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You are listening to Iowa Law Talk with Messrs.
Nicholas Cratelli, J.D.
Esquire, and...
Joseph Piper, J.D.
Esquire.
These are the wise denizen of Iowa law.
Decades of experience, Joe with his great practice that encompasses so much of our agricultural folks here in the state of Iowa.
Nick with offices that extend beyond Iowa into New York and London as he is the first American lawyer in a century and a half to become a British barrister.
I'm John Jacobson, your
Lowly moderator here today, but I am an Iowa Hawkeye Law alumnus.
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It will be hard to top.
Last week's show, where Barrister Cratelli
had on another Iowan, a judge who is now a British solicitor and the great Judge Greiner from Polk County.
Nick, you've intrigued me, though, and tickled me with two great cases that Randall Bizanson went through with us.
My Conlaw II semester, which was January through May of 1986, and we took a look at both the Sullivan
and the Gertz cases, I can't wait to roll up our sleeves and do this with you and Mr. Piper, take it away, Sir Nicholas.
Well, let me tell you what started.
I was watching TV last night.
And be honest with you guys, I got disgust.
All I was hearing were political ads that were just ridiculous.
I mean, I'm listening, and it's not like it's one right after another, right after another.
Everybody throwing mud, defaming, I'll use legal terms here, everybody else.
I'm going, is this what has happened to our democracy?
Nobody's telling me what they're going to do.
They tell me how bad everybody else is.
And I'm listening to half of this stuff, going, there's no way that this could ever happen.
I realize that we'll elect somebody for the Congress.
Right.
They're there for term terms.
They're one of 500 votes, et cetera.
They have no control over anything.
But the fact of the matter is, I mean, apparently we got some real low-lifes running for government on both sides of the ticket.
if you listen to both sides of the people.
It makes me think of something.
Where oh where are the
seed
corn heads?
Where oh where can they be?
Where oh where are the seed corn heads?
Where in the head are they?
I can't beat that John.
You know he's got a little bit of
Irish Tenor mixed in with the little Neapolitan operatic.
Are you sure this guy is from Luxembourg, St.
Donatus, and the Dubuque area?
Joe, what was that?
Good morning, guys.
I'm lamenting the fact that we don't have syncoon ads and ad chemical ads, which is what we're going to get on November 4th, the day after the election.
I hope so, because I'm so sick of this, Joe.
This is getting ridiculous.
I mean, for example, I'm here in Polk County.
and this Congressional District.
I never thought in my life that I would ever see a time when a female minister would be running against a male nun.
Very funny, very funny play on words, Mr. Cratelli.
Okay, that's a
Catholic joke.
I get it now.
Zack Nunn and UNN, Zack Nunn play on words.
They're well played, Mr. Cratelli.
So here's the problem I've got with this, folks.
I'm listening to this stuff, and this is just junk.
I mean, everyone's throwing mud at everybody.
We don't know whether it's true or not.
In fact, it could possibly be true.
So then I looked at it and said, well, wait, the law generally has remedies for things of nature.
It's called defamation.
Liable is written defamation.
Splander is oral defamation.
What happened?
How come it's gotten so bad?
Well, we know that in 1964, there was a U.S.
Supreme Court case called New York Times versus Sullivan.
And basically what that held, folks, is that the law of defamation, suing somebody when somebody is telling lies about you, or casting you in a false light or whatever it is, you could be liable if you do that to somebody.
And if you're a radio station or a TV station, broadcast that, they're liable too.
That was the safeguard to protect that.
Well, in 1964, the US Supreme Court
in a case entitled New York Times versus Sullivan said, well, you know, freedom of speech.
People ought to be able to say anything they want within reason about anybody else running for office because public office requires a lot of public discourse that gets heated, etc.
So unless you can show actual malice, good luck trying to do that, by the way, you know, everything is fair game.
if you're running for public office or in public office.
About 10 years later in 1974 the Gerst case came out and it says basically that if you are a public figure
People can defame you, liable you, slander you, and there's nothing you can do about it.
Now, it didn't quite define what a public figure was, but if you're somebody that's in the public's eye, etc., then you're not protected with respect to any of this.
Theoretically, John, all of us on this show right now could be considered public figure, which means anybody can say anything about you that they want, regardless of whether it's true, a lie or whatever.
And, you know, you just simply have to take it.
So I looked at this and I go, oh, wait a minute, this is ridiculous, because what you end up with is what we witness every night at TV, particularly during election time, slander after slander after slander, and there's no repercussions.
Then, to make matters
There's worse folks.
Section 230 of the Telecommunication Act goes one step further.
No, this is a real problem.
