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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts From Watchdogs to Lapdogs: Selling Out the Fourth Estate for Scraps at Trump’s Table
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Monday, June 23, 2025
From Watchdogs to Lapdogs: Selling Out the Fourth Estate for Scraps at Trump’s Table
Guest Blogger
For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment. Mary Anne Franks On
January 6, 2021, a mob of Trump supporters in red MAGA hats, gas masks, and
tactical vests swarmed the Capitol Rotunda. They broke windows, assaulted
police officers with American flags, and climbed onto the statues of former
presidents in their efforts to stop the certification of the 2020 election
results. Donald Trump’s role in encouraging the violence, including his repeated
lies about the election being stolen and his expressions of “love” for the
insurrectionists, led multiple social media companies to remove or restrict his
access to their platforms and services in the days that followed the riot. Meta,
then known as Facebook, announced that was suspending Trump’s account
indefinitely. Google suspended Trump’s YouTube account. After temporarily locking
Trump’s account on the day of the riot, Twitter (now known as X) banned Trump’s
personal account on January 8, 2021. Google and Apple removed the conservative
social media site Parler from their app stores after reports that insurrectionists
used it to plan the attack on the Capitol; Amazon removed the site from its
web-hosting services later that same day, citing multiple violations of
Amazon’s terms of service. Many mainstream media companies responded to the
insurrection with in-depth, sustained coverage of the attack and its
devastating aftermath, as well as unsparing analysis of the former President’s
personal role in encouraging it. Among the most notable of these efforts was
the Washington Post’s comprehensive
three-part investigation into the planning, execution, and
aftermath of the insurrection, which painstakingly documented how Trump’s
construction of the “Big Lie” contributed to the catastrophic event and
continued to destabilize the country in the months after. Four
years later, the billionaire owners of those companies stood
dutifully at attention in the very space where a mob came
dangerously close to violently overthrowing the government, while the man who incited
them – convicted felon, serial sexual predator, and prodigious liar Donald
Trump - was inaugurated as the President of the United States for a second time.
Meta CEO Mark Zuckerberg, Apple CEO Tim Cook, Google CEO Sundar Pichai, X owner
Elon Musk, and Amazon founder and owner of the Washington Post Jeff Bezos were
arranged around President Trump in the Capitol Rotunda in a tableau described
by former White House chief strategist Steve Bannon as “supplicants” making an
“official surrender” to Trump, evoking the surrender of Japanese forces to General
MacArthur in 1945. Google allowed Parler to return to
its stores in 2022 and reinstated Trump’s YouTube account in 2023. Following the
2024 election, Google ended its diversity hiring goals and announced that it
was evaluating other DEI policies. Soon after Trump took office for the
second time, the company removed several events celebrating diversity from its
default calendar settings, including Pride Month, Black History Month, and Indigenous Peoples month. Two weeks after
Trump declared that the Gulf of Mexico was to be renamed the “Gulf of America,”
Google implemented the name change in Google maps for U.S.-based users. Eleven days before the 2024 election,
Jeff Bezos took the extraordinary step of preventing the Washington Post
editorial board from endorsing Trump’s opponent in the presidential election, Vice-President
Kamala Harris, despite the paper’s tradition of endorsing a candidate in almost
every presidential election since 1976. This decision, along with Bezos’s donation
of $1 million to Trump’s inauguration campaign and his attendance at a
billionaires’ dinner at Trump’s Mar-a-Lago estate in December 2024, provided
context for a sketch by Washington Post cartoonist Ann Telnaes depicting Bezos
and other tech titans prostrating themselves with bags of money at President
Trump’s feet. After the Post refused to run the cartoon - the first time it had
done so in Telnaes’s 17-year career at the newspaper – the Pulitzer-Prize-winning
cartoonist resigned from the newspaper. On February 26,
2025, Bezos instructed his staff that the editorial section of the Post would
now be devoted to the “support and defense of two pillars: personal liberties
and free markets” and that “viewpoints opposing those pillars” would not be
allowed. After a piece by longtime Post columnist Ruth Marcus criticizing this
new editorial direction was spiked, Marcus too resigned from the paper. After Elon Musk bought Twitter in
2022, which he later renamed X, he reinstated Donald Trump’s previously
suspended account along with those of several neo-Nazis, child
pornographers, and sexual predators, while banning or restricting accounts
critical of him and disbanding the Trust and Safety Council. Musk
