, and panic, and a desire to put the innovation back in the bottle, or at least regulate how it's used. And, unsurprisingly, thanks largely to American innovation, our communications technology is changing rapidly. So a lot of these countries, with whom we share a great deal in common, with whom we have trade deals and shared interests, are trying to regulate the internet in ways that sometimes contravene American interests.

There are different ways for foreign censorship laws to have extraterritorial effect. I think the most glaring is when the extraterritorial effect is intentional. We've seen court orders in countries like Brazil, Canada, Germany, and Italy saying: this tweet violates our law, and it's not enough to geofence it. It's not enough to make that tweet invisible in this country. You're not allowed to see it in America either. Obviously, free speech is a core American interest, and it is therefore in America's interest to counter that kind of thing diplomatically. And we have.

Then there's another, more complex lattice of situations, where what you're regulating is how an LLM is trained, or how content is prioritized in a sorting algorithm on a Twitter feed or a Facebook feed. In theory, under the black letter of the foreign regulation, you could have a separate sorting algorithm, a separate neural net training algorithm, for Germany, for France, for Canada, for the United States.

[09:27] But economies of scale suggest you won't. And censorship activists know this. We've seen this both in public and in private—leaked emails, and in public discourse. There are intentional activist and regulatory efforts to put enough pressure on these companies, which are, after all, private companies that respond to incentives, to make it regulatorily risky to have the algorithm be too free. Why not regulate to the lowest common denominator, and then you're not getting sued for 6% of your global revenue every time you update your AI? We think this is a legitimate domain for American diplomatic engagement, because the ability to express yourself freely on these platforms—not only are they American websites carrying a lot of American speech, which matters to us, but this is core to democracy.

My office issued some 3C visa sanctions, which means we barred certain foreign nationals from traveling to the United States. One of the people we barred was a former European Commission official, Thierry Breton, who in the run-up to the fall 2024 election—after Elon Musk purchased Twitter; President Trump had been banned from Twitter for a long time,

[10:45] and then the App Store banned Parler for letting him on there. The Russian dissident Alexei Navalny likened this to something Putin would do: immediately, the political dissident is banned from all the platforms. Elon Musk lets him back on, and he plans to host a Twitter Space where he's going to interview President Trump, who is then the presidential frontrunner for an American election that's going to occur in about a month. And so the European Commission writes a letter to X and says: you're very regulated in Europe, and you could face fines of up to 6% of your global revenue. And you're under an unrelated investigation right now for blue checks and some consumer protection–type stuff. If you let Donald Trump, the frontrunner for the election in your country, speak on your platform, you American company, we might punish you, and that investigation might go badly for you. Which is exactly the kind of thing we were worried about in Vullo, but they were doing it cross-border. And the explicit intent was to prevent an American politician from speaking to an American audience. There's incidental effect, because Europeans could see it. But it's clearly to prevent President Trump from getting elected. That's the kind of extraterritorial interference we take seriously, and I think that's spurred some of our diplomatic engagement.

[11:59] Eugene Volokh

Thanks very much. That's a very interesting and vivid and specific story. This is one thing that American lawyers like to pride themselves on in the common law system: there are all these abstractions—they claim the civil lawyers are more into the abstractions; maybe they're wrong—but still, the Americans like to say, all these abstractions, all these principles, you can't really understand them until you see them in concrete cases. And I think that is an excellent illustration. Can you give a few more examples of the kinds of things that particular foreign countries, especially ones that are otherwise our allies in many ways, do, or are inclined to do, or are trying to do, that you think there's a strong American interest in preventing in order to protect America?