It says that any entity that rebroadcasts any kind of communication, read internet, okay?
Read TikTok, read any kind of...
Instagram for instance.
They are
completely...
Immune from liability.
Now pause folks.
I may say a lot of bad things against John Jacobson, but it's basically from my lips to his ears.
But if I now have telecommunications that will broadcast that, I can broadcast that slander to the world.
So the safeguard against defamation, uncontrolled defamation, okay, was the broadcaster could be liable.
And the Section 230 of the Telecommunication Act did away with that.
Now you have wholesale defamation.
John, we have two cases involving false light defamation in this office in the last year.
This is where people said anything they want to say about anybody just to put them in a false light to get some kind of an advantage over them.
You would be shocked at the amount of anonymous defamation that's going on out.
It's ridiculous.
Well, in an internet world, it's exacerbated, Nick, as you correctly allude to.
You know, we all say, well, I have a right to speak.
No, you don't.
There is nothing in the U.S.
Constitution that guarantees you a right to speak, folks.
You have a right to a fair trial, you have a right to a gun, right to a jury trial.
You don't have a right to speak.
You have a freedom of speech.
There's a world of difference between a freedom and a right.
As lawyers, we know the difference.
And that is freedom has to be exercised responsibly.
A right, not necessarily.
We only have a freedom.
But yet everyone confuses that and can say anything about anybody that they want without repercussion.
This has gone too far.
Nick, but we've got to thread a needle very carefully because in your beloved Britain, there is no true freedom of speech.
They have arrested dozens of thousands of people for free speech violations in the last five or so years.
You have fathers of assaulted young girls who have been critical
of certain groups who have been grooming and assaulting these girls who have literally been punished more severely than the perpetrators of the grooming and the sexual assault.
I don't know any of
that to be true, okay?
I don't know any of that to be true.
I'm not saying you're lying.
I just don't know any of it to be true.
Okay, I do know that I have brought cases defamation cases and liable cases in Great Britain Okay, that stemmed from the US because Great Britain doesn't have New York time versus Solomon doesn't have section 230 of the Telecommunication Act and folks if some defamation is said here and it's broadcast over there English defamation law applies and we've been successful on that
So I mean, don't just assume you can shoot your mouth off and kept protection everywhere on the planet.
Folks, it doesn't work that way.
Nick, does it beg the issue of is New York Times versus Sullivan bad law?
I mean, is do we need to go at the very
default presumption that it was correctly decided.
I mean, there are some third rails you can't touch in the law, such as Marbury versus Madison, but we have seen overturnings of cases like Plessy versus Ferguson and some other cases that were determined in the Karamatsu case, which we've had to take a revisit of and correctly so.
How can we thread this needle of not chilling
free speech because we want a strong public discourse.
But on the other hand, to not allow it as you correctly indicate, grave violations of personal dignity and reputation.
based on just reckless and careful
bromides.
The problem that I see with with New York Times and Sullivan is it sounds good, John.
You know,
actual
malice, okay.
Those of us that deal with the term actual malice in our day-to-day practice know that comes from the tort ball.
Now, how if I'm a victim, how do I prove that?
Malice lies in the perpetrator's brain.
They have all the facts and evidence.
I have no way of getting at it.
One way to protect it, John, is to flip the burden of proof.
Let them show justification, OK?
That's the idea.
That's an idea.
Is that what they do over there?
Yeah, put the burden on the speaker.
I mean, this is getting ridiculous.
I looked listen to those ads last night
Yeah, and
I don't care whether you're Republican or Democrat the whole things are repulsive and why you would want your name associated with that kind of stuff Amazing, but yet
they're both I agree and what's what's problematic too is is there plausible deniability where the candidate says it's not me It's these Independent packs that are doing it.
I have no control over that.
Is that a cop out or is that a real?
That's a good question.
I think it's a cop out
Because remember this, I approve this message.
Remember those taglines that you always hear on that?
Okay, they approve the message when they like hearing it.
But if there's any kind of a problem, they'll accept the benefit of the defamation.
They just don't want their fingerprints on it.
Now with PACs, that disclaimer is not issued by the candidates, so there is that bifurcation there, and yet we know, we just know that these races are, these races are hugely funded by the PACs themselves, and they are
vicious.
The way we finance our campaign over here is terrible, okay?
I agree.
And until we finally get some control over it, and number one, shorten the period of campaigning.
You know, six months is long enough.
I got to put up with this stuff.
We're going to have another election up for the next 24 months.
We're going to be inundated with this junk.
Okay.
Limited to six months.
Maybe you have public financing so we don't have to have this packed junk.
But this is ridiculous.
