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How District Attorney Playbook Has Changed; Inside Facebook's Oversight Board That Upheld Trump Ban; Why Are Companies Struggling To Hire Workers?; Quoting Racial Slurs In Law Class: Necessary Or Divisive?; Can Criminal Justice Reform Survive? Aired 9-10a ET

Aired May 08, 2021 - 09:00   ET




Michael SMERCONISH, CNN ANCHOR: Take this job and shove it. I'm Michael Smerconish in Philadelphia. The Department of Labor reported only 266,000 jobs were added in April which is much lower than anticipated and the unemployment rate for the last month ticked up to 6.1 percent. You'd think the demand for employment would be higher, especially with more people getting vaccinated and parts of the country easing back restrictions.

This is the front page of today's print edition of "The New York Times," "Tepid Job Growth Inflames a Debate Over U.S. Benefits." We're seeing examples play out all over the country. Job listings in sectors like manufacturing, live event production, restaurants and construction are going unanswered, forcing companies to sweeten the pot.

For example, a McDonald's in Butler County, Pennsylvania is offering a $500 bonus upon hire. A McDonald's in Florida paying people $50 just to show up for a job interview. A Sonic in Albuquerque, New Mexico, a Chicken Express in Texas sported signs on their drive-through windows warning customers to be patient with them given that, quote, "No one wants to work anymore."

And as concerts and live events resurrect after more than a year, "The Wall Street Journal" reports that roadies have taken their skills elsewhere, leaving venues worried they won't find people qualified to take their place. A restaurateur named Caleb (ph) in Bucks County, Pennsylvania called into my radio program yesterday on "Sirius XM" to share his hiring struggles and how it's affecting his bottom line.


CALEB (PH), RESTAURANT OWNER FROM BUCKS COUNTY, PA: I literally turned down reservations, I cut off all takeout, you know, I just left so much on the table because ultimately there's no way I could have given good service ...


CALEB (PH): ... with the amount of staff, but I've literally spent over $1,000 on ads with Indeed in the last month. Have an ad out for weeks and get two applicants. I literally have 30, 40 servers in my phone that are not working and do not want to work.


SMERCONISH: So it seems the labor force wields all the leverage. Let's break down some of the numbers. Those receiving unemployment benefits get $300 a week from the federal government on top of state unemployment benefits which the Labor Department says average $318 a week. So that's $618 a week in total on average which equates to more than $15 an hour. That'll remain through September when the benefits are set to expire.

Plus, of course, the three stimulus checks given out over the past year ranging from $600 to $1,400 each. It's worth noting, too, that to receive these unemployment benefits people haven't been required recently to prove that they're actively looking for a job.

Many states like Pennsylvania, North Carolina, Nevada, Idaho trying to change that now, with South Carolina and Montana ending federal pandemic unemployment benefits altogether for its residents starting next month.

Here's what Senate Minority Leader Mitch McConnell had to say about the issue.


SEN. MITCH MCCONNELL (R-KY): We've been so generous with our plus-ups to unemployment insurance and the checks that we've been sending everybody that a great many Kentuckians and Americans look at the situation and find they're better off financially to stay home rather than go back to work.


SMERCONISH: The President yesterday said otherwise when speaking to reporters.


JOE BIDEN, PRESIDENT OF THE UNITED STATES: The data shows that more workers, more workers are looking for jobs and many can't find them. While jobs are coming back, there's still millions of people out there looking for work.

UNIDENTIFIED FEMALE: Do you believe enhanced unemployment benefits had any effect on diminishing a return to work in some categories?

BIDEN: No. Nothing measured.


SMERCONISH: The U.S. Chamber of Commerce disagrees. The business lobbying group called for an end to the $300-a-week federal unemployment benefit on Friday claiming, "The disappointing job report numbers clearly show that people are not incentivized to go back to work."

So is the government being too generous and will the jobs we see open today be there come September? I want to know what you think. Go to my website this hour at and answer this week's survey question. Should enhanced unemployment benefits be reduced to incentivize people to return to work?