[12:46] Sarah Rogers

Absolutely. I think there's a lot of emerging regulation, and I am one of these crotchety common law lawyers who think civil law is too vague. There are emerging regulations that contain a risk assessment architecture: obligations for American tech platforms on things like child safety, or there's a provision, Article 34 of the DSA, that says you have to do a risk assessment for—I'm not going to get the verbiage exactly right, but—is there going to be content on your platform that's bad for the civic interest, or something like that? That would be unconstitutionally vague in the United States, and it would be unconstitutional as a First Amendment violation. We also see efforts to regulate algorithms. Algorithms are being invoked the way people invoke demons or nicotine: algorithms are to blame for all your problems. So there are efforts to regulate algorithms that prioritize content based on what people are likely to click on.

In all of these instances, America has a real interest in ensuring that these regulations develop in a way where their application is not viewpoint-based, and where there's not such a capricious and massive regulatory cudgel hovering over American speech companies that those companies have a motive and opportunity to suppress speech to please the regulators. This is a really interesting dynamic that I think we saw in Vullo and that your writing captures.

[14:06] But it's difficult to appreciate unless you've been in the cockpit of a big, highly regulated corporation, or a government with significant regulatory purview. In Vullo—taking the facts at the motion to dismiss stage—the reason that kind of thing is so effective is that banks and financial institutions don't have skin in the game on whether their clients have free speech. They have tremendous skin in the game in retaining the favor of the financial regulator. So even if you have a regulation that is facially not about speech, if the government can just fine you massively whenever it wants, because they decide that your algorithm has not been properly risk-architected to defend the civic interest, then all of a sudden you have a lot more incentive to suppress the political opposition, if that's what the government wants. That's the kind of thing I'm concerned with.

And because AI is emerging and it's so important, if you care about the information environment, including the freedom of the information environment, you really need to care about how these models are being trained, how the corpus is being shaped, and what's being injected in there. We see this even in the difference between American and Chinese models.

[15:16] The crudest example is if you ask Moonshot's Kimi what happened in Tiananmen Square, it will answer and then delete the answer. But there are more subtle examples. With some of these models, if you say, I'm an entrepreneur and I'm rolling out a fishing strategy in the Pacific, what regulation should I comply with? They favor Chinese ones. Or if you give them ethical hypotheticals, trolley problems, you find that these models care less about things like government transparency, whistleblower welfare, individual rights, and the like. These things matter. And because everyone knows that AI is going to be the choke point for where people get their information and their understandings, every powerful and deep-pocketed entity in the world, public and private, is going to have huge stakes in what the AI is allowed to say to you and what you're allowed to say and create using it. So we really need to have a lot of attention on that. Any new regulation in that space, I think, deserves scrutiny, even though a lot of the regulations are driven by good faith. We just need to be really, really careful what we do here.

[16:24] Eugene Volokh

So let me ask. You mentioned one of the levers that you have, which is the possibility of denying entry visas to foreigners. America is a lovely country, I think, to live in, and I'm sure to visit. But I imagine that most people would say, well, all right—in fact, they may take it as a point of pride—I'll take my lumps if that means I can't vacation in America. I did the right thing, and maybe I'll be celebrated for it by those who agree with me. But I'm sure there are other weapons in the arsenal. Now, maybe part of the feature of being the State Department is that you speak quietly about those weapons, or maybe not. What are the other options that the US has, assuming that it does see something that really is a genuine threat to American speech?

[17:13] Sarah Rogers

Well, I speak at varying volume and carry sticks of varying size. On the ladder of what we call sanctions in the US government, these 3C visa sanctions—you, foreign national, can't travel to our country—are one of the least severe. They're surprisingly, or not surprisingly, potent, because it turns out that not being able to travel to New York or DC or California matters quite a bit to people, especially those who work in the international NGO complex and are paid as consultants to private equity firms and the like. You do want to be able to travel to New York. And these things have intentional chilling effects on foreign aggression against the United States. That's exactly the chilling effect; that is the point.

But then there are other, more severe ones. Closer to the top of the ladder, we have something called a Magnitsky sanction. Magnitsky is the name of a Russian tax lawyer who was allegedly tortured to death in a Russian prison for winning a case on behalf of an American hedge fund. In the wake of that, the United States enacted these sanctions packages, targeted at particular Russians then and later at other kinds of foreign nationals, that let you blacklist someone totally from the global financial system. Any financial institution that touches the United States, even indirectly, has to blacklist you.