Nick, every problem in the Iowa legislature and the House of Representatives when I was there stemmed from the constant reelection cycle, which was predicated upon raising money.
from lobbying groups, and money is the great poisoner.
It is.
And it literally comes down to impacting who your chairs are of your committees.
It's a huge issue now.
We've had campaign finance reform rulings from the Supreme Court, and obviously they've opened the gates to a great extent there.
And there are some pitfalls to government-controlled campaign.
finance spending, because sometimes you can load the dice, so to speak, in favor of one side or the other.
So I don't know if there's a perfect solution.
I know my friend Joe Piper goes back with me to some huge tilts in eastern Iowa over the years, some incredibly competitive Senate and congressional races.
And Joe, I am not being
Rebecca Sunnybrook Farm here in Halcyonic about the old days.
But even when there was robust skirmishing, it was not down to the argument at hominem that is just literally at a savage pace today.
I mean, is it money that has done this, Joe?
Or is it just the coarsening of the culture in general, or is it a combination thereof?
Yeah, and that is the Citizens United case.
Yep.
Yep.
Citizens United case is a case that said that hacks have
the right to fund, make all of these ads, whatever amount of money they want to spend, there is no limit on the spending that a PAC can have.
So we have super PACs and there are thousands of super PACs.
And so right
now
we've got, we've been seeing ads that show Trump talking about all the things the Republicans have done and initially he was having them be paid for by the US government.
They got a lot of flack on that.
So we said, I'll stop using government money.
I'll use my pack money.
So we've got all of this unfettered content.
And it's unfettered content.
And in many instances, not necessarily well vetted, or perhaps it's too well vetted, because you're using the half truce in there.
And we've seen it in every race that's out there.
So I've been thinking about this.
So it's a combination of things.
It's the Citizens United.
Then you've got the Sullivan case that
Nick talked about, and then you've got the Gertz versus Welsh, because in Gertz versus Welsh, if you're not a public figure, if you're not a public person, so to speak, then you don't have the protection that you get in New York Times versus Sullivan.
So you've got a lot of different ways to look at this thing.
If we want to clean this up so that
We won't be singularly meant about having our seed corn ads and our herbicide ads.
And we get back to a straight discourse about what are the issues that
you
really are talking about.
And like Nick was talking about last week, what am I going to do if I'm elected?
Now, obviously, none of the candidates can do more than say, I'll vote for this.
I'll vote for that.
Alone, they can't deliver a damn thing.
And that's one of the things that you look at.
You think about all these ads in there and they say, I'll do this and I'll do that.
And I'll cross the aisle to do this and do that.
You know that?
It's nice when we hear that.
However, alone they can't do it.
So now we're sitting in here with this ungodly amount of money being spent and, you know, the literal millions of dollars are being spent on every Senate race that is at all competitive.
And two weeks ago, they said the Iowa one, they were looking at 88 million.
It's going to
My prediction is it's going to be over 150 million before this election is over on the Senate race.
What could be done with that amount of money if it were to be put in many other things?
And what benefit are we getting other than batting the coffers of the
radio stations, TV stations, newspapers, any place where they're advertising.
And so the question then is, do we look at limiting you on time as Nick had suggested?
Do we switch the burden of proof?
Now, so Nick, if we're going to switch the burden of proof on this,
Who has to put this law in place?
I assume it would have to be Congress.
Or would it be the state legislatures in our 50 states?
Well, Joe, I think it's probably going to be the US Supreme Court.
I mean, they're the ones that started this mess with the New York Times Resolomon, you know, looking at it as a constitutional right.
I doubt that the legislators now would get in there and mess with it.
That's the problem.
Now, I think they can do that if they simple just going in and defining what is actual malice.
and who's got the burden because it didn't address that.
Okay, so now, how do we get the case teed up in front of the Supreme Court?
Well, Supreme Court only takes the cases it chooses to take because you have to pay a petition for rid of certiorari, and then people can oppose it, and then the court has to vote whether we'll take the case.
Well, that's the problem you run into when you start dealing with judge-made law.
You gotta go, you gotta navigate your canoe, you know, down the stream,
you know, to the court through many different falls in order to even get there and then they may not take it.
But what if he did it another way, Joe?
What if instead of looking at it that way, you clamp down on the unbridled use of the media for this advertisements?
For example, what if the House of Representatives were to facilitate debate and discussion with respect to those people who have
qualified to run for office, for election to a position within that house.
John, we'll take you for an example.
You ran for the legislature of the Iowa House.
You visited all the counties, you did all that stuff.
But what if the House of Representatives itself said, okay, on this night, we're going to have a debate or we're going to have an analysis with respect to what Jacobson is going to do if elected and what his opponent's going to do.
Not a
a partisan type debate that you see put on by the Broadcasters, which has problems in and of itself.
But I mean, just a basic analysis of John, what's your program?
What are you
going to do?
Nick, I think you're correct.
And what troubles me is a classical forensic debater going back to even high school years is you're right, even the
debate formats that are set up by these broadcasters are not true debates.
There are joint press conferences with overrun times, with interruptions.
You need to really get back to a Lincoln Douglas, if not Kennedy Nixon format, if you're going to have moderators of constructive speeches uninterrupted with time delimiters.
You know, first affirmative.
first negative with cross-examination, if you want to have that, and then rebuttal periods that are cordoned off, no interruptions, no time elaborations beyond what is allowed, and have some structure and decorum.
Right now these things end up being filibusters, shouting matches, interruptus,
uh, uh, Magnus and that the formats themselves are, are not constructive.
Okay.
What if it wasn't one step before that?
Admittedly, some people are going to be better performers than others.
Some people are going to be more persuasive, oral advocates than others.
But if you're going to run for office, shouldn't you have to file with the office that you're running?
What your position is?
What is your platform?
What are you running on?
You can't be running on.
I'm running because I don't like the guy that holds the job now.
What is your affirmative program?
Right.
Full disclosure, truth and advertising.
Some of the different candidate voter guides, in theory, could be useful.
But again, those are skewed with straw men, straw dog arguments in terms of how they arrange the checks on those boxes.
And I do have to fault, as a broadcaster, I do have to fault the media.
For just being sloppy and intellectually lazy, if not slothful, and not having a better format.
You know, it's like a football team is blocking and tackling.
You've got to have the executions.
Go back.
I encourage you.
Review the Nixon Kennedy televised debates from 1960.
These guys look like statesmen.
I'll go further.
Ronald Reagan and Bobby Kennedy with that wonderful debate that they did in 1967.
Those guys look like absolute giant in terms of statesmen, in terms of the decorum, and yet there was skirmish, there was rebuttal, there was parrying and thrusting that was really on point, there was direct clash going on, and it was all based on policy.
They would talk about the
First of all, DM Regine in Vietnam.
They would talk
about... See, once again, let's get back to the basics here.
They're trying to sell people.
I want to know what your product is.
You're running for representative of my district.
What is your platform?
Not your party's platform.
What are you going to do for me, John?
Well, I outlined what my ideas were on taxation, on spending, on education, on public safety, on agriculture.
And I would give a few bullet points for each.
I'd put that on web posts.
I'd put that on my door flyers and hangers.
I was not trying to run away from anything.
I tried to give people some meets and bounds and then let the chips fall.
Joe, what say you?
Tell you what guys, this is Iowa Law Talk on
KXEL 1540 AM and 100.5 FM.
Now we can continue our discourse.
How come he always gets to do that and I don't?
Timing's
everything and Joe's got timing.
I'll tell you what.
I guess where I'm going with this guys is look, if in a representative government, we're not a democracy, we're a republic, which means I'm electing my representative who's going to represent me.
I want to know what he's going to do and I want
to hold he or she accountable for not doing it.
Well, if you don't commit to what you're going to do, then how can I hold you accountable?
If you campaign only on the fact that your opponent is no good, okay, or just turn on the TV tonight, you'll get an earful of that, that's not telling me what you're going to do at all.
I want to know what your program is, what I can hold you accountable for, because next time when you're up for election, I'm going to say, you know, you told me you're going to do these five things.
You didn't do any of them.
What's your explanation, John?
There's no accountability.
Right.
Right.
Well, and people have short-term memories and you can spin any non-vote as you can spin a rationale for for doing it or for not doing it.
And again, I think the issue, unfortunately, is
What's very sad is it's not always causality, but it certainly is correlation in 85 to 90% of the situations.
The person with the most money wins the election.
And the other issue is you don't have as many competitive seats as you might think.
It is now well known among political aficionados that in the United States House of Representatives, of which there are 438,
who are seated in the house, including the District of Columbia, non-voting delegation of three.
But of those 438, there are probably 24, 24 competitive U.S.
house seats this cycle and the prior cycle.
Nick, that's 5%.
Joe, that's 5%.
The hay is already in the barn, as Hayden Frey might say, about that other 95%.
So what's appalling to me is the real dearth
of choices that you have.
This midterm is going to come down to basically if those 24 house races split 14 to 10 or 15 to 9, that's going to determine and that's why these huge multi-millions are flooding into just a
tiny amount of these races.
Now, the Senate is a little different, Nick, because the Senate now truly is up for grabs.