Joining me now to discuss is Eric Morath, a reporter who covers labor economics -- pardon me -- and policy for "The Wall Street Journal." He wrote this front page story yesterday, "Millions Are Unemployed. Why Can't Companies Find Workers?" Eric, there are many factors at play here, right? Fear of getting COVID, schools that are not yet open, lack of a skill set for jobs that exist, but you were a guest on my radio program and after you left, then came a torrent of calls from small business owners.

[09:05:00] I can tell you they absolutely believe that government money has disincentivized the workforce.

ERIC MORATH, LABOR ECONOMICS & POLICY REPORTER, WALL STREET JOURNAL: Yes. Absolutely. The feeling among businesses is that the enhanced unemployment benefits are providing a large disincentive and I think that is certainly the case for lower wage jobs. You mentioned the average payment could be a little bit more than $600. That's about $15 an hour working full time.

So if you're looking for jobs in that $10 to maybe $18 an hour range, it's going to be hard to convince someone that they should come to work, spend the child care costs, spend the commuting costs when they could stay at home and maybe wait till things play out through the summer.

SMERCONISH: President Biden of course disagrees with what I hear from the small business owners. Last night, I was guest hosting for Chris Cuomo on his program, "PRIME TIME," and Robert Reich, the former Clinton labor secretary, was my guest. Here's what he had to say in response to this issue.


ROBERT REICH, PROFESSOR OF PUBLIC POLICY, UC BERKELEY: A lot of workers want to return to work. I know that. I hear from them every day. You just go around the country, people want to return to work. It's not unemployment insurance that's keeping them out. I mean, the extra unemployment insurance is what? $300 a week. I mean, try to live on $300 a week. No. People want to return to work, they just simply can't right now.

One of the goals here obviously over the long term is to start lifting wages and so you want a very hot labor market in terms of that goal.


SMERCONISH: So I understand his point, Eric. His point is to say, well, if you're a small business person, then pay your labor force more, to which I guess a small business person would say I'm now in the position of competing with the federal government in terms of how much I'm going to pay.

MORATH: Right. In some ways, people have said it kind of creates a de facto $15 minimum wage, which of course Congress considered and didn't pass earlier this year. Now, some employees, the workers I talk to say, well, they know there might be a job at a fast food restaurant or a e-commerce warehouse out there, but they don't want to take that job. They want the job they lost back.

So maybe that's at a mall or at a higher-end restaurant where they think they could earn more money and maybe that's at something like live events or even an office-type job and actually half of workers surveyed recently said they want to work, but they want to work from home. So that's really hard to match those folks with someone that's not filling that fast food drive through.

SMERCONISH: Right. And that takes us back to what I said earlier. Part of the reason they want to work from home is because they have a safety concern about the workplace or because the schools aren't open. This opens up a whole other can of worms. Because the schools aren't open, they need child care that they can't support because they've got to take care of their kids.

MORATH: Yes. Absolutely. About 40 percent of schools are not fully reopened. Meaning their kids go one day, maybe don't go the next day. That's really difficult for someone that might need to work like a retail, a delivery job, a warehouse job.

Those are the jobs that are created, those are many of the jobs that are open and they're not jobs that you can do from home. There might be jobs that you might need to travel 20 miles up the freeway to the big warehouse to be able to work at.

Not compatible and also, you know, many more Americans are vaccinated. That's great, but still a large number of adults aren't vaccinated and some are unwilling to ever become vaccinated, so that presents a challenge.

SMERCONISH: Give me the takeaway. You had a deep dive on exactly this issue, page one above the fold yesterday in "The Journal." What do you want to leave people with?

MORATH: This summer is going to be really interesting in the labor market. I think that some workers are going to have a chance to get that promotion or to get that pay raise because their bosses are going to be desperate to have them on staff, but then come September, everything could change. If these benefits fall away, schools are back open, the labor market could expand quite a bit.

SMERCONISH: Thank you, Eric. Appreciate it.