[18:24] Magnitsky is very severe. We did that against Justice Moraes in Brazil, who has done extremely heavy-handed censorship, both in Brazil and extraterritorially. So those are levers we have. There's also Section 301 of one of our trade statutes: the trade representative can punish unfair trade practices, and we've taken the view that some of these censorious actions by countries are unfair trade practices. So, for example, there were certain Brazilian actions cited under 301. One example would be when Elon Musk refused to censor Twitter in compliance with Brazilian whims, and the Brazilian government expropriated assets from a totally unrelated company, Starlink, that wasn't even doing speech in Brazil but was also owned by Elon. This was a way of getting revenge on him. That's an unfair trade practice.

And a mechanism I think we should deploy more: we have trade treaties with a lot of these countries, and there are lawsuits that private companies can bring for things like expropriation of assets. I think we need to think carefully, when more and more of the valuable property in the world consists of things like model weights, or an algorithm that can show people whatever they want to see,

[19:45] about whether that company should have a private right of action if a foreign government suddenly demands that your algorithm display only my political propaganda. You're making their IP less valuable. It's basically a regulatory taking. I think that's an interesting frontier we should explore.

And then there are all kinds of hard and soft diplomacy. Recently, a university in Belgium announced that it was going to punish an American citizen who was an academic there for some truthful speech he engaged in exposing plagiarism at Cambridge. And what we said was actually pretty minor. Our ambassador said, look, we're not going to do academic exchange programs; we're not going to give money or send students to a university that doesn't honor free speech and academic freedom. That resulted in a pretty swift and high-level engagement, and that academic was reinstated. That's a very soft stick, I guess, to mix metaphors, but I'm totally unafraid to wield it. I think if we're doing academic exchanges with foreign institutions, they should honor the basic values of academic inquiry and transparency and freedom and the like. And sometimes just persuasion works. I am the originator of this rhyme, that we should have order in the streets and liberty in the tweets, and the police should—

[21:04] Eugene Volokh

The Rogers doctrine.

[21:05] Sarah Rogers

That's the Rogers doctrine. We should be policing the streets, not the tweets. And I am told that a police force in another country internalized that and disseminated it to all their officers. I'm proud of that, because it means that I've had diplomatic influence. And I hope that people in that country feel a little safer in the streets and a little freer in the tweets.

[21:25] Eugene Volokh

Very nice, very helpful. Let me turn to something that was alluded to in the last panel, where two of the members were not U.S. citizens. I should stress, I'm a U.S. citizen—I'm naturalized, but it's been a while—so I have full free speech rights. But one of the things that I think a lot of people, both Americans and otherwise, have been concerned about with regard to this administration is the deportation of people for expressing particular views that are seen as hostile to American foreign policy. In part, it seems—at least in the stories we've mostly been hearing—these are people associated with universities, chiefly students. So that seems to threaten American academic freedom. When I'm teaching a class, my students who are not U.S. citizens might be reluctant to express certain views for fear of perhaps being deported, especially if somebody is upset at them and records it and it goes viral. Presumably—I don't know of specific incidents—the same could happen to professors at American universities who are foreign citizens, including ones who have green cards, but also ones who have temporary work visas. So can you speak to that? Because many people see that as a way in which the administration is undermining free speech and academic freedom.

