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The U.S. government should do more to prevent the spread of disinformation via podcasts.

The Joe Rogan Experiencea podcast where comedian and Ultimate Fighting Championship commentator Joe Rogan interviews a wide range of guestsis a conundrum.

On one side of the debate, fans of Rogan applaud his commitment to interviewing a wide range of guests for an extended period of time in a purportedly unbiased manner. Some see podcasts such as Rogans as a foil to traditional forms of mainstream media that they have come to distrust.

On other side of the debate, though, critics chide Rogan for his amplification of controversial guests, some whom are said to advance harmful conspiracy theories and further the spread of COVID-19 misinformation. They also criticize Rogan for failing to check facts and operating without traditional journalistic oversight.

How should policymakers resolve this debate?

If hosting platforms such as Spotify fail to moderate podcasts peddling in disinformation, the U.S. government should do more to regulate this growing area of news consumption.

If podcasts were treated like traditional forms of broadcast mediaradio, television, and satellitethey would be subject to oversight by the Federal Communications Commission (FCC). Although the FCC must operate within the bounds of the First Amendments speech and press protections, the FCC prohibits news broadcasters from distorting the news intentionally or from broadcasting false information that could contribute to public harm.

Podcasters, however, currently evade these prohibitions. But if the FCC and courts choose to adopt a definition of broadcast journalism that includes podcasts that distribute the news, podcast hosts could be required to obtain a license with the agency. This would bring these alternative forms of media under the FCCs supervision, eliminating some of the problems with fact-checking and deliberate misinformation that can harm listeners.

Questions of line-drawingsuch as when does a podcast cross into news territory, when does misinformation become deliberate or harmful, or can the FCC regulate other forms of online distributioncould complicate the solution of FCC supervision. But embarking on this delicate line-drawing journey would be preferable to the alternative future of over a quarter of people in the United States depending on news from an unregulated source.

Some of these debates are already underway with recent litigation surrounding Section 230 of the Communications Decency Act. This law gives platforms some immunity from information posted by third party usersbut interpretations of the reach of this immunity has been heavily politicized as a choice between misinformation or censorship. Although this debate is ongoing, the FCC has made a case for its authority to interpret Section 230 in the absence of new legislation from Congress, which means platforms such as Spotify could be responsible for misinformation spread by hosts such as Rogan.

Concerns about First Amendment violations could be mitigated by the FCC applying its preexisting First Amendment safeguards, which the agency developed following a rich history of litigation interpreting its reach. In addition, the FCC could commit to limiting the restrictions against explicit and profane material with respect to podcasts.

Even if FCC oversight of podcasts ultimately remains in question, other agencies and tools for regulatory oversight should be explored.

The Federal Trade Commission (FTC), for example, regulates paid advertising content presented on podcasts and other online venues. Although these regulations do not cover all content within podcasts, they require hosts to be fully transparent about any endorsements and advertising content.

Expanding these advertising transparency requirements to relationships between the host and guests of the hosts showwhich often benefit the guest by way of increased following and more customers, similar to an advertisementcould better control the vetting and context of information provided by guests. This expansion of regulation could circumvent First Amendment concerns because it would not restrict the speech of the guest but merely require for a disclosure about the relationship between the guests appearance on the show and the guests business ventures.

Currently, legislators are advancing bills aimed at keeping platforms from elevating harmful content. These bills, called algorithmic amplification bills, do not attempt to censor the underlying content but would limit platforms immunity from liability in the event the platforms amplify harmful content.

Platforms such as Spotify, which make big financial investments in podcasts such as Rogans, could be punished for using algorithms to amplify harmful content. Passage of new legislation regulating platforms amplification of misleading podcasts could provide for a less invasive method of ensuring content quality without directly interfering with podcasts themselves.

With any regulatory avenue taken, government agencies and Congress must carefully consider the tradeoff between potentially restricting speech and protecting listeners. This tradeoff could be addressed by clearly defining what qualifies as news or other important informationleaving entertainment and opinion to be untouched by regulators.

With public faith in media at all-time lows, and the spread of misinformation on the rise, the U.S. government must act now to oversee popular podcasts that seemingly present authoritative news.

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The Podcast Problem - The Regulatory Review

The First Amendment, sometimes called Amendment 1, is the first amendment to the United States Constitution and is also one out of ten amendments in the Bill of Rights. The First Amendment makes it illegal to make a law that establishes a religion, stops the freedom of speech, stops people from practicing their religion, stops the press from printing what they want, and stops people from exercising their right to assemble peacefully or demonstrating against the government.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are many key phrases in the First Amendment. Here are some explanations on what exactly they mean.

Freedom of religion: The First Amendment of the United States Constitution prevents the government from setting up or establishing an official religion of the country. American Citizens have the freedom to attend a church, mosque, synagogue, temple, or another house of worship of their choice. They can also choose to not be involved in any religion as well. Because of the First Amendment, we can practice our religion however we want to.

Freedom of speech: The First Amendment of the United States Constitution stops the government from making any laws that may stop us from saying what we feel or think. The American people have the right to share their opinions with other people or criticize the government.

Freedom of the press: Freedom of the press means we have the right to get information from many different sources of information. The government does not have the power to control what is broadcasted on radio or TV, what is printed in books or newspapers, or what is offered online. American citizens can request time on TV to respond to any views that they disagree with. They can also write letters to newspapers, which might be printed for other readers to see. Americans can also pass out leaflets that state their opinions. They may also their own online web pages that have their opinions.

Freedom of assembly: American citizens have the right to come together in private and public gatherings. Citizens can join groups for religious, social, recreational, or political reasons. By organizing in order to act on a common idea and accomplish a common goal, American citizens can more easily spread their ideas to others.

Right to petition: The right to petition the government means that American citizens can ask for adjustments or changes in the government. Citizens can do this by collecting signatures for petitions and sending them to elected representatives. They can also call, e-mail, or write to their elected representatives as well. Another way they can petition the government is by creating support groups that try to cause change by lobbying the government.

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1ST AMENDMENT (First Amendment) Rights, Text - Kids Laws

[This piece has been published in Restoring America to highlight how regulating social media companies as common carriers could violate the First Amendment.]

AEI recently published a thought-provoking report by Professor Richard A. Epstein addressing censorship of conservative viewpoints online. Building on initial comments offered last year in the Wall Street Journal, Epstein identifies the problem as a systemic progressive bias among dominant social media companies, coupled with steep barriers to entry that reduce competition as a potential disciplining force in the short term. The solution, he posits, is a common carriage regime that would prevent digital platforms from abusing their positions in ways that distort public debate.

I am sympathetic to Epsteins concerns. As Ive written elsewhere, social media is a volatile battleground, and any gatekeepers perception of particular content is likely to be informed at least subconsciously by ones priors. While evidence of systemic bias remains unclear, high-profile anecdotal missteps (such as the Hunter Biden laptop story) certainly reinforce conservative grievances. But its not clear to me that social media platforms fit the common carriage paradigm, and even if they do, common carriage treatment likely violates the First Amendment.

Epstein argues that common carriage developed as a solution to natural monopolies. Setting aside whether Facebook, Twitter, and the like exercise this kind of market power, Christopher Yoo has shown that this historical justification for common carriage treatment is muddled at best. Market power is neither a necessary nor sufficient condition for common carriage treatment. For example, until 1992, cable providers often held exclusive franchises but were statutorily exempt from common carriage treatment, while wireless companies were saddled with common carriage obligations in a competitive market.

Surveying the regulatory history, the District of Columbia Circuit Court defined common carriers as companies that hold themselves out to serve the public indiscriminately, without making individual business decisions regarding with whom to deal and on what terms. Under this definition, common carriage is a poor fit for social media. Unlike a telephone company or the postal service, which carry communications between users without regard to the underlying message, social media companies terms of service explicitly reserve the right to treat customers differently by moderating individual user content to offer users a personalized, curated experience.

This curation function raises a more significant obstacle to common carrier treatment, however justified: the First Amendment. In Miami Herald v. Tornillo, the court recognized that companies engaged in the publication and dissemination of speech possess a First Amendment right of editorial control that protects their judgments about what content to carry and how. Tornillo struck down a Florida right-of-reply statute that required newspapers to carry political candidates responses to critical editorials. Like Epstein, Florida argued that compelled access to the platform was necessary to prevent the platforms bias from distorting public debate. But the court found this insufficient to overcome the newspapers First Amendment rights.

The court has not recognized a common carriage exception to this right of editorial control. If anything, Tornillo itself implies the opposite. The court recognized that the newspaper had significant market power over dissemination of political speech, and barriers to entry made alternative distribution unlikely. But it rejected Floridas argument that this economic reality justified infringing the newspapers rights. Epstein correctly notes that earlier cases rejected First Amendment challenges to newspapers judgments about employee hiring and to anticompetitive withholding of stories from competitors. But the newspaper still decided what those employees said in print and which stories it would carry.