MORATH: Sure. Happy to join you. Thank you.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I'll read some responses throughout the course of the program. This comes from Twitter. What do we have? "Why would I want to work in a restaurant and expose myself to the anti-mask, anti-vax idiots who refuse to keep our communities safe? Then, when you get me sick, I don't even get one paid sick day."

Well, a whole separate issue that we've also talked about here, including on last weekend's program. You know, should employers be demanding that the workforce is vaccinated? Might the private sector say we're open for business to people who've been vaccinated so we raise to herd immunity?

I want to know what you think. Make sure you're going to my website this hour. I'll be very interested. Can't predict how the CNN audience is going to come down on this. Should enhanced unemployment benefits be reduced to incentivize people to return to work?

Up ahead, a debate erupted at Rutgers Law School after a white student quoted a legal case that included the N-word.

[09:10:02] It's just one of many similar incidents that's raising this question -- should quoting derogatory slurs be banned in an academic setting?


SMERCONISH: If you were to conduct a search for uncensored, offensive slurs that are contained in court cases within Westlaw, that's an online legal database for lawyers, you'd find more than 10,000 court cases, but could those records become sanitized?

At a time of heightened sensitivity to issues of race and offensive words, many schools across the country have been confronting the fallout that often ensues after a professor or student directly quotes a slur contained in a legal case.


A Stanford Law professor faced outrage after reading a quote with the N-word to his class. An Emory University law professor was just reinstated to his former position after being placed on administrative leave for using racial slurs last year.

A constitutional law professor at Wake Forest University apologized after reading the N-word aloud in class while quoting a Supreme Court case and a USC professor was placed on administrative leave for using a word that sounded like the N-word.

The latest example comes from Rutgers Law School in New Jersey. During a professor's virtual office hours, the topic turned to a 1993 state Supreme Court case. They were discussing how a criminal defendant could be held liable for crimes committed by his co-conspirators. The state Supreme Court justice, in his opinion on the case, quoted the defendant who used a racial slur.

Here's what the Rutgers student then repeated. Quote, "He said, um -- and I'm going to use a racial word, but it's a quote. He says, 'I'm going to go back to Trenton and come back with my," expletives deleted.

In April, a group of black first-year students at Rutgers Law began circulating a petition calling for the creation of a policy on racial slurs which said, "At the height of a racial reckoning, a responsible adult should know not to use a racial slur regardless of its use in a 1993 opinion. We vehemently condemn the use of the N-word by the student and the acquiescence of its usage."

They also called for formal public apologies from the student and the professor. The professor has said that she didn't hear the word and would have corrected the student if she had. Professors told "The New York Times" the student is, quote, "distraught" and enlisted the help of a free speech lawyer.

So a debate amongst Rutgers faculty ensued. Should racial epithets be voluntarily barred from being spoken in class even if citing legal documents verbatim? As I mentioned up front, thousands of cases contain slurs as judges and lawyers often write them out or quote the word themselves, usually in reference to the record or to a precedent, but some would argue that the word shouldn't have appeared in the court case to begin with.

For instance, UC Davis Law Review has barred the N-word from publication in any context, saying it adds nothing to the discussion and "has no place in academia or the legal profession."

I'm joined now by two Rutgers Law professors who signed the petition in support of the student and professor in question, Adam Scales and Gary Francione. Professor Francione, unique about this case that it's a state law school, right? Rutgers University is a state school and we're debating here whether a state Supreme Court opinion can be quoted by a student or a professor. Your thoughts?

GARY FRANCIONE, BOARD OF GOVERNORS PROFESSOR, RUTGERS LAW SCHOOL: Well, look, I think we need to take a step back to see the absurdity of this situation. This is a situation in which a defendant, a black man, used the N-word in a non-derogatory way. Nobody objects to that. What they object to is the fact that a white Supreme Court justice or a white student repeats the non-derogatory use.

What's really absurd about this case is that the students are saying in the petition that you can't use this word irrespective of context, but they use the word in their petition which they've circulated all over the country. Nobody's objecting to that.

No one is saying they've done anything wrong, but if a white student is reading that petition and reads the words that these students have used, that becomes a racist act. I'm sorry. That's absurd, Michael.