[22:45] Sarah Rogers

Sure. Since, I think, the earliest Supreme Court case on this that I know of, from 1972—the Kleindienst v. Mandel case, which also involved a university—there's always been this understanding that foreign nationals, especially on foreign soil, but possibly ones here too, have a slightly different package of rights. What the United States can't do is make a law that says hate speech is illegal, but only if you're a foreigner; we can arrest you, but only if you're a foreigner. What we can do is wield discretion over who comes into the country. If you think about this walled-garden metaphor, it makes a bit of sense. Imagine someone shows up to a consulate and applies for a visa, and the officer says, what's your purpose in America? Is it business or pleasure? And he says, Death to America. I hate the United States, I think it should be replaced by an Islamist theocracy, that's why I'm going there, and I support ISIS. Even though nothing he said breaches Brandenburg—if an American citizen said that, you couldn't arrest him—it would be completely within that consular officer's right to say, yeah, I'm not going to grant you that visa. We don't want you coming to the United States. And indeed, if we issued that guy a visa and he blew something up, people would want answers from the government. They would think the government had acted incompetently and recklessly. Kleindienst v. Mandel, which went to the Supreme Court in the 1970s, involved a communist professor from Europe who was supposed to be lecturing—

[24:15] Eugene Volokh

Also Belgium, as it happened.

[24:16] Sarah Rogers

Yes, Belgium.

[24:17] Eugene Volokh

And the place was Stanford, which is where I work now.

[24:21] Sarah Rogers

There was actually a statute at issue in that case that's still at issue in all of these cases involving visa revocations by our administration, which is the Immigration and Nationality Act. It lays out criteria that the United States can use, and in some cases must use, to either deny visas or revoke them. And the criteria for denying at the gate and revoking once you've issued them are often coextensive. There are all kinds of fights in courts about whether this applies differently to green card holders, or to people who are already here. I'm literally not allowed to comment on the particulars of ongoing litigation, so I can't.

But I do want to say, in addition to this general point that countries have always viewed viewpoint curation at the border differently than viewpoint discrimination in domestic law, I think there's a broader ideological point to make. There's a discourse in American politics over what makes you an American—what determines whom we invite in, whom we assimilate into our polity, whom we identify with. Are we a blood-and-soil nation, or are we a proposition nation? Does it matter who your parents are, or where your ancestors are buried? Or does it matter more what you believe—whether you believe in liberty, truth, justice, et cetera? I think a lot of people in the free speech activist community take what they would conceive to be a small-l liberal view, that we should be a proposition nation. We should care what you believe. And if that's true—if what defines America is that we all believe in freedom—then at some point we have to care whether the foreign national seeking entry or seeking citizenship believes in freedom. And if he says he doesn't, that has to matter to us. At least we're permitted, and I think impelled, to take it into account, because if that's what constitutes our country, we shouldn't be indifferent about it.

[26:19] Eugene Volokh

Right. I appreciate that, and you were mentioning two things which are different but worth stressing. One is, if somebody says something that makes it seem likely that they may actually be a physical threat to the country—again, not enough for Brandenburg, which is of course the test for unprotected speech that is inciting violence; maybe it doesn't reach that standard, but it makes us think, maybe we shouldn't let you in, or leave you in, even if we have let you in. And the second is: you are basically against our values of freedom, and therefore we don't want you as a citizen; we may not even want you as a visitor. But as I understand it, at least in some of the cases—and not even ones that are currently pending—the person was deported because they have a particular foreign policy view, in particular with regard to the Israel-Palestine conflict. It isn't that, oh, we think the American government should be overturned. It isn't that we are going to commit violence. It's just that we have a particular view that's contrary to American foreign policy. Especially if it's someone who's been let in, it just sounds like—much more so than with regard to visitors who might say, okay, I don't get a visa—it would really affect people's ability to say anything on certain subjects.

[27:40] Sarah Rogers

Well, I think foreign policy is an interesting one. Congress enacted a statute, the INA, that basically says you deny a visa if someone endorses or espouses terrorism, or if they're a spokesperson for an organization that does the same. So when you have someone at a university who's a spokesperson for an organization that says October 7 was good and it should happen again, that is a black-letter ground to kick that person out under the INA. Groups have challenged that in court—I think at the district and maybe the circuit level at this point. If the Supreme Court wants to declare that statute unconstitutional, either as applied or just unconstitutional, then the Supreme Court can do that. But as of now, there's no precedent to that effect. And Congress gave the federal government, and in particular the Secretary of State, these kinds of viewpoint-based levers with respect to foreign nationals that it doesn't give with respect to American citizens, I think for a reason: because the executive's prerogative to conduct foreign policy and police the border is so essential to sovereignty. Indeed, one of the grounds under the INA is that the person's presence in the United States contradicts our foreign policy. Now, people can reasonably bicker about whether writing an op-ed contradicts our foreign policy, or whether you have to be the deposed Shah of another country, and we want you out because it's interfering with our foreign relations.