You are seeing huge millions of dollars flooding into erstwhile ignored states, such as Kansas, thought to be solidly red, which now has an incumbent marshal in some polls trailing.
In Nebraska, you have a blue dot Omaha now that is in ascendancy.
and millionaire Pete Ricketts.
You know, President Trump had to come into Grand Island the other night to rally the troops.
In Iowa, you have a Senate race.
Joe, you're keeping the tally on that.
The amount of money...
is astronomical.
But again, when you think that you have Iowa House races and Iowa Senate races at the statehouse level that pay $24,000 a year salaries, where you're having million dollars of funding going in, something is truly amiss.
And Nick...
I don't care who you are, unless you are a multi-millionaire yourself or have married a partner who is a multi-millionaire or have a friend expecting nothing in return who just wants to be your patron for multi-millions of dollars.
It now is almost impossible for someone who has even an upper middle class in the economic strata to win election for public office of anything beyond
County Commissioner, Mayor, City Council, School Board.
Everything else is almost a barrier to entry the way it's currently set up.
That's the dastardly truth that to me is somewhat concerning.
I'm looking at the Senate race here in Iowa.
Eight days ago, it said 90 million had been spent on the race so far, making the sixth most expensive Senate contest in the country.
But we're not done.
And the GOP Super PAC has just
dumped another 20 million into that race.
I know eight million just went into Kansas to help Marshall.
Originally, that probably would not have happened, but Marshall is really in a real fight to retain his seat.
And so you saw the GOP pull out money of the North Carolina Senate race in terms of millions of dollars, followed by the Democrats then pulling millions of dollars out of North Carolina.
As it is so fluid,
that as polling goes south or north, depending, you're seeing redeployments of resources by approaching $10 million on a nightly batch of polls, Joe.
It's just unbelievable.
True.
So I think we're in agreement that the spending on these attack ads is not necessarily good for the country because it divides us instead of having us focus on what can we as a country do
We're focused on is it red?
Is it blue?
Which way are we going to go?
And we need both parties to work together for the country to proceed and to become everything it can become.
So those are things that are frustrating me.
And then the question still is, getting the Supreme Court to change the Sullivan case, I might be able to walk on water before that happens.
Are citizens united?
Where would there be any impetus to do a major overhaul of citizens united?
Okay, so an overview.
What we've talked about now is a defect with regard to the law of defamation that
provides protection not only for the defamer but also the person that publishes the defamation.
We've talked about the financing of political campaigns and how much money it takes and how it detracts from what the true meaning of running for office should be in a republic.
But there are two other entities here that we've not discussed.
Number one is who's actually running the campaign and who's broadcasting.
So
With respect to who's running the campaign, I'm not naive enough to think that the candidate is running for the campaign.
I know who's running it.
It's people like me, political scientists.
Those of us that went to college and got a degree in political science, whatever that was at the time, okay, now we get out and we have a job.
What's our job?
We find some candidate like you, John, and we manage your campaign.
We tell, we script you.
Okay.
We tell you what to do, when to do it, how to do it.
All right.
Then we go to journalists.
Okay.
The new, the, the broadcast media and so forth who are more than happy to sell the air time.
Okay.
And you look at some of these commercials and you go, you guys realize you've just put on back to back commercials.
How responsible is that?
I mean, aren't you monitoring this stuff?
That's malpractice.
What I see on these campaigns today is political science malpractice, John.
You never sell a product by beating up your opposing product.
You sell a product by showing how good yours is.
Sooner or later, one of these geniuses is going to figure this out and say, you know, my opponent, John Jacobson, he's a nice guy.
He's a wonderful guy.
I like John personally.
We just differ in how we approach things.
Let me tell you how I would do it.
Okay and calm down the the hostilities here and you're good.
There's one guy out on on one ad and I won't see which one it is It's kind of doing that.
It's a okay.
That's trying to calm it down I'm going yeah way to go buddy if I was in your district I'd vote for you
But what I'm saying is folks, it's political malpractice with regard to a lot of political scientists, the way that we run your campaigns.
It's attack ads.
Never used to be that way, John.
You're correct.
And again, TV was really the fulcrum where a lot has changed.
And it's ironic that New York Times and Sullivan was decided in 1964.
1964 was the advent
of the true attack ad and laid at the feet of Bill Moyers of later PBS fame who always came off as very erudite and polished but he was a pretty savage warrior here for Lyndon Baines Johnson and the famous Daisy ad run against very gold water that literally basically
convoked the image that Goldwater would trigger a nuclear war, a little girl counting backwards from 10, plucking petals out the daisy as then a nuclear holocaust visual of explosives occurred at the end of the movie.
The Willie Horton ad in 1988 was also one that was highly controversial.