And this makes sense, as curation is how these platforms compete for user attention. Different platforms draw lines in different places, thereby cultivating different types of communities that appeal to different groups. Facebook aggressively removes pornographic and violent content, Twitter is more permissible but puts questionable content behind warning labels, and other platforms are free-for-all cesspools. Through millions of micro-level editorial judgments each day, platforms reveal their values, views, and community standards. In this way, the First Amendment not only protects the companies freedom of expression but also allows for richer and more dynamic competition among platforms.

We should be wary of vesting this editorial power in the government instead. Under the state action doctrine, the First Amendment prohibits only governmental abridgment of speech. Legislatures and courts have a poor track record when taking it upon themselves to decide which private spaces are public enough to be saddled with government-like duties. The fairness doctrine illustrated how government-compelled access to platforms could become a tool to reward political allies and punish enemies while chilling the very speech the doctrine was supposed to protect. First Amendment doctrine recognizes private editorial control rights not as an unalloyed good but as the lesser of two evils. In the long run, private regulation of censorship is less threatening than government regulation of censorship. Common carriage is a helpful tool to discipline less competitive markets, but it becomes more complicated when applied to markets for speech.

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.

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Social media, common carriage, and the First Amendment - Washington Examiner

WOODLAND PARK, Colo. The City of Woodland Park paid $65,000 to settle claims after a former Woodland Park Police Chief violated First Amendment rights.

Delbert Sgaggio was paid $65,000 after he was personally blocked on Facebook by former Woodland Park Police Chief Miles De Young. Sgaggio criticized a raid by Woodland Park police officers in a video that was later deleted by Police Chief De Young.

Sgaggio then criticized the removal of his comment, which was deleted once again. After his comments were removed, Sggagio was blocked from commenting on the Facebook pages of both the Police Department and the City itself.

This case sends a message to every public official in the country: respect the free speech rights of your constituents online or pay the price, said Andy McNulty of Killmer, Lane & Newman, LLP. Woodland Park and its officials are acting like their counterparts in Russia, China, and North Korea that censor their citizens online. Luckily, in this country, we have the First Amendment and brave citizens like Delbert Sgaggio to protect us from oppressive government officials like Chief De Young otherwise, clearly, he would act just like Vladimir Putin without any repercussions.

The City of Woodland Park says this was the largest settlement ever reached in a case stemming from a Facebook blocking by a public official.

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Woodland Park pays $65,000 for violating First Amendment Rights - FOX21News.com

From Staff Reports| Las Cruces Sun-News

ALBUQUERQUE - The New Mexico Foundation for Open Government has chosen six New Mexicans as the recipients of its 2022 William S. Dixon First Amendment Freedom Awards. The awards are annually presented to those New Mexicans who believe in government transparency at the state or local level and who have made significant contributions to casting sunshine (transparency) in government operations in the state.

Dixon Award winners will be honored with a Dixon Award event set for Oct. 6, 2022 at the Albuquerque Marriott Hotel on Louisiana Boulevard in Albuquerque.

For many years, FOG has honored those New Mexicans who believe that open government is good government, Kathi Bearden, FOG president, said. This years group acted on their beliefs instead of giving lip service to transparency and accountability. Their actions changed policies, procedures and allow everyone to participate in government.

The 2022 Dixon Recipients Are:

Byrons nomination focused on his dogged citizen advocacy for the Hobbs City Commission to adopt video streaming and archiving of commission meetings activism that began in 2015 and continues today. The city has repeatedly and proudly cited it as a means of government transparency and citizen engagement and in a March 2022, column entitled City of Hobbs resilient in the face of COVID shutdowns, Hobbs Mayor Cobb noted the streaming service would be reaching its sixth year. Not only the programs inception, but its longevity, is thanks in large part to Marshals work to protect and strengthen open government. This is an interesting turnaround for the city as when Marshal first suggested the policy, it was met with resistance by the then-city manager and members of the city commission. His contribution to transparency and accountability extends to efforts regarding the citys paid-time-off policy and employee cash payouts associated with the citys new PTO policy. His persistent efforts have inspired many other Hobbs residents to inform and involve themselves in local government.