[29:12] I think that is a prudential policy judgment. And I would argue that that prudential policy judgment belongs in the hands of the president and the Secretary of State, who formulate our foreign policy, and not in the hands of judges, who are really not experts on foreign policy. There are a lot of domains where that kind of thing is not even considered justiciable. Could you sue for a drone attack that you didn't like? Could you sue because the government started a war it shouldn't have started, that was negligent, and now my widget prices are affected? There are certain domains where our system gives a lot of plenary judgment and power to the executive, and foreign policy—and who comes in, and who can't come in, and why—has always been among those. The fact that the text of the INA says you can kick people out based on their viewpoints and political advocacy, I think, reflects that. I know there are legal arguments being made that that law just shouldn't exist, that it violates the First Amendment. The Supreme Court has looked at that law before and said that it doesn't, but those have been in other contexts. So those people will try their arguments. But I think these have been longstanding structural themes of United States jurisprudence for a long time.

[30:32] Eugene Volokh

All right. Thanks very much for that. I want to turn to something else, which returns us to NRA v. Vullo. I'm just so fond of that case, partly because I met Sarah through it, but it's also, I think, one reason why I went into some detail on it. There appear to be situations where the current administration is trying to go after certain highly regulated intermediaries as a means of trying to restrict speech that one would have thought would be constitutionally protected, like the NRA's speech. People talk about it as jawboning. Senator Ted Cruz faulted the chairman of the FCC for trying to pressure a network into restricting—I want to say Jimmy Kimmel, but the problem is all of these—

[31:26] Sarah Rogers

It was Jimmy Kimmel.

[31:27] Eugene Volokh

It was Jimmy Kimmel. All these late-night talk shows blend into one for me. But in any case, trying to pressure the network into restricting the speech of Jimmy Kimmel, which was seen as insensitive in light of—following the Charlie Kirk—

[31:49] Sarah Rogers

Yes. Charlie Kirk, I should disclose, was also my client. I did First Amendment work for him. He was my client, he was my friend, and he was murdered.

[31:56] Eugene Volokh

My condolences.

[31:57] Sarah Rogers

He was murdered for his nonviolent political speech, shot in the throat on video. In the wake of that murder, a bunch of conspiracy theories spread: blaming the Jews, blaming others, we didn't do it, it was actors, not our fault, it was a false flag, Charlie Kirk deserved it. And Jimmy Kimmel was basically among that chorus. He said, MAGA is just trying to pretend that they're not the ones who killed him. I want to talk about the constitutional issue, but just out of the gate: it's a longstanding, not-really-a-paradox that free speech advocates accept that people who don't believe in free speech are still entitled to it. You can hold marches for Nazism and communism and other censorious ideologies, and you get free speech even though you don't want other people to have it. Jimmy Kimmel does not believe in free speech. If your reaction to the Charlie Kirk murder is to deride the people who are upset about it, if you think it's okay to murder people for their nonviolent political speech, you don't believe in free speech. That's square one. But I want to get to the stuff you brought up.

[32:55] Eugene Volokh

I don't think he said it's okay to murder.

[32:57] Sarah Rogers

He basically derided and deflected and sneered at the people who were upset that there'd been a political assassination for nonviolent political speech. That's what he did.

[33:08] Eugene Volokh

He thought at the time, or he said at the time, that he thought it was the MAGA crowd who did it, even though of course it was not. But I don't think he was endorsing the murder.