SMERCONISH: Professor Scales, is the word necessary in both the Supreme Court opinion which I've read or in the use in an academic setting? In other words, in a case like this, it's a criminal case, does it somehow add value? Does it somehow add meaning that would be missing if it were sanitized?

ADAM SCALES, LAW PROFESSOR, RUTGERS LAW SCHOOL: I think in many cases it does. In this particular case, it does lend substantive -- it adds texture to understanding what the defendant was saying and this leads to the technical issues in that case. In a law class, it may or may not matter.

I have some cases where the word appears in the opinion and the conversation is perfectly adequate without delving into the specifics. In others, the exact language used can be quite critical in understanding the harm that's inflicted or whether there is an offense and without that, I think that we're not serving our students properly if we insist on a sanitized, edited presentation of reality.

SMERCONISH: Professor Scales, could you see a scenario where there's pressure now brought to bear on courts to make sure that opinions that are written don't spell out this slur or some other slur?

SCALES: I think that certainly in my lifetime -- this decision was 30 years ago almost.

[09:20:03] I certainly believe that judges are probably more reticent to use the exact language unless it is essential to understanding the case. I think judgment is always a good idea, but, yes, I think an unfortunate byproduct of this is going to be an increased reliance on euphemism and indirection and there are cases in which someone referring to the N-word and this was misinterpreted as a statement about the word that we're talking about, but, no, the actual statement was, quote, "N-word."

And we lose the ability to follow the thread if we insist on layers upon layers of indirection.

SMERCONISH: Professor Francione ...

FRANCIONE: And Michael ...

SMERCONISH: ... I have not seen the student identified in any of the media coverage of this case, but it occurs to me that this could nevertheless follow her around in the social media world in which we live. It could be problematic for her down the road when she's seeking employment.

FRANCIONE: Absolutely. And, you know, one of the disturbing aspects of this situation is that I've spoken to a number of students who are really upset about this situation, but who are afraid to speak out about it because they're afraid of being labeled racist.

And what's even more disturbing is that the statement of solidarity which a number of the faculty members signed, we had colleagues calling people up and saying they should take their name off of that statement or they're going to be accused of being racist and this just makes no sense to me whatsoever. I mean, we're talking about the quotation of a word and it seems to me that -- and the -- you know, again, nobody's objecting to the fact that some people can quote this word.

I mean, we have all sorts of non-derogatory uses which are accepted in this society by the students who signed this petition. We have all sorts of situations in which quotation and mention occur supported by these students, but what it seems to me, Michael, to be -- to be coming down to is that it's not what is being said, but who is saying it.

So we're developing rules and policies about who can say what word, who can express ideas because it's not just a question of words, it's a question of who can express ideas and if we get into the situation where we are having -- where we have rules about who can express words and who can express ideas, some people can and some people can't, then I think, A, that's a serious problem for academic freedom and Rutgers is a state institution and I think it's a really serious problem for the First Amendment.

So I mean, you know, there are -- there are issues here and what's really painful in all of this is no one's defending the use of the -- of the N-word as a -- as a -- as a -- as an insult. No one is denying, certainly I'm not denying the problem of systemic racism in our society and you know what? I'm actually proud of Rutgers Law School because it's been a leader in progressive thinking on these issues forever.

And I want students to be involved, I want students to be excited about these issues because that's part of what Rutgers is, but I believe that this debate is trivializing those issues and I think we've got to - you know, we've got to take a step back and take a look at what's going on here. What is going on here is the development of a rule that only certain people are allowed to use certain words or express certain ideas and I think that's inimical to education.

SMERCONISH: Final question for Professor Scales. If you were teaching State v. Bridges to law students at Rutgers next semester, how would you handle the fact pattern? When you got to this part of the case, how would you treat the word choice?

SCALES: I would use the unexpurgated term because it's in the very first paragraph of the opinion, the court attached significance to phrasing even in 1993, this is not exactly the dark ages ...


SCALES: I'm certain that Justice Handler weighed the importance of using precise language in a legal opinion.

SMERCONISH: Thank you both so much for being here. It's a fascinating issue ...

FRANCIONE: Thank you, Michael.

SMERCONISH: ... and not a one-off, not a one-off. I mean, 10,000 -- by Westlaw, 10,000 cases, you're going to see something like this. Let us see what you're all saying on my Smerconish Twitter and Facebook pages. This actually comes from YouTube. OK. We've expanded. "The end of freedom of speech starts with censorship and rewriting history. Learn from the past, don't erase it," says Lou.

I would add my two cents which is to say that I think that if, in this particular opinion, the word didn't appear, it would have watered down the fact pattern as to what transpired. I won't bore you with all the details, but there's a guy and he's at a party and there's static between some of the guests and he's pissed off and he leaves the party and he serves notice and says, "I'm coming back and I'm coming back with my," fill in the blank.

And he does come back and he comes back and now there are weapons involved and somebody's killed and somebody else is shot and I think to fully appreciate the context of what transpired in that incident, you'd have to see the word. It was not a gratuitous usage is the real point and I think that was Gary's point as well.

[09:25:02] It's not like people were throwing this around for no particular purpose, but this is a tough call. I want to remind you, go to my website at Answer this week's survey question. Can't wait to see the outcome of this. Should enhanced unemployment benefits be reduced to incentivize people to return to work?

Up ahead, in recent years, several American cities have installed progressive district attorneys such as Philadelphia's Karry Krasner, Chicago's Kim Foxx, George Gascon in L.A., Chesa Boudin in San Francisco, but can criminal justice reform survive a national spike in gun violence and murders?

And, this week, Facebook's Oversight Committee decided that Donald Trump's Facebook page will remain suspended, but has this set a bad precedent for everybody else's ability to post on the social media platform?



SMERCONISH: How do you get elected prosecutor? Boy, things have changed. Just look at Philadelphia. Lynne Abraham, emblematic of an old school district attorney, a former judge. She was Philadelphia's top prosecutor from 1991 to 2010, the first female elected D.A. She was known for often seeking death sentences for convicted murderers. Former Philadelphia Mayor Frank Rizzo once labeled her a "tough cookie," a nickname she embraced and featured in her campaign advertising.


UNIDENTIFIED MALE (voice-over): Mayor Rizzo called her one "tough cookie." And the "New York Times" said she was "America's deadliest D.A." Lynne Abraham as district attorney she led the fight to pass 80 new laws toughen penalties for repeat offenders, longer sentences for violent criminals and reform the juvenile justice system.


SMERCONISH: That used to be the way that one got elected prosecutor by promising to lock up the bad guys and throw away the key. Being labeled tough on crime, that was a badge of honor. But by 2017, less than a decade after Lynne Abraham left office things had changed and not just here but across the country.

2017 was the year that Philadelphia elected progressive Democrat Larry Krasner as its new district attorney. Krasner running on promises to transform the city's criminal justice system defeated his opponent in the general election by a ratio of 3-1. One of Krasner's top donors, George Soros, the controversial progressive political contributor, Soros took up the mantle in many local D.A. races and his financial support certainly helped progressives like Krasner claim seemingly unlikely victories.

During the 2016 cycle the billionaire donor put upwards of $3 million toward seven district attorney campaigns -- Florida, Illinois, Louisiana, Mississippi, New Mexico and Texas. Why the focus on D.A. races? Presumably because as polarization continues to grip our federal legislature, progressives like Soros saw opportunity.

When Congress fails to pass sweeping legislation that reforms the carceral system on a national level local D.A.s continue to wield immense discretion over police funding, bail policies, drug decriminalization, bipartisan PACs and coalitions for criminal justice reform such as the Texas Just and Public Safety PAC and the ACLU have also turned to local D.A. races to forward their agendas. And here in Philadelphia we're about to witness the first big test of whether the public will continue to support progressive prosecutors.

Four years after Krasner claimed overwhelming victory, he's facing a primary challenge from one of the many old guard prosecutors that he fired during his first team in office. Carlos Vega is his name. Vega's platform harkens back to campaigns gone by as he accuses Krasner essentially of being soft on crime. The question is whether this long recognized political arsenal still has teeth in today's climate.