altered X’s algorithm to promote his own content and routinely used the
platform to threaten and harass critics and advertisers who had chosen to no
longer do business with the company. While the platform had been infected with misogyny,
racism, and misinformation long before Musk’s takeover, under Musk’s leadership
the site became a firehose of conspiracy theories, deepfake porn, election
lies, harassment, and racist propaganda. On July 13, 2024, after a gunman shot
at Trump during a rally in Pennsylvania, Musk announced on X: “I fully
endorse President Trump and hope for his rapid recovery.” Musk proceeded to
spend a quarter of a billion dollars to assist Trump’s election campaign. The
day of the election, Musk “mount[ed] a full-court press” for Trump, “deploying his
platform X to get out the vote for Trump, shout down the ‘legacy media’ and
predict a ‘landslide’ for the GOP in Pennsylvania.” According to social media
scholar Jess Maddox, Musk’s embrace of Trump took the “convergence
of right-wing politics and the tech industry that has been going on for years”
to an unprecedented new level: “When the head of a major platform is invested
in the victory of one political candidate, of course that platform will come to
push features, content, and ads to benefit their interests.” Under
Musk’s ownership, X became, in the words of tech industry analyst Matt Navarra,
the “MAGA megaphone.” Immediately upon
taking office, Trump began plundering the American economy, purging government
officials and replacing them with unqualified lackeys, dismantling the
country’s infrastructure, brutally repressing dissent, extorting educational
institutions and businesses, and violating virtually every democratic principle
the United States has ever aspired to hold: freedom of speech, the right to due
process, racial and gender equality, the rule of law, freedom of the press. How
someone as incompetent, delusional, and cowardly as Trump could drive the
United States off a fascist cliff so quickly and with so little resistance cries
out for explanation. One
significant part of this explanation is the failure of the U.S. media to
fulfill its most vital role: to serve as a check on power. For the “fourth
estate” to be “a source of power equivalent with that
of other branches,” writes communication theorist Denis McQuail, the media must
have “autonomy from the government and politicians; … a duty to speak the
truth, whatever the consequences; and … primary obligations to the public and
to readers.” It must, in other words, serve as the people’s watchdog against
governmental repression and overreach. There are numerous examples in U.S.
history of the press playing such a role, from monitoring the McCarthy hearings
to investigating the Watergate break-in to coverage of the Vietnam War. The capabilities of the media to serve as the people’s watchdog
has never been greater than in our current historical moment: the internet and
other information technologies have made it possible for the public to receive
and distribute reliable, significant information about events anywhere in the
world at a speed and with a salience never before possible. Media and social media
have extraordinary power to supplement and enrich each other in ways that enhance
and preserve democracy. But instead, the radical potential of both media and social
media has largely been domesticated
by a consumerist, ahistorical, and fundamentally
regressive view of “free speech” that ultimately serves the most radically
anti-democratic forces: profit, patriarchy, and prejudice. Instead of watchdogs,
we get X, Meta, Google, and the Washington Post deliberately amplifying Trump’s
state propaganda, lapdogs eager to do the bidding of their fascist masters in
the hope of receiving more treats. Or we get “balanced”
outlets like the New York Times failing to sound the alarm during a fascist
takeover, Sherlockian
dogs who don’t bark in the nighttime because the criminal has a
familiar face. Trump, Musk, and the agencies they have weaponized have attacked
the media and social media outlets that have attempted to maintain quality and
integrity standards with a barrage of frivolous lawsuits, investigations, and
other punishments – all in the name of “restoring
free speech.” The path forward, if there is one, will require abandoning
the comforting fairy tale that the First Amendment has in the past and will
continue in the future to robustly protect freedom of speech and the press, or
that allegiance to “both sides” or “neutrality” will ever keep us safe from
fascism. To survive our current catastrophe, we will need from the media (and
our other institutions) an honest accounting of the failures and limitations of
free speech law and a more courageous commitment to the substantive values of truth,
democracy, and equality. Mary Anne Franks is Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law, George Washington Law School; President and Legislative & Tech Policy Director, Cyber Civil Rights Initiative. You can reach her by e-mail at m.franks@law.gwu.edu.
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |