With the confirmation of Justice Amy Coney Barrett, the Supreme Court now has three justices nominated by President Trump. At the same time, there is open discussion of court packing, setting court term limits, and even impeaching Trump-nominated justices.
In this episode, we sit down with Mike Davis, founder and president of the Article III Project, which advocates for the confirmation of President Trump’s judicial nominees.
Davis is also founder and president of the Internet Accountability Project, which seeks to hold big tech companies accountable for censorship and monopolistic practices.
This is American Thought Leaders, and I’m Jan Jekielek.
Jan Jekielek: Mike Davis, such a pleasure to have you on American Thought Leaders.
Mike Davis: Thank you for having me.
Mr. Jekielek: Mike, you’re often described by a number of people I’ve actually spoken with as someone who’s working behind the scenes to get conservative judges confirmed. I’m wondering if you could give us a bit of an inside view into the confirmation of now Justice Amy Coney Barrett, and why this was so different from the previous confirmation hearing of Justice Kavanaugh.
Mr. Davis: I think what we saw with Justice Amy Coney Barrett’s confirmation hearing is she was an exceptionally well qualified nominee; 48 years old, number one in her class from Notre Dame Law School, executive editor of the Law Review, has been a Notre Dame law professor for the last 18 years where she’s widely acclaimed by students from all political sides. She has been a Seventh Circuit Judge for the last three plus years, appointed by President Trump in 2017, and she’s participated in 600 opinions there.
She’s phenomenal. We saw her during the hearing. She had no notes. She was brilliant. She brings a much needed diversity to the Supreme Court, which is she’s the only non-Ivy Leaguer on the Supreme Court, but clearly can keep up with all of them. So I think she’s going to be a great addition.
I think the reason Justice Barrett’s confirmation hearing was different from Justice Kavanaugh is because the politics at the time. The last Congress, I was the staff leader on the Senate Judiciary Committee for Justice Kavanaugh’s confirmation. I served as the outside leader for Justice Gorsuch, I worked on Chief Justice Roberts and Justice Alito’s [confirmations], and in the Bush 43 White House, so I had experience working on several of these.
What made Justice Barrett’s different is the Democrats, with Kavanaugh, thought that they could take him out. They thought that they could take him out with their accusations, essentially, of serial gang rape against him. And it was a different dynamic at the time. There were 51 Republicans in the Senate and 49 Democrats, and 11 Republicans on the Senate Judiciary Committee and 10 Democrats.
One of those Republicans was Jeff Flake from Arizona, and so the Democrats thought that if they could pick off Jeff Flake on the Judiciary Committee, they could stop his nomination, which they could because ties in the committee fail. What the Democrats did though, is they created the environment where there was a backlash because they falsely accused a good man of serial gang rape.
And four Democrat incumbents got sent into early retirement in 2018. Republicans picked up two seats. It gave Republicans another seat on the Judiciary Committee, 12 to 10. And we have more solid Republican members on the Judiciary Committee because Jeff Flake retired. And then you had a bigger question on the Senate floor. People like Susan Collins who had a principled disagreement with this nomination could vote no and it wouldn’t torpedo the nomination.
So I think the Democrats understood that she was going to get confirmed. I thought that they would actually try to bloody her up more like they did during her Seventh Circuit hearing in 2017, when they went after Judge Barrett for her Catholic faith and attacked her family.
Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee said, “The Catholic dogma lives loudly within you.” The number two Democrat in the Senate, Dick Durbin, who also serves on the Judiciary Committee, asked her if she was orthodox Catholic, whatever the heck that means.
There’s been a pattern and practice of Senate Democrats attacking Catholic judicial nominees and that includes Judge Buescher, a Nebraska District Court. Kamala Harris, the vice presidential nominee and Senator Hirono from Hawaii grilled him about his membership in the Catholic men’s charity, the Knights of Columbus. So this has been a clear pattern in practice over the last 3 plus years.
And so I thought the Democrats would do more of that this time. They actually just outsourced it to their other allies on the blue checkmark crowd on Twitter who attacked Justice Barrett’s faith and family and the Democrats actually were pretty smart not to do it so explicitly this time.
Mr. Jekielek: Maybe you can speak to this, too: as I understand it, there can actually be no religious test here. So how does this work?
Mr. Davis: Under Article Six of the Constitution, you could not have a religious test for officers of the United States including judges, including supreme court justices. So that is a very good question, why the Democrats think it is appropriate to ask a judicial nominee about their Catholic faith or their Catholic beliefs.
In no world would Democrats ask a Jewish nominee or a Muslim nominee about their religious beliefs, so there should be no reason they should be asking Catholic nominees about their religious faith. And just like any other judicial nominee, whether you’re Christian, Jewish, Muslim, a certain denomination of Christianity like Catholicism, you swear an oath to uphold the law and separate your religion from your personal view.
So it should not be relevant at all what someone’s personal religious views are and the Democrats are violating their constitutional oaths under Article Six of the Constitution by grilling these traditional nominees about their Catholic faith.
Mr. Jekielek: You’re part of the Article III Project, which works on trying to get these judges confirmed. That’s its explicit role. What exactly do you guys do?
Mr. Davis: What we do is I take my experience working on judicial nominees from the Bush 43 White House, the Bush 43 Justice Department, as Justice Gorsuch’s outside leader for his confirmation, and as the top Senate Judiciary Committee staffer on the Kavanaugh confirmation. We’re taking that insider experience to the outside.
Here’s what we’re trying to do with the Article III Project. We started in 2019, after Senator Chuck Grassley, the former chairman of the Judiciary Committee stepped down. He’s my home state senator. He handed the gavel to Lindsey Graham, who was doing a phenomenal job. At that time, I decided to leave the Judiciary Committee and start the Article III Project.
We are fighting for President Trump’s judicial nominees. We’re making the positive case for these judicial nominees as they go through the process, like we just did with Justice Amy Coney Barrett. We’re defending these nominees from the Democrats attacks like we saw with Justice Barrett, the Democrats attacks on her faith and family. We defend the confirmation process.
We take our deep understanding of the confirmation process and punch back on the Democrats’ attacks when they’re saying that Republicans are unfairly trampling over minority rights in the Senate or they’re unfairly breaking precedent. These are all untrue.
We’re able to point to the precedents and the procedures and the rules and explain why what Republicans are doing, what President Trump is doing is appropriate both under the rules and under Senate practice. Then we also punch back on what I call the radical assaults on judicial independence, the Democrats’ plans to pack the Supreme Court.
The number of justices on the Supreme Court has remained at nine since 1869, more than 150 years ago, right after the Civil War. The Democrats are trying to undo the progress that President Trump has made by packing the Supreme Court, expanding the number of justices from nine to eleven or more. We don’t know what the number is. This is a radical assault on judicial independence.
President FDR tried this at the height of his popularity during the New Deal era and he failed. The Democrats in his own party rejected this as too radical. The late Justice Ginsburg in 2019, made an extraordinary public denouncement of court packing, calling it an assault on judicial independence.
The Democrats want to pack the Supreme Court. They don’t want to be honest about it. You’re hearing Biden and Kamala Harris trying to dodge the questions on this and talk about blue ribbon panels. But if you look at the 2020 DNC platform, the Democratic National Committee platform, they say in there that they want to do court packing.
They don’t call it court packing. That would be too honest. They call it court reform. But make no mistake, if Joe Biden and Kamala Harris win the White House, Democrats will win the Senate. Democrats will keep the House. They will nuke the legislative filibuster, something that’s been around since the 1830’s, meaning they will lower the vote threshold from 60 to 51 votes. They will pack the Supreme Court.
They will add new states: DC, Puerto Rico, maybe the Virgin Islands. So you’ll have two, four, maybe six new Democrat senators. They’ll lock in their gains, and they will have a permanent majority in the House, in the Senate and on the courts for you know, permanently. So this is what this election is all about. And so that’s one of the things that the Article III Project is punching back against, this radical assault on judicial independence.
There’s court packing, there’s also a Democrat plan to have term limits, which are unconstitutional. The Constitution guarantees life tenure for judges, and also the Democrats are pushing impeachment schemes. They’re talking about impeaching Justice Kavanaugh. They’re even talking now about impeaching Justice Barrett, who was just appointed to the Supreme Court and Justice Gorsuch, because all three of them are Trump picks and the Democrats think they’re illegitimate. These are the types of things that we’re doing with the Article III Project.
Mr. Jekielek: So Impeaching Supreme Court justices, how does this work?
Mr. Davis: That’s a very good question because I think it’s only happened once, with Samuel Chase, on the Supreme Court. The Constitution insulates judges from the political process. They do it for a reason because they want the judges to be the least dangerous branch. They want the judges to be the article three branch.
The branch that has a very modest but critical role, which is to ensure that we’re following the law in this country and that we have the rule of law. And so the Constitution protects federal judges. The Constitution gives federal judges lifetime tenure, so long as they have good behavior. You cannot throw a judge out of office except through impeachment, and you can’t lower their pay. They have lifetime tenure and pay protection.
The impeachment standard is different for judges than it is for any other officer including President. It says good behavior. So it’s a heightened standard to get rid of judges. To come in and say that you’re going to impeach a Supreme Court justice or three Supreme Court justices just because President Trump, a duly elected president, nominated them and a duly elected Senate confirmed them, to say that you’re going to impeach them because of that fact is just crazy.
You’re seeing Democrats today on Twitter, blue checkmark Democrats today on Twitter, saying that unless the House and the Senate impeach and remove Justice Gorsuch, Justice Kavanaugh, and Justice Barrett, the Democrats are going to move forward with court packing.
Mr. Jekielek: That’s incredible. One of the arguments I’ve heard, and I ask you to speak to this, is does putting Justice Barrett on to the Supreme Court at this point right before the election constitute a type of court packing?
Mr. Davis: No, I mean, nothing could be farther from the truth. Here’s what court packing is. Court packing is when you add new seats to the Supreme Court or add new seats to the lower courts to bring in your justices to rubber stamp your agenda. That’s what FDR tried to do.
During the New Deal era when the Supreme Court was striking down as unconstitutional beyond Congress’s commerce power and beyond the President’s powers many of the New Deal programs, FDR threatened to pack the Supreme Court and there was great pushback from his party.
That is quite different from prioritizing judicial nominees and doing a very good job of getting them nominated and confirmed through the process. Doing your job very well is different from court packing. Court packing is a radical assault on judicial independence. What President Trump and Senate Republicans are doing are filling existing vacancies and doing their job very well.
Mr. Jekielek: The other argument that we’re hearing is that because of Justice Barrett’s conservative views, she’s going to stand against Obamacare, stand even against Roe vs. Wade. And this is the argument that’s being made—why this would constitute an unfair advantage for conservatives or perhaps Republicans.
Mr. Davis: Well, that’s an interesting way to look at it. It’s a very political way to look at the Supreme Court. I would say that the same Democrats are saying that Justice Amy Coney Barrett, a mother of seven, including one with Down Syndrome, is on a mission from God maybe to strike down pre-existing conditions and Obamacare. I just think that’s a silly argument.
She addressed that in her hearing that she’s not on any mission to go after Obamacare or strike down Obamacare. And remember, these are the same Democrats were who have tried to scare American voters about Roe vs. Wade since 1973. For the last 47 years, Democrats have argued that Republican-appointed Supreme Court justices would go in there and overturn Roe vs. Wade. Here we are 47 years later and Roe vs. Wade is still there.
This is just pure demagoguery and scare tactics by the Democrats because they don’t want to actually argue with Republicans and conservatives about the appropriate role of a judge, judicial philosophy and how judges are supposed to operate in our society. They want to scare voters, whether it’s scaring voters with Obamacare or scaring voters with Roe vs. Wade. These are simply scare tactics before the election.
Mr. Jekielek: So, Justice Coney Barrett is confirmed. Now what happens next?
Mr. Davis: Well, what happens next is we have an election in less than one week, or I guess, in a week from today. And, you know, the American people need to decide whether they like justices on the Supreme Court like Justice Amy Coney Barrett or they want radical left wing justices. We saw that there are liberals on Twitter last night that are saying that they want to pack the Supreme Court, add three new justices including Hillary Clinton to the Supreme Court.
So that’s the choice that American voters need to make. Do we want to have a nine member supreme court with justices like Justice Amy Coney Barrett? Or do we want to pack the Supreme Court and turn it into a purely political body with Justice Hillary Clinton?
They get to decide when we get to speak and when we have to remain silent. They get to decide where we can associate where and we can associate. They can decide when it’s acceptable for us to worship when it’s not acceptable for us to worship. They get to decide whether we get to have arms to protect ourselves, and protect our families while they have their government funded security details. That’s what’s on the line in this one week: the Supreme Court and court packing.
Mr. Jekielek: You know, speaking of Twitter, one of the things I saw last night—I think this is correct, and I didn’t understand it, but I’d like to hear your perspective. There was a criticism that originalism is discrimination. What do you make of this?
Mr. Davis: It’s silly. Originalism is you look at the text of the Constitution or the statute, and then you look at what that text meant to the American people at the time it was enacted. The purpose of that is so you can have a fixed meaning with the law, so the law doesn’t evolve over time. So people can order their affairs around what their reasonable expectation of what the law is, and so they can stay on the right side of the law and live their life legally.
You know, Justice Gorsuch talks about this in his book, “A Republic, If You Can Keep It.” He talked about Caligula. Caligula used to write the laws so high that no one could read them. And so no one ever knew what the law was. They couldn’t order their affairs around what a reasonable expectation of the law is.
That’s what originalism is. It’s a judicial philosophy that helps tampen in the judge to focus on the law, on the legislative branch, on the political branches elected by the people who write the law, not un-elected judges, who are unaccountable to the people— are largely unaccountable to people, by design. By the founders design, they’re unaccountable because they have pay protection. They have lifetime tenure. It’s hard to get rid of them; it’s nearly impossible to get rid of them. That’s by design.
In no way, shape, or form did our founding fathers want to give the legislative power to judges as they’re not philosopher kings. They have a more limited role in America. And it’s their job to follow the law, not to write the law. And so with originalism, when people say that—it’s a scary judicial philosophy for liberals because it debunks liberal judicial activism.
It makes it so liberal activist judges—it makes it so they can’t just make up the law to get to the political result that they want. For people to say that originalism is racist is just utter nonsense. You have to remember that originalists also—not only did they follow the 1st, 2nd, 3rd, 4th and 10th amendments, they also follow the 13th, 14th, and 15th amendments, which were the Civil War amendments that freed the slaves and gave equal rights to all Americans. They also follow the 19th amendment which gave the right to vote to women.
So to argue that originalism is—I think Senator Markey from Massachusetts made that argument. He really he should be ashamed of himself for making that argument because it denigrates a lot of people who believe in the judicial philosophy of originalism and are in no way racist. Is Markey going argue that Justice Barrett is racist? She’s an originalist.
She adopted two kids from Haiti. Is she a racist when she adopted two black kids? There are some crazy left wing lunatics on Twitter who have made that argument that she is a racist for adopting two kids from Haiti. But other than left wing lunatics on Twitter, I wouldn’t expect that from United States Senators, including Markey.
Mr. Jekielek: So let’s just talk about the President’s role in confirming judges and justices here, over the last four years. This is the third supreme court justice. I don’t know what the historical record exactly looks like. It seems like quite a few Supreme Court justices have been confirmed under the President’s tenure. How much of an impact does this have on the Judiciary now, not just the Supreme Court, but overall the work around confirming judges and how long will this last?
Mr. Davis: So President Trump, Senate Majority Leader Mitch McConnell, former Judiciary Committee Chairman Chuck Grassley, my former boss and current Judiciary Committee Chairman Lindsey Graham deserve a great deal of credit for this.
In the last nearly four years, they have appointed 220 Article III judges, including three Supreme Court justices. That has solidified a true conservative majority on the Supreme Court.
For the first time in more than 80 years, we’re going to have the rule of law prevail on the Supreme Court, meaning that whether you’re a college kid on campus—a conservative college kid on campus—or another conservative who just wants to speak in the public square without worrying about being canceled or censored, you’re going to have justices protect your first amendment rights.
You’re going to have justices protect your right to associate freely with people you want to associate with. You’re going to have justices who protect all believers, all Christians, all Muslims, all Jews, all non-believers, atheists, all people who want to believe or not believe. You’re going to have a Supreme Court who protects you and people who want to own guns and protect themselves and their families. You’re going to have a Supreme Court that protects you. That’s really important. It’s really consequential.
Like I said, it’s the first true conservative majority in more than 80 years. On the circuit courts—President Trump has done a transformation of the circuit courts. He’s appointed 53 federal appellate court judges—53 judges to the critically important federal courts of appeals. This is the last stop for more than 99% of federal appeals because the Supreme Court has discretionary review, and only takes about 100 cases a year or less for oral arguments. So the courts of appeal are the last stop.
President Trump has appointed, like I said, 53. He has flipped… There are regional circuits around the country. I think there are 14 federal courts of appeals. And President Trump has flipped—[there are] actually 13 federal courts of appeals, I apologize. President Trump has flipped the second, third, and eleventh courts of appeals from majority Democrat-appointed to majority Republican-appointed.
On the ninth circuit—the once out-of-whack liberal Ninth Circuit—when President Trump took office, there were, on this 29-seat court, there were 11 more Democrat-appointed judges than Republican. That is down to just three. In President Trump’s second term, he could do the unthinkable for a president before Trump, and that is flip the Ninth Circuit along with every other federal circuit court in this country.
President Trump— at 220 Article III judges and at 53 federal appellate court judges, circuit judges—President Trump right now is number two of 45 presidents for the pace of his appointments to the federal bench. And the only reason that he’s number two is because Congress created 152 new judgeships for President Carter to fill. Otherwise President Trump would clearly be number one.
The transformation of the federal judiciary has been a top priority for President Trump and for McConnell, Grassley, and Graham. They have made it a top priority. They’ve done a very good job of prioritizing this and filling these slots. It is the biggest accomplishment of the president’s first term in office. These judges are appointed for life, and they’re going to have an impact on the bench for 30-plus years.
Mr. Jekielek: I know that a big idea behind the Article III Project is to keep the courts de-politicized or non-politicized. But the way you’re talking about this, that certain circuit courts have been flipped, has a political feel to me. Can you explain to me what you mean exactly?
Mr. Davis: Well, we do not want judicial activism on either side. I do not want liberal judicial activists writing the law. I do not want conservative judicial activists writing—well, I think that is dangerous for federal judges to get into the lawmaking business. They are the Article III branch, like I said, they’re supposed to be the least dangerous branch.
The legislative power belongs to Congress, and it’s divided between the House and the Senate and the President has to say yes or no to all policy changes—all legislation. And so in no way, shape, or form did our founders think that the Supreme Court should be writing our laws. That’s just not our system. That would lead to tyranny.
Like I said, at Article III Project, we want judges to follow an objective legal standard—we want them to have an objective legal philosophy. And originalism, in our mind, is the best philosophy because you’re looking at the most objective standards. What does that text say? What did that text mean to the public? What was the ordinary public meaning of that text at the time it was enacted? That way you have a fixed meaning to the law.
And if the law is liberal, it doesn’t matter if you’re a liberal judge or a conservative judge, your job is to follow that law and get to a liberal result if the law is liberal. And if it’s a conservative law, you follow that along. It gets you a conservative result if the law commands it. I don’t want conservative judges doing—I don’t want conservative judges in the judicial activism business because I do not think that we should legitimize judicial activism.
It’s unconstitutional. Judges violate their constitutional oath when they do it. It should be unacceptable in our system—judges having too much power, having all three branches of power wrapped up into one unelected, unaccountable judge. With originalism, that tries to de-politicize the judge, because again, it makes their legal standard objective and not subjective.
Mr. Jekielek: Mike, you work in another area, which is very, very important to me, which is looking at big tech via the Internet Accountability Project or IAP. That’s yourself, Rachel Boulevard, and some others working on this. What I want to figure out is—you guys have a unique approach to this, because I know that your philosophy is you’re not for government regulation in general in your approach.
However, you recognize that big tech is kind of a new animal, so to speak, that requires a bit of a new approach. If you could just tell me what is the philosophy of the Internet Accountability Project to try to deal with this? And then we’ll talk about some more specifics.
Mr. Davis: The Internet Accountability Project, or IAP, is a conservative organization—we’re a populist organization and we are trying to hold big tech accountable from the right. How we want to do that—it’s not through new laws. It’s not through new regulations. It’s not through Elizabeth Warren-type agencies. It is simply enforcing existing laws.
Right now, we’ve had antitrust laws on the books, Sherman [Act] Section 2, Clayton [Act]. We’ve had those laws on the books for nearly a century. The laws are very clear on antitrust. It is, you can be big in this country. Big is not bad. You can even be a monopoly in this country. If you have 60, 70, 80 percent market share, you’re generally considered a monopoly. You could have that in this country.
The issue is that you cannot use your monopoly power to harm the competitive market. You have to play with kid gloves. And with big tech, you have these big tech infants from the 1990’s that have grown into these massive monopolies. Google is a trillion dollar monopoly.
Amazon is a trillion dollar monopoly and they acquired the Washington Post. There’s news that came out today that Amazon is also trying to acquire CNN. These monopolies get too big, they get too powerful, and they use their monopoly power, their market power, to exclude competition, to harm the competitive market. And that is bad for the market, that’s bad for consumers.
What we’re arguing at the Internet Accountability Project is that we have these laws that have been on the books for nearly 100 years, the Sherman and Clayton Acts. They’re antitrust laws. We have these federal antitrust law enforcement agencies. There’s the antitrust division of the Department of Justice. There’s the Federal Trade Commission.
As conservatives we do not believe in immigration amnesty. So why should we believe in amnesty for any other law that is on the books, like the antitrust laws? We, as conservatives, believe in law enforcement. If you enforce the antitrust laws against the bad actors, that is targeted law enforcement, so you don’t have to have industry wide-regulation.
If you target the tumor, if you target Google and their bad acts, if you target Amazon and their bad acts, if you target Facebook and their bad acts, Apple and their bad acts, then you can target the tumor with the antitrust laws. And therefore there’s no need to have crushing regulations that would hurt startup companies and small businesses.
Our argument is that as conservatives, we support free markets. Free markets require a functioning market, and when monopolies are using their market power to harm the competitive market, we no longer have a functioning market. We no longer have a free market.
And so as free market conservatives, we should all be for enforcing our antitrust laws that have been on the books for 100 years. And fortunately, the Department of Justice has finally started to do that. They filed a lawsuit against Google on this very issue. The state attorneys general are also ramping up their efforts to hold big tech accountable for their antitrust violations.
The FTC [Federal Trade Commission] has long been captured by big tech. Hopefully that changes a bit. But the regulators are captured by the regulated. Big tech basically owns the FTC. Hopefully that will change in the second Trump term. We also had the Article III Project. We want to repeal, we want to upgrade—there’s not necessarily a repeal—we want Congress to reform, upgrade, maybe repeal.
It’s the market power that they’ve acquired through antitrust amnesty from the Department of Justice, and the FTC’s refusal throughout the the Obama Biden administration and up until recently to enforce the antitrust laws. And so with this antitrust amnesty, along with this handout from Uncle Sam in the form of Section 230, these big tech influence infants from 1996 have become these big tech monopolies.
And they’re using that power to harm consumers, harm small businesses, target conservatives, and it’s time for big tech to be reined in. And again, it’s not through regulation. It’s not through big government agencies. It’s through enforcement of existing antitrust laws and taking away Uncle Sam’s coddling of big tech billionaires and their trillion dollar monopolies through reforming and upgrading Section 230.
Amazon, Google, Facebook, Twitter, they don’t need Section 230 protections anymore. They’re big boys now, and they can handle themselves. I don’t see a problem with keeping Section 230 protections for the startups so they can get onto the playing field and they can have a fighting chance. Google, one of the biggest companies in the world; Amazon with Jeff Bezos, the richest man in the world, they don’t need Uncle Sam’s coddling.
That’s when we decided to do Section 230 of the Communications Decency Act of 1996. Back in 1996, when the internet was in its infancy, Congress passed a law to protect these internet startups from defamation lawsuits from their users. So the America onlines of the world wouldn’t get sued off the map, and the publishers wouldn’t sue them off the map.
It was probably a very good idea at the time, because it led to the booming internet economy that we’ve seen. There’s a lot of good things that have come out of big tech and the internet. But the problem is, fast forward 24 years, and big tech infants have become big tech monopolies. And they are using their power.
Mr. Jekielek: You said something that just caught my attention. You said the FTC is owned by big tech. That’s a pretty big claim. Can you expand on this please?
Mr. Davis: The commissioners on the FTC have done almost nothing to hold big tech accountable for their blatant, egregious antitrust violations. We’ve seen that over and over again with Google, with adtech, and how they tie their advertising tools. We see that over and over again with Google search.
We see this with Apple with how they handle apps on their Apple Store. We see this with Amazon with their time for purchases in their stores. There are clear antitrust violations and the Obama Biden appointed commissioners to the FTC have done nothing to hold big tech accountable throughout the entirety of the Obama Biden administration.
If Biden becomes president again, that antitrust amnesty will continue because a President Joe Biden, and a Vice President Kamala Harris, who represents the limousine liberals in the Silicon Valley, will be 100 per cent coddled and protected again under a Biden Harris administration.
Mr. Jekielek: Tell me about the DOJ antitrust suit against Google. How strong is this case?
Mr. Davis: I think it’s a very strong case. The Department of Justice antitrust division, under Attorney General Bill Barr’s tremendous leadership have brought a lawsuit against Google. And I think it’s an important lawsuit. It complements the efforts of the state attorneys general.
They’re looking at Google for how they tie their advertising—how people can advertise on Google. They’re also looking at Google for their monopoly in search. This case, right now, the lawsuit was just filed, and they’re going to proceed through a civil case in federal court.
They’re going to have discovery. That’s going to get to the motions phase, motion to dismiss at the early phase. Then you get through the evidence, and then you have a motion for summary judgment. And what that basically says is the judge determines whether the case is right for a trial. Then if there’s enough evidence for a trial, they’ll move to trial.
And so I think that the Department of Justice has built a strong case. They’ve looked into this for a long time. It’s not just a fly by night lawsuit. I anticipate that it’s going to be very good for the American small business owner. It’s going to be very good for American consumers. It’s going to be very good for conservatives.
Remember, it was the antitrust law enforcement against Microsoft in the 90s that led to the Googles of the world, the Amazons of the world, the Twitter’s of the world, the Facebook’s of the world. So antitrust law enforcement is good for innovation. And I think that’s going to be the result of this lawsuit.
Mr. Jekielek: Well, so what is the Internet Accountability Project’s view on this apparent censorship, by at least Twitter and Facebook, of the Hunter Biden emails and related material?
Mr. Davis: We think it’s egregious. These internet companies like Google and Amazon are getting antitrust amnesty, meaning they’re not the antitrust law enforcement agencies. Up until very recently, we’re not enforcing the antitrust laws. They get this giant federal government subsidy in the form of Section 230.
Section 230 is essentially that they can’t be sued for what users post online. It basically is supposed to mean we’re going to have a free platform to express ideas except for in very limited times where people are trafficking in child pornography or other very limited circumstances. Unless that’s happening, these platforms are supposed to just step back and let these people communicate on these platforms.
That’s really the purpose of 230—people can communicate on these platforms even if it’s defamatory. That’s the point of 230. Even if these posts are wrong, or even lies, the platforms are not liable for it. And these platforms have turned 230 as a shield to protect them from defamation lawsuits into a sword that they use to go after their political enemies.
In this case, it’s Republicans, conservatives, and the New York Post, one of the oldest and biggest newspapers in America. It was founded by [one of] our founding fathers Alexander Hamilton. [It] reported a story that Hunter Biden was essentially selling access to his father to the Chinese and the Ukrainians—making money off of it— apparently making money for Joe Biden too.
He calls him the big guy in these communications, and the New York Post was posting news stories about this. This is what any reputable news organization in America should be doing if a presidential candidate who has a good shot of winning the presidency is selling access, or there’s actually accusations that his family members are selling access.
That is an explosive front page, every day, story in the Washington Post or it should be. But it’s not, because they’re protecting Joe Biden. When this story comes out, Twitter and Facebook decided to take it upon themselves to censor the New York Post instead of letting Americans read the story for themselves and make up their own minds.
Twitter and Facebook went out of their way to protect the Bidens because they’re trying to tip the scale in this election. Frankly, I don’t know how it’s not a federal election violation— that they’re making a massive campaign contribution to the Biden campaign. And I know that people are looking into those types of complaints.
But at a minimum, why do we have Section 230? Why do we give big tech Section 230? Why do we give them this special immunity that other businesses do not get, if they’re not going to have a free flow of ideas on their platforms, which is the whole purpose of Section 230.
When Twitter and Facebook went after the New York Post, it was really their Pearl Harbor attack on conservatives, because there were a lot of Republicans in Congress, in the House and in the Senate, who are sympathetic to 230, who are sympathetic to big tech. And this really woke them up to the fact that we really need reforms to 230.
Before it was unclear whether there were enough Republicans who would support reforms to 230. I think it’s very clear now after what Twitter and Facebook did to the New York Post—and not only the New York Post, it was the White House Press Secretary Kayleigh McEnany. The other very influential conservatives on Twitter—they have just shut them off—they’re trying to cancel them.
That’s just unacceptable in this world. If big tech wants to do that, people say, “Okay, it’s a private business, they can do whatever they want.” Okay, if big tech wants to do that, if they want to censor conservatives, we need to stop giving them Section 230 immunity. We have to stop giving them Section 230 protection.
Mr. Jekielek: What scenario—you’ve kind of answered this a little bit—what scenario is better to have: 230 basically adhered to across the board as it’s supposed to exist, or to have it struck? You said earlier that you suggest that should be struck for the giants, but it should be kept for the startups. What about this scenario? Is there any way to actually save it and have it adhered to in a broad way?
Mr. Davis: The Senate Judiciary Committee is looking at the Earn It Act now, where it says that if these big tech platforms keep their Section 230 protection, they have to earn it. If we’re going to give them the special handout from Uncle Sam to keep coddling these 24-year-olds who refused to leave Uncle Sam’s basement—if you’re going to stay in Uncle Sam’s basement, you have to go out to mow the grass, you have to shovel the sidewalk, you have to help out.
You have to earn it— meaning you have to do things that promote a platform for free expression of ideas and not turn it into a woke platform where you’re silencing and even canceling conservatives.
Mr. Jekielek: China is a place that we cover extensively here at the Epoch Times. The Chinese Communist Party has been able to build a techno-fascist reality where you have surveillance, and it’s all internet connected. You have AI [Artificial Intelligence] identifying people’s faces through this extensive surveillance—you’re seeing this kind of thing.
In Xinjiang, you have a points system where when people do things that are amenable to the Communist Party, their social credit score goes up. When they do things that are against it goes down. It impacts what you’re able to buy, it impacts what you’re able to do in society, and whether you can get a train ticket even.
This dystopian reality that’s been created there, I think even George Orwell couldn’t have imagined because he couldn’t imagine the technology or imagined the direction very well. People have been saying here in America that the potential for the creation of this sort of dystopia exists with too much tech giant control. I’m wondering if you could comment on this, please.
Mr. Davis: I agree, we are becoming slaves to our cell phones, or iPhones, and the internet. It’s where we’re becoming completely dependent on it. And that’s, frankly, what Google wants. That’s what big tech wants. They want us, because they can commoditize us.
With Google people think that they’re getting free Gmail, they get very inexpensive phones through Android, and free internet searches. They think it’s free, but they don’t understand the price of free. Google is a trillion dollar company. Its executives are billionaires. They didn’t become a trillion dollar company with billionaire executives by handing out freebies all day. Of course they’re making money.
How they’re making money is they’re not selling a commodity to you. They are selling you as the commodity. What they do is they find everything they can about you—they track your movements, they track your sleeping patterns, they track your internet searches, they track your health records.
At the Internet Accountability Project, my colleague, Rachel Boulevard, did an ad on this. You should go to our website and look at theiap.org. And there’s is an ad on there called, “Google is Evil.” And it goes through this. It documents everything that Google tracks about you and how they sell you as a commodity and how they sell you to advertisers.
That’s how they make their money. They make a lot of money—a trillion dollar company, because they learn everything they can about you. That’s the world we’re heading down. That’s the world we’re heading into. That’s why the internet accountability project is sounding the alarm.
Because if you have these monopolies who have so much control over everything that everyone does, that leads to a lot of dangers to our personal liberties. Instead of the Chinese Communist Party leaders controlling our lives, you’re going to have woke Google mid-level managers controlling our lives. We want to push back on that. People need to be aware of what they’re getting themselves into when they think they’re getting something for free with Google. They’re not. It’s not just Google; it’s all of the big tech platforms. But Google is by far the biggest and the worst offender.
Mr. Jekielek: Obviously, you’ve explained that you don’t like to create regulation. But what you’re describing sounds to me and probably sounds to many, like just very smart capitalist developments and technology—very effective technology that the market wants and is interested in. How do you prevent something like this from happening without regulation?
Mr. Davis: Again, it’s what we’ve talked about at the Internet Accountability Project. We propose three solutions. Number one is to end antitrust amnesty and enforce the antitrust laws that are on the books. When these technology companies commoditize you, it is less of a threat to you as an individual if there are numerous companies competing for you as the commodity, versus one big massive monopoly, Google, owning everything about you.
Number two is we need to upgrade Section 230. It is a problem when these big tech monopolies—trillion dollar big tech monopolies like Google and Amazon that already have too much power, get more power because they get this 230 protection from Uncle Sam.
The other thing that we need to do, and I think this would be a key to change the dynamic, is [that] your personal data is your personal property. Basically, we go back to that common law notion about copyright—what you create is yours, and it belongs to you. If your information that you create on the internet belongs to you, you create a market where Google can’t just take the information about you and sell you.
The commodity becomes that data and you can control your own data; it becomes yours. Those are the big things that we’re pushing at the Internet Accountability Project: antitrust law enforcement, Section 230 reform, and personal data is your personal property.
Mr. Jekielek: The personal data piece is very interesting, because very often when you’re signing these very long terms of service, you’re basically saying, “Here, this is all yours, internet giant.” Right?
Mr. Davis: They have these click wrap agreements. They’re boilerplate agreements. No one reads them. You sign up for, you think, free Google, and you sign away your life. You don’t realize that you’re signing away your life, but you are. That’s an instance we can go back to our common law notions of copyright, and copyright belongs to you. There are ways you can do this without government intervention. You can have consumer groups force Google, force Amazon, force Twitter, force Facebook, or force Apple to upgrade these click wrap agreements, so consumers are not unknowingly giving away their lives.
Mr. Jekielek: Mike Davis, it’s such a pleasure to have you on.
Mr. Davis: Thank you very much.
This interview has been edited for clarity and brevity.