The advent of this really occurred with television and now, of course, video
viral you know again you have we've talked about this a lot but AI brings an entire other dimension to it whether I mean you're seeing people say things that they never said you are seeing recreations of AI video and audio it's chilling how badly this can be abused
and then they think about it and you see the TV ads doing the fact-checking of these various attack ads and I look at that
I'm glad that they're doing something about this so much that you could be doing fact-checking 24-7 from now till the election, and you wouldn't be able to cover all of the bad ads that have been out in any race.
Right, right.
Well, I think, you know, here's the thing.
People, to tie this together, Nick was brilliant when he said these are being run by political scientists, and these races are being run, not locally.
These national...
races for Senate in U.S.
House are being run out of the Beltway.
The locals are not running these races anymore.
You're lucky if you've got locals with the ad agencies that make money for actually distributing or producing the ads, but these brainchilds come out of D.C.
in the Beltway.
So we talked about repealing that amendment where the legislative bodies chose the senators.
So a lot of this has to do with
technology and knowledge and data.
And the problem now too is, what about that last minute surprise?
It seems like each side always has a 11th hour surprise.
And there's been a lot of skull-duggery with respect to that over the years.
We've seen a lot, I would say, going back to 1992.
going forward and again 1992 you had the advent of cable TV that period from 1981 to 1990 was really the establishment of cable TV across millions of households in flyover country and in the rural areas We're here before they just been in the big cities So again Nick can the law catch up with the technology?
with the AI, with the temporality that we have.
You know, it's in such a fluid environment because literally you have news cycles now that may be two and three hours old.
In the 1960s, when Joe and I were reading Guest Raiders' Red Peppers column in the Cedar Rapids Gazette,
It took three days to write something before it basically got into print, or at least a day, if you were getting it off an AP or UPI wire, you had significant lag time.
Well, the key is where they're getting their news, their information.
We've seen the demise of the broadcast, the television broadcasting.
ABC, NBC, CBS, I mean, they're not players anymore.
You can't even get an on-the-air signal half the time.
Everything now is being broadcast over the internet.
We have special interest groups.
Everyone's got their fingers into this game.
Or as Marshall McLuhan would say, there's a name out of the past, John, everyone's got their foot in your brain.
Remember when he said television is a salesman with his foot in your brain?
That's what you got.
Now it's everybody.
So you go to AI and say, all right.
I want news.
I want level news.
I want liberal news.
I want conservative news.
But I want a full spectrum of news.
AI, you're going to be my agent.
You go out and get me news snippets from both conservative and middle of the road and liberal press so that I have a full spectrum and I can determine for myself what I want to hear.
I'm putting together my own news network.
And I do it.
I use ChatGPT to do that.
Okay, I get news from all around the world, both liberal conservative and I can play one against another so I can see what they're doing.
Maybe that's not bad, John.
Maybe I have more information now and goes back to what one of you said earlier.
You got to do your own research.
I'm sure it was whenever I said the problem though is we are so partisan so bifurcated that both sides get their news exclusively from confirmation bias entities to where the chasm is wider than ever.
The Venn diagrams simply don't intersect because each site is presenting a worldview of factual reality on the ground that is completely disparate from the other's worldview.
There are no common connection points anymore to even begin that conversation.
And that, to me, is a real issue as well.
Well, I'll give you an example.
I take a look at the telegraph in the UK.
Fairly conservative newspaper over there.
I read that in the morning.
as compared to the New York Times.
I find out more about what's going on in the U.S.
by reading the British newspaper than I do reading a Wall Street Journal of the New York Times.
Now, how can that be?
And by the way, it's been that way forever, okay?
If I wanted to find out what was going on in Washington, D.C., I would look at the U.K.
Guardian or the Times over there or whatever because the news here gets filtered.
Do you remember the Judge Report, John?
I do,
unfortunately.
Okay, the Drudge Report used to be an amalgamation of a variety of different news sources, so you could get that overview.
And then it went south.
So we don't have good news sources.
The last news, good news we had was, what, decades ago?
You know, what happened to journalism?
Now anyone with a cell phone is a journalist.
Is that what it's become?
You don't have any controls on what journalism is, so anybody can say I'm a journalist.
And what privileges associated with journalism.
And the truth of the matter is now, there's a juxtaposition.
In the old days, I would say it was very dangerous when there were only three networks, CBS, NBC, ABC, and only two wire services, AP and UPI.
and only two newspapers that were distributed nationally, the Washington Post and the New York Times.
That gave a monopoly to seven media entities.
And you think, well, today it's so dispersed, there's so many independent voices.
Are there really?
