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President Donald Trump is willing to veto defense spending unless Congress repeals Section 230, the law that gives internet service providers, website operators, and social media platforms the right to moderate content however they see fit and broad legal liability from content generated by users. President-elect Joe Biden believes that Section 230, often called “the internet’s First Amendment” and the “26 words that created the internet,” should be “revoked immediately.” If Section 230 is repealed or significantly revised, online life will be radically altered.

Enter Ajit Pai, who has served as chairman of the Federal Communications Commission (FCC) since 2017, when Trump appointed him. During his time in office, he has championed deregulation (he repealed Obama-era net neutrality rules), auctioned off record amounts of spectrum, and pushed market-friendly policies for the rollout of 5G networks. Such actions earned him the Sixth Annual Savas Award for Privatization, an annual prize awarded by Reason Foundation, the nonprofit that publishes this website.

In mid-October, after Trump exploded when Twitter and Facebook restricted access to a New York Post story critical of Joe Biden’s son Hunter, Pai announced that the FCC would be working to “clarify” the meaning of Section 230 in the coming weeks. Although he has also announced he will be leaving the FCC on January 20, anything that he does could have a lasting impact.

In an exclusive Reason interview, Pai discusses what he thinks should happen regarding Section 230 and the future of free speech in America. “I am pessimistic about where this goes in the future,” he tells Nick Gillespie. “We’ve grown up…with a culture of free speech and free expression. And I think we’ve often taken that for granted…Once that culture frays, who puts it back together? It’s not going to be a politician. It’s not going to be a regulator. It has to be the aggregated decisions of millions of Americans to say, no, we want pluralism again.”

Written by Nick Gillespie. Edited by Paul Detrick.

Laptop: Photo 9514172 © Alsos | Dreamstime.com; Ajit Pai testifies; Credit: Alex Wong/picture alliance / Consolidated News Photos/Newscom, Abaca Press/Pool/Abaca/Sipa USA/Newscom, CNP/AdMedia/SIPA/Newscom, MIKE THEILER/UPI/Newscom, Chip Somodevilla/CNP/AdMedia/Newscom, Alex Wong/picture alliance / Consolidated News Photos/Newscom; 5G network box: Mikhail Pochuyev/TASS/Sipa USA/Newscom; Card holder: Photo 18091464 © Matthew Valentine | Dreamstime.com; Trump at podium: UPI/Newscom; Joe Biden: KEVIN DIETSCH/UPI/Newscom, D 47099856 © Palinchak | Dreamstime.com; FCC building; Credit: Graeme Sloan/Sipa USA/Newscom; Joe Biden; Credit: Trump at podium; Credit: Alex Edelman/ZUMAPRESS/Newscom; Apps on phone; Credit: maxphotostwo137435; Facebook on phone; Credit: JakubPorzycki/ZUMAPRESS/Newscom; Twitter headquarters; Credit: John Nacion / SOPA Images/Sipa U/Newscom

 

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A student asked me how to structure the Table of Authorities in a brief that we’ll be filing in a particular state court—whether the Table of Authorities should have all the cases together in one Cases section (which many courts require) or have in-state cases in a separate section from out-of-state cases (which some courts call for), perhaps further broken down by court.

The commonly (and correctly) recommended answers to such questions, of course, are:

1. Check the rules.
2. Ask local counsel.
3. Call the clerk of court’s office.

But sometimes the rules don’t give the answer, and you don’t want to take up local counsel’s time (or the time of the clerk’s office) with the question. So there’s another option:

4. Figure out what the top firms are in the state, and then search in Westlaw (or Lexis or Bloomberg) for briefs filed in the relevant court by those firms.

Here, it turns out that they put the cases together in one section, so that’s how we’ll be doing it. There is safety in numbers.

Naturally, this might not be the optimal solution if it costs money to do the Westlaw search, but law students have free Westlaw access, and many firms have a flat-rate plan. Just remember what your mother asked you when you wanted to do what your junior high school classmates did: “If everyone was going to jump off the bridge, would you do that, too?” When it comes to legal formatting conventions, the answer is, “Yes.”