Krasner isn't the only local leader whose once lauded reform ambitions are now being called into question. Since last summer following widespread protests in many of America's cities many local leaders have come under scrutiny for their meek approach to de-escalating unrest. Soros backed San Francisco D.A. Chesa Boudin is being threatened with a recall and is facing calls to resign. One incident in the spotlight stems from a January case where critics said, two women killed in a hit and run might still be alive had Boudin taken the suspect off the streets when he had the chance to file criminal charges for prior alleged crimes.

Los Angeles D.A. George Gascon also facing an organized recall effort. He ran on a campaign of sweeping reform and has already implemented many changes, but critics think he has gone too far accusing him of prioritizing criminals over victims.

And Marilyn Mosby, the progressive Baltimore state's attorney, getting push-back from neighborhood leaders. They say a halt to some drug and prostitution charges amount to a green light for more crime.

Many on the right have begun to equate Democratic leadership eager to reform the carceral system with tolerance for violence in our nation's cities. In Philadelphia a rise in crime is borne out in the data. The year before Krasner took office 315 murders occurred in Philadelphia. Last year there were 499, the most in three decades.

Homicides this year in Philadelphia already on pace to set a new record despite the right's attempts to make the issue of soaring gun violence political, the U.S. nationally has seen a rise in crime. Homicides increased by more than 30 percent last year amid the pandemic and that crime surge has continued into the first quarter of this year.

Nevertheless, those groups who have long worked toward criminal justice reform are worried that if vocal advocates like Krasner lose their elections it could weaken political resolve for an issue that has long had some bipartisan appeal.


Krasner himself recognizes that if he loses it could level a serious blow to the criminal justice reform movement on a national scale. Quote -- "If we lost," he told the "Atlantic's" Russell Berman, "it would be a setback for progressive prosecution."

Joining me now to unpack, CNN law enforcement analyst Charles Ramsey. He's a former commissioner of the Philadelphia Police Department.

Chief, thank you for being here. I know you're paying close attention. Help me unravel for a national audience what's going on in Philly and across the country on this issue?

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Well, Philly, in particular, as you mentioned in your opening remarks, I mean, the gun crime, in particular, is at a level that is going to set records by the end of the year.

Homicides up 34 percent already this year. They are on pace to have the highest total in Philadelphia's history -- all gun-related crime. And, at the same time, police have recovered more firearms this year than in years past. They are on pace to set a record in terms of firearms recovery.

So, you know, why the violence is taking place not just in Philadelphia but across the country, I do think some of it rests at the feet of some of these progressive prosecutors that just refuse to actually charge individuals or don't request high bonds for your more violent offenders, plea deals, some of these more serious cases and so forth. It's not entirely their fault but I do think that that adds to it and some of these criminals have become emboldened as a result.

SMERCONISH: I remember your predecessor John Timoney once explaining to me that there was actually a relatively small group of about 5,000 repeat offenders who were disproportionately committing a tremendous amount of crime and that the key was, as he explained to me, keeping them off the street.

RAMSEY: And John was absolutely right. I mean, listen. Those are 5,000 people that need to be in jail. And I think one of the first things that we have to really come to grips with because I've heard a lot of people talk about this they act as if, you know, no one should be incarcerated, no one should be locked up and that's simply not true.

Now, that doesn't mean that there aren't or shouldn't be alternatives to incarceration. Certainly, there should be and there should be very robust systems in place that can handle the volume. But the bottom line is people who are out there doing the shootings, committing the homicides, rape, robbery, and so forth, they need to be arrested. And they need to be -- serve some significant jail time, period.

And I think we've kind of getting away from that. We are looking at numbers in terms of how many people are incarcerated. When the reality is do you have the right people? Do you have the violent people? Do you have the ones causing harm in the community? Are they the ones in custody? If the answer to that is yes, then leave them there for however long that sentence happens to be.