If you look at Disney, ABC, the Murdochs, CBS, Paramount, guys, you've still got five media companies.
that are the access point for any opinion to get out.
And if you don't tow the corporate company line, you're out on your ear.
And the Murdoch's play is tough of hardball on the right, as some of the others do on the left, right, Joe?
Correct.
It's so strange to me.
I remember when I was growing up, we had two, seven, and nine.
That's when those rules are playing for
me.
On a good weather day, you could get Channel 12, Mr. Rogers, Sesame Street, and William F. Buckley's firing line on Sundays.
And that's also a time when I believe we actually had journalism compared to what we have today.
What is journalism, Joe?
What is it?
What is it or what was
it?
Well, you know, we look at it as a profession.
a profession that prides itself on being unregulated.
Well, if we, if law and medicine were an unregulated profession, think of the damage you could cause, okay?
Experimental surgeries, experimental law, lawfare, and you've seen that, okay?
Journalism, where's the standards, journalistic standards here, when the BBC
which, you know, I listen to a lot.
All of a sudden gets sued for false stories that it's putting on.
This was the gold standard in the world.
What has happened to journalism?
No standards, no accountability.
Not good.
We talked about what is journalism and we talked about when would they publish a story when they had independent verification of something rather than a hunch.
I don't like what we have.
and what they call journalism today.
They've
got to get a hold of the guy with the cell phone.
Get ahead of them.
In any kind of event, John, okay, you'll see an accident out on the street or a police arrest or whatever it is.
Six people are standing there on the corner with their cell phones out.
Now, what are they doing with that?
They're selling that clip.
Okay.
This gets back to controlling the entity that publishes that clip that they sell it to.
When Section 2 of the Communication Act prevents any kind of accountability, this is what you end up with.
So now, Nick, you say Section 2, is that an administrative provision or is that something that Congress passed?
That's a Congress Act, Telecommunications Act, governing what the liability of
The internet broadcasters, I'll call them that for lack of a better term.
Section 230 of telecommunications provides complete immunity from state, local and national tort liabilities.
Joe, unless you can prove that they actually were participating knowingly and willfully in that defamation act.
Good luck on that.
This is why you end up with all kinds of anonymous posting on Twitter or what do they call it?
X now and all the rest of these things.
Instagram on social media because they can't be sued.
They're not responsible.
Now, what are we finding?
We're finding a lot of bad things happening.
Human trafficking, children being being put at risk.
because these entities won't monitor what they're doing.
And then you look at it on one hand, you go, well, my gosh, we have to have free press, et cetera.
Then you flip it around and you listen to the U.S.
Supreme Court argument last week, when they're trying to, when some states are trying to hold entities liable for climate change.
Well, no, wait a minute, okay?
I'm Exxon and I'm going to be responsible for climate change damages, but if I'm an internet provider, I'm not responsible for the damage I create.
It doesn't make a lot of sense.
Nick, I was putting out scientific life-saving recommendations during COVID that were essentially being shadow banned by Facebook and Twitter that now
in retrospect, have been admitted to have been factually correct.
And I was literally working with physicians that are doing work in the area of antiviral remedial work that literally won a federal carousel grant from the government during COVID.
How can I be right and wrong at the same time?
And how can I be censored for trying to save lives that now the government admits I was right back then and that the government admitted at the time that one of the physicians I was working with had a remedy that should be funded by a federal grant?
This is the problem.
If the government or big media can shut you down,
When you're telling the truth, when you're trying to save lives, and when that is canceled, that to me is terrifying.
So then the question is, who decides what should be allowed and what shouldn't?
It's back to 1983 and Big Brother.
Yep.
You know, it's funny.
In the old Soviet Union, they had Uzvestia and Tass.
And the Russian translations, one of the words meant truth, and the other meant news.
And the old joke in Russia was, with Uzvestia, there is no Tass, and with Tass, there is no Uzvestia.
Seems like we might have adopted that.
Yeah, meaning there is no truth in the news, and there is no news in the truth.
So anyway, I hope we're not at that point.
But you know, the founding fathers...
Come on, what's up, John?
The founding fathers knew that we needed a robust marketplace of ideas that ideally, if that robust, skirmishing, heart and knuckles marketplace of ideas came to fruition.
It would essentially serve as a safety valve to remediate against unrest and violence because everybody would get their day at the mic, their day at the town hall platform dais, even if they lose this round of elections.
They had that opportunity to win the day again with a persuasive argument.
And that was the thought.
And I hate to think that we're abandoning that because I think that the prescription is more speech, not less.
But then again, Nick, as you've correctly said on prior programs, there are elements of speech that aren't deemed to be speech.
And those would include things like shouting fire in a crowded movie theater or...
basically incitement, fighting words, so to speak.