It’s similar to what H.W. Fowler wrote about pronunciation:

The ambition to do better than our neighbours is in many departments of life a virtue; in pronunciation it is a vice; there the only right ambition is to do as our neighbours.

Of course, as Fowler notes, the one needs to consider who counts as “our neighbours” for this purpose, which is why I recommend following the top firms. Or, elaborating on the response to your mother, “Yes, if all the cool kids are doing it.”

(The subtitle, of course, is from the great Tom Lehrer; but remember, you borrow from your friend in Minsk only if you’re filing in Belarus courts.)

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Day by day, the Biden cabinet comes together. Xavier Becerra was tapped as HHS Secretary, which means he is out of the running for Attorney General. So far, the DOJ leadership remains unannounced. Demand Justice has called on Biden to nominate a Black woman for Solicitor General. This short-list includes one important overlap with the group’s SCOTUS short list: California Supreme Court Justice Leondra Kruger.

Would accepting the SG nomination be a good move for Kruger? The conventional wisdom is, of course!  The Solicitor General is an elite position, and it has served as the stepping stone for Justices Elena Kagan and Thurgood Marshall. (Then again, Ken Starr stepped down from the D.C. Circuit to serve as Solicitor General, perhaps in the hopes of being elevated to the Supreme Court; that plan did not pan out.) Also, this nomination would allow Kruger to closely work with the Biden administration, build trust, and presumably move to the apex of the short list.

Are there downsides? Of course. One of the benefits of being a sitting judge is that you can stay out of the political fray. At this point, Kruger has a spotless record. She served in the Solicitor General’s office with distinction. As far as I am aware, she has not written any controversial decisions on the California Supreme Court. In a 52-48 Senate, she would be easily confirmed.

But several facets of the SG job may add some spots to a spotless record. First, her SG confirmation hearing would be a dress rehearsal for her Supreme Court confirmation hearing. The knives will be out. And Republicans will make every effort to weaken her candidacy. If, for whatever reason, some damaging information arises from her hearing, or she stumbles in any way, the Biden administration may think twice about nominating her for the Supreme Court.

Second, the most potent weapons a Supreme Court nominee can wield at a hearing is the code of judicial ethics: “As a sitting judge, I cannot comment on my prior decisions.” That excuse goes away when the nominee is no longer a sitting judge. Senators can and will ask why and how the Solicitor General made certain arguments. And Kruger’s job could be quite messy. The next SG may have to seek frequent stays from the Supreme Court. (The Fifth Circuit is the new Ninth Circuit). And the next SG will have to reverse many positions taken by the Trump Administration. Chief Justice Roberts, in particular, has been savage on administrations that have flipped positions. (See my article, Presidential Maladministration, now more relevant than ever.) In the abstract, reversing positions should not be particularly controversial, but that record could create tensions that–at the margin–could promote another nominee over.

Third, serving as Solicitor General could create certain recusal issues. In 2010, Solicitor General Kagan hermetically sealed herself from all ACA litigation at the earliest juncture. (I wrote about this history, at length, in my first book, Unprecedented: The Constitutional Challenge to Obamacare). During her confirmation hearing, no one asked Kagan why she recused herself. The answer would have been obvious: I have wanted to be on the Supreme Court for decades, and I wasn’t going to sabotage my candidacy so I could attend some stupid meetings. Once you are off the bench, you have to explain these sorts of difficult ethical issues. You can no longer punt. An SG Kruger very well may have to defend certain Biden policies that could require her to recuse at the Supreme Court. And, at the margin, Biden may choose to select another nominee who lacks the recusal issues.

Far be it from me to give advice to a potential nominee I will consistently disagree with. But all things considered, a sitting state Supreme Court justice is in a much better position to get the nomination, and have a smooth confirmation, then a Solicitor General embroiled in the political fray.

Finally, in an unusual twist, Demand Justice has also put out an anti-short list: people who should not be selected!