And at the same time, put in place some things to rehabilitate that individual while they are incarcerated so once they do get out they can fit back into society and not resort back to criminal behavior. So, reform needs to take place throughout the entire criminal justice system. One group, whether it's prosecutors or police or whatever by themselves cannot really do it. You have to look at the entire system and put in place reforms that really work.

SMERCONISH: Chief, well said. It will be very interesting to see in about 10 days the outcome of this election because maybe it's a harbinger of what's going to happen across the country. Thank you for being here.

RAMSEY: Thank you.

SMERCONISH: Let's check in on your tweets and Facebook comments. This comes from the world of Twitter, I believe.

Smerconish, hard to separate Krasner from the sharp increase in violent crime that has occurred in Philadelphia over the last year. Prosecutors have an obligation to prosecute.

You know, Steve, I think there is truth in what you say. I just watched. I'm as far -- I'm as caught as I can be. There's a PBS documentary out there about this Philly experiment and is very biased toward Krasner, meaning favorable toward him but the bias is palpable. Having said that it does make the point of Philadelphia having a disproportionate number of folks who are caught up in the system. And Pennsylvania, you know, ranks up there with Georgia. Somewhere, you know, in between, probably lies the way this all ought to be handled. I embrace the way that Ramsey said it.

Still to come, this week's Facebook oversight board upheld the platform's ban of former President Donald Trump for up to six additional months. What could this decision mean for the rest of us, you know, problematic posts by people who are not presidents of the United States?

And I want to remind you to answer this week's survey question at my Web site at "Should enhanced unemployment benefits be reduced to incentivize people to return to work?"



SMERCONISH: The decision this week by Facebook's independent oversight board to continue the platform's blocking of former President Donald Trump has far reaching implications for the power of social media companies. Who will such bans pertain to and how can the board possibly monitor and rule on Facebook's 3 billion users, more than one-third of the world's inhabitants?

The ban had originally been implemented the day after the January 6th Capitol riot when the president posted encouraging words to the rioters. In this week's decision the 20-member board ultimately passed the buck back to Facebook itself.

While the board did uphold Facebook's decision it also criticized the indefinite term of the original suspension. It required Facebook to make a final decision about the ban within six months, calling the original penalty arbitrary, and said that their rule for severe violations must be clear, necessary and proportionate.

So, how did this all come to pass and what does it mean for the rest of us? Joining me now, is Kate Klonick who spent 18 months reporting on how the oversight board was assembled for her piece in "The New Yorker" titled "Inside the Making of Facebook's Supreme Court." She's an assistant professor at St. John's Law School and affiliated fellow of Yale Law School's Information Society Project.


Doctor Klonick, I really loved the granular detail of how it all came to pass. So, Noah Feldman, the Harvard law professor, goes for a bike ride. It occurs to him, hey, we need a Supreme Court for Facebook. He tells Sheryl Sandberg and the rest is history.

But here's the problem. And I want to put up on the screen just one piece of what you wrote. It talks about how much content is out there to be policed. Upwards of -- yes. "According to Facebook, as many as two hundred thousand posts become eligible for appeal every day," you wrote. "The board chooses the most representative cases and hears each in a panel of five members, who remain anonymous to the public."

How can they possibly keep up with that fire hose?

KATE KLONICK, AUTHOR, "INSIDE THE MAKING OF FACEBOOK'S SUPREME COURT": Yes. That is a fantastic question and something that everyone, when they were creating this, was grappling with and very aware of. I think that number has actually gone up, Michael, because they have basically expanded the remit of the board and the types of posts that it can consider.

So, you first have to imagine that they are going to double in size. The board is imagined to be 40 people, but that still doesn't seem to be able to address this massive, massive amount of appeals that is coming its way. There are a number of ways they have to categorize and tag and sort these things and they have an administrative staff basically. I would think of them like staff attorneys or something like that or

clerks of the court that are helping them go through about 40 to 60 people. They are helping them go through these appeals. But, yes, it is a -- it is a fire hose. That is the only way to put it.