Albuquerque Attorney Thomas Grover has an extensive record as a litigator for individuals who have been unable to secure public records. His vast knowledge pertaining to the IPRA & OMA assists his clients in understanding their rights. "(IPRA) is my favorite four-letter word, said Grover, who has successfully sued the cities, counties and others for noncompliance with the IPRA. His actions have resulted in changes in procedures by records custodians and public bodies, including the Albuquerque Police Department which now provides disciplinary records of investigation of officers. In 2019, Grover was the attorney when his client was awarded $40,000 in his lawsuit against the City of Espanola for withholding records and another client awarded $180,000 in a suit against APD. Grover also represented a retired Santa Fe Police lieutenant in her lawsuit against that agency. A district judge ordered the city to pay that plaintiff for failing to comply with a public records request.

This recipient specifically used the law, the attorney general and advice from NMFOG to hold APS accountable. She has worked to enforce the public's right to review records, even when the records were held in part by a private organization acting on the public entitys behalf. Through Ms. Hager's efforts, she was able to change how the state's largest school district handled employee promotions and raises changing a system that was onerous and detrimental to individual employees. Before her questions about public records, the AFT union acted as a de facto human relations department for APS when looking at promotions and raises for non-teachers. Now, APS is handling its own process. Her career path has taken her from banking to work as a hospital Child Life Specialist at Daytons Childrens Hospital, as well as an intern at the Family Support Center at Andrews Air Force Base. She has worked at Carlos Rey Elementary and Desert Ridge Middle School and is now the school counselor at North Star Elementary School. This recipient is a member of the APS Counseling Leadership Committee and was named the 2018-19 APS Elementary School Counselor of the Year and the 2022-23 NM School Counselor of the Year.

Marian Matthews is a State Representative for House District 27. A staunchadvocate for better government and transparency, she has become a tireless advocate to push back against CYFDs cloak of secrecy and works to ensure this department becomes more transparent. In 2021, Rep. Matthews was critical in calling out CYFD for their failure to be forthcoming and transparent with the public, resulting in a scathing multi-page memo from the LFC identifying multiple systematic concerns about transparency and accessibility. Since her time assuming office in 2021, she has been honest, approachable, and direct in her dedication and commitment to shine light on this agency and hold this public entity accountable. She is a model legislator for leading with ethics. She continues to be a champion as she works to create an independent and autonomous office of the ombudsman, as well as amend public disclosure laws, and ensure that the confidentiality clause in the childrens code protects the children and families impacted by the department, and not the department itself. She began her career as a journalist and newspaper reporter in Springfield, MO, and then in Alamogordo, NM.

As the executive director of the New Mexico Commission for the Blind, Greg Trapp has worked vigorously to ensure equal access, accountability and transparency in the Commission and for other state agencies and boards.

Mr. Trapp was on the front lines at the beginning of the COVID lockdown, petitioning the Attorney General to ensure public access, including those with disabilities, to meetings, materials and records. He worked with the AG to develop that agencys Open Government Division Advisory on how public bodies could comply with IPRA and OMA during the pandemic. He worked to draft language for procedures for his organization and other state agencies to make the process less cumbersome. His efforts were evident long before Covid. Mr. Trapp is considered a stickler for detail including adhering to all aspects of the OMA before, during and following meetings. He was worked to nudge other boards and agencies, including those on which he serves, to follow the law. His efforts include directing staff to build an electronic bulletin board that allows the public to receive emailed updates of legal notices, agendas and other meeting materials.

Vincent Rodriguez is the leader of the pack when it comes to watchdog journalism in the KOAT TV 7 newsroom. Hes currently the digital media manager and previously was an assignment editor. He takes time daily to make sure the staff understands the power of an open records request and what is available just by asking. He created a system to track when IPRAs are sent and the responses if any, they receive. In December 2021, when a child was shot and killed in Rio Rancho, the city refused to turn over documents. For months into 2022, the station told our viewers what we asked for and what was denied. When the city used the childrens code to deny documents, He helped to explain how the city was using the childrens code to justify not turning over documents. Eventually, the AG sided with KOAT and the station let the public know the city was reversing course based on our persistence. He instills in the newsroom knowledge about the law and makes sure other employees know its not just for the media its for citizens. If a New Mexican has a problem and theyre not getting answers, he walks them through how to get what they are afforded through sunshine laws. He is the person in the newsroom that questions everything and teaches others to question everything.

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Six to receive 2022 William S. Dixon First Amendment Freedom Award - Las Cruces Sun-News