“People like Neal Katyal, Lisa Blatt and David Frederick should not be up for appointments in the Biden administration,” said Brian Fallon, Demand Justice’s founder, in a statement. “We should not be rewarding elite Democratic lawyers who, while our democracy was at a low ebb these last four years, endorsed Donald Trump’s Supreme Court nominees, despite the threat to vulnerable communities, and represented big, corporate interests.”

Poor Neal. For four years, he served as the Solicitor General in exile, arguing every progressive cause to the Supreme Court, and to the public. His productivity is remarkable. Yet, Neal had the temerity to support Neal Gorsuch’s nomination to the Supreme Court. And he also represented corporate clients. (Recently, Tom Goldstein defended Katyal). Lisa Blatt, the most accomplished female advocate in Supreme Court history, is also a corporate lawyer. And she had the temerity to support Brett Kavanaugh’s nomination to the Supreme Court.

If Demand Justice can impose this sort litmus test on all nominations, the Biden administration will have a very, very tough time filling circuit vacancies. Forget blue slips from red states. Biden will have to fight for blue slips from blue states.

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Why are Americans so prone to wallowing in despair? A new working paper from the National Bureau of Economic Research (NBER) doesn’t have an answer to that question, but it does provide plenty of evidence that the phenomenon is real: U.S. major media coverage of the COVID-19 pandemic has been much more negative than in other English-speaking parts of the world, in large part because of reader demand for unrelentingly bleak news.

NBER researchers found that 65 percent of scientific journal articles and 54 percent of non-U.S. news articles were negative in tone, versus an overwhelming 91 percent of U.S. media reports.

“U.S. major media readers strongly prefer negative stories about COVID-19, and negative stories in general,” wrote the authors of the paper, which is rightly titled, “Why Is All COVID-19 News Bad News?”

The tone of the coverage was only weakly correlated with the reality of the course of the pandemic: There were more than five times as many media articles about rising coronavirus case numbers as there were articles about decreasing coronavirus case numbers, even during the times when cases were actually declining.

The negative coverage was particularly pronounced with respect to two pandemic-related issues: vaccines and schools. On vaccine prospects, U.S. coverage “emphasized caveats from health officials and experts downplaying the optimistic timeline and past success” of vaccine scientists. Indeed, “the terms ‘Trump and hydroxychloroquine’ receive more coverage than do all stories about companies and researchers developing vaccines,” according to the NBER.

Similarly, U.S. media overwhelmingly took a negative view of reopening schools, contrary to both the emerging scientific consensus—which has generally held that it is safe to reopen many schools—and the tone of coverage elsewhere.

The NBER could not discern a partisan breakdown in these findings: Major media outlets on the left and right were both extremely negative relative to their counterparts in other countries.

“Negativity appears to be unrelated to the political leanings of the newspaper’s or network’s audience,” wrote the authors.

These findings are not really so surprising, given the media’s strong preference for negative news in general. The aphorism “if it bleeds, it leads” is unfortunately accurate: Newspapers and television programs cover kidnappings and murders with such frequency that it may seem like these tragedies are more common than they actually are. It’s also true that we really have ourselves to blame, since the coverage reflects the audience’s preferences. Why this appears to be a uniquely American phenomenon remains a mystery.

The consequence of extremely depressing news coverage—even if it’s what readers and viewers demand—is, well, more depressed readers and viewers. There is plenty of evidence right now that depression rates are skyrocketing for both children and adults. To address this, the NBER’s paper concludes with an endorsement of guidance from the Centers for Disease Control and Prevention (CDC): Stop consuming so much COVID-19 news, because it’s bad for your mental health.

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In what will probably end up as the most memorable game of this bizarre, pandemic-affected college football season, the Coastal Carolina University Chanticleers improved to 10-0 on Saturday with a last-second victory over the Brigham Young University (BYU) Cougars.

The game is as significant for what happened on the field as for the circumstances that led to it happening at all. Last Monday, neither team was expecting to play the other. Then COVID-19 intervened, and both schools offered a lesson in the value of flexibility amid the chaos of this year.

Coastal Carolina was supposed to play the Liberty University Flames on Saturday, but several Liberty players were quarantined after testing positive for COVID-19 midway through last week. On Thursday, Liberty school officials announced they would not allow their team to travel for the scheduled game.