SMERCONISH: So, I'm thinking that it therefore lends itself to a whole lot of what about-ism because now you're going to have uneven enforcement. Donald Trump gets taken down, but you know there is going to be some knucklehead out there who does even worse than Trump and gets away with it. Maybe they have a political motivation, maybe not. And people are going to say, oh, you know, you took Trump down, but you let this person continue.

KLONICK: Yes. To that, I just say that's exactly what has been happening any way. That that is exactly what has been happening any ways but the one thing that we haven't had is any type of accountability or transparency to know that that is happening.

And so, at the very least, I think, that this oversight board provides an ability for us to final have some type of visibility into both sides of Facebook and these decisions. Those in the outside that we get to observe and then what is happening internally at the company especially on big case decisions.

SMERCONISH: I thought that Steven Levy at "Wired" had a good observation. He said that Facebook was hoping that the board would evaluate Donald Trump. The board ended up, to an extent, evaluating Facebook, right, pointing out some of the shortcomings in the way they handled this.

KLONICK: Yes. Steven's point was exactly right, and he is so smart on this stuff. He has also spent so much time inside Facebook, and I think that that is exactly what happened. To make a very wonky but -- or accurate analogy this is a little bit like the D.C. circuit getting a case from an administrative body or agency. And the agency saying, hey, tell us -- let's say the Social Security agency.

Hey, tell us what age to start getting benefits for. And the D.C. circuit saying, no, we're not going to tell you what age. You're the expert body, you do this. This is your work and we'll tell you whether it meets constitutional requirements and reasonableness standards. And so I think that this is actually an incredibly elegant decision that's going to be setting us up for some very rigorous legal analysis.

SMERCONISH: I encourage people to actually read the decision and to also read your great piece because it explains how it all came to pass. Dr. Klonick, thank you so much.

KLONICK: Thank you so much for having me.

SMERCONISH: Speaking of social media. Let us check in on your tweets and Facebook comments. See, it would have been perfect if it came from Facebook, but it comes from Twitter. That is all right.

Facebook is a corporation and has the right to ban whomsoever they want as long as they are consistent in its application. The only lasting solution is for a worthy competitor to Facebook to emerge.

Vikram, maybe that happens. By the way, you didn't hear me use the words First Amendment. This is not a First Amendment issue. I totally -- hey, Catherine, can you quickly put up Eugene Volokh's quote? I'm sorry to do this but I never got to it and it's so on point for this person that I want to show what Eugene Volokh, from UCLA, said. Yes, here it is.

So Eugene Volokh, bright guy from UCLA, said this, "The fifth most valuable corporation in the U.S. worth over seven hundred billion dollars, a near monopoly in its market niche, has restricted a political figure's speech to his thirty million followers. Maybe that's fine. Maybe it's a public service. But it's a remarkable power for any entity, public or private, to have."

I thought that so summed it up. They can do whatever they want. They're a private corporation but the actually stripped speech rights, not First Amendment but speech rights nevertheless, of a former president of the United States. Like that's a, whoa, is this a good precedent moment? I think. Still to come, your best and worst tweets and Facebook comments, and the results.


Cannot wait. Have you voted? Go to and tell me. "Should enhanced unemployment benefits be reduced to incentivize people to return to work?"


SMERCONISH: You would think that the noes would have it, right, the no voters on this survey question. Because it's a CNN audience the answers tend to skew a little bit left. "Should enhanced unemployment benefits be reduced to incentivize people to return to work?"

But I just want to say this last week the question was do you agree with James Carville and 70 plus percent did on wokeness. Should enhanced unemployment -- OK.


Well, there it is. Should enhanced unemployment benefits be reduced? Wow. The yeses, 53 percent. That's really interesting, isn't it? Two weeks in a row.

I'll tell you what I love about it. It reflects independence, I think, in the thinking. Any time a survey question comes out 90/10, it bums me out.

Real quick, Catherine, do we have time for one? Here I am bloviating -- pay a respectable wage and people will work. Yes, I get it. If they pay more they'll come back to work. But you have, then, benefited from a competition between the private sector and the government. I'm a private businessman. I'm now competing with the government.

Thank you for watching. Happy Mother's Day. (COMMERCIAL BREAK)