There are times when we simply will not legitimize the thing done as speech worth protecting.
Maybe we need to look at those criteria again under the SLAPS test.
That's another topic for another time.
John, there may be silver lining in all of it.
I adhere to the theory that you can tell the character of the candidate by the character of their campaign.
If they are running negative ads, defamatory negative ads against their opponent, do you really want them representing you?
Think about it.
OK, leopards doesn't change their spots.
I mean, if this person is running a negative ad of all the time about they're going to have a good thing to say about anybody, how are they ever going to get into Congress?
OK.
and do anything worthwhile if that's what their character is.
Don't vote for them.
Not only that, that's a great final argument.
Penultimate word, I'll give it.
The final word to Joe here in a moment.
Nick, I would just suppose that by saying, I agree with you and I would add to that.
A little self-deprecating sense of humor tells a lot about someone too.
My great friend Chip Maxwell from Omaha had a very legendary and witty mother.
She was quite a character and she was a raconteur and beloved figure in Omaha and however a notoriously unskilled cook.
Cooking was not her thing.
and Chip before one of his election victories, because everybody knew Mary and they knew of her skills.
They knew that cooking wasn't one of them.
And he put out a flyer with him and his beloved mother standing next to each other smiling.
And it says, Mary Maxwell says, vote for my son, Chip, or I'll cook your dinner.
He won.
Joe, you have the last word here.
What a quick hour of free speech this has been.
Yeah, and it's worth just what you paid for.
Anyway, folks, I've come back to my lament.
We're aware of the sea corn ads.
They talk in the sea corn ads and the chemical ads, they tell you what they can do for you and how you'll be better off if you buy their product.
Candidates would do well to do the same.
You know, it is amazing how people still go back to the morning in America ads and how positive those were.
in 1984.
Again, though, when you're up largely in the polls, it's easy to run positive.
What Nick said earlier was that the politicos are running these negative ads oftentimes because the prevailing conventional wisdom is if it's closer, if it's behind, you
have to go negative.
So Nick, I'll throw it out.
I'll give you one final word here and just extend it out for a second.
Maybe incessant polling is the problem.
We haven't touched on the polling factor, but I think that's a huge element of the problem, Nick.
Well, buy a poll.
It's all about money, folks.
Everyone's, okay, it's at the bottom line.
You got the political scientist selling advice, or I call political science malpractice.
You got the pollsters selling polls.
Half of that's poll malpractice.
How many times have we witnessed that?
Okay.
And then you got the, you know, the broadcast entities and so forth that are trying to make a buck off of it.
I'll go back to my statement, John.
Don't vote for anyone that is negative.
Yeah.
That's
the way they look at the world.
They don't have the character.
Is that who you really want representing you?
Come on.
Well, that the appeal to the better angels of our nature is always a good thing.
Jack Kennedy, Frank Sinatra saying high hopes for him.
And, you know, Sinatra became a Republican later in life.
But maybe that close election would have changed if Sinatra had been singing high hopes for Richard Nixon.
Who knows, Joe Piper?
Well,
We'll see what happens in a scant less than four weeks.
We'll see what happens.
Hey, Joe or John, if somebody wants to write us, how would they do that?
A question?
Maybe people have questions.
What do you suggest they do?
Well, they're going to email.
They are going to email to Iowa Law Talk at KXEL.
That's Iowa Law Talk, I-O-W-A-L-A-W-T-A-L-K at K-X-E-L dot com.
That's all there is.
That's all there is.
And we'll get it.
Email us, folks.
Yes, we'd love to have some
good questions.
And I'm sure based on that...
pleading that we will get some for next week.
In the meantime, tell your friends about the podcast, kxl.com slash podcast, or get on your browser and type in Iowa Law Talk podcast.
And tell your friends, we enjoy being here with you every Saturday, the noon hour, the most highly trafficked listen to radio hour on weekends, and we are glad to be part of it of KXL where things are still live.
and local.
Guys, for the great attorneys, my friends and wise mentors, Joseph Hyfer J.D.
Asquire from Ag and Business Solutions, a very uncommon firm.
You know, he's just legal strategies there at Ag and Business in Hiawatha, C. Rapids, Marion Area, Nick Critelli, attorney with offices in Des Moines.
as well as New York and London.
This is John Jacobson, along with Sean Xavier, saying, be safe, be smart, be good, be strong.
God bless America.
God bless this nation as we, with great sobriety, undertake our solemn duties to vote here in less than a month.
And to modify an old saying, vote early, but don't vote.
often, or you'll need to consult a lawyer for any shenanigans there.
Tell me it again.
Bye-bye!