No one would mistake Liberty for the University of Alabama, of course, but the loss of that game against Liberty was a potential blow to Coastal Carolina’s Cinderella story of a season. In just their fourth season playing in the highest classification level for college football, the Chanticleers were ranked 18th nationally and maintained a slim outside shot at earning a bid to one of college football’s most prestigious bowl games. A chance to beat another overachieving small school—Liberty had a 9-1 record and was also nationally ranked earlier this season—would have boosted the Chanticleers’ profile further.

Just hours after the game with Liberty was canceled, Coastal Carolina announced that they would host BYU instead. The Cougars, sporting an undefeated 9-0 record and ranked 13th in the country, did not have a scheduled opponent on Saturday and were willing to make the last-minute flight to South Carolina for the chance to boost their own outsider bid to qualify for one of the top bowl games—or even to take part in the College Football Playoff.

Just like that, what was perhaps the most unexpected meeting ever between undefeated college football teams was set. In a sport where matchups are often set years in advance—the next meeting in the storied rivalry between Notre Dame and Michigan, for example, is scheduled for 2033—games don’t materialize out of thin air two days before kickoff.

But this year has upended a lot of expectations, in sports and in the more important parts of life. The flexibility and resolve shown by the athletic departments and the football teams at BYU and Coastal Carolina are laudable. Playing sports in the middle of a pandemic is not without risks—risks that start with the health of student-athletes, most obviously, but that also include the potential for cascading cancellations of games. Still, those risks can be mitigated and, as Coastal Carolina and BYU proved on Saturday, there is value in making sure that the games continue. As I wrote in the November issue of Reason, sports offer a massive real-world experiment in how to safely navigate a pandemic without simply shutting everything down.

That’s even more true in college sports than in professional athletics, as college players have a limited, five-year period of eligibility. There were plenty of reasons for Coastal Carolina’s athletic department to simply cancel Saturday’s game when their scheduled opponent couldn’t play—instead, they did the hard thing and got their players a chance to play anyway, against a nationally ranked opponent and with a national TV audience.

Imagine if the people running some of America’s school districts showed a quarter as much resolve or interest in what’s best for their kids.

The game didn’t disappoint. Trailing by five points in the final minute, the Cougars marched to within 18 yards of the Chanticleers’ end zone with enough time for one more snap. Receiver Dax Milne caught a pass near the goal line on the game’s final play, but he was tackled by three Chanticleer players as time expired. An impromptu game is now Coastal Carolina’s best win in a dream season.

Even college football’s calcified culture has been busted by the COVID-19 pandemic. As in other aspects of pandemic life, the important thing is taking necessary precautions and making the best of a bad situation—and recognizing that some disruptions can actually be for the best.

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Here’s an excerpt from the statement, by University president Robert J. Zimmer:

From time to time, faculty members at the University share opinions and scholarship that provoke spirited debate and disagreement, and in some cases offend members of the University community.

As articulated in the Chicago Principles, the University of Chicago is deeply committed to the values of academic freedom and the free expression of ideas, and these values have been consistent throughout our history. We believe universities have an important role as places where novel and even controversial ideas can be proposed, tested and debated. For this reason, the University does not limit the comments of faculty members, mandate apologies, or impose other disciplinary consequences for such comments, unless there has been a violation of University policy or the law.  Faculty are free to agree or disagree with any policy or approach of the University, its departments, schools or divisions without being subject to discipline, reprimand or other form of punishment.

That said, no individual member of the faculty speaks for the University as a whole on any subject, including on issues of diversity. In turn, the University will continue to defend vigorously any faculty member’s right to publish and discuss his or her ideas….

The College Fix (Charles Hilu) has the background:

Associate Professor Dorian Abbot recently took on the push to hire women and underrepresented minorities rather than select the best candidate for the job, bias against Chinese and Christian students, and other hot-button topics, drawing the ire of protesting students who said the scholar made them feel unsafe.

But their efforts to get him sanctioned failed at the University of Chicago, considered the best university in the country for free speech….

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