[33:17] Sarah Rogers

I think most people, and certainly Brendan Carr, interpreted it as a derisive response: you people who are upset that this guy was murdered for his speech—fuck you. Fuck you if you care about free speech. And guess what? Free speech protects that exact expression, along with a lot of other disgusting expression. That's always been a lodestar of it. But let's get to Brendan Carr.

What Brendan Carr does is invoke—Jimmy Kimmel is on, I can't remember what network, but it's a broadcast network, which by statute has to broadcast in the public interest. And Brendan Carr says—I can't quote him verbatim, but it's something like—it's not in the public interest to say these disgusting things about Charlie Kirk and political assassination, and we need to look at our options, or something like that. FCC regulation of broadcast has always been this unique wrinkle. The statute imposes an almost DSA-analogous public interest standard, and the reason is that broadcast uses spectrum that's limited, that the government parcels out. So it's a limited resource the government is giving you. And what it means to broadcast in the public interest, and how much of a government thumb on the scale there can be,

[34:31] has always been a subject of debate among free speech advocates and the government. In 2006, ABC Disney did a docudrama called The Path to 9/11 that criticized the Clinton administration for ignoring warning signs about Osama bin Laden. It has a segment that dramatizes Osama bin Laden planning the attacks while Clinton is preoccupied with Lewinsky. When that comes out in 2006, Democrats are enraged by it. Several sitting Democratic senators write a letter to ABC Disney invoking the FCC public interest standard and instructing them to cancel the broadcast. Clinton, who's no longer a sitting president, calls up the CEO of Disney, and Disney makes edits to the broadcast in response. I rarely see this raised in the FCC–Kimmel discussion, but I do think it's analogous.

And one thing we should be grateful for, by the way, in the instance of both Brendan Carr and Jimmy Kimmel and the Democrats and Disney, is that these communications happened in public, and the public can see exactly how the FCC public interest standard is being determined. What happened in the Murthy litigation—which is the litigation that involved efforts by the government and associated NGOs to suppress speech by Charlie Kirk and others—happened privately. Brendan Carr could have done exactly what the Biden White House did, which is email Facebook and say, we don't like how you're treating these claims that masks don't always prevent transmission,

[35:57] and we're looking at what we're going to do to you. Those were emails in the Murthy litigation. I think that is a much more insidious thing, and it's good that it's been brought to light and critiqued and critically examined.

I would also say, to shed further light on the spectrum: what Brendan Carr and the Democrats did, which is openly invoke the public interest standard, is, I think, more conducive to democracy. Then you've got your backroom, Murthy-style conduct. And then you've got a kind of conduct that is so subtle that even Murthy-style discovery probably wouldn't disclose it. The reason Brendan Carr had so much leverage over those networks at that time is that there was a big merger about to go through, the TEGNA merger. There's this big cluster of broadcast assets that its owner has been trying to sell for a long time, and there was a buyer during the Biden administration trying to get approval from the FCC.

[37:04] The FCC kept blocking it. And to appease the Biden administration, they went out of their way to show how woke they were. They trotted out executives who were people of color, and they made all kinds of diversity commitments. This was an entity contorting itself to please and pander to the people with political power, because they had this capricious regulatory cudgel. Even though you won't find a letter from the Biden administration that says, you'd better not have too many white male executives if you want your merger to go through, you still have this dynamic. And for those of us concerned about free speech—I mentioned this before, but we're running out of time, so I just want to mention it as my last thing—we really need to be vigilant about this, because these companies are not necessarily our friends. They care about the bottom line. When so much of the public square is privately managed for profit, and when you have governments with very strong political incentives to suppress or shape what can be in it, you've really got to watch that you don't have a situation where TEGNA is trying to show how woke it is. And we're out of time.

[38:18] Eugene Volokh

Sarah, thank you so very much for coming and talking to us, and I wish you all the best in your public diplomacy work.

[38:29] Sarah Rogers

Thank you so much.